Reporter’s Right to Criticize Judge Upheld

A journalist can state with virtual impunity that a judge is unfit to serve, because such a statement is opinion protected by the 1st Amendment, a federal appeals court in San Francisco ruled Wednesday.

The 3-0 ruling by the U.S. 9th Circuit Court of Appeals came in a suit filed by Santa Barbara Superior Court Judge Bruce W. Dodds, who had sued ABC over an October 1994 “Prime Time Live” program.

Although noting that “judges provide an easy and attractive target for unwarranted verbal assaults by all kinds of people,” Judge Stephen Reinhardt wrote that “part of our American heritage is the right of all citizens to express their views about politicians, officeholders and umpires, frequently in highly unfavorable terms.”

“Indeed, were we to conclude otherwise, millions of citizens and hundreds of political pundits would currently be committing libelous and slanderous acts on a daily basis,” he added.

Although courts have generally given journalists wide latitude in criticizing public officials, Reinhardt’s decision was notable for its breadth, said Erwin Chemerinsky, a constitutional law professor at USC Law School.

The opinion held that the 1st Amendment protects “statements of opinion concerning whether a person who holds high public office is fit for that office or is competent to serve . . . whether or not those statements are supportable, verifiable or based on facts or premises that are disclosed.”

That rule “is a stronger statement than the Supreme Court has ever made about 1st Amendment protection of statements of critical opinion about a person’s unfitness to hold public office,” Chemerinsky said.

The decision comes as federal trial judges in Los Angeles are contemplating adopting a new rule that would make it much more difficult for attorneys to criticize judges without fear of punishment.

Under the proposed rule, any attorney who accuses a federal judge of dishonesty, illegal activity or discrimination could be brought before a disciplinary committee that could disbar, suspend or fine attorneys who “impugn the character or integrity of any judicial officer.”

Reinhardt’s opinion did not address that proposal but expressed a markedly different attitude about how judges should respond to criticism.

“Wise judges, even when wounded by unfair assaults, have learned that the best policy is ordinarily to dismiss the attacks as part of the baggage of their jobs,” he wrote.

The proposal by the federal court judges has been under fire from civil libertarians. The new decision makes “it even clearer that if the proposed rule went into effect it would be blatantly unconstitutional,” Chemerinsky said.

Wednesday’s ruling stemmed from a TV segment titled “Who’s Judging the Judges?” The program portrayed Dodds, a state court judge then under investigation by the California Commission on Judicial Performance, in a negative light.

The program was anchored by Diane Sawyer, who said at the outset that ABC News reporter Cynthia McFadden would tell about “judges whose conduct seems downright scandalous.” Dodds was described as “a court jester . . . anything but a respectable Superior Court judge.”

The segment focused on Christine Johnson, a woman who said Dodds had used a crystal ball in setting a settlement figure in a case in which she and her son had sued a Catholic priest for sexually molesting the boy. McFadden said the judge pressured the woman into accepting a low settlement offer. After telling Johnson what he thought the case was worth, Dodds “pressed a button on” a crystal ball on his conference table, Reinhardt’s decision said in describing the segment.

“The crystal ball responded ‘yes,’ confirming Dodds’ settlement figure, and the judge then said to Johnson, ‘There it is. That’s it. That’s what you get,’ ” the decision continued. McFadden then said lawyers and other sources told her Dodds often used the crystal ball to support his decisions.

The Dodds piece was juxtaposed with segments on two other judges, one who had sexually molested litigants for years and another who was awaiting trial on charges that he had molested juveniles.

Dodds sued ABC for slander and intentional infliction of emotional distress, contending that the network had depicted him as a criminal and unfit for office.

Reinhardt, joined by Judges Wallace Tashima and James M. Fitzgerald, ruled that Dodds’ case should be dismissed without a trial.

While ABC “could have done a more thorough and responsible job . . . in determining the facts before presenting its report,” the judges noted that the network had interviewed a number of people about Dodds’ conduct and had confirmed that he kept a crystal ball in chambers. The judges also stressed that in response to requests from ABC, Dodds had declined comment.

Los Angeles attorney Steven M. Perry, who represented ABC, said, “We are pleased that the court recognized the value of the press’ traditional role in reporting allegations of misconduct on the part of those who hold public office.”

Dodds, who has been a Superior Court judge since 1977, is scheduled to retire later this year and plans to become a private arbitrator. Both Dodds and his lawyer were on vacation Wednesday and unavailable for comment.

In 1995, the state Commission on Judicial Performance issued a decision saying Dodds should be publicly censured for being rude to litigants, making an anti-Semitic remark and failing to cooperate fully in a police investigation. Although agreeing with the commission’s assessment that Dodds had engaged in judicial misconduct, the California Supreme Court said later that year that the proposed punishment was too severe.