From http://www.firstamendmentcenter.org/news.aspx?id=15428

Utah appeals court backs reporting privilege By Chris Hamby First Amendment Center Online intern 06.14.05

Journalists cannot be held responsible for reporting potentially defamatory statements during public controversies as long as the reporting is "accurate and disinterested," the Utah Court of Appeals recently ruled.

In its May 5 ruling in Schwarz v. Salt Lake Tribune, the unanimous three-judge panel cited a 1977 decision by a federal appeals court on the neutral-reporting privilege. The 2nd U.S. Circuit Court of Appeals ruled in Edwards v. National Audubon Society,that "The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them."

Barbara Schwarz, a Salt Lake City woman, filed suit claiming libel and invasion of privacy against The Salt Lake Tribune for a May 11, 2003, article about her bearing the headline "S.L. Woman's Quest Strains Public Records System."

Schwarz objected to the article's overall portrayal of her, particularly a sentence saying that federal government officials "have dubbed her a 'FOIA terrorist' and have coined a verb reflective of her unending request letters: 'Have you been Schwarzed today?'"

"It (the neutral-reporting privilege) is unconstitutional," Schwarz said in an e-mail interview with the First Amendment Center Online (she has no phone in her Salt Lake City apartment). "We all depend on the media to keep us up to date with events, but we need true and responsible reporting and not horrible insults such as calling somebody a 'FOIA terrorist.'"

Many state courts have ruled on the neutral-reporting privilege, but different courts have issued contradictory opinions, a fact Schwarz used to bolster her argument. In court filings she has repeatedly cited Khawar v. Globe Int'l, Inc., in which the California Supreme Court ruled in 1998 that the neutral-reporting privilege does not apply when a potentially defamatory statement is made about a private person. She has also cited Norton v. Glenn, a 2004 Pennsylvania Supreme Court ruling that the neutral-reporting privilege had no basis in the Pennsylvania or U.S. Constitutions. The U.S. Supreme Court declined to hear the case last March.

The Tribune article, written by Christopher Smith, said Schwarz had filed thousands of Freedom of Information Act requests, more than any other person since the law was enacted in 1966. Schwarz insists this statement is inaccurate, saying her personal records indicate she has filed a few hundred requests. She also names reporters who she says have filed many more FOIA requests than she has.

But Schwarz is well-known in certain circles, particularly among some lawyers, federal employees and Internet newsgroup members. Daniel J. Metcalfe, director of the Department of Justice's Office of Information and Privacy and a lawyer himself, said estimating her FOIA request totals in the high hundreds or into the thousands was fair.

Smith, who now works for the Boise, Idaho, bureau of the Associated Press, refused to comment on the case.

When the Tribune filed a motion seeking dismissal or summary judgment, Schwarz filed a response motion outlining her complaint.

In her Aug. 8, 2003, motion, which refers to the Tribune's "yellow journalism" seven times, Schwarz accuses the paper of "malicious defamation," deceiving her into giving an interview, unauthorized use of her photo, violation of privacy, refusing to print a correction or letter to the editor, theft of approximately 100 photos and negatives and "emotional abuse."

She went on to allege that judges in some of her past cases were biased and guilty of "judicial abuse."

"All judges in Nazi Germany denied rights to the Jews," she says in the motion, "and they dismissed all their cases. They all agreed that Jews have no rights, despite that the Jews were right demanding constitutional rights and decent treatment. It's nothing new on this earth that many people conspire together to deny an innocent person her rights; that happened in my cases, and defendants and their counsel contribute to this despicable, unlawful and unconstitutional activity."

Judge James Z. Davis, writing for the Utah Court of Appeals, dismissed all of Schwarz's claims, saying they had "no support in the record."

But Schwarz is not done battling Smith and the Tribune yet. She said she plans on appealing to the Utah Supreme Court. The rough draft of her new petition asking the state high court to hear her case outlines essentially the same argument she used with the lower courts.

Schwarz's case before the appeals court centered around her assertions that Smith and the Tribune knowingly misrepresented her in the article. She says Smith told her he was an investigative reporter doing a story on the government's peculiar actions in withholding FOIA records from her and the implications such denials might have for the free press. She also claims Smith knew the government was intentionally conspiring to deny her rights and was not actually overworked by her requests, but that he failed to report this information.

In trying to prove that the Tribune article was libelous, Schwarz aimed to establish that the story had caused her significant harm.

"I run into that article just about everywhere I go with people who think that they can deny my rights to me because of the data provided in the Tribune article," she said in an e-mail interview. "The emotional abuse that I encountered on the Internet since the article broke is horrible. This article is a permanent scar in my life, in dealing with others, employers or government agencies, etc."

