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Monday, July 02, 2007

Commentary: Judge SLAPPs Down Buzayan Suit Against Newspaper

It was reported last week in the Davis Enterprise that a judge had dismissed the portion of the Buzayan suit that was aimed at sanctioning the Davis Enterprise for posting the audio tapes of the arrest of then 16-year old Halema Buzayan in 2005.

That suit was based on two key factors. First, that the District Attorney's office had leaked the tapes to the newspaper against the orders of Judge Thomas Warriner. And second, that the Davis Enterprise had failed to edit out specific personal information about the Buzayan children and their family, not to mention also personal information about the victim. The tapes containing that personal information were left up for five days, until the victim emailed Assistant Publisher/Editor Debbie Davis at the Davis Enterprise and the paper pulled down the tapes until they could edit them.

Of the 19 complaints filed in the Buzayan lawsuit, from the beginning this would appear to be the most problematic. Could a paper be sanctioned for knowingly publishing tapes that they had acquired from a government body--in this case the DA--that under most conditions they knew should be confidential by law.

If we think about it from another standpoint, the answer appears to be more obvious. Suppose this were not the District Attorney's office but rather a whistle-blower leaking this information to the press. Instead of a case against a juvenile, it involved some sort of corporate malfeasance about a major company and their CEO. The whistle-blower illegally leaks the information to the press and the press reports it as a huge expose. Do we want that company to be able to sue the newspaper under those conditions? I think the answer is simply that we do not. Therefore it is difficult for me to fault the ultimate ruling from Judge England.

However, from other angles this ruling is still a bit perplexing.

Judge England decided this case under SLAPP (Strategic Lawsuit Against Public Participation). He writes:
"California’s Anti-SLAPP law is aimed at curtailing civil actions designed to deter private citizens from exercising their rights of free speech."
SLAPP primarily refers to the suits placed by large corporations or other wealthy entities against individuals who are practicing free speech activities. These large entities can simply use their vast resources to force individuals to defend themselves in the legal arena. The huge discrepancy in resources means that an individual is severely disadvantaged in the fight and therefore such suits create a chilling effect on the free exercise of speech.

In this case, you have a family suing the newspaper for releasing what they deem to be confidential information regarding a juvenile case and negligently posting private information that could end up being used by identity thieves against the family. The Davis Enterprise is not disadvantaged in their resources compared with a private family and so SLAPP in this manner seems to be used to prevent a suit for which it was not intended to be used.

In response to the verdict, Davis Enterprise Editor Debbie Davis proclaimed:
“We're very pleased with the judge's ruling. We were sued, basically, for doing our job - for covering a story of intense public interest and for making important audio files available to the public. We're happy that Judge England affirmed our constitutional right to do so.”
This is a misleading statement by Ms. Davis. The Davis Enterprise was sued because they chose to print and post material from a juvenile case that was supposed to by law and Judge Warrnier's ruling remain confidential. The Deputy District Attorney in this case, Patty Fong was explicitly told by Judge Warriner that the district attorney's office could not release information or discuss this matter because it was a juvenile case. The family is always permitted to release information and discuss this matter. As Judge Warriner explained when he denied Fong a motion to gag the defense, the juvenile laws were set up to protect the rights of minors not to protect the government from charges of impropriety.

It does create a burden on the government, but the law was set up to protect minors and juveniles from just the sort of abuse that Ms. Buzayan received from the DA's office. The DA's office used the Davis Enterprise to achieve their goals here and I think attorney Whitney Leigh was exactly right when he said that "the reporting and recordings were meant to embarrass, humiliate and cause hardship to the Buzayan family.” They clearly were.

The family was not suing the Davis Enterprise for doing their job. They sued the Davis Enterprise for working with the DA's office to violate a juvenile's right to privacy.

In the end, I think the Judge here made a tough ruling. It took him nearly two months from the time of the hearing to the time of his ultimate verdict. That indicates that he felt this was a very close call.

However, what the newspaper failed to note is that 18 of the 19 complaints filed by the Buzayan family have been allowed to go forward for trial. That includes the meat of the case against the Davis Police Department and the District Attorney's Office. In looking at this case, this complaint against the newspaper seemed to be the most difficult to sustain and proceed to trial because of free speech protections provided to newspapers and the unwillingness of most Judges (and rightfully so) to sanction a paper for reporting on something that they obtained legally (at least on their end).

In the end, the Buzayans will get their day in court. The Davis Enterprise will eventually have to own up to Debbie Davis' proclamation that the officer "was doing his job and doing it well." That will be the Buzayan family's ultimate vindication.

---Doug Paul Davis reporting