FRANK McCOY et al., Plaintiffs and Respondents, v. HEARST CORPORATION et al., Defendants and Appellants, 42 Cal. 3d 835

Opinion BIRD, C. J. Do the First Amendment to the United States Constitution and California Constitution

article I,

section 2, protect two reporters and a newspaper against a libel judgment when they obtained and published a prisoner’s affidavit containing allegations of official misconduct on the part of two police inspectors and a prosecutor? I. A suit for libel was brought against the Hearst Corporation, which owns the San Francisco Examiner (hereafter Examiner), and two reporters, Raul Ramirez and Lowell Bergman, by respondents, San Francisco Police Inspectors Frank McCoy and Edward Erdelatz, Jr., and former Assistant District Attorney Pierre Merle.

The jury returned a verdict in favor of respondents in the sum of $4,560,000. The Court of Appeal affirmed the judgment. Respondents complained they were libeled by a series of articles published in the Examiner on May 19, 20 and 21, 1976, written by Raul Ramirez with the assistance of Lowell Bergman. The articles purported to expose the wrongful conviction of Richard Lee for the 1972 San Francisco Chinatown killing of Poole Leong. According to the Examiner, Lee’s conviction was obtained as a result of respondents’ misconduct involving the state’s key witness, Thomas Porter.

The centerpiece of the articles, and the basis of respondents’ libel claim, was the affidavit of Thomas Porter. This affidavit was reprinted in

part in the last

article and mentioned in the two previous articles. Porter, Richard Lee’s cellmate prior to trial, originally testified at Lee’s trial that Lee had confessed the Leong killing to him. However, the Examiner reported that Porter had not only declared this testimony false in a sworn affidavit, but also had charged that respondents procured his trial testimony by threats, coercion, physical assault and promises of leniency. Porter additionally alleged that respondent Merle, who prosecuted the Lee case, provided him with a written story which he memorized with Merle’s help and delivered as testimony at the Lee trial. The

article of May 21st also claimed that a State Bar panel had recommended sanctions be taken against respondent Merle for “alleged misconduct” in relation to another Chinatown case. Shortly after the articles appeared, Attorney Roger Ruffin filed a petition for writ of habeas corpus in superior court on behalf of Richard Lee. The petition alleged that Lee was innocent and that his conviction was based on false and unreliable evidence. Porter’s affidavit was attached as an exhibit in support of the petition, along with declarations from two eyewitnesses to the Leong killing, May Tom and Weyman Tso.

In response to the habeas corpus petition, investigators from the Attorney General’s office located Porter in a halfway house in Wichita, Kansas, and obtained a second affidavit from him on July 22, 1976. In this affidavit, Porter attested that his previous affidavit was false. He signed it, he said, because he was upset at the treatment he had received from the California parole board. Porter denied he had been threatened or forced by anyone to give testimony at the Lee trial, or that any promises had been made to him in exchange for that testimony. II. In the landmark decision of New York Times Co. v.

Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710, 95 A.L.R.2d 1412], the Supreme Court held that a public official may not recover damages for a defamatory falsehood relating to official conduct unless it is proved “that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” (Id.., at pp. 279-280 [11 L.Ed.2d at p. 706].) The high court further declared that in order to ensure that the libel judgment does not run afoul of constitutional principles, it must independently examine the statements in issue and the circumstances under which they were made against the backdrop of the whole record. (Id., at p. 285 [11 L.Ed.2d at p. 709].) Recently, in Bose Corp. v.

Consumers Union of U.S., Inc. (1984) 466 U.S. 485 [80 L.Ed.2d 502, 104 S.Ct. 1949], the court strongly reaffirmed the principle of independent review. “The requirement of independent appellate review reiterated in New York Times Co. v. Sullivan is a rule of federal constitutional law. ... It reflects a deeply held conviction that judges—and particularly Members of this Court—must exercise such review in order to preserve the precious liberties established and ordained by the Constitution.

The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact.

Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of ‘actual malice.’” (Id., at pp. 510-511 [80 L.Ed.2d at p. 523], italics added.) Bose makes plain that in cases involving the constitutional rule of New York Times, those facts that are germane to the central question of actual malice must be sorted out and reviewed de novo, independently of any previous determinations by the trier of fact. (Bose, supra, 466 U.S. at pp. 505-514 [80 L.Ed.2d at pp. 519-526].) “‘The simple fact is that First Amendment questions of “constitutional fact” compel this Court’s de novo review. [Citations.]’” (Id., at p. 509, fn. 27 [80 L.Ed.2d at p. 522], quoting Rosenbloom v.

Metromedia (1971) 403 U.S. 29, 54 [29 L.Ed.2d 296, 318, 91 S.Ct. 1811] (plur. opn. of Brennan, J.); accord Frankson v. Design Space Intern. (Minn.App. 1986) 380 N.W.2d 560, 570 (conc. opn. of Foley, J.) [Bose gives appellate court power to conduct de novo review]; Thompson v. Thompson (1986) 110 Idaho 93 [714 P.2d 62, 64] [citing Bose for the proposition that constitutionally protected interests such as freedom of speech require appellate courts to conduct “free review” of constitutional facts].) Thus, this court must make an independent assessment of the entire record, but only as it pertains to actual malice.

Issues apart from this constitutional question need not be reviewed de novo and are subject to the usual rules of appellate review. (Bose, supra, 466 U.S. at p. 514, fn. 31 [80 L.Ed.2d at p. 526].) Bose involved an allegedly libelous

article in Consumer Reports critiquing the sound path of the Bose 901 loudspeaker system. The

article asserted that the sound tended to wander “about the room.” (Bose, supra, 466 U.S. at pp. 487-488 [80 L.Ed.2d at p. 509].) The federal district court as trier of fact found that this phrase was a false and disparaging statement of fact since the listeners in the sound test, which was the basis of the article, reported instead that there was sound movement “along the wall” between the two speakers. (Id., at pp. 490-491, 494 [80 L.Ed.2d at pp. 510, 513].) Engineer Arnold Seligson, a Consumers Union employee, supervised the listeners’ sound test and interpreted its results in an in-house report.

The district court found Seligson’s report to be the source of actual malice. In its written findings, the court evaluated Seligson’s credibility as a witness and his state of mind when he wrote the report. It concluded that Seligson had knowingly reported a false statement about the speakers’ sound movement and, therefore, wrote with actual malice.

In making this determination, the district court flatly rejected Seligson’s testimony that the two phrases “about the room” and “along the wall” meant about the same thing and expressly found that Seligson’s testimony to this effect was not credible. (Bose, supra, 466 U.S. at pp. 494-497 [80 L.Ed.2d at pp. 512-514].) The court of appeals reversed on the ground that the record could not sustain a finding of actual malice. The court ruled that it must review the actual malice determination de novo and that it was not restricted by the “clearly erroneous” standard of rule 52(

a) of the Federal Rules of Civil Procedure (hereafter rule 52(a)). (See Bose, supra, 466 U.S. at pp. 491 492 [80 L.Ed.2d at pp. 510-511].) That rule mandates that factual findings shall not be set aside unless “clearly erroneous,” and that due regard be given to the opportunity of the trial court to evaluate witness credibility.

The case presented the Supreme Court with an apparent conflict between the New York Times rule of independent appellate review and rule 52(a). (Bose, supra, 466 U.S. at pp. 498-499 [80 L.Ed.2d at p. 515].) The Bose court observed that in New York Times, in the parallel context of review of state jury verdicts, it had rejected a similar contention by the plaintiff there that the Seventh Amendment precluded independent review of a state jury verdict. (Id., at pp. 508-509, fn. 27 [80 L.Ed.2d at p. 522].) “Recognizing that the Seventh Amendment’s ban on reexamination of facts tried by a jury applied to a case coming from the state courts [citations], we found the argument without merit . . .[;] review of findings of fact is appropriate ‘where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the Federal question, to analyze the facts.’” (Ibid.) The high court held that notwithstanding rule 52(a), such a de novo review of “constitutional facts,” i.e., facts underlying the finding of actual malice, was necessary to cases arising from bench trials in district court as well. (Bose, supra, 466 U.S. at pp. 498-499, 510-511, 514 [80 L.Ed.2d at pp. 515, 523, 525-526].) In so doing, it reiterated the holding of New York Times that reviewing courts are obligated to test the actual malice determination against the guaranties of the First and Fourteenth Amendments by making ‘“an independent constitutional judgment on the facts of the case.”’ (Id., at pp. 508-509, fn. 27 [80 L.Ed.2d at p. 522]; New York Times, supra, 376 U.S. at p. 285 [11 L.Ed.2d at p. 709].) The court stressed that there are some issues which, even though largely factual in nature, entail stakes of such constitutional magnitude that they may not be entrusted “finally to the judgment of the trier of fact.” (Id., at p. 501, fn. 17 [80 L.Ed.2d at p. 517]; see also pp. 504-510 [80 L.Ed.2d at pp. 518-523] [discussing other types of First Amendment cases in which the factfinder’s

interpretation of the evidence is subject to independent appellate reevaluation].) Indeed, in Bose the court specifically rejected the inferences drawn by the district court regarding Seligson’s testimony on the issue of actual malice including the finding that his testimony on this issue was not credible.

