Impact of news stories unnecessarily hastened Hastings name debate

What do former Alaska Gov. Sarah Palin and UC Hastings College of the Law have in common? Not much, except the fact that the New York Times recently published an editorial about Palin and a front-page story about Hastings -- for which, at a minimum, it failed to fully investigate or consider all the facts and ramifications attendant to sensational accusations it made.

In Palin's case, the paper issued corrections but never apologized. She sued for libel alleging it printed the editorial under circumstances that make its publication defamatory.

In Hastings' case, the impact of the Times' sensational front-page article pressured the school's board of directors into requesting the California Legislature to change the college's name. That article stated that the college's founder, Serranus Clinton Hastings, was responsible for the deaths of many Native Americans in the early days of California statehood. But after an extensive investigation of the wider issue of violence against the Native Americans, California's Legislature and governor of that time did not find Serranus Hastings responsible for any of the despicable acts the Times is now attributing to him. Without mentioning the state's prior "acquittal," the Times' article sought to encourage California to determine that he is culpable. At a minimum, that would be de-facto double jeopardy.

In Palin's case, the Times editorial connected political rhetoric with violence, and it was published shortly after a member of Congress and others were shot and wounded. That editorial referenced an ad from Palin's political action committee that showed crosshairs over Democratic congressional districts and referred to the shooting of former Arizona Congressmember Gabby Giffords in 2011. The case was initially dismissed but was reinstated by the 2nd U.S. Circuit Court of Appeals for a jury trial.

New York Times v. Sullivan, 376 U.S. 254 (1964), established a rule that prohibits public officials, public figures and involuntary public figures from suing the media for damages relating to statements made about their official conduct unless they can prove that the statement was made "with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." See generally my 2002 article in the Cumberland Law Review, "The Economics of Actual Malice: A Proposal for Legislative Change to the Rule of New York Times v. Sullivan."

Some members of the U.S. Supreme Court have criticized the rule. E.g., Dun & Bradstreet v. Greenmoss Builders Inc., 472 U.S. 749, 769 (1985) (White, J. concurring) (The New York Times rule "countenances two evils: First, the stream of information about public officials and public affairs is polluted and often remains polluted by false information; and second, the reputation and professional life of the defeated plaintiff may be destroyed by falsehoods that might have been avoided with a reasonable effort to investigate the facts. In terms of the First Amendment and reputational interests at stake, these seem like perverse results.").

More recently, members of the court have called for a reexamination of the New York Times rule. E.g., Berisha v. Lawson, et al., 141 S. Ct. 2424, 2428 (2021) (Gorsuch, J., dissenting from the denial of certiorari) ("It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy. [citation] Under the actual malice regime as it has evolved, 'ignorance is bliss.' [citation] Combine this legal incentive with business incentives fostered by our new media world and the deck seems stacked against those with traditional (and expensive) journalistic standards -- and in favor of those who can disseminate the most sensational information as efficiently as possible without any particular concern for the truth.").

Attracted to California by the gold rush, Serranus Hastings was first chief justice of the California Supreme Court and its third attorney general. He turned his attention to banking, property acquisition and ranching, which in turn allowed him to amass the fortune from which $100,000 was paid in 1878, in gold coin, to the state of California to establish a law school for the nascent University of California.

In its October 21, 2021, front-page article, the Times reported that the college was confronting an opinion piece in the San Francisco Chronicle calling for it to change its name, and referring to Serranus Hastings as a "promoter and financier of Indian-hunting expeditions," and, quoting a UCLA professor's 2016 book, "An American Genocide," stating that, "both [Leland] Stanford and [Serranus] Hastings had 'helped to facilitate genocide.'"

As the Times' reporting proceeds, the article comes to adopt the narrative of a Sacramento State University professor Brendan Lindsay, who authored a 2012 book titled, "Murder State: California's Native American Genocide, 1846-1873." Lindsay was hired by the college to write a "white paper" about Serranus Hastings' involvement in what is widely acknowledged to have been government-sponsored gross mistreatment and killing of Native Americans. At that point, the Times article starts referring to "the massacres of Indians carried out by Mr. Hastings's militias" and says that these militias "shocked contemporaries and prompted an investigation in the Legislature."

What it does not mention is that the California Legislature's 1860 investigation included many written affidavits (referred to as depositions) given under oath, including that of Serranus Hastings, which tell a different story. Nor, apparently, did the Times review in detail the research Dr. Lindsay had done, or even his "white paper," since excerpts from several of the affidavits, including that of Serranus Hastings, are attached as exhibits to it.

The Times did report despicable actions by H.L. Hall, who had been hired to "look after Mr. Hastings's cattle and horse ranches in 1858," but inferred in the context of the article that those dastardly actions had been carried out by "Mr. Hastings's militias." However, the text of the white paper also includes statements concerning the formation of militias such as: "Hastings, then, was not exceptional in his call for action, only unique in his level of influence supporting such demands at the state level. And in their positive responses to constituents' demands, governors were not unique, either. The state legislature played a role as well." Nothing like that appears in the Times article.

Serranus Hastings' affidavit summary states that he knew nothing about Hall's despicable actions until after they had occurred -- and that he "dismissed" Hall. Those summaries also reveal that he purchased "the whole Eden Valley consisting of about 1200 acres" from the state, used it as grazing land, and that the local Militia was authorized by California's governor, based upon a "petition of the People." Also, because it apparently did not inform itself well enough, the Times did not know that Serranus Hastings testified that he was planning to subdue the Native Americans by feeding them.

After it was published, the Times article led almost immediately to the Hastings board of directors' decision to ask the California Legislature to change the college's name, something its chancellor and dean had sought to avoid, in favor of "restorative justice" initiatives he has initiated which mutually benefit the college and the native tribes.

The Times' article was also followed by a Los Angeles Times editorial apparently adopting the Times' narrative, asking: "What took so long?" A similarly timed San Francisco Chronicle editorial claimed that Serranus Hastings ordered massacres, "in service to his fortune kill[ing] at least 283 Indian men, women and children."

Removing the Hastings name will eliminate a visible reminder of the need for continuing restorative justice and may dampen and eventually extinguish the college's and state's current support for those initiatives. It may also prompt further action by damaged alumni, faculty, staff and other supporters of the college, fueling further opposition and action directed at those who have rushed the name-change issue to judgment without transparently addressing all the relevant evidence and potential consequences for the many who will be affected.

California Gov. Gavin Newsom has described what happened to Native Americans at California's inception as "genocide," and in 2019 formed the Truth and Healing Council which is to produce its final report "regarding the historical relationship between the state of California and California Native Americans on or before January 1, 2025."

In his executive order establishing the council Newsom quotes California's first governor, Peter Burnett: "[t]hat a war of extermination will continue to be waged between the two races until the Indian race becomes extinct must be expected."

Perhaps it would be more prudent, cheaper in the long run, and consistent with due process of law to not so hurriedly orchestrate the removing the Hastings name from the college, but instead wait until all the evidence is presented to and transparently reviewed by those making that decision. Working with the governor's Truth and Healing Council might be a good way to do that and at the same time give added visibility to the council's work. 