A recent California Supreme Court calls into question the proper standard for reviewing factual findings made in First Amendment cases. If the only evidence submitted to the trial court was in writing, are the court’s factual findings entitled to deference or should the appellate court review the same documents and make its own assessment of the facts? Two established principles of appellate review are at play in this question.

First, as a general matter appellate courts do not reweigh facts or credibility. Factual findings by a trial court are reviewed under the highly deferential substantial evidence standard, even if there were no live witnesses and all of the evidence was presented in writing. (See Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 720, fn. 3; Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.)

Second, as a matter of federal constitutional law, in “cases raising First Amendment issues,” an appellate court must “make an independent examination of the whole record” to assure itself “that the judgment does not constitute a forbidden intrusion on the field of free expression.” (N.Y. Times Co. v. Sullivan (1964) 376 U.S. 254, 285;
Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499.)

The California Supreme Court has previously reconciled these two principles by concluding that the reviewing court must still defer to a trial court’s credibility determinations because “the trier of fact is in a superior position to observe the demeanor of witnesses.” (In re George T. (2004) 33 Cal.4th 620, 634.) Last year, however, the Court took a more nuanced approach to independent review.

In People v. Vivar (2021) 11 Cal.5th 510, the Court considered how to review a trial court’s factual findings under Penal Code section 1473.7, part of the California Racial Justice Act of 2020 which allows challenges to certain criminal convictions and sentences. Recognizing the importance of the topic warranted “independent review,” a majority of the Court held that factual findings made based on “personal observation of witnesses” are entitled to deference, but findings made “entirely from written declarations and other documents” are not. (Vivar, at pp. 527–528.) “Where . . . the facts derive entirely from written declarations and other documents, . . . there is no reason to conclude the trial court has the same special purchase on the question at issue; as a practical matter, ‘[t]he trial court and this court are in the same position in interpreting written declarations’ when reviewing a cold record. . . .” (Id. at p. 528.)

It is difficult to see why independent review under First Amendment principles would be different from independent review under Penal Code section 1473.7. In each case, the reviewing court “exercises its independent judgment to determine whether the facts satisfy the rule of law.” (People v. Vivar, supra, 11 Cal.5th at p. 527, quoting In re George T., supra, 33 Cal.4th at p. 634.) Although no published case has yet analyzed this question, there appears to be a strong argument that a trial court’s factual findings on First Amendment issues should receive no deference unless they were based on the trial court’s own observation of witnesses. It will be interesting to see whether the Courts of Appeal view Vivar as modifying the rule applied in George T., or whether the distinction between live and “cold” testimony remains relegated to the criminal contexts discussed in Vivar.