Long v. Valentino

SCOVILLE, P. J., Concurring and Dissenting.

I concur in the majority opinion insofar as it holds that speech alone may violate the Unruh Civil Rights Act. But I dissent from that part of the opinion which holds Valentino did not violate the Act because her speech was “neutral and factually accurate” and thus protected by the First Amendment. (Maj. opn., ante, p. 1294.)

The jury expressly found that Valentino ejected, or aided, incited, or conspired in ejecting Long from the public seminar. A review of the record supports that finding. It is undisputed that Valentino was told prior to giving her speech on the subject of police surveillance of public meetings *1301that there was a local police officer in attendance. She testified that American Civil Liberties Union (ACLU) representative Meir Westreich told her she “should make it known” to the workshop that there might be an officer present and “see what happened.” She agreed to do so, telling those in attendance “that meetings such as the one we were in at that moment were frequently targets of undercover officers that came and took notes and tape recorded and took down what people said and put them in files.” She then looked out over the audience and asked, “Would you care to comment on that, Officer Long?” Not surprisingly, there was no response. When she was questioned later during the question-and-answer session whether a policeman was present, she replied that she had been led to believe an officer was in the audience. Long was asked to identify himself. When he did, Valentino watched silently as Lloyd, an ACLU attorney, verbally ejected him from the room.

The majority characterizes Valentino’s question as a mere request for Long to identify himself and an invitation for him to comment. That was her defense. It was also a defense roundly rejected by the jury. The majority then characterizes her statement as to Long’s presence as simply a factually true reply. Speech alone is, as the majority points out, generally protected by the First Amendment. But speech which serves to accomplish a physical event, such as Long’s ejection from the workshop, is not. The issue then is whether Valentino’s speech was protected, or whether it effected a violation of the Unruh Act.

Viewed in the abstract, asking seminar participants if they would like to comment on the issues, or stating that a certain person is in the audience, is, without more, protected speech. However, constitutional rights cannot be judged in the abstract; they must be judged in context. Accordingly, whether Valentino’s speech was protected must be viewed in light of the totality of the circumstances. And I refuse to put blinders on to what was happening here.

Valentino asked Long if he would like to comment on the issues in order to single him out in front of the other participants as a police officer. Moreover, the question was asked at the urging of an ACLU representative and with the intent of seeing what would happen. What happened probably did not come as much of a surprise to either Valentino or the ACLU representative who prompted her. Identifying Long as a police officer right after telling the seminar participants the police frequently conduct surveillance of these meetings was likely to lead to but one conclusion: Long was a police surveillant. It was also likely to lead to Long’s ejection. Either he would be forcibly ejected because he was there in his official capacity, or he would be humiliated into leaving even though he was there in his personal *1302capacity. Indeed, after he assured Lloyd he was there in his personal capacity, Long felt too humiliated and distressed to go back to the workshop because the emotions of the participants ran so high.

Contrary to the majority opinion there is substantial evidence from which the jury could have concluded Valentino ejected Long from the workshop or conspired to eject him. “As long as two or more persons agree to perform a wrongful act, the law places civil liability for the resulting damage on all of them, regardless of whether they actually commit the tort themselves. [Citation.]” (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784 [157 Cal.Rptr. 392, 598 P.2d 45], italics in original.) “Furthermore, the requisite concurrence and knowledge ‘ “ ‘may be inferred from the nature of the acts done, the relation of the parties . . . and other circumstances.”” [Citation.]” (Id. at p. 785.)

I would affirm the entire judgment.

A petition for a rehearing was denied January 19, 1990, and the petitions of respondent and appellants for review by the Supreme Court were denied April 19, 1990.