Opinion
For Opinion on Hearing see 107 Cal.Rptr. 184, 507 P.2d 1392.
Opinions on pages 422 to 485 omitted.
HEARINGS GRANTED
[100 Cal.Rptr. 848]Albaum & King by Walter H. King, Mel Albaum, and H. Peter Young, Santa Monica, for defendants-appellants.
Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Ronald M. George, Deputy Atty. Gen., for plaintiff-respondent.
FLEMING, Associate Justice.
The Los Angeles Free Press, Inc., a newspaper, Kunkin, its publisher, and Applebaum, one of its reporters, were indicted by the grand jury on charges of receiving stolen property, a violation of Penal Code section 496. Each was convicted by the trial jury on one count of the indictment. Probation was granted to Kunkin and Applebaum on condition they pay fines of $1,000 and $500 respectively, and sentence imposing a $500 fine on the newspaper was suspended.
Section 496 imposes criminal liability on:
It is a matter of record in this trial, as well as public knowledge, that the vicious nature of narcotics traffic requires that law enforcement officers frequently work undercover. Such work is, of course, hazardous. It can be reasonably argued that among its other effects publication of the Roster increased the risk not only to the officers but gratuitously extended the ambit of risk to the officers' families. It should, however, be noted that the prosecution contended and now contends that the violation charged against appellants was complete when they received the Roster and that its publication or other exploitation was no part of the crime.
Codefendant Reznick, charged under other counts of the same indictment with theft or removal of government records in violation of Government Code section 6201, submitted his case on the grand jury transcript and was found guilty as charged, Reznick was granted immunity from further prosecution for any disclosures he might make in the course of appellants' trial, and thereafter he testified that while employed as a mail clerk by the California Attorney General he had stolen documents from the Los Angeles office and delivered them to appellants.
Sections 6200 and 6201 of the Government Code provide:
Part 1, Title 13,
The stolen document for whose receipt appellants were convicted was entitled Roster of Personnel of the Bureau of Narcotic Enforcement, an 18-page document which Reznick stole from the mail room of the California Attorney General in June 1969 by mailing it to himself at an undisclosed address. Included in the Roster were the names, home addresses, and home telephone numbers of 80 civil service employees who worked as undercover state narcotic agents in detecting and apprehending dealers in narcotics.
Subsequent to his theft, Reznick, wearing corduroy slacks, sandals, a Mexican peasant shirt, and rimless glasses, went without the Roster to the office of the Los Angeles Free Press, where he met Applebaum and told him he worked in the Attorney General's office. He told Applebaum about the Roster, as well as another document not involved in this appeal but also stolen from the Attorney General's office and later delivered to Applebaum, and asked if the Free Press would be interested in obtaining the Roster for publication. Applebaum replied he wasn't sure, because he felt there might be trouble if such a [100 Cal.Rptr. 849] document were published. Payment of a fee for the Roster was discussed, and Applebaum said the standard payment for information used in an article was $20. Applebaum said he would check with someone else to find out whether they could use the information. Within a week Reznick, attired similarly to his first visit, returned to the Free Press office, this time with the roster in his possession, and again offered it to Applebaum. The latter again said he wasn't sure he could use the document and would have to find out about it. Reznick then placed the document on Applebaum's desk and left. In his conversation Reznick insisted that Applebaum keep his identity secret.
The Free Press published a story relating to the Roster in its issue of 8 August 1969. The front page of the newspaper carried the following headlines: 'Narcotic Agents Listed,' 'There should be no secret police,' and 'Know your local Nark.' On page five under the heading 'Know your Neighborhood Narc' and flanked by the titles 'A Public Service Announcement' and 'Courtesy of a Concerned Citizen' appeared in alphabetical order the names of the 80 undercover agents employed throughout the state, together with their positions in the Bureau, their home addresses, and home telephone numbers. The listing accurately reproduced that set out in the Bureau's Roster of Personnel. The newspaper carried a copyright in the name of The Los Angeles Free Press, Inc., and its masthead listed Kunkin as publisher and editor, and Applebaum as reporter. At an 8 August 1969 press conference Kunkin related that 'we of the Free Press had published this Roster of narcotics agents for the purpose of informing the public as to the identity of the secret policemen who are enforcing the laws in the State of California.' He referred to the Roster of Personnel as an 'official roster,' and stated that it was provided by a concerned official. At a 17 August 1969 press conference Kunkin said he had obtained the Roster of Personnel from one of his reporters but did not indicate which reporter. He made the following statements about the Roster: 'I published the list'; 'One of my reporters obtained this'; and 'I could judge there was some authenticity to it.' Later; when Reznick asked Applebaum to return the stolen document, he was told it was locked in a safe place. On 19 August 1969 Mitchell Shapiro, an attorney, delivered the original of the Roster to the Los Angeles office of the Attorney General. A latent fingerprint examination of the Roster revealed the fingerprints of Reznick, Kunkin, and Applebaum.
In seeking to reverse the judgment of conviction for receiving stolen property appellants raise one factual and two legal issues:
1. The evidence was insufficient to prove appellants knew the document had been stolen.
2. Receipt of the stolen document did not amount to receipt of stolen property within the meaning of Penal Code section 496 because the document was not property.
3. Application of Penal Code section 496 to newsmen engaged in gathering news for publication abridges the freedom of the press guaranteed by the First and Fourteenth Amendments to the Constitution.
We discuss, first, the sufficiency of the evidence to prove knowledge.
I
Absent a confession or admission direct evidence of a recipient's knowledge of the stolen character of property received is rare, and proof of this element in the crime of receiving stolen property is usually circumstantial. The juxtaposition of possession of stolen property with some incriminating circumstance is sufficient to prove the crime. (People v. Schroeder, 264 Cal.App.2d 217, 225, 70 Cal.Rptr. 491.) At bench the following circumstances pointed toward the requisite knowledge by appellants:
--The newspaper's reference to the secret nature of the narcotic agents' identities. [100 Cal.Rptr. 850]
--The newspaper's reference to the list as 'the official personnel roster of agents.'
--Kunkin's statements at the news conference that he knew the list was an official roster and was secret and confidential.
--The contents of the Roster, which contained home addresses and home telephone numbers of undercover narcotic agents.
--The physical appearance of the person from whom Applebaum obtained the Roster and his patent lack of authority to transmit it.
--Reznick's admonition to Applebaum to keep his identity secret.
--Applebaum's initial hesitation to accept the Roster because of his concern that 'there might be some trouble' if its contents were published.
--Applebaum's willingness to pay $20 each for government documents which, unless illicitly obtained, would normally be available to the public at little or no cost.
--Applebaum's statement, subsequent to the newspaper's publication of information from the Roster, that the Roster was locked up in a safe place.
These circumstances were sufficiently incriminating to support the jury's finding that appellants knew the material was stolen and to sustain the verdicts of guilt against them. As the court said in People v. Reilly, 3 Cal.3d 421, 424-425, 90 Cal.Rptr. 417, 419, 475 P.2d 649, 651: 'The People, of course, may rely on circumstantial evidence to connect the defendant with the commission of the crime charged and to establish beyond a reasonable doubt that he committed it. [Citations.] An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment."'
By this standard we conclude the evidence was sufficient to support the jury's verdict that appellants knew the material they received had been stolen.
II
Appellants contend the stolen material did not qualify as property within the meaning of Penal Code section 496 and hence its receipt did not violate the law against receiving stolen property. They assert the stolen material did not amount to property because its 18 sheets of paper were either valueless or so nearly valueless as to be inconsequential. The only matter received, they say, was information of a non-commercial character which had no market value and did not qualify as property. In their view the coverage of the statute against receiving stolen property is limited to receipt of stolen goods, wares, or merchandise by commercial fences and does not extend to receipt of information. Even if the statute should be broadly construed to prohibit receipt of information, it would not cover receipt of news items for publication. The heart of appellants's argument on this point is that the material they received was information and not property, and hence its receipt did not violate the statute.
