KIMURA v. VANDENBERG

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Court of Appeal, Sixth District, California.

Victor KIMURA, et al., Petitioners, v. The SUPERIOR COURT of Santa Cruz County, Respondent; Don VANDENBERG, Real Party in Interest.

No. H008154.

Decided: May 30, 1991

Jack W. Londen, Judith M. Schelly, Grant L. Kim, Jon S. Tigar, Morrison & Foerster, Margaret C. Crosby, Edward M. Chen, American Civ. Liberties Union, Foundation of Northern California, Thomas M. Gosselin, Lisa N. Wally, Pahl & Gosselin, San Francisco, and James E. Holst, Christine Helwick, and David M. Birnbaum, Office of the Gen. Counsel, Oakland, for petitioners. No appearance for respondent. Alfred Lombardo, Rucka, O'Boyle, Lombardo & McKenna, Salinas, for real party in interest.

This is a petition for writ of mandate (Code Civ.Proc., § 437c, subd. (l )) following the respondent court's denial of petitioners' motions for summary judgment or summary adjudication.

Plaintiff and real party in interest Don Vandenberg brought the action against defendant petitioners Victor Kimura, the Regents of the University of California (Regents), and Robert Stevens for damages for defamation and intentional infliction of emotional distress.1  The action was based primarily on a letter which Kimura wrote to Vandenberg accusing him of being racist and bigoted.   Kimura moved for summary judgment on the defamation claim, on the ground the entire letter was constitutionally protected by the First Amendment, or alternatively for summary adjudication that certain parts of the letter were so protected.   Defendants Regents and Stevens joined in the motion and also noticed their own motion on similar grounds.   These defendants also requested an adjudication that Vandenberg is a public official for purposes of this action.

The respondent court denied the motion for summary judgment but did grant part of the motion for summary adjudication, ruling that plaintiff Vandenberg was a public official.   The court found a triable issue of fact exists whether the defendants acted with malice.   Defendants seek statutory writ review of this order.

 For reasons we shall state, we hold as follows:  (1) the newly revised summary judgment procedure does not permit summary adjudication of legal issues unless they are equivalent to entire causes of action or affirmative defenses;  hence petitioners are not entitled to partial summary adjudication as to portions of the allegedly defamatory letter;  (2) the partial ruling regarding the public official status of Vandenberg was similarly unauthorized, and must be stricken, and we will not rely on it for analysis;  (3) whether or not Vandenberg is a public official, the allegedly defamatory communication is not actionable because it constitutes constitutionally protected rhetoric generated in discussion of a matter of public concern, and does not imply the existence of defamatory facts;  hence defendants are entitled to summary judgment in their favor on the defamation claim.

Summary Adjudication of Issues under Amended Statute

 The trial court's order was filed on February 19, 1991.   Amended effective January 1, 1991, Code of Civil Procedure section 437c, subdivision (f), now provides for summary adjudications of causes of action or affirmative defenses.   This is a change from prior law which permitted adjudication of issues.   Further, the statement of legislative intent regarding this amendment says:  “It is ․ the intent of this legislation to stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or a defense.”  (Stats.1990, ch. 1561, § 1, p. 6235.)   Although defendants made their summary judgment and summary adjudication motions in November 1990, before the effective date of this change, the statute affects only procedural rights and is therefore applicable to pending cases.  (2 Sutherland, Statutory Constitution (4th ed. 1986) § 41.09, p. 396;  Rutherford v. Board of Trustees (1976) 64 Cal.App.3d 167, 173, 134 Cal.Rptr. 290.)   We conclude that petitioner Kimura is not entitled to piecemeal determination of the constitutional status of portions of the allegedly defamatory communication, and we therefore do not discuss his motion for summary adjudication, which in any case would be moot in light of our conclusion, infra, that the entire communication is protected speech.

We also conclude that defendants were not entitled to a ruling on a motion for summary adjudication as to whether Vandenberg was a public official at the time of pertinent events.   No party has petitioned for review of that adjudication.   However, the trial court's entire order is necessarily before us by reason of defendants' petitions.   In order to dispose of the case we will be obliged to direct the trial court to vacate its order and enter a new and different order.   In obedience to presently effective law, we will direct that the adjudication regarding public official status be stricken, and we will analyze the motion for summary judgment on the defamation cause of action as though the public official status issue had not been separately resolved.  (As we will point out, the point is not basic to our analysis because the speech touches on matters of public concern.)