According to Bose, rather than realizing his statement was inaccurate at the time he wrote it, Seligson suffered simply from a “misconception” that “about the room” was the same as “along the wall.” (Bose, supra, 466 U.S. at pp. 512-513 [80 L.Ed.2d at pp. 524-525].) The district court’s conclusion that Seligson’s testimony, “I know what I heard,” indicated that he must have realized the statement was false when he wrote it was deemed inappropriate. “‘Analysis of this kind may be adequate when the alleged libel purports to be an . . . account of events that speak for themselves.’ [Citations.] Here, however, adoption of the language chosen was ‘one of a number of possible rational

interpretations’ of an event ‘that bristled with ambiguities’ . . . .” (Bose, supra, 466 U.S. at p. 512 [80 L.Ed.2d at pp. 524-525], italics in original.) The high court also noted the existence of the normal rule that testimony disbelieved by the trier of fact “is not considered a sufficient basis for drawing a contrary conclusion.” (Bose, supra, 466 U.S. at p. 512 [80 L.Ed.2d at p. 524].) However, it went on to suspend application of this rule to the actual malice context by salvaging Seligson’s discredited testimony from the heap of disbelief and reinterpreting its constitutional import. “In this case the trial judge found it impossible to believe that Seligson continued to maintain that the word ‘about’ meant ‘across.’ Seligson’s testimony [however] does not constitute clear and convincing evidence of actual malice.

Seligson displayed a capacity for rationalization. He had made a mistake and when confronted with it he refused to admit it and steadfastly attempted to maintain that no mistake had been made—that the inaccurate was accurate. That attempt failed, but the fact that he made the attempt does not establish that he realized the inaccuracy at the time of the publication.” (Ibid.) Both the principles announced in Bose and the manner in which the high court carried out its function of independent review, are the guide to be followed in reviewing the evidence at hand.

First, this court must independently review all the evidence presented on the issue of actual malice. It may not restrict itself, as the Court of Appeal did, to evidence favorable to the judgment. By its repeated emphasis that a New York Times review includes the whole record on actual malice, the high court has made it unmistakably clear that it is constitutionally inadequate to review only those portions of the record that support the verdict. (See Bose, supra, 466 U.S. at pp. 508-509 and fn. 27 [80 L.Ed.2d at pp. 521-523]; Letter Carriers v.

Austin (1974) 418 U.S. 264, 282 [41 L.Ed.2d 745, 760-761, 94 S.Ct. 2770]; Beckley Newspapers v. Hanks (1967) 389 U.S. 81, 82 [19 L.Ed.2d 248, 250, 88 S.Ct. 197]; New York Times Co. v.

Sullivan, supra, 376 U.S. at p. 285 [11 L.Ed.2d at p. 709].) Additionally, our independent assessment may in some cases involve review of evidence which, like Seligson’s testimony in Bose, would be considered “discredited” under usual rules of appellate review by virtue of the jury verdict in favor of respondents. (See Bose, supra, 466 U.S. at p. 512 [80 L.Ed.2d at p. 524].) Second, the execution of this “constitutional responsibility . . . cannot be delegated to the trier of fact” (Bose, supra, 466 U.S. at p. 501 [80 L.Ed.2d at p. 516]), and requires this court to step beyond the usual confines of appellate review.

Normal principles of substantial evidence review do not apply to the appellate court’s independent review of an actual malice determination in a First Amendment libel case. This court is not bound to consider the evidence of actual malice in the light most favorable to respondents or to draw all permissible inferences in favor of respondents. To do so would compromise the independence of our inquiry. “[T]he constitutional responsibility of independent review encompasses far more than [an] exercise in ritualistic inference granting.” (Tavoulareas v. Piro (D.C.Cir. 1985) 759 F.2d 90, 147 (dis. opn. of J.

Skelly Wright, J.), rehg. en banc granted, 763 F.2d 1472, 1481.) Finally, if warranted, this court may do as the Bose court did with Seligson’s testimony and substitute its own inferences on the issue of actual malice for those drawn by the trier of fact. This court must independently determine the constitutional import of any particular witness’s testimony as it relates to the question of actual malice. (See Miller v. Fenton (1985) 474 U.S. 104 [88 L.Ed.2d 405; 106 S.Ct. 445].) III.

The crucial focus of actual malice under New York Times is the defendant’s attitude, or state of mind, toward the allegedly libelous material published. (St. Amant v. Thompson (1968) 390 U.S. 727 [20 L.Ed.2d 262, 88 S.Ct. 1323]; Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256-259 [208 Cal.Rptr. 137, 690 P.2d 610].) In order to evaluate whether the evidence on this record is constitutionally adequate to support the judgment, it is necessary to set out at some length the complete factual record underlying the actual malice determination.

However, this court is mindful that evidence concerning appellants’ investigations and discoveries was not introduced for its truth, but only as it related to the state of mind of the appellants. Preliminary Investigation by Bergman In September of 1974, William Lee, Richard Lee’s brother, approached Bergman, a freelance investigative journalist, with a request that he look into the fairness of the trial proceedings in Richard Lee’s case. William Lee told Bergman that he felt his brother had not received a fair trial.

He was concerned that the outcome of the trial might have been influenced by a report distributed and publicized by the California Department of Justice characterizing Chinese youth gangs as the major organized crime threat in the state. He had attended Richard Lee’s trial and told Bergman that in his view, it had been tried on the “theory” that Richard Lee was a gangster and that “putting him away” would begin to solve gang problems in Chinatown.

Bergman initially refused William Lee’s request to look into the matter, but eventually agreed to read the trial transcript since he was collecting information at the time on organized crime and Chinatown. After his review of the transcript, Bergman concluded that there were several irregularities in Lee’s case. For example, Bergman observed that respondent Merle had apparently not disclosed the existence of the key state’s witness, Porter, until the time of trial. He found Porter’s testimony difficult to believe.

Bergman noted that during respondent McCoy’s testimony in the Lee case, he identified two men in the courtroom audience as Chinatown gang members. Bergman perceived this procedure as “highly unusual” and designed to suggest to the jury that the men were present in order to intimidate May Tom during her testimony. Bergman also noted that when May Tom, the sole eyewitness at trial, was asked if Richard Lee was the person she saw kill Leong, she replied “I guess so.” Bergman made a general assessment that the trial proceedings “didn’t look right”; that there might have been a miscarriage of justice.

He decided to proceed with a preliminary investigation, to try to locate witnesses and to obtain additional information. His motivation to pursue the case was grounded in his belief that the alienation minority youths like Richard Lee experienced frequently led to unjust treatment from the law: “the way in which justice was meted out to them did not seem ... to be fair, that it was necessary in some ways to maybe make some effort to rectify that situation.” Bergman subsequently had several conversations with William Lee, who also provided him with a copy of an affidavit he had obtained from Weyman Tso.

Tso declared that he was present at the scene of the Leong killing but that Richard Lee, whom he knew well, was neither present nor involved. Bergman next conducted interviews as part of his preliminary investigation. He spoke with Berkeley City Council member Ying Lee Kelly regarding the relationship between law enforcement and the Asian community in the San Francisco area. She informed him that it was well known that organized crime, gambling and police payoffs occurred in the community.