Schwarz is quick to point out that the Tribune has recently been involved in a pair of scandals: one in which two Tribune reporters allegedly sold information about the Elizabeth Smart kidnapping case to The National Inquirer for $20,000 and another in which the Tribune allegedly paid a source $200 for testimony critical of a prominent Utah industrialist.

Schwarz represented herself before the state appeals court, as she has done in the past because she says she cannot afford an attorney. Tribune attorney Michael O'Brien said she cited cases and appeared very competent in court.

"She did a very good job representing herself," O'Brien said, "better than some lawyers."

Following the 3rd District Court's ruling, Schwarz filed to have Judge Glenn K. Iwasaki disqualified, but Judge William Barrett dismissed the case, claiming Schwarz did not file the necessary supporting affidavit and certificate of good faith. The 3rd District Court's office, though, showed that Schwarz had filed a supporting affidavit on Oct. 9, 2003, and a certificate of good faith on Oct. 14, several days before Barrett's Oct. 23 ruling.

Department of Justice records show that Schwarz has filed numerous FOIA suits against organizations such as the FBI, CIA, National Security Agency, Federal Bureau of Prisons and the White House. Many were "dismissed as frivolous," and Schwarz has been barred or limited in her rights to file suit in some districts.

The Justice Department has told federal employees they can legally deny Schwarz's FOIA requests until she pays fees from past requests. Schwarz, who is unemployed, says she does not have the money to pay for the files.

Everyone filing an FOIA request is given 100 free pages and two free search hours. After that, a requester must pay a fee for each page and for search time, regardless of economic status, Metcalfe said.

Schwarz, who immigrated to Salt Lake City in 1989 from Europe, according to the Tribune, claims FOIA officials play tricks and use "Mafia methods" to avoid searching for and providing files, such as altering a name by a letter so no records come up.

Many of Schwarz's requests are attempts to substantiate her claims that she is the granddaughter of President Dwight D. Eisenhower and the daughter of Church of Scientology founder L. Ron Hubbard, that she grew up on a private submarine base on the Great Salt Lake (not a secret government base, she noted, as the Tribune reported) and that her husband was wrongfully arrested in Madrid, Spain, in 1988 and taken to the United States, where he is being secretly held.

Asked what her evidence was to support her claims, Schwarz responded, "Intuition, my memory and lots of puzzle pieces, small information adding up to a big picture that I am right with my conclusions."

<p><hr><p> From: henri <henri@nowhere.com>
Subject: Barbara Schwarz loses libel suit against Salt Lake Tribune, again
Date: Tue, 14 Jun 2005 13:14:57 -0400
Organization: The Reality-Based Community
Message-ID: <824ua1ljdc60ujv4loeia7dbunmebk90mf@4ax.com>

http://www.utcourts.gov/opinions/mds/schwarz050505.htm

IN THE UTAH COURT OF APPEALS

----ooOoo----

Barbara Schwarz,

Plaintiff and Appellant,

v.

Salt Lake Tribune, Media News Group, Publisher William Dean Singleton, Chief Editor Nancy Conway, Interim Editor Bill Long, Editorial Page Editor Vern Anderson, Managing Editor Tim Fitzpatrick, Reporter Christopher Smith, Photo Editor Lori Post, and Photographer Chris Egan,

Defendants and Appellees.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20030981-CA

F I L E D

(May 5, 2005)

2005 UT App 206

-----

Third District, Salt Lake Department 030912398

The Honorable Glenn K. Iwasaki

Attorneys: Barbara Schwarz, Salt Lake City, Appellant Pro Se

Michael Patrick O'Brien, Salt Lake City, for Appellees

-----

Before Judges Billings, Davis, and Jackson.

DAVIS, Judge:

"We have determined that '[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument.' Utah R. App. P. 29(a)(3). Moreover, the issues presented are readily resolved under applicable law." West Valley City v. Foy, 2004 UT App 335,¶1, 100 P.3d 275 (mem.).

Plaintiff argues that an article published about her (the article) by Defendants constituted defamation, libel, and false light invasion of privacy. After reviewing the content of the article and the undisputed information contained in the record, we conclude that the article could not, and does not, support any of Plaintiff's claims. First, the article is covered by the neutral reportage privilege because it contains "accurate and disinterested reporting" of the information contained in the record. Edwards v. National Audubon Soc'y, 556 F.2d 113, 120 (2d Cir. 1977). Further, we believe that "[t]he public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them." Id. Second, the article is also covered by the fair comment privilege. See West v. Thomson Newspapers, 872 P.2d 999, 1013 (Utah 1994) (stating that the fair comment privilege applies to statements that "involve[] a matter of public concern, [are] based on true or privileged facts, and represent[] the actual opinion of the speaker, but [are] not made for the sole purpose of causing harm" (quotations and citation omitted)). Plaintiff's arguments about the accuracy of the article center around several opinions contained within the article. In our view, these opinions were accurately reported and fall under the fair comment privilege. See id.