Record

We state the record in accordance with the principles governing motions for summary judgment, which are that the evidence is viewed in the light most favorable to the party resisting the motion, with all inferences made and ambiguities resolved in his favor.  (E.g. Parsons Manufacturing Corp. Inc. v. Superior Court (1984) 156 Cal.App.3d 1151, 1158, 203 Cal.Rptr. 419;  Pupko v. Bank of America (1981) 114 Cal.App.3d 495, 498, 170 Cal.Rptr. 615.)

Vandenberg's complaint alleges that he is the Bursar of Crown College, one of the colleges comprising the University of California at Santa Cruz (University);  that defendant Regents are the governing body of that institution, defendant Stevens is its Chancellor, and defendant Kimura was at all relevant times employed at the University as Budget Director in the Office of Finance and Planning.

On or about December 12, 1988, Kimura published on University letterhead a letter addressed to Vandenberg which was circulated to and seen and read by University officials, students, staff, faculty members, and the press.   The letter in its entirety is appended to this opinion in full as Appendix A.   That letter protested Vandenberg's cancellation of an event referred to as Filipino College Night and said that the action “reinforced the view that Crown College is extremely racist, a growing campus view held by people of color and by enlightened faculty, staff, students and campus administrators.”   The letter was two pages long and contained multiple other accusations that the cancellation was an attempt to “punish” Filipino students and resulted from bigotry and racism.

The event precipitating this letter was Vandenberg's refusal to have Crown College participate in a dinner honoring Filipino culture because it was scheduled on December 7, 1988, the anniversary of the Japanese attack on Pearl Harbor.   The background of this controversial decision is as follows:  The University colleges, Crown College and Merrill College, share food service facilities and a tradition of jointly holding a monthly event known as “College Night” presenting a theme dinner celebrating a particular culture.   In the fall of 1988, Vandenberg was acting as the Bursar, who is the head of staff, of Crown College.   He had supervisory authority over student discipline, issues of college policy, and general management of all activities at Crown College affecting student life and activities.   At some time in the fall of 1988, the activities coordinators for Crown and Merrill Colleges proposed holding the aforementioned Filipino dinner on December 7, 1988.   But Vandenberg agreed to a proposal from his staff to cancel the dinner.   Merrill College, however, which was not under Vandenberg's jurisdiction, went ahead with the Filipino dinner.

Following Crown's refusal to participate in the Filipino dinner, some members of the University community criticized the Crown staff, particularly Vandenberg and the Provost, Peggy Musgrave.   Among those criticisms was Kimura's letter, appended hereto, which he sent to Vandenberg by campus mail on December 12, 1988.   The letter was widely distributed to faculty and staff and generated much controversy.   It was published in the campus newspaper, City on a Hill, on January 5, 1989.   The discussion became so emotional in tone that Vandenberg even received death threats from some individuals.   Provost Musgrave resigned from her office on December 14, 1988, citing a lack of support from defendant Stevens with regard to Kimura's attack upon her and Vandenberg.

Chancellor Stevens issued a statement to the campus community about the “Asian Food Affair” dated December 21, 1988, in which he concluded that Crown's decision not to serve Asian food at Crown College on Pearl Harbor night was an error of judgment which understandably sent inappropriate signals about the campus commitment to diversity.   A report prepared by Vice–Chancellor Bruce Moore at Stevens's request concluded that Crown administration showed “ ‘insensitivity’ and was oblivious to the fact that many outside the University would view the linkage between Asian food and World War II as institutional racism.”

Vandenberg contends that as a result of Kimura's letter and the attacks on him that it provoked, he suffered severe injury, including total psychiatric disability such that he will never be able to return to his former job.

Discussion

We must decide whether the Kimura letter constitutes an actionable defamation.   That task requires accommodating the protection of free expression of ideas under the First Amendment with the common law protection afforded to an individual's reputation.  (See generally Ollman v. Evans (D.C.Cir.1984) 750 F.2d 970, 974.)

 Putting aside for a moment all constitutional considerations, no communication gives rise to an action for defamation unless it either alleges or implies defamatory facts.  (See generally Rest.2d Torts, § 566.) 2  It has therefore long been the law that mere statements of “opinion” are not actionable.   Plainly, the constitutional question cannot arise until it is first determined that the statement is an actionable defamation under state law.  (See Stevens v. Tillman (7th Cir.1988) 855 F.2d 394, 400.)