This argument brushes over the fact that appellants were convicted of knowingly receiving an 18-page document belonging to the Attorney General and stolen from his office, that the basis for their prosecution and conviction was their receipt of a tangible stolen document. Appellants purport to dispose of this fact by asserting that the stolen document had inconsequential value and therefore did not qualify as property. Yet it is apparent the stolen document had value in at least four senses. Merely as sheets of paper the document possissed some nominal value. To its value as paper had been added [100 Cal.Rptr. 851] the value of its creation as a useful item, a value reflecting the cost of its preparation, assembly, and distribution, and which we will refer to as its value as paper in place. Both as paper and as paper in place the stolen document qualified as property under the statute, for it is not necessary that stolen property which has been unlawfully received possess value in any specific amount. (People v. Rice, 73 Cal. 220, 221, 14, P. 851; People v. Fitzpatrick, 80 Cal. 538, 541, 22 P. 215.)
The stolen document also possessed value as a tangible compilation of information, and in its completed form it was as much an item of property as a dictionary, a city directory, a timetable, a catalogue, a subscription list, a list of horserace entries, or one of the other compilations of information which have been held to constitute property. (76 Har.L.R. 1569, 1584.) Surreptitious removal by a person of a document containing such a compilation from the office of another amounts to theft, and its receipt by a third person with knowledge of its stolen character amounts to receipt of stolen property. The California cases have so held.
In People v. Dolbeer, 214 Cal.App.2d 619, 29 Cal.Rptr. 573, appellant and another were convicted of conspiracy to receive stolen property when they sought to bribe an employee of the company which printed lists of new telephone subscribers to furnish them with the new listings, which they then duplicated and returned to the employee so the lists could be replaced. Appellant argued the lists did not constitute property within the meaning of the law against receiving stolen property because the lists had no market value and merely contained information about new telephone subscribers. In rejecting these arguments the court declared the lists were property and not merely information. '. . . [T]hey are papers on which information is contained. As papers they are physical goods and come within the definition of personal property . . .' While 'their value as pieces of paper would be very little . . . [i]in this case, the value is created by the effort and efficiency of the compilers and by the element of secrecy, but this is merely super-imposed on the tangible thing, the paper itself.' In removing these lists from the premises theft was effected. 'Here, there was not merely a taking of information such as might have been heard or seen, but an asportation of tangibles.' (P. 623, 29 Cal.Rptr. p. 574.) As to market value, said the court, the lists possessed value as evidenced by the payments made. They also had a value to the telephone company in the goodwill the latter obtained in protecting its customers against annoyance. Having concluded that the lists were property of value, the court affirmed the judgment of conviction. In the similar case of People v. Parker, 217 Cal.App.2d 422, 31 Cal.Rptr. 716, the court reached a similar result, again concluding that stolen telephone subscriber lists were property of value within the meaning of the law prohibiting the receipt of stolen property. (Pen.Code, § 496.)
Finally, the stolen Roster possessed the value place on it by appellants themselves, who indicated they would pay $20 for the use of the document. Patently, appellants' conduct had given the stolen property a precise cash valuation of $20. It may be seen, therefore, that the stolen Roster possessed value in at least four senses--as paper, as paper in place, as a compilation of information, and as a purchase by its recipients. We think the stolen Roster fully qualified as property within the meaning of Penal Code section 496.
Appellants seek to circumvent liability for their receipt of a tangible document stolen from the Attorney General by posing hypothetical cases claimed to be outside the coverage of the law against receipt of stolen property and then arguing the irrationality of a statutory classification which would punish one instance and not the others. If the faithless mail clerk had made a photocopy of the Roster and delivered the photocopy, appellants say, no tangible property belonging to the Attorney General would have been received by them, and the transaction would not fall [100 Cal.Rptr. 852] within the prohibition of the statute. From this they argue the absurdity of making criminal an act whose identical twin is non-criminal. Were appellants' assumption correct their point might have merit, but since it is based on the erroneous hypothesis that theft of a copy does not equate theft of an original, we find the argument unpersuasive.
1. If the Roster had been photocopied in the Attorney General's office with the use of the Attorney General's equipment and the photocopy removed and delivered to appellants (as happened with another document stolen by Reznick and charged in the same indictment) tangible property belonging to the Attorney General would equally have been stolen, for the photocopy would have been the property of the Attorney General as much as the original, and in receiving the photocopy appellants would have been receiving tangible property stolen from the Attorney General.
2. If the Roster had been removed from the Attorney General's office, photocopied outside, the original returned to the office, and the photocopy delivered to appellants, the statute against receiving stolen property would still have been violated. Once the Roster had been removed from the Attorney General's office its theft was complete and its status as stolen property became fixed. A subsequent transmutation in the form of the Roster would not have altered its character as stolen property nor made its knowing receipt by a third person any less a receipt of stolen property. Such was the situation in the telephone subscriber cases, People v. Dolbeer, 214 Cal.App.2d 619, 29 Cal.Rptr. 573, and People v. Parker, 217 Cal.App.2d 422, 31 Cal.Rptr. 716, where the lists were physically removed from the premises of the owners, delivered to the recipients, photocopied, and then returned to the owners. Even when a less permanent delivery of stolen property has been effected than that taking place here convictions relating to stolen property have been upheld. In United States v. Bottone (2d Cir. 1966), 365 F.2d 389, a case involving the theft of documents describing secret processes for the manufacture of antibiotics, the documents were removed, photocopied, the originals replaced, and the copies sold. The court held that transportation of the copies amounted to transportation of stolen goods in interstate commerce, even though the materials transported were copies made by the thieves. Simply because a document containing information was transformed and embodied in as different physical object, said the court, was no reason not to apply the statute, and it rejected the argument that use of a photocopy machine as intermediary could bring about a different result. 'In such a case, when the physical form of the stolen goods is secondary in every respect to the matter recorded in them, the transformation of the information in the stolen papers into a tangible object never possessed by the original owner should be deemed immaterial. It would offend common sense to hold that these defendants fall outside the statute simply because, in efforts to avoid detection, their confederates were at pains to restore the original papers to Lederle's files and transport only copies or notes, although an oversight would have brought them within it.' (365 F.2d at pp. 393-394.)
3. The identical result follows even when documents are not removed from the premises but copies of compiled information are made on the premises by the thief. In United States v. Seagraves (3d Cir. 1959), 265 F.2d 876, and United States v. Lester (3d Cir. 1960), 282 F.2d 750, geophysical maps of Gulf Oil Corporation were photocopied on Gulf's premises, the copies removed, and the copies then transported in interstate commerce and sold. Whose equipment was used to make the photocopies does not appear. But in affirming conspiracy convictions to transport stolen goods in interstate commerce the court found immaterial the fact that photocopies were made in Gulf's offices and only the copies removed. The compiled information in tangible form was what was stolen, said the court, and [100 Cal.Rptr. 853] that stolen compiled information qualified as valuable property whether or not its original paper embodiment was transmuted into different form in the process of the theft. In short, it is immaterial that the stolen property has been dressed in a new suit of clothes prior to its removal and its receipt as stolen property. The wolf in sheep's clothing does not acquire a new identity through use of a borrowed skin.
Consequently the hypothetical situations posed by appellants turn out to be variations on the main theme, which, in any of its manifestations, still amounts to receipt of stolen property. The stolen document, regardless of change in form, remains the central fact in the crime, for the stolen document, or its copy, gives the thief credibility and vouches for the accuracy of his information, and it is receipt of the stolen document, or its copy, that violates the statute.