She also told him that Asian groups had sued the California Attorney General for the Department of Justice report which characterized Chinese youth gangs as a major organized crime threat. This was the same report that William Lee had told Bergman about. Bergman believed that the Attorney General had later publicly apologized for the report. Bergman next spoke with Paul Avery, a 15-year veteran reporter of the San Francisco Chronicle, whose specialty was police reporting. Bergman had read an

article by Avery on Merle’s prosecution of another Chinatown youth “gang” case involving Joe Fong. Avery told Bergman that a youth named Clifton Wong had, through his attorney, admitted that he committed the crime of which Fong was accused and eventually convicted. Bergman’s understanding was that although this exculpatory evidence was available to Merle, he did not reveal it at Fong’s trial. Avery informed Bergman that Avery’s sources in the San Francisco Police Department had informed him that the police were “after” Fong and intended to “put him away” on any charge possible.

Avery also gave Bergman information concerning May Tom. Avery and another reporter interviewed Tom after the Richard Lee trial. Avery stated that according to May Tom, Avery was the first person to inform her that she was the only eyewitness at the Lee trial. She told Avery that McCoy had told her there were 11 other “witnesses” in the Lee case. Avery subsequently arranged for Attorney Paul Halvonik to interview Tom. Avery informed Bergman that Tom gave a statement to Halvonik that was similar to the one she gave to Avery. Avery urged Bergman to get involved in the Lee case.

The following week, Bergman interviewed Paul Halvonik. Halvonik told Bergman that he had taken a statement from May Tom in which she expressed her distress about the Lee case: she felt she had been misled by Merle; she stated she had been shouted at by Merle; she indicated that her identification of Lee was not as strong as it appeared. May Tom also told Halvonik that she was extremely upset with Merle because he had given the jury the impression that if her testimony seemed equivocal it was because she had been intimidated by Chinese gang members.

In fact, she expressly told Merle that she did not feel intimidated at all. Halvonik further informed Bergman that while he did not feel Tom’s statements were strong enough to overturn Lee’s conviction, he did think that Lee would not have been convicted had the jury known how unsure she was of her identification. In January of 1975, Bergman wrote to Porter in federal prison in Indiana. Bergman stated that he was a journalist and researcher investigating the murder trial of Richard Lee and that he wanted to discuss Porter’s trial testimony.

Bergman alluded to “unorthodox” activities in other cases on the part of the San Francisco police and district attorney. He asked Porter to call him collect if he were interested in discussing what happened during the Lee proceedings. Shortly thereafter, Porter telephoned Bergman collect. It is undisputed that in this first conversation, Porter told Bergman that he had testified falsely at the Lee trial. He told Bergman something had gone on between him and the authorities but that he did not want to go into details because he felt uncomfortable discussing the matter on the telephone.

Porter also told Bergman that the authorities had promised him he would not have to return to California to serve more time and that his entire state sentence would be served concurrently with his federal time. For this reason Porter was very concerned about a California detainer lodged against him which would require him to return to California to serve more time after completing his federal sentence. Bergman did not know what a detainer was at the time, but told Porter he would try to check on Porter’s legal status before visiting him in Indiana. Bergman testified that he did not promise Porter anything.

Bergman told Porter that whether he would do anything for Porter “depended” on what happened when they met. Bergman testified that Porter stated he had never done anything like what he did in Lee’s trial; it “weighed” on him. In his notes of this telephone conversation, Bergman recorded the message Porter asked him to take to Richard Lee: “Let Richard know ‘forgive me’ . . . didn’t do it because I wanted.” Porter testified that in order to get Bergman to help him with the California detainer, he told Bergman he felt badly about lying at Lee’s trial.

Porter acknowledged that in this first telephone call Bergman expressed concern about whether Richard Lee had been properly convicted. Other witnesses in the trial were going to change their testimony, Bergman said, and the San Francisco police had “pressured people.” Porter took this statement as a “suggestion” that Bergman might want him to recant his testimony. Porter felt that Bergman wanted to hear that Porter had not testified truthfully in the Lee trial and he thought that Bergman would help him if he recanted his trial testimony. Porter was willing to lie to Bergman in order to get help with his detainer.

He asked how he could help and Bergman replied that Porter could help by making an affidavit. Porter told Bergman he was willing to meet with him to discuss the matter further. Prior to visiting Porter, Bergman met with Attorney Charles Garry who was handling Richard Lee’s direct appeal. Garry told Bergman that in his opinion Lee’s conviction was a “travesty.” He felt the defense had been inadequate and the case contained reversible error. Garry believed that Lee was a member of a group that law enforcement officials had singled out to “get” because they believed the group was guilty of certain crimes.

Garry also informed Bergman that the prosecution is obligated to disclose to the defense evidence of promises to or recommendations made regarding a witness, so that the jury can adequately assess that witness’s credibility. Around this time, Bergman spoke with Attorney Patrick Hallinan who informed him he had filed a complaint against respondent Merle with the State Bar alleging that Merle had improperly interrogated a witness in another Chinatown case. Development of Bergman’s Relationship with Porter Bergman visited Porter in prison in January of 1975.

Their ensuing interchange is the basis of respondents’ contention that Bergman actually knew Porter’s allegations against them were false. Bergman testified that when they met, Porter reiterated that he had lied at Lee’s trial due to threats and coercion from respondents and that he had never before done such a thing. He told Bergman he would be willing to testify and to execute a sworn statement to that effect.

Porter testified that Bergman told him he represented Richard Lee and that he had come “to find out about me testifying in the courtroom . . . against Richard Lee.” Bergman told Porter he felt that some of the things Porter had testified to were not true. Porter testified Bergman “was wondering” if Porter would be willing “to give another testimony.” Porter claimed that when he told Bergman his testimony at the Lee trial was true, Bergman replied that he did not believe it; he thought it was false.

According to Porter, Bergman told him that if he changed his testimony, Richard Lee stood a chance of getting out and Porter would not have to “do that five to life,” referring to the California detainer. Porter testified that when Bergman asked him whether McCoy and Erdelatz had threatened him, he said no; but Bergman then asked him again, “like it was—it’s not going to work, change of testimony.” At that point, Porter changed his story because he felt that Bergman would then help him get released from the detainer.

Porter also testified, however, that Bergman never came right out and told him to say certain things; he just made “suggestions” and used “leading questions. ’ ’ According to Porter, Bergman did not say outright that he wanted him to give an untrue statement; Bergman would not “just come out and say those words, no.” Nor did Bergman “just come out and say ‘recant your statement.’” Porter confirmed that he told Bergman he testified falsely at Lee’s trial and that it “weighed” on him. He explained that he was angry at respondents and he saw the meeting with Bergman as an opportunity to get back at them.

Bergman testified he told Porter that as part of checking into the story, he would probably be checking into the detainer. He denied that he ever promised Porter any help in exchange for Porter’s giving an affidavit and denied that there was any understanding to that effect. While Bergman had questions about some of the information Porter imparted to him, he also believed much of it could be true. He considered Porter to be taking a considerable risk to his personal safety by stepping forward and making allegations of misconduct against the police and prosecutor.

He viewed Porter’s willingness to give a sworn statement as an indication that he was telling the truth. His and Ramirez’s subsequent investigation and discovery of information relating to the conduct of respondents in other cases increased his feeling that Porter’s charges were believable. For these reasons and because of Porter’s stated willingness to testify as well, it never occurred to Bergman that he was being conned. After his interview with Porter, Bergman worked with William Lee in arranging for Indianapolis Attorney John Manning to take Porter’s affidavit.

Manning met with Porter in February and again in April of 1975. Based on his notes from these interviews, Manning prepared an affidavit which Porter signed in July of 1975. (See Appendix D.) Bergman did not participate in the preparation of the affidavit. Manning testified that at some point before the articles were published, he indicated to Bergman that he had some doubt about Porter’s veracity. Bergman testified that Manning commented only about the lack of weight the testimony of Porter, a convict, would have in a legal proceeding.

Between February and June of 1975, Bergman inquired about the status of Porter’s detainer, as he indicated he would do, and corresponded with Porter on this issue. Bergman believed there might be a record of any promise made to Porter that he would not have to return to California. Bergman contacted Attorney Bruce Hotchkiss who confirmed that there was a letter in Porter’s file reflecting a recommendation from law enforcement officials regarding the detainer. In addition, Bergman was referred through Attorney Halvonik to Alice Lytle in the Governor’s office.

