Date: Wed, 30 Dec 98 22:09:45 -0000
ADL Not Completely Protected By Reporter's 'Shield'
Law Some Of It's Alleged Targets Are Entitled To
Discover What The Group Found Out About Them By Philip Carrizosa
Daily Journal Senior Writer
Reinvigorating a suit that accuses the Anti- Defamation League of illegal spying, a state appeal court ruled Monday that at least some of the alleged targets are entitled to find out just what ADL learned about them and what, if anything, may be been disclosed to the governments of Israel and South Africa. In a 3-0 decision, the 1st District Court of Appeal said the ADL is not completely protected by the reporters' shield law. "ADL is protected under the First Amendment only to the extent its activities or those of its agents constitute journalism," wrote Presiding Justice Anthony Kline. "Thus allegations that ADL and its agents privately disclosed non public information about [persons] to foreign governments or others not acting as ADL journalists are outside the scope of the journalist's privilege." While the decision in Anti-Defamation League of B'nai B'rith in Superior Court, A090694, does not the the 17 plaintiffs in the case everything they wanted, the ruling might give them access to a great deal of new information currently in the hands of the ADL and San Francisco police. Woodside attorney Paul McCloskey, the lawyer for the plaintiffs and a former congressman, said he was "delighted" with the ruling because it allows the plaintiffs to proceed with discovery. "This sweeping claim by the defendants that they have complete immunity from discovery laws has been completely smashed by the courts," McCloskey said. Although it is not clear whether the plaintiffs will be able to learn the ADL's sources, the informati on that will now be disclosed is "critical" he said. But an attorney for the ADL said the ruling will actually help the league and may pave the way for dismissal of the suit. Stephen W. Bonse of San Francisco's Heller Ehrman, White & McAuliffe said he believes the discovery ordered by the appeal court will yield no additional significant informations. "I doubt there is anything left to be disclosed," he said adding that the ADL WILL "absolutely not" seek review from the state Supreme Court. The ruling came in a discovery dispute between the ADL and a group of 17 individuals who claim that the Jewish civil rights organization secretly gathered and disclosed personal information about them because of their opposition to the apartheid policy o f the former government of South Africa or because of their criticism of Israeli policies toward the Palestinians. The information-gathering was revealed five years ago when San Francisco police searched the ADL's offices after learning that one of its own officers might have been providing confidential government information to Roy Bullock, the ADL's local "fact fin der." Then-District Attorney Arlo Smith later sued the ADL, but the case was settled after the ADL paid $75,000 and agreed to a permanent injunction against obtaining information the group could not be disclosed to it. In the meantime, the 17 plaintiffs proceeded with their civil suit, alleging the ADL violated California's Information Privacy Act, which allows exemplary damages of at least $2,500, plus attorney fees and costs, for disclosing personal information from government records. In response to discovery requests, the ADL asserted that it was a journalist and qualified for protection under the qualified journalist's privilege set forth in Mitchell v. Superior Court, 37 Cal3rd 268 (1984). Judge Barbra Jones, now an appeal court ju stice, ruled that ADL, which publishes magazines and newsletters, qualified as a journalist. After conducting further discovery, the plaintiffs renewed their document requests, arguing they now satisfied the criteria of Mitchell. This time, Judge Alex Saldamando allowed discovery into all ADL files seized by San Francisco police as well as many of ADL's internal files on its information gathering activities. At first, the appeal court denied the ADL's appeal to block Saldamando's discovery order. But the state Supreme Court ordered the appeal court to hold arguments and reconsider it's decision. In its 30-page opinion Monday, the appeal court ruled that the ADL is immune as a journalist for violating the Information Practices Act as to all but one and possibly three of the plaintiffs. One who taught a class on Palestinians at UC Berkeley, is cle arly a private figure and possibly two others are as well, the court said. But most of the plaintiffs have been sufficiently involved in Middle East or South African causes to be considered public figures and thus subject to the journalist's privilege, Kline said. Nonetheless, the privilege protects the ADL only to the extent that its activities were limited to journalism, Kline said. If, as the plaintiffs contend, the information was disseminated to foreign governments, "the protections of the First Amendment wou ld not be available, because private disclosures of such information to foreign governments could not conceivably constitute legitimate and constitutionally protected journalistic activity,' Kline wrote. "Accordingly, discovery tailored to reveal whether such private disclosures were made should be permitted" concluded Kline, who was joined by justices Paul Haerle and James Lambden.