However, courts have tended to factor First Amendment policies into the analysis when distinguishing fact from opinion for purposes of defamation actions.   This may have been partly because the commonly used “totality of circumstances” test suggests a broad inquiry into all surrounding facts and policies, and partly it may be simple confusion of the two analytic tasks—deciding whether the statement is sufficiently factual to be actionable, and deciding whether it is worthy of constitutional protection.   Thus it has been observed that the California decisions have tended to “conflate common law principles and constitutional doctrine on the definition of opinion.”  (See Koch v. Goldway (9th Cir.1987) 817 F.2d 507, 508–509, citing, e.g., Okun v. Superior Court (1981) 29 Cal.3d 442, 451, 175 Cal.Rptr. 157, 629 P.2d 1369;  Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 131 Cal.Rptr. 641, 552 P.2d 425.   And the seminal United States Supreme Court decision in Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789, states the rule of First Amendment protection for opinions by similarly combining the two prongs of the test—the factual content, and the constitutional policies—in its classic analysis of the fact-opinion dichotomy:  “Under the First Amendment there is no such thing as a false idea.   However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.   But there is no constitutional value in false statements of fact.   Neither the intentional lie nor the careless error materially advances society's interest in ‘uninhibited, robust, and wide-open debate on the public issues.’ ”   (Gertz v. Robert Welch, Inc., supra, 418 U.S. at pp. 339–340, 94 S.Ct. at pp. 3007, quoting New York Times Co. v. Sullivan (1964) 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686.)

Also, analysis tended to be fuzzy because of the notorious difficulty of fashioning any bright line between opinions and statements of facts.  (See, e.g., Ollman v. Evans, supra, 750 F.2d at p. 975 [the court's constitutional duty to distinguish fact from opinion “is by no means as easy a question as might appear at first blush”];  Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260, 228 Cal.Rptr. 206, 721 P.2d 87 [distinction of fact and opinion “frequently a difficult one”];  Stevens v. Tillman, supra, 855 F.2d at p. 398 [courts have come up with “buckets full of factors to consider but no useful guidance”].)  Most decisions in this area contain a disclaimer that no bright line can be drawn.   The following excerpt from the concurring opinion of Justice Robert Bork, in Ollman v. Evans, is perhaps a classic statement of the problem:  “I start with candid recognition that the universe of statements cannot be neatly divided, by some logically discernible equator, into hemispheres of fact and opinion.   Fact is the germ of opinion, and the transition from assertion of fact to expression of opinion is a progression along a continuum.   A reviewing court's charge is to determine, in light of the considerations inspiring First Amendment jurisprudence and the surviving policies underlying common law protection of reputation, the point at which we should draw the line marking off the portion of speech to be accorded the absolute constitutional protection of opinion rather than the conditional privilege afforded representations of fact.”  (750 F.2d at p. 1021.)

A recent decision of the United States Supreme Court has reexamined the fact-opinion dichotomy.  (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 [Milkovich ].)  Although not disagreeing with the factors relied on in past decisions to determine if utterances are constitutionally protected, Milkovich said the governing test is an analysis of the totality of circumstances surrounding the utterance, rather than a rigid attempt to characterize a particular statement as “ ‘fact’ ” or “ ‘opinion.’ ”   There is no “ ‘wholesale defamation exemption for anything that might be labeled ‘opinion.’ ”  (Id. 110 S.Ct. at p. 2705.)   Instead, the court must make an independent judgment whether particular statements can reasonably be interpreted as stating actual defamatory facts about an individual.  (Id. at p. 2706.)  “[W]here a statement of ‘opinion’ on a matter of public concern reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth.   Similarly, where such a statement involves a private figure on a matter of public concern, a plaintiff must show that the false connotations were made with some level of fault․”  (Id. at pp. 2706–2707.)   Applying these principles, the court in Milkovich found a defamation action could proceed to trial because a reasonable factfinder could conclude that statements in a newspaper article implied that the plaintiff had perjured himself in a judicial proceeding.  (Id. at p. 2707.)