The Roster was also property in the sense that it was a compilation of information, and such compilations have long been protected against theft. As far back as 1905 the United States Supreme Court in Board of Trade v. Christie Grain & Stock Co., 198 U.S. 236, 25 S.Ct. 637, 49 L.Ed. 1031, ruled that quotations of commodity prices collected by the Board of Trade at its own expense are property which the Board has a right to keep to itself. 'The fact that others might do similar work, if they might, does not authorize them to steal the plaintiff's.' (P. 250, 25 S.Ct. p. 639.) Statistics are property, said Justice Holmes, and plaintiff's collection of information is entitled to legal protection. (P. 251, 25 S.Ct. 637.) An identical conclusion was reached in Hunt v. New York Cotton Exchange (1907), 205 U.S. 322, 27 S.Ct. 529, 51 L.Ed. 821, where the court again declared that quotations are property which their compiler is entitled to keep to itself. (Pp. 333, 336, 27 S.Ct. 529.) Nor is the protection given to compiled information limited to commercial information or commodity quotations, for in National Tel. News Co. v. Western Union Tel. Co. (7th Cir. 1902), 119 F. 294, the same protection was extended to wire news services. Ticker new is property, said the court, even though on intangible. And news material, even after newspaper publication, may continue to enjoy legal protection as quasi property, for it still retains attributes of property for certain purposes. (International News Service v. Associated Press (1918), 248 U.S. 215, 236, 240, 39 S.Ct. 68, 63 L.Ed. 211.) A directory is a recognized form of compiled information, and under the common law it is entitled to protection as property until publication. Hence, if the Roster is viewed merely as a compilation of information it retains its characteristic as property entitled to protection against theft. From this perspective whether the actual Roster was stolen and received by appellants or whether the compiled information contained in the Roster had been duplicated in some fashion prior to delivery, receipt of the stolen compiled information would fall within the prohibition of the statute.
Appellants argue, however, that information assembled or prepared for non-commercial purposes does not constitute property within the meaning of the prohibition against receipt of stolen property in that such information has no market value, is not traded as a commodity, and is neither bartered nor sold. At this point appellants switch their emphasis in the idea of property from that of something which has value to that of something regularly traded in a commercial market, something akin to goods, wares, or merchandise. They then deduce that intangibles fall within the term property only when they reflect items of marketable value in the commercial world. By such argument appellants purport to distinguish International News Service v. Associated Press (1918), 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211, which involved commercial distribution of news; United States v. Seagraves (3d Cir. 1959), 265 F.2d 876, and United States v. Lester (3d Cir., 1960), 282 F.2d 750, which involved geophysical maps; United States v. Bottone (2d Cir. 1966), 365 F.2d 389, which involved manufacturing processes for antibiotics; and People v. [100 Cal.Rptr. 854] Dolbeer, 214 Cal.App.2d 619, 29 Cal.Rptr. 573, and People v. Parker, 217 Cal.App.2d 422, 31 Cal.Rptr. 716, which involved commercial exploitation of telephone subscriber lists. Those cases, appellants argue, all involved receipt of information for commercial gain, and hence they are not authority for the conclusion that the stolen Roster was property.
To support their argument appellants rely on In re Vericker (2d Cir. 1971), 446 F.2d 244. That case involved a grand jury investigation of the theft of FBI documents from a government office. The specific issue in Vericker was whether a witness who claimed incrimination before a grand jury which was investigating a theft of FBI documents could be compelled to testify by a grant of transactional immunity for offenses under the federal statute prohibiting interstate transportation of stolen goods, wares, merchandise, securities, or money. (18 U.S.C. § 2314.) (The issue arose in this fashion because under the federal law immunity from prosecution can only be granted for certain specified offenses, one of which is interstate transportation of stolen goods, wares, merchandise, etc.) In upholding the witness's refusal to testify, the court concluded that a grant of transactional immunity for interstate transportation of stolen goods, wares, or merchandise did not provide immunity from prosecution for the theft of FBI documents. The terms goods, wares, or merchandise, said the court, did not encompass stolen FBI documents. Therefore, the protection under the grant of immunity was incomplete, and the witness could not be compelled to testify. From this ruling appellants would have us deduce that stolen documents of a noncommercial nature are not property and hence their receipt by a third person cannot support a prosecution for receiving stolen property. The Vericker case, however, merely held that FBI documents did not fall within the terms goods, wares, or merchandise, and therefore a grant of transactional immunity under 18 U.S.C., § 2314 did not protect the witness against prosecution. In no way does the case suggest that a theft of FBI documents is not a theft of government property. Quite the contrary, for the court's opinion strongly implies that if the prosecution had been able to grant transactional immunity for the theft of government property (18 U.S.C., § 641), such a grant would have included theft of FBI records (p. 246), and the witness could have been forced to testify. Thus far from supporting appellants' basic contention that stolen documents are not property, the Vericker opinion is implicit authority for the exact opposite.
Appellants also rely on Pearson v. Dodd (1969), 133 U.S.App.D.C. 279, 410 F.2d 701, to establish the proposition that documentary information which is not a commodity is not protectable as property. In pertinent part that case involved a civil suit for damages for conversion brought by Senator Dodd against newspaper columnists Drew Pearson and Jack Anderson. The suit charged the surreptitious removal and duplication by the Senator's employees of documents from his office files and delivery of the duplicates to defendants Pearson and Anderson, who later published articles containing information gleaned from the documents. In reversing a partial summary judgment in favor of plaintiff for conversion the appellate court ruled that conversion of the documents had not taken place in that plaintiff neither suffered a loss in the value of the documents copied nor had he been substantially deprived of their use. Nor had the information contained in the documents been converted, said the court, for only information of the kind gathered at some expense, formulated with labor, or sold as a commodity is property which may form the basis for an action in conversion. The court distinguished the Bottone prosecution (theft of documents outlining manufacturing methods for antibiotics) on the ground that the latter dealt with instruments of commercial competition. The specific holding in Dodd was that the documents and information involved were not the type of intangible property whose appropriation could support an action in conversion. In so ruling the court stayed [100 Cal.Rptr. 855] within traditional boundaries of the law of conversion, which in dealing with intangible rights relating to documents has limited its scope to conversion of intangible rights which have merged into documents (checks, notes, stock certificates, warehouse receipts). (Restatement: Torts 2nd, § 242; Olschewski v. Hudson, 87 Cal.App. 282, 262 P. 43.) Patently, Dodd does not hold that documents are not property. Rather it holds that information in noncommercial documents is a form of property for whose appropriation an action in conversion will not lie. Since the elements in a civil action for conversion and in a criminal prosecution for receiving stolen property are grossly disparate, the case is only tangentially in point.
Appellants also cite Liberty Lobby, Inc., v. Pearson (1968), 129 U.S.App.D.C. 74, 390 F.2d 489, a civil suit in which the court refused to issue a preliminary injunction against publication of documents surreptitiously removed from plaintiffs' files and delivered to newspaper columnist Drew Pearson. In refusing to enjoin publication of the documents the court found that plaintiffs had not carried the heavy burden of justification required to obtain prior restraint on publication. Yet the court, through Judge (now Chief Justice) Burger, observed: 'Upon a proper showing the wide sweep of the First Amendment might conceivably yield to an invasion of privacy and deprivation of rights of property in private manuscripts. But that is not this case; here there is no clear showing as to ownership of the alleged private papers or of an unlawful taking and no showing that Appellees had any part in the removal of these papers or copies from the offices of Appellants or any act other than receiving them from a person with a colorable claim to possession.' (390 F.2d p. 491; italics added.) The case, obviously, stands for nothing more than that a court will not ordinarily enjoin prior publication of documents asserted to have been stolen, a proposition forcefully reaffirmed in New York Times Co. v. United States (1971), 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822. Furthermore, the facts in the Liberty Lobby case differ conspicuously from those before us, for at bench neither the true ownership of the stolen Roster by the Attorney General nor the fact of its theft by Reznick is controverted.