Bergman contacted Lytle and informed her of Porter’s concerns about the detainer. She apparently suggested Porter write to the Governor’s office directly; Bergman passed that address on to Porter. In June, Bergman wrote to Porter regarding Porter’s concern that unless the detainer were dropped, he might still be in custody when he returned to California to testify on Lee’s behalf in connection with the affidavit. Porter was afraid his life would be in danger under those circumstances. Bergman wrote that “. . .we should be clear about my role:

(1) I’m trying to set the record straight and that is my motivation;

(2) I can’t make promises or go to bat for you in a full scale way until Manning finishes otherwise it will all get very complicated. I thought we had a clear understanding there. ” According to Bergman, he wrote this letter to Porter because he needed Porter to step forward with his allegations in a sworn affidavit so there would be documentary proof that a “deal” had been made between Porter and respondents. The “understanding” was that Porter would “go through all the way” and sign the affidavit to make up for the lies he told against Lee.

Bergman would then try to protect him as much as he could should Porter have to return to California to testify in the Lee matter. Bergman felt that unless Porter were willing to step forward with a sworn statement as he had initially indicated he would, the situation would become complicated because Porter would be “put on the spot as to whether or not he had said these things.” Bergman testified he was not sure he would have been so concerned about Porter unless Porter had been willing to sign the affidavit.

Bergman denied that “going to bat in a full scale way” meant helping on the detainer; instead it referred to those efforts he would make to ensure Porter’s safety once he did commit himself in a sworn statement. Investigation by Bergman and Ramirez In April of 1975, Bergman and William Lee persuaded the Examiner to pursue the Richard Lee story. Appellant Ramirez, a reporter for the Examiner, was assigned to work with Bergman in developing and investigating the story. Bergman’s role was to cooperate with Ramirez in the investigation and to maintain contact with Porter.

Ramirez’s role was to investigate and write the articles. During the following year, Bergman and Ramirez interviewed between 35 and 40 people including attorneys, law enforcement officials, writers and experts on Asian youth and community issues, and friends and associates of Richard Lee. They also reviewed documents on Lee’s background and the court files and police records in his and other cases. In the course of these efforts, the reporters uncovered several items which in their minds directly and indirectly corroborated Porter’s allegations.

The most significant of these involved perceived misconduct by respondents in the following circumstances. 1. The reporters located a pretrial discovery order in the Lee case requiring the prosecution to furnish the defense with, inter alia, any and all statements, admissions and/or confessions of the accused and any and all statements of people who might be called as prosecution witnesses. They knew from conversations with Lee’s trial attorney and from their reading of the trial transcript, that respondent Merle had not disclosed Porter’s existence until the first day of trial.

They also knew that the trial judge had denied a defense request for a continuance based on the disclosure of surprise witness Porter. Therefore, appellants perceived Merle’s failure to disclose Porter’s existence as an indication of misconduct, as corroborative of Porter’s misconduct allegations, and as further support for their theory that Lee was denied a fair trial. 2. The reporters learned that after trial and before sentencing, without notifying Lee’s counsel, McCoy and Erdelatz brought Lee to the homicide bureau for questioning about another case.

McCoy later informed the probation department that during this interrogation, Lee had “confirmed” that the evidence presented at his trial was correct. Lee, however, told Ramirez this was untrue. The reporters argued that the conduct of McCoy and Erdelatz in speaking to Lee before sentencing and without counsel was improper and that it was highly improbable that Lee had discussed his case. 3. Porter steadfastly maintained he had been “promised” certain benefits for his trial testimony in the Lee case.

The reporters checked with attorneys and reviewed records which indicated to them that some type of arrangement had in fact been made between Porter and one or more of respondents in exchange for Porter’s testimony. The removal of Porter’s detainer by the parole board in late 1975 superficially corroborated Porter’s claim that he benefited in exchange for his testimony. From the reporters’ perspective, respondents acted improperly both by promising Porter benefits for his testimony and by not disclosing the arrangement to the defense. 4.

The reporters also learned of formal and informal complaints against respondent Merle in other cases. Attorney Patrick Hallinan gave them a copy of his formal complaint against Merle to the State Bar. Hallinan maintained that Merle had improperly interrogated his client, Dean Tom, despite his knowledge that Tom was represented by counsel. Later, according to Hallinan’s charges, Merle had lied in court about the matter.

In addition, Paul Avery informed both reporters that Merle had suppressed exculpatory evidence involving Clifton Wong’s confession that he committed the crime for which Merle was prosecuting Joe Fong. Similarly, Dennis Flanders, who worked at the Police Activities League and had testified against Joe Fong, informed Ramirez that he believed Fong had been “framed” and unfairly convicted. Ramirez also read a newspaper story which reported a case in which an attorney was cited for contempt of court for having told Merle, a witness in the case, to “crawl down from the witness stand.” 5.

Porter told Bergman that during one of his meetings with Merle, he overheard Merle telephone a United States Army sergeant and suggest that an Asian man be dishonorably discharged in retaliation for failing to cooperate with Merle on a murder case. In the course of their investigation, Bergman and Ramirez obtained a copy of a letter from Merle to Major G.W. Sims memorializing their earlier telephone conversation concerning Johnson Lam, who was apparently under Sims’s authority.

In the letter, Merle stated that Lam, a victim of a severe beating by a Chinese youth gang, refused to testify and was extremely uncooperative, evasive and angry. Merle characterized Lam as having a “negative attitude towards a serious problem in . . . society as well as a problem of his own people . . . .” The reporters argued that this letter was corroborative of Porter’s version of Merle’s telephone call. 6. Bergman and Ramirez also had access to a transcript of an interview between Attorney Sandra Terzian and May Tom as well as an affidavit by May Tom prepared by Attorney Roger Ruffin.

Therefore, they were aware of Tom’s sworn statement that she was unsure of her identification of Lee as Leong’s killer and that her attempts to communicate this uncertainty to respondents had been met with anger and misrepresentations about the importance of her role in the case. Ramirez interviewed May Tom four or five times and had several telephone conversations with her about her testimony in the Lee case. The reporters attempted to corroborate Porter’s story through other channels as well.

For example, Ramirez worked with several sheriff’s deputies in an unsuccessful effort to locate jail records which might document the many meetings Porter alleged he had with respondents. The department’s undersheriff informed Ramirez that record keeping was often intentionally incomplete due to security concerns. As a result, Ramirez did not consider his inability to locate any records on Porter’s movement as undercutting Porter’s claim that he had met with respondents numerous times.

Bergman and Ramirez also made repeated but unsuccessful efforts to locate three persons—Porter’s sister, his crime partner and girlfriend, and a missionary—to whom Porter said he had previously related his allegations about respondents. Apart from attempting to corroborate Porter’s charges against respondents, the reporters gathered information regarding other aspects of the Lee case. • For example, they spoke with Lee’s attorney, Lee’s friends and associates, and with alibi witnesses never called to testify by the defense. They interviewed Weyman Tso several times.

Tso reiterated the gist of his sworn affidavit which William Lee had shown Bergman: Tso had witnessed the shooting of Leong and knew that Lee was not involved. Finally, the reporters contacted several people to gather background information on Chinese “youth gangs” and on the relationship between the Chinatown community and law enforcement. Ramirez and the State Bar Allegations Involving Merle During the course of appellants’ investigation, Attorney Patrick Hallinan provided Ramirez with a copy of the letter he had filed against Merle with the State Bar of California.

As noted, this letter charged that despite Merle’s knowledge that Hallinan represented Dean Tom, Merle had improperly interrogated Tom without counsel. Hallinan also told Ramirez that it was his understanding there had been a recommendation within the bar that Merle be disciplined on the Tom matter. Several months later, Ramirez checked with Hallinan again about the status of the Merle complaint. Hallinan told Ramirez that a full committee of the bar had reversed a panel’s earlier recommendation that Merle be disciplined.