Plaintiff also argues that the article and the use of her photograph in the article constituted abuse of her personal identity, a copyright violation, theft by deception, fraud, and breach of contract. All of these claims are without merit. First, the record clearly demonstrates that Plaintiff consented to the use of her photograph in the article. As such, her claim for abuse of her personal identity must fail. See Utah Code Ann. § 45-3-3(1)(b) (Supp. 2004) (requiring lack of consent as an element for abuse of personal identity). Second, because Plaintiff has not demonstrated that she possesses the copyright to the photograph used in the article, her copyright claim fails. Third, Plaintiff supports her claim for theft by deception by citing to several criminal code provisions. When statutory provisions, such as those cited by Plaintiff, contain only criminal penalties and do not create a private right of action, we generally will not create such a private right of action. See, e.g., Milliner v. Elmer Fox & Co., 529 P.2d 806, 808 (Utah 1974); Broadbent v. Board of Educ., 910 P.2d 1274, 1278 (Utah Ct. App. 1996); Richards Irrigation Co. v. Karren, 880 P.2d 6, 11 (Utah Ct. App. 1994). Accordingly, Plaintiff's private right of action based upon the crime of theft by deception fails. Finally, although Plaintiff makes bald assertions that Defendants engaged in fraudulent behavior and breached a contract they had with her, she has not pointed to any record evidence to establish the existence of any fraud or any valid, binding contract she has entered into with Defendants. Therefore, her claims for fraud and breach of contract fail.

Plaintiff next argues that Defendants are somehow liable to her for failing to include certain information in the article, print a retraction or correction of the article, and print her letter to the editor. These claims also fail. Plaintiff's claim concerning the omission of certain information from the article is not actionable. See, e.g., World Peace Movement of Am. v. Newspaper Agency Corp., 879 P.2d 253, 258 n.8 (Utah 1994) (stating that "a newspaper's exercise of editorial control and judgment is a constitutionally protected process"). Further, because we conclude that the article did not constitute defamation, libel, or false light invasion of privacy, Defendants were under no obligation to print a retraction or correction.

Plaintiff further argues that she was unconstitutionally denied the right to a jury trial and that she is entitled to damages. Because we conclude that all of Plaintiff's claims are without merit, none of her claims could possibly proceed to trial. Accordingly, she does not have a right to a jury trial on any of these claims. In addition, it is axiomatic that Plaintiff is not entitled to damages, given our conclusion that all of her claims are meritless.

Finally, Plaintiff presents several arguments concerning the trial judges that handled her case below. Plaintiff argues that Judge Iwasaki "ignored" her motion for a transcript and that his order granting Defendants' motion for summary judgment was an abuse of discretion because it did not contain citation to any legal authority; Judge Barrett abused his discretion by denying Plaintiff's motion to disqualify Judge Iwasaki; and the trial judges engaged in ex parte communication with Defendants, were biased against her, and are guilty of conspiracy with Defendants. Again, all of these claims are without merit. First, Plaintiff's claim that Judge Iwasaki "ignored" her motion for a transcript is confusing, particularly considering that we have before us the full record of the proceedings below, including a transcript of the motion hearing. Second, although Plaintiff is correct in asserting that Judge Iwasaki did not cite any legal authority in his order granting Defendants' motion for summary judgment, he did state that he was granting the motion "for the reasons stated in the documents filed by Defendants in support of" their motion for summary judgment, thereby incorporating into the order all of the legal analysis and authority cited by Defendants in the documents supporting their motion. Third, when Plaintiff filed her motion to disqualify Judge Iwasaki, she failed to file a good faith certificate and supporting affidavit as required by rule 63 of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 63(b)(1)(A). In addition, her motion failed to state a legally sufficient reason for disqualifying Judge Iwasaki, and she has failed on appeal to provide a legally sufficient reason for doing so. See id. Finally, her arguments concerning the trial judges' ex parte communication with Defendants, bias against her, and participation in a conspiracy with Defendants are all based upon her bald assertions that find no support in the record.

For the foregoing reasons, we affirm the trial court's grant of Defendants' motion for summary judgment(1) and dismissal with prejudice of Plaintiff's claims against Defendants.(2)

______________________________

James Z. Davis, Judge

-----

WE CONCUR:

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Norman H. Jackson, Judge

1. Plaintiff argues that summary judgment was inappropriate because she had established a prima facie case for defamation, libel, and/or false light invasion of privacy. Because we have concluded that these claims are without merit, we conclude that summary judgment was appropriate. See Utah R. Civ. P. 56(c) (stating that summary judgment is appropriate when "the moving party is entitled to a judgment as a matter of law").

2. Plaintiff also argues that her constitutional rights were "violated and denied" by Defendants. However, Plaintiff's argument fails to identify any cognizable constitutional claim or demonstrate how Defendants violated any of her constitutional rights.

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