None of the foregoing cases holds that receipt of a stolen document does not amount to receipt of stolen property. None suggests that a compilation of information for personal use is not a form of property. None suggests that such a compilation is not property of value. We conclude that the stolen Roster was property of value and that its knowing receipt by appellants was a receipt of stolen property, contrary to Penal Code section 496.
III
Appellants argue that if Penal Code section 496 is interpreted to prohibit receipt of stolen documents by newsmen for purposes of publication, then the section abridges the freedom of the press guaranteed by the First and Fourteenth Amendments to the Constitution.
Freedom of the press, appellants assert, protects the free flow of information into public channels and thereby serves an important function in modern democratic government, whose operation is premised on an informed and knowledgeable electorate. The free flow of information into public channels includes newsworthy documents, even those known to have been stolen, and a law prohibiting newsmen from receiving stolen documents containing newsworthy information, would, it is said, choke the free flow of information to a trickle and thereby restrict the public's access to news. Enforcement of a law prohibiting the receipt of stolen documents for publication would chill valuable sources of information which unmask and expose government corruption, official dishonesty, favoritism, double-dealing, is an essential element in the operation of a free press, unwarranted interference with newsgathering is equivalent to unwarranted interference with freedom of the press, to the consequent disadvantage of the public good. Appellants then limit the broad reach of their argument by asserting [100 Cal.Rptr. 856] that while freedom of the press protects the receipt by newsmen of newsworthy documents for publication, even those known to have been stolen, it does not prevent enforcement of the laws against theft of information for commercial purposes, literary piracy, plagiarism, invasion of privacy, and intrusion into privacy, all of which involve intrusion into purely private rights. Implicit in appellants' argument is the suggestion that documents stolen from public offices necessarily involve the public interest to some degree and therefore automatically qualify as news; hence under the protection of freedom of the press newsmen are entitled to receive for purposes of publication documents known to have been stolen from public offices.
In analyzing appellants' contention that a newsman's receipt of stolen documents for news purposes cannot constitutionally be made a crime, we first tabulate and put to one side the issues not involved, for claims of freedom of the press carry a rhetorical and emotional appeal which often clouds dispassionate examination of matters at hand. The following aspects of a free press are not involved:
1. Freedom of publication. No restrictions have been sought or placed on the right of the Free Press to publish a roster of narcotics agents, and no limitations have been sought or placed on their use of such material.
2. Freedom of distribution. No attempt has been made to interfere with or suppress the distribution of the Free Press or of material published in it.
3. Censorship. No censorship has been attempted, and the state has not interfered in any way with publication of the stolen material. In this respect the state has complied with Article I, section 9 of the California constitution, which prohibits any law restraining the liberty of the press and declares that every citizen may freely publish his sentiments on all subjects, subject however to his 'responsib[ility] for the abuse of that right.'
4. Suppression of news. No post-publication attempt has been made to suppress further publication and use of the stolen material.
5. Confidentiality of news sources. No attempt has been made to require appellants to disclose their sources of information or disclose the names of confidential informants.
6. Confidentiality of news material. No attempt has been made to require appellants to disclose information acquired in confidence or compel them to reveal the nature of information they have obtained from confidential sources.
7. Compulsory testimony. No attempt has been made to compel appellants to testify before any legal tribunal as to anything they wrote, as to sources of information, as to means whereby they acquired information, or as to information now in their possession.
Thus the cause in no way involves freedom of the press insofar as that concept includes freedom to publish, freedom to distribute, freedom from censorship, freedom from suppression, confidentiality of news sources, confidentiality of news material, and freedom of newsmen from compelled testimony about information gathered, written, or published. What remains, and what this case deals with, are restrictions on the conduct and activities of newsmen engaged in gathering information to publish as news. All such restrictions must be viewed with suspicion, say appellants, and if the restrictions inhibit the free flow of news by denying newsmen access to newsworthy documents, they are unconstitutional.
We take up, first, the general argument that all restrictions on newsgathering are suspect. Such restrictions derive in large part from a general application of the criminal law. They do not operate solely against newsmen engaged in gathering information for publication but cover the information-gathering activities of persons generally. Viewed in this light appellants' argument concerning [100 Cal.Rptr. 857] the suspect nature of restrictions on newsgathering is seen to possess only surface appeal, for no rational claim can be made that newsmen are privileged to use whatever tactics they like in order to further their activities in gathering news. It could scarcely be argued that newsmen in a quest for newsworthy documents are entitled to immunity from prosecution for burglary, for breaking and entering, for theft, for trespass, for wiretapping, or for extortion and blackmail. While enforcement of the criminal law may in particular instances block access by newsmen to matters they consider newsworthy and thereby inhibit the free flow of news, newsmen are peace officers, prosecutors, judges, and other citizens, none of whom has been granted immunity from prosecution for violation of the law. The courts have declared a number of times that the law is enforceable against newsmen as against others. For example, in Tribune Review Publishing Company v. Thomas (3d Cir. 1958), 254 F.2d 883, the court in upholding a ban on photography in the courtroom or the vicinity of the courtroom, said:
'Realizing that we are not dealing with freedom of expression at all but with rules having to do with gaining access to information on matters of public interest, can it be argued that here there is some constitutional right for everybody not to be interfered with in finding out things about everybody else? We suppose it would not be contended that a newspaper reporter or any other citizen could insist upon entering another's land without permission to find out something he wanted to know. In the same way merely because someone's private letters might be interesting as gossip or as models of English composition it would hardly be argued that one could open another's desk and read through what he finds there. Could an interested observer insist on the constitutional right to take motion pictures of a private family in and about its household contrary to that family's wishes? We think that this question of getting at what one wants to know, either to inform the public or to satisfy one's individual curiosity is a far cry from the type of freedom of expression, comment, criticism so fully protected by the first and fourteenth amendments of the Constitution.' (P. 885.)
The matter was succinctly put in United Press Association v. Valente (1954), 308 N.Y. 71, 123 N.E.2d 777, 778, where in upholding the authority of the trial court to exclude the press from the courtroom in a sex case, the court said that freedom of the press 'has, however, never been held to confer upon the press a constitutionally protected right of access to sources of information not available to others. Judicial proceedings are viewed as 'a public event', in the sense that 'Those who see and hear what transpired can report it with impunity.' [Citation.] But freedom of the press is in no way abridged by an exclusionary ruling which denies to the public generally, including newspapermen, the opportunity to 'see and hear what transpired'. In line with that thinking, we recently upheld the validity of a court rule, Rules Civ.Practice, rule 278, restricting access by persons, who are not parties, to the filed pleadings or testimony in matrimonial actions. [Citation.] In so doing, we specifically rejected the contention that such provisions were violative of freedom of the press, and we observed that there are a number of other areas in which preservation of secrecy has similarly been directed by the legislature in respect of court records. [Citations.]'
As was said in Zemel v. Rusk (1965), 381 U.S. 1, 16-17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179: 'There are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen's opportunities to gather information he might find relevant of his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right. [100 Cal.Rptr. 858] The right to speak and publish does not carry with it the unrestrained right to gather information.'