Ramirez was also informed by someone at the State Bar that as a matter of policy the bar did not release information about pending complaints. In the

article of May 21,1976, Ramirez wrote that a State Bar disciplinary review committee had decided to sanction Merle for his alleged misconduct in a 1973 Chinatown case. Ramirez added that according to State Bar officials, no official action had been taken. Ramirez’s original draft of this

article stated that a bar panel had recommended that Merle be sanctioned for alleged misconduct, but that “a larger committee overturned this suggestion.” Ramirez testified that after he wrote this draft, but prior to publication, he received “additional information” that caused him to change the story to its final version, omitting any reference to the fact that the recommendation to impose sanctions had been overturned. He further testified that when he submitted that final version for publication, he believed it was accurate. IV.

This case presents “the delicate and sensitive task of accommodating the First Amendment’s protection of free expression of ideas with the common law’s protection of an individual’s interest in reputation.” (Ollman v. Evans, supra, 750 F.2d at p. 974.) Libel laws recognize that each person has a right not to be disparaged by false statements. (Eldredge, The Law of Defamation (1978) § 4, p. 8.) Society’s interest in redressing the harm done to one’s reputation is strong. (Rosenblatt v.

Baer, supra, 383 U.S. at p. 86 [15 L.Ed.2d at pp. 605-606].) Moreover, this court is not unmindful that “ [t]he harm done to one’s reputation by erroneous charges of corruption or dishonesty can never be fully undone, . . . For even an erased question mark still suffices to raise the question, where perhaps none existed before.” (Bird, The Role of the Press in a First Amendment Society (1980) 20 Santa Clara L.Rev. 1, 8 [hereafter Role of the Press].) There exists a substantial tension between the protection of these reputational interests and the commitment to free debate. (See Gertz v.

Robert Welch, Inc. (1974) 418 U.S. 323, 342 [41 L.Ed.2d 789, 806-807, 94 S.Ct. 2997].) Few events place this tension in such graphic relief as when false accusations of corruption are disseminated in an irresponsible and gratuitous fashion by an indifferent and powerful press. Nevertheless, press responsibility is not constitutionally mandated nor can it be legislatively or judicially compelled. (See Miami Herald Publishing Co. v.

Tornillo (1974) 418 U.S. 241, 256 [41 L.Ed.2d 730, 740, 94 S.Ct. 2831].) The First Amendment grants the press a privilege to report and comment upon official actions with no requirement that an individual’s reputation be spared. (Rosenbloom v. Metromedia, supra, 403 U.S. 29, 62 [29 L.Ed.2d 296, 322], conc. opn. of White, J.) As this court recently observed: “Fair and objective reporting may be a worthy ideal, but there is also room, within the protection of the First Amendment, for writing which seeks to expose wrongdoing and arouse righteous anger. . . .” (Reader’s Digest Assn. v.

Superior Court, supra, 37 Cal.3d at p. 259.) The constitutional protections afforded the media under New York Times present a formidable barrier to public official plaintiffs. Equally formidable, however, are those principles which prompted the high court’s articulation of the concept of constitutional malice. The public possesses an “independent interest” in the qualifications and performance of its public officials. (See Rosenblatt v. Baer, supra, 383 U.S. at pp. 85-86 [15 L.Ed.2d at p. 605]; Curtis Publishing Co. v.

Butts (1967) 388 U.S. 130, 153 [18 L.Ed.2d 1094, 1110, 87 S.Ct. 1975].) To effectuate this interest, the public relies upon the press as its agent to gather and disseminate this information (see Saxbe v. Washington Post Co. (1974) 417 U.S. 843, 863 [41 L.Ed.2d 514, 527, 94 S.Ct. 2811] (dis. opn. of Powell, J.), as well as to provide a forum for the expression of criticism and opinion. “The Constitution specifically selected the press ... to play an important role in the discussion of public affairs.

Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve.” (Mills v. Alabama (1966) 384 U.S. 214, 219 [16 L.Ed.2d 484, 488, 86 S.Ct. 1434].) Indeed, the press is our citizenry’s single most important check on governmental misconduct and secrecy. (Role of the Press, supra, 20 Santa Clara L.

Rev. at p. 3.) Informed public opinion is “ the most potent of all restraints ’ ’ upon governmental wrongdoing or mismanagement. (Grosjean v. American Press Co. (1936) 297 U.S. 233, 250 [80 L.Ed. 660, 668-669, 56 S.Ct. 444].) However, it is often impossible for an individual to obtain information about misconduct in government unless the press provides it. (Note, The Right of the Press to Gather Information Under the First Amendment (1978) 12 Loyola L.A. L.Rev. 357, 359.) Thus, it is fundamental that “[c]riticism of government is at the very center of the constitutionally protected area of free discussion.

Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized.” (Rosenblatt v. Baer, supra, 383 U.S. at p. 85 [15 L.Ed.2d at p. 605]; Gomes v.

Fried, supra, 136 Cal.App.3d at p. 932.) This court’s independent examination of the record must be conducted against the backdrop of our society’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” (New York Times, supra, 376 U.S. at p. 270 [11 L.Ed.2d at p. 701].) For these reasons, respondents as public officials must sometimes bear scathing and even false attacks subject only to those narrowly circumscribed exceptions embodied in the concept of actual malice.

The public’s interest in reports of official misconduct, even if they are factually erroneous and damaging, outweighs the reputational interest of any individual. (See New York Times, supra, 376 U.S. at pp. 271-272 [11 L.Ed.2d at p. 701].) As noted, liability under New York Times requires clear and convincing proof of a knowing falsehood or of reckless disregard for the truth. (New York Times, supra, 376 U.S. at pp. 285-286 [11 L.Ed.2d at pp. 709-710].) Recovery by public officials in defamation actions is constitutionally barred unless evidence is produced “of either deliberate falsification or reckless publication ‘despite the publisher’s awareness of probable falsity’. . . .” (St.

Amant v. Thompson, supra, 390 U.S. at p. 731 [20 L.Ed.2d at p. 267].) Reckless disregard for the truth “is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” (St. Amant, supra, 390 U.S. at p. 731 [20 L.Ed.2d at p. 267].) Lack of due care is not the measure of liability, nor is gross or even extreme negligence. (Reader’s Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 259, fn. 11.) St.

Amant named several circumstances which may give rise to serious doubts. “The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation.

Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” (St. Amant, supra, 390 U.S. at p. 732 [20 L.Ed.2d at pp. 267-268].) However, as this court recently explained, neither investigatory failures, proof of the publisher’s ill will, nor lack of objectivity will necessarily deprive even a defamatory falsehood of privileged status. (See Reader’s Digest Assn. v. Superior Court, supra, 37 Cal.3d at pp. 258-259; St. Amant, supra, 390 U.S. at p. 733 [20 L.Ed.2d at p. 268]; Gomes v.

Fried, supra, 136 Cal.App.3d at pp. 934-935.) In order to substantiate their claim of actual knowledge of falsity, respondents rely primarily on several pieces of Porter’s deposition testimony. They assert this testimony establishes with convincing clarity that an arrangement was made between Porter and Bergman whereby Porter would provide a false affidavit in exchange for Bergman’s help in getting the detainer lifted.

Respondents also argue appellants were reckless in ignoring information and failing to pursue several areas of investigation which would have demonstrated that Porter’s affidavit was false and that Richard Lee was guilty. Appellants, in turn, contend that the investigation they undertook to corroborate Porter and to develop the Richard Lee story proves their good faith belief in the probable truth of Porter’s allegations.

They argue that no deal was struck between Porter and Bergman and that they cannot be faulted for relying on Porter since they uncovered a substantial amount of information which they honestly believed corroborated Porter’s veracity. Appellants maintain that respondents seek to impose a double standard whereby respondents could rely on Porter to prove up their libel claim, but would preclude appellants’ similar reliance upon Porter in publishing the articles. Appellants also contend that their thoroughness in investigating the entire context of the Lee case establishes that they published without malice.

Initially, respondents argue that Porter’s testimony concerning the prison interview shows that Bergman not only knew the affidavit was false but helped create it. The record, however, is not nearly so clear. The tone of the prison interview was established by Porter during the first telephone conversation with Bergman. Porter not only told Bergman he had lied at the trial because of something respondents had done, but also expressed great remorse and even begged Lee’s forgiveness.

Bergman’s testimony, and especially his contemporaneous notes of that conversation (“Let Richard know ‘forgive me’ . . . didn’t do it because I wanted”) strongly corroborate Porter’s account. But it is Porter’s own testimony that leaves no doubt he intended to and did convince Bergman that he was speaking the truth when he claimed to have lied at trial. Porter’s admitted motive for lying was to get Bergman to visit him in order to obtain Bergman’s assistance with the detainer.