It seems too clear for further argument that newsmen in the course of their newsgathering activities are required to obey the law. But, appellants argue, general restrictions on information-gathering cannot circumscribe or limit a free press when engaged in gathering news for publication. Once again the limited nature of the newsgathering restriction here involved must be kept in mind, for no attempt has been made to prevent the Free Press from conducting its own investigation of the identities of California's undercover narcotic agents and compiling its own list of their names, addresses, and telephone numbers. The sole restriction on newsgathering involves a receipt of stolen property belonging to the Attorney General. The asserted claim of unconstitutional interference with freedom of the press thus reduces itself to a claim that newsmen engaged in newsgathering activities are entitled by virtue of their occupational status to special privileges not extended to the general public, one of which is the privilege to buy or receive documents known to have been stolen. To deny them this special privilege of trafficking in stolen documents for purposes of publication is, appellants assert, to deny them freedom of the press.
The Constitution, of course, says nothing about traffic in stolen documents or about special privileges for newsmen engaged in gathering news, and therefore appellants are forced to base their argument on what they conceive to be sound public policy. This they arrive at by concluding that their own interest in gathering and publishing news coincides in all respects with the general public interest, that since the interest of the press will be served by the existence of a market for stolen documents the interest of the general public will also be served. The argument has an impressive superstructure of decorative moral fervor, but stripped of its bunting and with its thesis baldly put, it contemplates the operation by newsmen of a legalized thieves' market for stolen documents, at least documents stolen from public offices, a market in stolen property sanctified by the Constitution in the name of the public interest.
Yet having legitimated thievery on the ground of public policy and conjured up a newsman's privilege of buying or receiving stolen documents, appellants are immediately faced with the difficulty of bringing their genie under control. Both the boundaries of this constitutional thieves' market and the identities of those entitled to trade in the market remain shadowy and illdefined. Three critical questions present themselves:
First, what documents qualify as sources of newsworthy information making them tradable in this thieves market? Presumably appellants would not attempt to make constitutionally privileged the purchase or receipt of stolen documents of great commercial value in the speculative world, such as preliminary reports of the annual cotton, wheat, corn, or sugar crops, even if received for publication by a trade journal specializing in news of such commodities. Presumably, appellants would take the same position with respect to the purchase or receipt of stolen preliminary earnings statements by a financial journal, stolen lists of bank depositors and their deposits, stolen income tax returns, stolen medical records, and stolen personal letters of prominent persons. What is privileged, appellants suggest, is receipt by newsmen of stolen documents covering matters of general public interest publishable as news. But they offer no definition of newsworthy documents. Would publication of a stolen list of members of the NAACP in a southern town qualify as news? Would publication of stolen preliminary medical research reports qualify as news in a medical journal? Would publication of stolen geophysical maps qualify as news in an oil and gas journal? Would publication of processes for the manufacture of antibiotics qualify as news in a pharmaceutical journal? Would publication of a rich man's income tax return qualify as news? A politician's income tax return? The stolen love letters [100 Cal.Rptr. 859] of a president's wife? Each of these documents would contain material of great interest to a specific group of readers and would be newsworthy to them, just as a roster of state narcotic undercover agents contains information of great interest and newsworthiness to narcotic dealers and narcotic users. Once traffic in stolen documents is given constitutional protection it becomes impossible to define boundaries to the traffic based on the character of the documents or of the information the documents contain. We see no valid distinction between stolen documents received for direct commercial purposes, such as the making of speculative profits through use of information contained in the documents, and stolen documents received for indirect commercial purposes, such as increased circulation, increased sales, and increased prestige which a newspaper anticipates will follow publication. Nor do we see any valid legal distinction which can be drawn between stolen documents received for laudable purposes and stolen documents received for ignoble purposes.
Second, who may participate in this thieves' market in stolen documents? Newsmen only? Who then qualifies as a newsman? Newsmen, unlike attorneys, physicians, and most groups which are beneficiaries of professional privileges, are not licensed by the state or even defined as a group. (Parenthetically, we note that not even those members of a wholly identifiable group, such as attorneys, are privileged to become accessories to crime or to receive stolen property. (Evid.Code, § 956; In re Ryder (D.C.Va.1967), 263 F.Supp. 360.)
Third, if receipt of stolen documents is limited to receipt for purposes of publication, what is publication? Legally speaking, the pamphleteer is entitled to the same privileges and protection as a full-time correspondent of a national press association or of the largest metropolitan newspaper. (Lovell v. Griffin (1938), 303 U.S. 444, 452, 58 S.Ct. 666, 82 L.Ed. 949.) The protection of freedom of the press is even said to extend to a nonconformist who collects his information and nails it to a tree. (State v. Buchanan (1968), 250 Or. 244, 436 P.2d 729, 732.)
In this condition of affairs, where neither the newsworthiness of information contained in a stolen document, nor the identity of newsgatherers, nor the receipt of a document for purposes of publication has been given any recognizable dimensions or content, we think the basic analysis of the privileges of newsmen found in United Press Association v. Valente (1954), 308 N.Y. 71, 123 N.E.2d 777, puts us back on the right track:
'The fact that petitioners are in the business of disseminating news gives them no special right or privilege, not possessed by other members of the public. Since the only rights they assert are those supposedly given 'every citizen' to attend court sessions [citation], they are in no position to claim any right or privilege not common to 'every [other] citizen." (123 N.E.2d p. 783.)
To the same effect is the statement of the court in Kirstowsky v. Superior Court, 143 Cal.App.2d 745, 754-755, 300 P.2d 163, 169: '. . . members of the press are in the same position as other members of the public and have no greater right to be present at court hearings than has any other member of the public. If the court had the right to exclude the public during the time defendant was upon the witness stand it had the right also to exclude the members of the press. The freedom of the press is in no way involved in this proceeding.'
Thus the asserted constitutional privilege of receiving stolen documents containing information of interest to some particular group, if such a privilege exists, must extend to all persons who might consider publication in some fashion of the stolen documents or of information contained in the stolen documents. Since the right to publish information is not limited to any particular group (indeed constitutionally it cannot be so limited (Calif.Const., Art. I, sec. 9, 'Every citizen may freely . . .')) acceptance of appellants' theory of the [100 Cal.Rptr. 860] privilege of receiving stolen documents considered newsworthy would require extension of the same privilege to all persons. Thus the hypothetical thieves' market for traffic in stolen documents would become a market all persons could frequent.
What this analysis points up is that we are dealing here with restrictions on information-gathering activities of persons generally and not with restrictions on information-gathering activities of members of the press. If Reznick had delivered the Roster to a non-profit Narcotic Users' Protective Association, which issued a monthly bulletin to its members, or if he had delivered it to a Narcotic Importers Institute, organized to further the free flow of narcotics into the country by an exchange of trade information among its members, its receipt by the latter organizations would be judged by precisely the same standards as those used to evaluate its receipt by the Free Press.