Bergman experienced an “emotional reaction” to this conversation in which Porter so persuasively pleaded for forgiveness and divulged his feelings of guilt and remorse. Bergman gave a lot of credence to Porter, particularly because Porter was allowing him to visit. In addition, by the time of the visit, several ostensibly credible sources had given Bergman reason to believe that there might have been serious problems with the manner in which Lee was convicted, and that the persons responsible for producing Porter as the state’s key witness might have engaged in questionable behavior in Lee’s case and others.

In view of Bergman’s state of mind, his reaction to Porter’s momentary story change at the subsequent interview was neither surprising nor suspect. According to Porter, Bergman opened the interview by reiterating the very thing Porter told him over the telephone: he believed some of Porter’s trial testimony was false. He was interested in getting a statement from Porter to that effect, or in Porter’s words, “another testimony. ” When Porter told Bergman he had told the truth at trial, Bergman expressed disbelief and said he thought the testimony was false.

It is unclear from Porter’s deposition testimony whether this response— the lynchpin of respondents’ argument—merely reflected Bergman’s confusion over the discrepancy between Porter’s posture on the telephone and his new position (i.e., he thought Porter had told him that the testimony was false); or reflected Bergman’s statement of his own belief that Porter had lied. In either case, respondents err in relying on this isolated piece of ambiguous evidence as sufficiently clear and convincing proof that Bergman knowingly solicited the intricate lie that Porter proceeded to tell and tell again.

As the Supreme Court stated in Bose Corp. v. Consumers Union of U.S., Inc., supra, ‘“[ajnalysis of this kind may be adequate when the alleged libel purports to be an . . . account of events that speak for themselves,’” but is not appropriate where the event in issue “‘bristle [s] with ambiguities.’” (466 U.S. 485 at pp. 512-513 [80 L.Ed.2d at p. 525], italics omitted.) Bergman’s reaction prompted Porter immediately to look to Bergman for cues and to fashion his story accordingly. He interpreted Bergman’s remarks as “suggestions” of what Bergman wanted to hear.

Experienced at manipulation, Porter was able to identify Bergman’s concern that Lee had been unfairly convicted and exploit it. Porter acknowledged that Bergman did not tell him to say anything. In fact, by the time he gave his affidavit to Manning, Porter was quite convinced he had managed to “run a scam” on both Bergman and Manning. Furthermore, there is no evidence that Bergman’s request that Porter give another story was a request that Porter give false testimony, although Porter apparently construed it as such a “suggestion,” or came as a response to Porter’s telling him that he had told the truth at trial.

Rather, the record as a whole indicates that Bergman asked Porter if, based on what Porter had told him about respondents’ behavior, he would be willing to step forward to right the wrong he had committed against Lee—to give a different statement than he had given at trial. This evidence is a far cry from clear and convincing proof that Bergman’s request that Porter give a different story was a request that Porter lie. The record does demonstrate that Bergman agreed to help Porter on the detainer matter because Porter was willing to execute a sworn statement documenting his oral allegations.

Bergman testified that he probably would not have continued to make inquiries about the detainer had Porter not signed the affidavit. However, unless Bergman were actually aware that Porter’s claims were false, nothing illicit existed between them. While it may have been foolish and even grossly negligent of Bergman to entertain any discussion at all about the detainer at the same time he was asking Porter to swear to his accusations in an affidavit, this juxtaposition of events is of no moment if Bergman did not know Porter’s accusations were false.

Bergman’s offer to make inquiries on behalf of someone incarcerated and unable effectively, or as easily, to fulfill a promise both men believed respondents had already made, was not nefarious. Absent knowledge of falsity, any arrangement between Porter and Bergman regarding the detainer was lacking in constitutional malice considering Bergman’s subjective viewpoint. In sum, the conversation that occurred during the interview is constitutionally inadequate to support a conclusion either that Bergman knew Porter’s allegations were false or that he fabricated them.

It may be appropriate to fault Bergman for his credulity, his failure to be more cynical or guarded in his responses to Porter, and particularly for his ill-timed offer of assistance with the detainer. However, the ambiguous statements and conduct upon which respondents rely do not demonstrate with convincing clarity that Bergman acted with knowledge of falsity. Respondents also contend that appellants were reckless for failing (1) to reject Porter as an obviously biased source; (2) to reject his charges as inherently incredible; and (3) to investigate adequately his accusations.

Respondents analogize appellants’ reliance on Porter to the defendants’ reliance on informant Burnett in Curtis Publishing Co. v. Butts, supra, 388 U.S. 130. However, the plurality opinion in Butts, a “public figure” case, analyzed the adequacy of the investigation undertaken in preparation of the

article in terms of whether it showed “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.” (388 U.S. at p. 155 [18 L.Ed.2d at p. 1111].) This court has previously noted in Reader’s Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 258, fn. 9, that the Butts standard is an objective one which has since been superseded by the subjective standard propounded in St. Amant v. Thompson, supra, 390 U.S. 727. Accordingly, respondents’ reliance on Butts is misplaced. Therefore, we must look to St.

Amant for guidance. That case concerned a television broadcast in which defendant, St. Amant, repeated charges made by one Albin, a member of the Teamsters Union, that plaintiff Thompson, a deputy sheriff, had been involved in illegal payoffs and official corruption with St. Amant’s political opponent. The Supreme Court held that Thompson had not satisfied his constitutional burden of showing that St. Amant’s reliance on Albin was reckless.

In explaining the holding, the high court first clarified that in order to find a defendant published with reckless disregard, there must be either (1) “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication”; or (2) “obvious reasons to doubt the veracity of the informant or the accuracy of his reports. ’ ’ (St. Amant, supra, 390 U.S. at pp. 731, 732 [20 L.Ed.2d at pp. 267, 268].) The court then made the following observations which are pertinent to this case. “Closer to the mark are considerations of Albin’s reliability.

However, the most the state court could say was that there was no evidence in the record of Albin’s reputation for veracity, and this fact merely underlines the failure of Thompson’s evidence to demonstrate a low community assessment of Albin’s trustworthiness or unsatisfactory experience with him by St. Amant. “Other facts in this record support our view. St. Amant made his broadcast in June 1962. He had known Albin since October 1961, when he first met him with members of the dissident Teamsters faction. St.

Amant testified that he had verified other aspects of Albin’s information and that he had affidavits from others. Moreover Albin swore to his answers, first in writing and later in the presence of newsmen. According to Albin, he was prepared to substantiate his charges. St. Amant knew that Albin was engaged in an internal struggle in the union; Albin seemed to St.

Amant to be placing himself in personal danger by publicly airing the details of the dispute.” (390 U.S. at p. 733 [20 L.Ed.2d at p. 268], italics added.) Preliminarily, it should be noted that Porter’s charges that he had been coerced, struck, and otherwise improperly induced to testify are not inherently improbable. New York Times and its progeny are founded upon the assumption that corruption at all levels of government, including those branches charged with enforcement and prosecution of the penal laws, exists and needs to be aired.

Moreover, on October 27, 1977, this court granted Richard Lee’s petition for hearing, which was supported by Porter’s allegations against respondents, and issued an order to show cause why relief in Lee’s habeas corpus matter should not be granted. The superior court was ordered to hold an evidentiary hearing on the factual disputes raised by the petition. Significantly, in determining whether to grant such relief, this court had before it not only Porter’s original affidavit but also his sworn recantations of that document contained in his affidavit of July 22, 1976, and in his deposition testimony.

Therefore, appellants can scarcely be considered reckless for not rejecting Porter’s allegations out of hand when this court has previously found those same charges to be sufficient to warrant further judicial intervention. Appellants, and particularly Bergman, had reason to believe most of Porter’s story. Porter was very worried that his life would be in jeopardy should he be returned to California to testify on Lee’s behalf. There, Porter would be under the physical control of the people he had accused of misconduct. He expressed these concerns to Bergman several times. Like the source in St.