The underlying fallacy in appellants' argument is found in its assumption that restrictions on information-gathering activities are unconstitutional when they affect newsgathering activities of the press. But restrictions on information-gathering activities restrict newsgatherers, including the press, in a variety of situations. Such restrictions include denial of access to certain court proceedings (United Press Association v. Valente (1954), 308 N.Y. 71, 123 N.E.2d 777); denial of access in particular cases to witnesses, counsel, court attaches, and police officers (Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600); denial of the right to photograph in court (Tribune Review Publishing Company v. Thomas (3d Cir. 1958), 254 F.2d 883; Estes v. Texas (1965), 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543); denial of the right to photograph prisoners on their way to court (In re Mack (1956), 386 Pa. 251, 126 A.2d 679); denial of the right to view or photograph inmates of an asylum (Commonwealth v. Wiseman (1969), 356 Mass. 251, 249 N.E.2d 610); denial of access to confidential files (Trimble v. Johnston (D.C.1959), 173 F.Supp. 651); denial of access to documents not open to the public (New York Post Corp. v. Moses (1960), 23 Misc.2d 826, 204 N.Y.S.2d 44, affirmed (1961), 10 N.Y.2d 199, 219 N.Y.S.2d 7, 176 N.E.2d 709); denial of access to juvenile court records and juvenile court proceedings (Welfare & Inst.Code, §§ 676, 781, 827); and denial of access to welfare and relief rolls (Welfare & Inst.Code, §§ 10850, 18909). While the effect of such restrictions undoubtedly curtails the free flow of news to some degree (Garland v. Torre (2nd Cir. 1958), 259 F.2d 545), freedom of the press is not an absolute right (Near v. Minnesota ex rel. Olson (1931), 283 U.S. 697, 708, 51 S.Ct. 625, 75 L.Ed. 1357), and unrestricted access to sources of potential news is not a constitutional imperative.
We think a restriction on traffic in stolen documents is a valid restriction, even though it may have some impact on newsgathering. We think a state is constitutionally warranted in adopting laws against receipt of stolen documents and uniformly enforcing those laws against all persons, including newsmen and publishers, who knowingly receive stolen documents. Were the Constitution interpreted to sanction the thieves' market in stolen documents sought by appellants, legal protection for any documentary material would become difficult. A ready market would always be available for the merchandising of stolen material, thieves would doubtless be encouraged to steal from each other, and newsmen could freely purchase documents stolen from one another. The stolen material would acquire the character of caput lupinum, and like an outlawed felon under old English law who could be knocked on the head like a wolf, the material might be carried off at will by anyone who met up with it. (IV Blackstone, Comm. p. 320; Board of Trade v. Christie Grain & Stock Co. (1905), 198 U.S. 236, 246, 25 S.Ct. 637, 49 L.Ed. 1031.) The facts of the present case highlight the anomalies which the operation of such a thieves' market would create, for the Free Press purported to copyright its stolen material [100 Cal.Rptr. 861] and thereby prevent anyone else from using it or stealing the material from them. Were we to accept the validity of such a theory, a publisher could buy stolen letters or stolen documents, copyright them, and then in the exercise of its property rights attempt to prevent others from using them, perhaps even the true owners. (International News Service v. Associated Press (1918), 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211.) Such a result, while absurd, is not entirely fanciful, as may be seen in New York Times Co. v. United States (1971), 403 U.S. 713, 751, 760, 91 S.Ct. 2140, 29 L.Ed.2d 822), where the possessors of stolen documents refused to return them to the true owners or even let the true owners examine the stolen documents.
'Interestingly the Times explained its refusal to allow the government to examine its own purloined documents by saying in substance this might compromise their sources and informants! The Times thus asserts a right to guard the secrecy of its sources while denying that the Government of the United States has that power.' (Burger, C. J., dissenting, p. 751, 91 S.Ct. p. 2160.)
Although we find no pertinent legislative history, a Press Release, Office of the Governor, 445-4571, 9-15-70, says in pertinent part:
In an attempt to shore up the logic of their position appellants intermingle and confuse receipt of stolen documents with receipt of information disclosed by an informant in breach of confidence. The latter activity presents entirely different questions from those involved in the receipt of stolen documents, for generally speaking, disclosure of information in breach of confidence has not been made a crime. A fortiori, the purchase or receipt of such information by another does not amount to a crime. The charge at bench is receipt of a stolen document, not receipt of information disclosed by an informant in violation of confidence or in breach of trust. If the faithless mail clerk had gone to the Free Press and orally disclosed those names of undercover narcotic agents he could remember from reading the Roster or he had learned from his work in the Attorney General's office, receipt of that information by the Free Press would not have violated the law against receiving stolen property. If the faithless mail clerk had given the names of undercover narcotic agents to the Free Press over the telephone, in the absence of other incriminating circumstances receipt of that information would probably not have violated the law against receiving stolen property. It may be said that the law is inconsistent when it punishes receipt of stolen documents, either originals or copies, and does not punish receipt of information contained in the documents and disclosed in breach of confidence. But here as elsewhere as Justice Holmes has told us, the law is concerned with the drawing of lines. (Schlesinger v. Wisconsion (1926), 270 U.S. 230, 241, 46 S.Ct. 260, 70 L.Ed. 557.) Ordinarily, not a great amount of information can be transmitted by memory or over the telephone. Ordinarily such information does not carry the credibility and exactness found in a written document; hence its unauthorized disclosure does not possess the same capacity for mischief that attaches to traffic in stolen documents. In this instance we think the lines have been rationally drawn, and that the distinction between receipt of stolen documents and receipt of information disclosed in breach of confidence follows contours drawn on a solid foundation of fact.
Instances where disclosure of information in breach of confidence has been made criminal are found in the disclosure, use, or publication of classified intelligence information (18 U.S.C., § 798), the disclosure of income tax information (18 U.S.C., § 1905; Cal.R. & T.Code, § 19282), and the disclosure or use of information obtained by wiretapping (18 U.S.C., § 2511; Cal.Pen.Code, § 631).
There is doubt in my mind whether one of numerous copies of the Roster distributed apparently for the personal retention and use of the individual distributee of whom there were a large number, is a 'paper' within the meaning of section 6200. I accept, arguendo, for the purposes of this appeal, that it is. I think, however, that section 6200, if it applies to the Roster at all, means the original in the Sacramento office and that actually it may apply only to '* * * any paper or proceeding of any court, filed or deposited in any public office * * *.' (Emphasis added.)
Finally, appellants argue that leaks of information from government sources are standard and accepted practice in both the world of government and the world of news media and that application of criminal sanctions to newsmen who have knowingly received stolen documents from a government employee is inconsistent with widespread custom and usage in this field. This argument is essentially one of fact, i. e., that in particular instances [100 Cal.Rptr. 862] newsmen may have insufficient reason to know the law is being violated, and it is concerned with factual matters such as those discussed in the first part of this opinion rather than with the legal issues discussed in the second and third parts. In the usual case of government leakage of documents a newsman is entitled to presume that the leak is authorized, perhaps even inspired, and he is not required to search out the extent of the authority ostensibly possessed by his supplier. (Cf. Liberty Lobby, Inc. v. Pearson (1968), 129 U.S.App.D.C. 74, 390 F.2d 489.) The law requires proof beyond a reasonable doubt that the documents have been stolen and proof that they have been knowingly received as stolen property, proof which must be made to the satisfaction of judge and jury. Only when evidence both of theft and of knowing receipt has been factually established beyond a reasonable doubt, as happened in this case, will the crime of receiving stolen property have been proved. (Cf. Metter v. Los Angeles Examiner, 35 Cal.App.2d 304, 307-308, 95 P.2d 491 (no proof of theft of photograph, no proof of receipt of stolen photograph by defendant).)
On this aspect of the cause our conclusions are fortified by the opinions of the justices of the United States Supreme Court in New York Times Co. v. United States (1971), 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822. That case involved civil actions by the government to enjoin two newspapers from publishing purloined government material. The court denied injunctive relief against publication of the purloined documents don the ground that the government had not carried the heavy burden of justification required to impose prior restraint on publication. Of the six justices who comprised the majority, Justices White and Stewart specifically recognized that 'Congress has the power to enact specific and appropriate criminal laws to protect government property and preserve government secrets' (p. 730, 91 S.Ct. p. 2149), and said they would have no difficulty sustaining criminal convictions under such laws (p. 737, 91 S.Ct. 2140). Justice Marshall recognized the existence of congressional power to make criminal the receipt or purchase of certain documents. (p. 743, 91 S.Ct. 2140.) The three dissenting justices went further, and would have continued injunctive relief against publication pending disposition of the cause. Two of them, Chief Justice Burger and Justice Blackmun, declared themselves in general agreement with Justice White on the subject of penal sanction. Clearly, a majority of the United States Supreme Court is willing to apply laws against the receipt of stolen property to newsmen who knowingly receive stolen documents.