Amant, Porter swore to his allegations in writing and told Bergman he was willing to testify if Bergman would “go to bat” for him and help assure his personal safety. Porter seemed to Bergman “to be placing himself in personal danger by publicly airing the details . . .” of his charges against respondents. (St. Amant, supra, 390 U.S. at p. 733 [20 L.Ed.2d at p. 268].) Bergman’s opinion of Porter’s veracity was further influenced by Roger Ruffin, an experienced attorney and former municipal and superior court judge.

Ruffin told Bergman that in his opinion the materials in the habeas corpus matter including Porter’s affidavit constituted an excellent case for relief, and that Lee’s habeas corpus case was one of the most complete he had seen. (Contrast, Curtis Publishing Co. v.

Butts, supra, 388 U.S. at p. 158 [18 L.Ed.2d at pp. 1112-1113] [media defendant’s conduct held highly unreasonable due to failure to check source’s story with someone knowledgeable in the field].) Finally, it is noteworthy that respondents now seek a ruling from this court that since Porter was a prisoner with something to gain, there were obvious reasons to doubt his credibility and thus any reliance on Porter was reckless.

Yet, thrice in the history of these proceedings, respondents have relied upon statements and stories from Porter: once, to convict Richard Lee; a second time to defeat Lee’s habeas corpus claims; and a third time to obtain a multi-million dollar libel judgment. These litigious ironies do not excuse appellants from accountability for recklessness if they possessed a ‘“high degree of awareness of . . . probable falsity.’” (See St.

Amant, supra, 390 U.S. at p. 731 [20 L.Ed.2d at p. 267].) However, they do undermine the strength of respondents’ suggestion that “only a reckless man” could have believed the things Porter had to say. (Id., at p. 732 [20 L.Ed.2d at p. 268].) The Supreme Court has consistently confirmed that in the constitutional malice context, failure to investigate does not in and of itself establish bad faith. (See, e.g., St. Amant, supra, 390 U.S. at p. 733 [20 L.Ed.2d at p. 268]; New York Times, supra, 376 U.S. at pp. 287-288 [11 L.Ed.2d at p. 711]; Beckley Newspapers v.

Hanks, supra, 389 U.S. 81, 84-85 [19 L.Ed.2d 248, 251-252].) Respondents nevertheless point to investigational deficiencies and claim these demonstrate reckless conduct. However, this court notes that appellants uncovered information during their one-and-a-half-year investigation which in their minds corroborated Porter’s charges. For example, appellants obtained independent information which they believed substantiated Porter’s claim that respondents had made certain promises in exchange for his testimony.

They spent several hours trying to locate jail records to support Porter’s claim that he had repeatedly met with respondents. They attempted, albeit unsuccessfully, to find examples of prior recitations by Porter of his story. In their opinion, there was no necessary correlation between the failure to locate certain witnesses or records and any lack of veracity on Porter’s part. Most importantly, they learned from several sources that respondents had been accused by others of misconduct and questionable practices. Again, whether these similar accusations of misconduct were true is not in issue.

What is dispositive is that appellants relied upon these ostensibly credible sources in forming a judgment that Porter’s claims might have some validity. In addition, appellants interviewed a variety of sources, from police officers to lawyers to Asians active in the Chinatown community, in order to explore Porter’s charges and to understand the relationship between law enforcement and Asian youth in Chinatown. Appellants were also told by members of the police force that other Asian youths like Lee had been “framed” on false charges. Appellants had some reason to doubt Porter’s credibility.

Manning had opined to Bergman that he had “some doubt” about Porter’s veracity, although Bergman apparently construed this remark as a comment on Porter’s chances of being believed in court in view of his status as a convict. Bergman knew that Porter was concerned about the detainer and wanted assistance. In the text of the affidavit, Porter made some superficially outlandish claims that neither of the reporters took literally.

Ramirez also wrote a note to his superiors at the Examiner at the outset of his investigation indicating that Porter’s statements should be viewed with “skepticism.” These questions about Porter did not rise to the level of “serious doubts.” And in any event, they were largely dispelled as a result of the investigation undertaken in response to Porter’s charges and appellants’ subjective beliefs concerning the information they uncovered. The record as a whole supports the conclusion that at the time the articles were published, appellants did not possess a subjective awareness of probable falsity. (See St.

Amant, supra, 390 U.S. at p. 731 [20 L.Ed.2d at p. 267].) Finally, respondents posit that appellants were reckless by failing to reinterview Attorney Stanley Golde with whom Richard Lee had met to discuss a potential defense when he first learned he was being sought by the police in connection with the Leong homicide. Golde had told Bergman that the information he had about Lee would not be beneficial to the reporters. Bergman testified that he construed Golde’s statement to mean that whatever information Golde had about Lee “might not be helpful” and could have been detrimental to Lee.

The reporters decided that it was not in their interest to recontact Golde. Assuming arguendo that respondents are correct when they speculate that Golde would have told appellants that Lee was guilty, this knowledge would not have seriously affected their view of Porter’s veracity. Porter never told Bergman nor did he swear in the affidavit, that he knew Lee was innocent. Indeed, Porter declared in the first affidavit that Richard Lee would not talk about his case to Porter. Respondents have never contended they were libeled by the articles’ suggestion that Lee might be innocent.

Their claim is based exclusively on Porter’s published allegations. The “sting of the libel” (Curtis Publishing Co. v. Butts, supra, 388 U.S. 130, 138 [18 L.Ed.2d 1094, 1101]), was that respondents improperly procured Porter’s testimony about Lee. This “sting” would have remained had appellants published the identical charges of official misconduct, but conceded Lee’s guilt. Similarly, the fact that appellants might have had reason to believe Golde would tell them Lee was guilty bears little if any relationship to their subjective belief in Porter’s veracity.

Appellants were not obliged to assure themselves beyond a reasonable doubt that Lee was innocent before airing charges of official misconduct. These charges were logically independent of his guilt or innocence. Appellants’ states of mind as to Richard Lee’s guilt or innocence are not determinative of their subjective attitudes toward the truth or falsity of Porter’s charges. Respondent Merle additionally contends that the information contained in the May 21st

article about the State Bar disciplinary proceedings was published with actual malice. At trial, Merle’s counsel argued that this portion of the

article constituted a known falsehood in that

(1) Hallinan had told Ramirez that the bar had decided not to impose sanctions; and

(2) Ramirez completely fabricated his testimony that “additional information” led him to believe that the recommendation to impose sanctions had not been overturned. Respondents were able to make these arguments because the trial court erroneously ruled that Ramirez could not testify that the source of his “additional information” was reporter Larry Hatfield. Hatfield had covered State Bar affairs for years and Ramirez considered him to be a reliable source.

During discovery Hatfield testified that he informed Ramirez that a disciplinary review committee had decided to impose “unspecified disciplinary action” against Merle. Hatfield had obtained this information from a qualified State Bar source. However, Hatfield refused to divulge his bar source. Respondents obtained a commissioner’s order that should Hatfield fail to disclose his source, it would be deemed established for purposes of this action that there was no such source. The trial court misconstrued the commissioner’s order to include a ban on any mention of Hatfield whatsoever.

Therefore, Ramirez was prevented from testifying not simply as to the existence of Hatfield’s source, but also as to the existence of his own source, Larry Hatfield.

Article I,

section 2, subdivision (

b) of the California Constitution and Evidence Code

section 1070 prohibit contempt proceedings against publishers, editors, reporters and others for failure to reveal their sources of information. Code of Civil Procedure

section 2034 authorizes the court to impose reasonable sanctions against one who refuses to provide discovery or respond to appropriate questions during deposition. This case presents the interplay between (1) a reporter’s right not to divulge a source, and (2) those provisions governing the redress of wilful failures to disclose information during civil discovery proceedings. However, this court need not resolve the tension between these laws here. The commissioner’s order clearly did not bar Ramirez from explaining that he had relied upon his source, Hatfield.

Nor would there have been any logical basis for such a sweeping ban on Ramirez’s testimony. Hatfield was the disobedient deponent, not Ramirez. Hatfield’s confidential source at the State Bar was the object of controversy, not Ramirez’s source. Ramirez did not refuse to disclose his source nor did he attempt to introduce evidence of Hatfield’s source. The trial court erred in disallowing Ramirez’s testimony that he had a source for the published statements. When the May 21st

article is evaluated in light of Ramirez’s actual state of mind, it is clear that as a result of the information he received from Hatfield, Ramirez had reason to and did believe that a State Bar committee had decided to sanction Merle. Although respondents were allowed to argue that Ramirez invented this story, it was in fact based on a trusted source. No actual malice existed.