The judgment is affirmed.
HERNDON, J., concurs.
ROTH, Presiding Justice (dissenting).
I respectfully and reluctantly dissent from an opinion so erudite and formidable. I hold no brief for the lack of responsibility displayed by appellants or the petty mercenary motives which impelled publication of the Roster in the Free Press. 1 The industry and erudition displayed by the majority engenders diffidence but does not shake my conviction that appellants violated no law in effect at the time of publication but were guilty only of gross bad taste and a callous disregard for the safety of others, including innocent third parties.
The issue at bench is a narrow one. The indictment charged a violation of 496 and [100 Cal.Rptr. 863] the jury was instructed that they could convict not because the paper was property or '* * * the information contained thereon * * *' was property but only because '* * * a paper may have a value by reason of the information contained thereon * * *.' (Emphasis added.)
The dispositive issue at bench therefore is whether the Roster was 'property,' guilty receipt of which is a violation of 496. If, by fair legal analysis it is not 'property' within 496, appellants cannot be guilty of a violation of 496.
The Legislature, when 496 was enacted, and each time 496 was amended, knew and did know that it did not include certain intangibles which were not considered property at common law. Other sections were added to the Penal Code from time to time to include some of these intangibles, by way of example, the unlawful receipt of real estate title information (§ 496c), the theft of gas, water or electricity (§§ 498, 499, 499a) or the theft of trade secrets (§ 499c). 2
No comparable section was added to 496 to include as an intangible a document such as the Roster.
The majority, to sustain a definition of 'property,' make an elaborate analysis but ignore the common law history of 496, the jury instruction the '* * * the information contained thereon * * * was property' but only because '* * * a paper may have a value by reason of the information contained thereon,' and the exceptions provided by the Legislature to supplement 496, to wit, sections 498, 499, 499a and 499c. The majority also omit any reference to the fact that the Legislature with full knowledge of the case at bench apparently concluded that the conduct here charged did not come within the reach of 496 and in 1970 to cure the omission enacted a special statute, to wit, 146e of the Penal Code to embrace situations such as the one at bench and condemned such conduct as a misdemeanor. 3
[100 Cal.Rptr. 864]If the Legislature had concluded that the conduct involved at bench should be a felony, it undoubtedly would have added, as it did sections 498, 499, 499a, the substance of Penal Code, section 146e, defining it as a species of property to be included as part of Chapter 5, Title 13, Part 1 of the Penal Code which deals with the subject of stolen property. The enactment of section 146e testifies eloquently that previous thereto there was an omission in California law and that even thereafter the legislators did not consider the Roster property, guilty receipt of which should be punished as a felony. If the Legislature would have at any time, including when enacting section 146e, considered a roster which contains 'the residence address or telephone number of any peace officer' (146e) property, they could have enacted a statute such as Penal Code section 496c which presents the theft of real estate title information. However, the Legislature in 146e prohibits only malicious dissemination, disclosure and publication. Not even section 146e prohibits receipt of the information. In this respect it should be remembered, as pointed out in footnote 1, that the prosecution contended that the crime was complete upon receipt of the Roster by appellants.
To fortify the definition of property, the majority rely on People v. Dolbeer, 214 Cal.App.2d 619, 29 Cal.Rptr. 573, to show that the Roster is property as was the list of telephone subscribers in that case, and attempt to distinguish the recent case of In re Vericker, (2d Cir. 1971) 446 F.2d 244, which holds squarely that stolen F. B. I. documents are not 'goods,' 'wares,' or 'merchandise.'
I do not agree with the majority's construction of Dolbeer and Vericker. Dolbeer held that the list of telephone subscribers was (personal) property in the sense of the definition of Penal Code, section 7, subdivision 12, because the list, being on paper, was 'goods.' The Dolbeer court emphasized the commercial nature of the information on the paper, saying, 'It is true that their value as pieces of paper would be very little, but this would be so in the case of a rare stamp, or of a letter signed by a great public figure, now deceased, or of any similar item of value. In this case, the value is created by the effort and efficiency of the compilers and by the element of secrecy, but this is merely superimposed on the tangible thing, the paper itself.' (214 Cal.App.2d at 623, 29 Cal.Rptr. at 575.)
The Vericker court compared geophysical maps and manufacturing processes (United States v. Bottone, (2d Cir. 1966) 365 F.2d 389) on the one hand with the stolen F. B. I. documents of Vericker, on the other, and found: 'Geophysical maps are an ordinary subject of sale by geologists or oil companies, and secret manufacturing procedures are an ordinary subject of sale or, more frequently, of license. [Citations.] We are not aware that papers showing that individuals are or may have been engaging in criminal activity or what procedures are used by the FBI in tracking them down are ordinarily bought or sold in commerce, and the Government has not come forward or proffered any evidence to that effect.' (446 F.2d at 248.)
In Dolbeer, just as in the case of the maps and manufacturing procedures mentioned in Vericker, the information on the paper had a value in usual and common commercial pursuits as 'goods,' 'wares,' and 'merchandise.' In Vericker, however, the information in the FBI documents had no ascertainable value and the fractional value of the paper was de minimis as is true in the case of the Roster.
Rosters of undercover narcotics agents are not bought and sold in commerce, are [100 Cal.Rptr. 865] not traded and are owned by the public. They are government documents which are obviously not sold for commercial purposes. The vice of a necessarily arbitrary 'valuation' of rosters would be even more apparent if the degree of punishment for the unlawful receipt thereof were to depend on that 'value.'
The State in its enactment of Chapter 3 (Title 1, Division 7) of the Government Code (§ 6200 et seq., set out at length in the majority opinion) and California Public Records Act, Chapter 3.5 (§ 6250 et seq.) has provided a detailed plan for the protection of various types and kinds of governmental documents and information. These statutes provide a comprehensive scheme for the protection of various kinds of governmental documents and information. No attempt has been made to charge appellants with a violation of any of these sections and it is doubtful if any of the legislation reaches the problem at bench. 4
The criminality of the transaction before us hinges not on the theft of paper but on the improper transmission and acquisition of the information the paper contained. Dolbeer holds that the theft of 'telephone information' only, i. e., the surreptitious copying of the list, and the sale of that copy, would not justify a prosecution under 496 since '* * * nothing tangible had been purloined, for stealing of telephone information only has not been made a specific crime, as has stealing of title company data, irrespective of asportation (Pen.Code, § 496c).' (214 Cal.App.2d at 623, 29 Cal.Rptr. at 575.)
Supplementing the facts set forth by the majority, it should be noted that the Roster was prepared in Sacramento under the supervision of John Storer, Chief of the Narcotic Enforcement Bureau, by Nadine Mitchell, his secretary, and the original was presumably kept in the Sacramento office. Nadine Mitchell did not know how many rosters were printed. The distributees of the Roster comprised members of the Department of Justice, the California Highway Patrol, Federal Bureau of Narcotics, and State Bureau personnel. Copies were mailed to all Bureau area offices for employees and secretaries plus ten extra copies for the area office. 43 were sent to the Bureau's Los Angeles office--33 for employees and 10 for the office. None of the copies were marked secret or confidential and there was no indication on the face of any of them that distribution was restricted and controlled or that any of them were to be filed or deposited in any office to which copies were sent, or that the recipient of a Roster needed permission to show or give it to someone else. This is in sharp contrast to the federal government's control over its sensitive documents.
Just as in Dolbeer, where the theft of telephone information was not a crime, the unlawful receipt of stolen 'government information' is nowhere proscribed as is the case when one receives unlawfully acquired real estate title information (496c) or trade secrets (499c), to name two examples.
Thus, Dolbeer holds that if Reznick had memorized, photographed or xeroxed the information on the Roster and transmitted it to appellants without delivering it on paper belonging to the State, there would be no violation of 496.
The majority say: 'Once the Roster had been removed from the Attorney General's office its theft was complete and its status as stolen property became fixed. A subsequent transmutation in the form of the Roster would not have altered its character as stolen property nor made its knowing receipt by a third person any less a receipt of stolen property.' (P. 852.) If the reasoning of the majority is sound, Dolbeer is wrong since it is obvious that the information on the Roster could have been [100 Cal.Rptr. 866] xeroxed, photographed, copied or memorized without removing the document from the Attorney General's office.
It should be noted that if the Legislature considered government information as a certain type 'property' as it does title information, removal from the Attorney General's office, would not be necessary. (Pen.Code, § 496(c); Dolbeer, 214 Cal.App.2d p. 623, 29 Cal.Rptr. 573.). Mere transmission of the information irrespective of the form such delivery takes would be a felony.
Stolen property in the possession of a 'hippy' under a combination of suspicious circumstances is generally sufficient for an information or indictment. Thus, every purchaser of the August 18, 1969 edition of the Free Press which had emblazoned on its front page the various headlines detailed in the majority opinion could have been indicted for violation of section 496. One wonders, too, what crime, if any, would have been committed if a State employee lawfully in possession of a copy of the Roster would simply have given it away.
The ease with which the majority distinguishes cases like Pearson v. Dodd (1969), 133 U.S.App.D.C. 279, 410 F.2d 701, and Liberty Lobby, Inc. v. Pearson (1968), 129 U.S.App.D.C. 74, 390 F.2d 489, should not lead one to the mistaken assumption that a court which refuses in summary holdings to predicate civil liability upon the theft of intangible information because of technical omissions in the law establishing the broad basis for such civil liability, will (and should) impose criminal sanctions upon similar thefts even though there be omissions in the criminal statutes.
The majority concede, as the prosecution contends, that the crime here charged was complete when appellants received the Roster. I, too, think that such is the narrow issue. The press issue raised in the briefs is, however, treated at great length. A reply is indicated.
The majority outline seven untrammeled fields in which the rights of free press as defined and guaranteed by the First Amendment are not in the least affected by the conviction of appellants at bench.
The quick and ready reply is that the majority position is sound unless a publisher feels restrained from exercising the rights so firmly guaranteed by the First Amendment by the gnawing knowledge that he can go to the penitentiary as a felon if in the exercise of those rights he does something which no criminal statute clearly and with specificity inhibits. This is not to say that a publisher is entitled to any immunity from criminal prosecution not extended to the most helpless citizen or that a publisher may commit crimes in his zeal to inform the public. It is to say, however, that a 'newsgathering crime' must be as clearly defined for a publisher as is any other misdemeanor or felony for an ordinary citizen before a publisher can be convicted of its violation. It would be bromidic to fortify what is axiomatic with a list of authorities which have reversed criminal convictions for omissions, vagueness, ambiguities and generalities in misdemeanor statutes to say nothing of felonies. No one doubts the power of the Legislature 'to enact specific and appropriate criminal laws to protect government property and preserve government secrets' (my emphasis) (New York Times Co. v. United States (1971) 403 U.S. 713, 737, 91 S.Ct. 2140, 29 L.Ed.2d 822, cited by the majority), as long as those laws are indeed specific and appropriate.
It may be mentioned in passing that it has not been established with legal certainty what is 'news.' (Time, Inc. v. Hill, (1966) 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456; Briscoe v. Reader's Digest Association, Inc., 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34.) On the question of the press' access to government news, see generally Cross, The People's Right to Know (1953) and Nelson and Teeter, Law of Mass. Communications (1969), pp. 377-406.
If the majority is right, a prosecution could presently be brought against any newspaperman for the unlawful receipt of the Roster under section 496, and he could [100 Cal.Rptr. 867] additionally be punished for disseminating it pursuant to section 146e. Such a statutory scheme is oppressive and vindictive beyond any rational restrictions which our government may impose on the dissemination of its documents. There was no specific and appropriate law in California which appellants violated until the California Legislature in 1970 enacted Penal Code section 146e, after the event at bench. There was and is no other 'specific' or 'appropriate' penal provision which proscribes the receiving of the stolen Roster.
This is what the dissent is all about.
I would reverse the judgment with instructions to the trial court to dismiss the indictment.
'1. Every person who buys or receives any property which has been stolen or which has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, withholds or aids in concealing or withholding any such property from the owner, knowing the property to be so stolen or obtained, . . . '
'Section 6200. Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his hands for any purpose, who is guilty of stealing, wilfully destroying, mutilating, defacing, altering or falsifying, removing or secreting the whole or any part of such record, map, book, paper, or proceeding, or who permits any other person to do so, is punishable . . .'
'Section 6201. Every person not any officer referred to in Section 6200, who is guilty of any of the acts specified in that section, is punishable by imprisonment in the State prison not exceeding five years, or by a fine not exceeding one hundred dollars ($100), or by both such fine and imprisonment.'
Chapter 5 of the Penal Code, sections 484-502.7, both inclusive, deals with theft. Our Legislature, commencing in 1872, like the judges of the 14th and 15th century, referred to by Holdsworth in History of the Common Law were 'To a certain extent * * * influenced by older rules which drew distinctions based on the idea that the thing stolen must be property of some value, and upon the idea that the gravity of the crime depended on the value of the thing stolen. In describing larceny therefore [the judges considered] * * * (1) the elements due to the common law theory of possession; (2) the question of the value of the thing stolen; and (3) the things which cannot be the subject of larceny.' (Emphasis added.) (Holdsworth, History of the Common Law, Vol. 3, p. 361.) The common law judges found '* * * in the books a heterogeneous list of things which cannot be stolen; [which] necessitated the passing of many statutes in order to fill up the many lacunae appearing in the criminal law.' (P. 367.) 'Thus the titles to deeds of land might be excluded, either because they were annexed to land, or because, being merely evidences of a right of entry or action they were choses in action of no value. That they were excluded was settled at the end of this period; and this exclusion was the foundation for the exclusion of all other choses in action--a decision which involved, * * * the absurd conclusion that a banknote cannot be stolen.' (Emphasis added.) (Vol. 2, page 368.)
I have noted, too, that Holdsworth, Volume Two, at page 451, refers to a statutory crime of '* * * embezzling the records of the king's court.'
Chapter 5 of the Penal Code shows that our Legislature has avoided many such absurd conclusions, by defining as theft many of the pilferings which were not or were inadequately covered at early common law. Such are sections 487b and c (conversion of real property by severance); 492 (value of instruments evidencing debt); 493 and 494 (value of written instruments never delivered); as well as other sections referred to in the text.
However, I find nothing in Chapter 5 which purports to cover theft of documents from the public records.
'The third bill, (AB 1951) [Penal Code, § 146e] carried by Assemblyman Campbell, will offer protection to our law enforcement officers and their families. It will make it illegal to disclose the addresses and phone numbers of peace officers when the disclosure is intended to harm the officer or his family or to obstruct justice.
'It serves notice to disreputable underground newspapers and other partisans of the so-called 'drug culture' that their harassment of, and obscene threatening phone calls to, the wives and children of peace officers will cease.'