In New York Times, the high court refused to hold the publisher liable even though the Times would have discovered the falsity of the published material had they simply checked their own news files. (376 U.S. at pp. 287-288 [11 L.Ed.2d at p. 711].) In that case, the court affirmed that freedom of expression requires “‘breathing space’”—room for error—if it is to survive. (Id., at p. 272 [11 L.Ed.2d at p. 701], quoting NAACP v.

Button (1963) 371 U.S. 415, 433 [9 L.Ed.2d 405, 418, 83 S.Ct. 328].) The Supreme Court recently reaffirmed the fundamental precept that error is inevitable in free debate and that even demonstrably false statements must be protected absent actual malice. (Philadelphia Newspapers, Inc. v.

Hepps (1986) 475 U.S. 767, — [89 L.Ed.2d 783, 793-794, 106 S.Ct. 1558, 1564-1565]; see New York Times, supra, 376 U.S. at p. 272 [11 L.Ed.2d at pp. 701-702]; Barron & Dienes, Handbook of Free Speech and Free Press, § 61.1, p. 226.) The critic of official conduct is not compelled “to guarantee the truth of all his factual assertions” for “to do so on pain of libel judgments virtually unlimited in amount” results in self-censorship. (New York Times, supra, 376 U.S. at p. 279 [11 L.Ed.2d at p. 706].) In light of these settled principles of constitutional law, this court concludes that appellants did not harbor actual malice when they published the articles containing false allegations of official misconduct involving respondents.

V. One additional issue that arose in the course of this trial must be addressed. The jury was instructed in the modified language of BAJI No. 14.71 (6th ed. 1977) in pertinent part as follows; “If you find that plaintiffs suffered actual damages as a proximate result of the conduct of the defendants on which you base a finding of liability, you may then consider whether you should award additional damages against defendants, for the sake of example and by way of punishment.

You may in your discretion award such additional damages, known as punitive or exemplary damages, if, but only if, you find by clear and convincing evidence that said defendants were guilty of oppression, fraud, or actual malice in the conduct on which you base your finding of liability. “ ‘Malice’ means a motive and willingness to vex, harass, annoy or injure another person.

Malice may be shown by direct evidence of declaration of hatred or ill-will or it may be inferred from acts and conduct, such as by showing that the defendant’s conduct was wilfull [sic\, intentional, and done in reckless disregard of its possible results.” (Italics added.) This instruction was apparently based on Civil Code

section 3294, which provides guidelines for the imposition of punitive damages in civil cases. The trial court refused to instruct in the language of

section 48a, which governs the award of punitive damages in newspaper libel cases.

Section 48a, subdivision 4(d), defines “actual malice” for purposes of punitive or exemplary damages, as “that state of mind arising from hatred or ill will toward the plaintiff; provided, however, that such a state of mind occasioned by a good faith belief on the part of the defendant in the truth of the libelous publication or broadcast at the time it is published or broadcast shall not constitute actual malice.” In order to reach the issue of “actual malice” under

section 48a for purposes of awarding punitive damages, the jury must first have found liability based on New York Times “actual malice.” These two types of “actual malice” are very different. The New York Times test “directs attention to the ‘defendant’s attitude toward the truth or falsity of the material published . . . [not] the defendant’s attitude toward the plaintiff.’” (Reader’s Digest Assn. v.

Superior Court, supra, 37 Cal.3d at p. 257.) Actual malice under New York Times “is quite different from the common-law standard of ‘malice’ generally required under state tort law to support an award of punitive damages. . . . [C]ommon-law malice—frequently expressed in terms of either personal ill will toward the plaintiff or reckless or wanton disregard of the plaintiff’s rights—would focus on the defendant’s attitude toward the plaintiff[] . . . not toward the truth or falsity of the material published.” (Cantrell v.

Forest City Publishing Co. (1974) 419 U.S. 245, 252 [42 L.Ed.2d 419, 426-427, 95 S.Ct. 465].) “‘[I] 11 will toward the plaintiff, or bad motives, are not elements of the New York Times standard.’ [Citations.]” (Letter Carriers v.

Austin, supra, 418 U.S. at p. 281 [41 L.Ed.2d at p. 760].) The punitive damage instruction in this case effectively dissolved the distinction between these two types of ‘ ‘ actual malice. ” It did not require the jury to base its punitive damage award on a finding that defendants bore “hatred or ill will toward the plaintiff.” The jury was informed that it could base its finding of malice either on direct evidence of such hatred or ill will, or on intentional conduct or reckless disregard for the results of that conduct.

By the reference to and juxtaposition of “intentional conduct” and “reckless disregard,” the instruction given was strikingly similar to that which the jury received regarding the determination of liability based on New York Times actual malice. Therefore, the jury may well have confused the two phrases and improperly based its award of punitive damages on its finding of New York Times actual malice. The danger of confusion was compounded by the use of the word “conduct” in the first part of the punitive damage instruction.

The jury was instructed that it could award punitive damages if it found by clear and convincing evidence that the defendants “were guilty of . . . actual malice in the conduct on which you base your finding of liability.” The flaw in this sentence is apparent. If the jury found liability based on appellants’ conduct in publishing the articles with New York Times actual malice, it was then free to award punitive damages based on that same conduct. Such a result would eliminate the sharp distinction between the actual malice required by New York Times and that necessary to award punitive damages under

section 48a. This instruction should not have been given. However, it is not necessary to reach the impact of this error in light of the court’s finding that the record does not establish liability under New York Times. VI. In sum, this court holds under New York Times that the evidence does not establish with convincing clarity that appellants possessed actual malice when they wrote and published the disputed articles. The judgment of the Court of Appeal is reversed with directions to reverse the judgment of the trial court.

Broussard, J., Reynoso, J., McClosky (Eugene), J., and Johnson (Earl), Jr., J., concurred. Mosk, J., and Lucas, J., concurred in the judgment. Appendix A San Francisco Examiner (Wednesday, May 19, 1976) "How lies sent youth to prison for murder; Curious conviction in Chinatown trial" By Raul Ramirez, copyright 1976, San Francisco Examiner On Nov. I, 1972, Richard W. Lee, 19, wu convicted of first-degree murder in whit Ssn Francisco authorities hailed as a major breakthrough in their attack on Chinese youth gangs.

Now, 314 years later, an Examiner investigation has uncovered evidence that he was convicted on the basis of perjured and misleading testimony exacted by a prosecution that badly needed a conviction. Lee is serving a life sentence at Deuel Vocational Institution in Tracy. His conviction by a jury came after a series of widely publicized shootings that prompted then-Mayor Joseph Alioto to declare that the streets of Chinatown were nevertheless “the safest place in town for tourists and Caucasians.” The mayor asked for immediate police action to make them safe for Chinese.

Lee’s trial had unfolded in a city shaken by a succession of spectacular slayings among young Chinese and a degree of alarm echoed by the highest law-enforcement authorities in California. On the morning 12 jurors retired to decide Lee's fate. Bay Area newspaper! quoted state Any. Gen.

Evclle Younger as telling a press conference in Sacramento: "Chinese gangs are fast becoming serious threats in the sute and other parts of the country in cities and towns having Chinese communities." In San Francisco, where a string of more than a dozen killings spinning a two-year period had baffled police and frightened many in The City’s growing Chinese community, a conviction was viewed as a significant accomplishment. The guilty verdict in Richard Lee’s trial was hailed as such in press reports.

The peculiar circumstances surrounding the Lee case, documented by the Examiner during a lengthy investigation, include: •The testimony of a cellmate that Lee had confessed to the killing and boasted of his gang connections while awaiting trial. The cellmate, in a sworn sutement obtained by the Examiner. says now that his testimony was fabricated by Lee’s prosecutor. He says he wu induced to testify under threat of violence and promises of leniency. •The identification of Lee as the killer by a witness to the slaying.

That witness, a 16-year-old girl, now swears she was never sure of the killer’s identity but was rebuffed by prosecutors and police when she told them so. She says she agreed to testily against Lee only after being falsely assured that 11 other witnesses had also identi

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