It has been recognized that Milkovich does not change substantive law in this area.  “[E]xisting constitutional doctrine remained operative to protect free expression of ideas.   That is, statements that cannot be ‘reasonably interpreted as stating actual facts' are still entitled to constitutional protection.”  (Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 724, 275 Cal.Rptr. 494.)   The Moyer case states that the dispositive question for the court is “whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion.”  (Id. at p. 724, 275 Cal.Rptr. 494;  see also Milkovich, supra, 110 S.Ct. at p. 2707.)

The leading California Supreme Court decision discussing what utterances are worthy of constitutional protection uses the “ ‘totality of the circumstances' ” test to determine what is defamatory and what is rhetorical hyperbole.  (Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at p. 260, 228 Cal.Rptr. 206, 721 P.2d 87.)   The decision begins by saying the question is one of law for the court.  (Ibid.)  And goes on to say, quoting an earlier decision, that “ ‘where potentially defamatory statements are published in a public debate, a heated labor dispute, or in another setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language which generally might be considered as statements of fact may well assume the character of statements of opinion.’ ”  (Id. at p. 260, 228 Cal.Rptr. 206, 721 P.2d 87, quoting Gregory v. McDonnell Douglas Corp., supra, 17 Cal.3d at p. 601, 131 Cal.Rptr. 641, 552 P.2d 425.)   The context in which the statement is made is crucial:  “ ‘[A] word is not a crystal, transparent and unchanged, [but] is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used․’ ”  (Id. 42 Cal.3d at p. 261, 228 Cal.Rptr. 206, 721 P.2d 87, quoting Towne v. Eisner (1918) 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372.)   Further, “[t]his contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication is directed.”  (Id. 42 Cal.3d at p. 261, 228 Cal.Rptr. 206, 721 P.2d 87.)

Such contextual analysis is used also in the Federal cases considering the issue.   One decision considers at least four factors:  the language of the statement as a whole, the context in which it is made, the audience to which it is addressed (considering how such an audience would reasonably understand it), and the extent of factual verifiability of the statement.  (Ollman v. Evans, supra, 750 F.2d at p. 979.)

The cases agree that the question is one of law for the court (e.g. Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at p. 260, 228 Cal.Rptr. 206, 721 P.2d 87) and therefore suitable for resolution by summary judgment (or even demurrer).  (E.g., Moyer v. Amador Valley J. Union High School Dist., supra, 225 Cal.App.3d at p. 720, 275 Cal.Rptr. 494 [demurrer];  Koch v. Goldway, supra, 817 F.2d at p. 507 [summary judgment].)  Further, pretrial resolution is favored when appropriate because “[t]he threat of a clearly nonmeritorious defamation action ultimately chills the free exercise of expression.”  (Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at p. 268, 228 Cal.Rptr. 206, 721 P.2d 87.)

 Vandenberg contends that whether a statement constitutes fact or opinion, according to California Supreme Court cases, is a question for the trier of fact.  (Citing Slaughter v. Friedman (1982) 32 Cal.3d 149, 185 Cal.Rptr. 244, 649 P.2d 886;  Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 150 Cal.Rptr. 258, 586 P.2d 572.)   However, these cases do not so hold.   Instead they stand for the proposition that “ ‘[w]here ․ the allegedly libelous remarks could have been understood by the average reader in either sense, the issue must be left to the jury's determination.  [Citation.]’ ”  (Slaughter v. Friedman, supra, 32 Cal.3d at p. 154, 185 Cal.Rptr. 244, 649 P.2d 886, quoting Good Government Group of Seal Beach Inc. v. Superior Court, supra, 22 Cal.3d at p. 682, 150 Cal.Rptr. 258, 586 P.2d 572.)   Each of these decisions resolved as a matter of law whether the allegedly libelous statements could be understood by the average reader in either sense (as fact or opinion) and found a jury trial appropriate when the court had decided that the statement was indeed susceptible of either of those reasonable interpretations.   Similarly, it is our task to determine as a matter of law whether Kimura's letter could reasonably be understood by a trier of fact as alleging or implying defamatory facts.   If so, then a jury trial will follow;  but if not, summary judgment is mandated.

 In considering the totality of the circumstances, the court must factor into the equation the extent to which the public is legitimately concerned with the issue discussed, that is to say, whether the matter is one of public concern.  “The public has an interest in receiving information on issues of public importance even if the trustworthiness of the information is not absolutely certain.   The First Amendment is served not only by articles and columns that purport to be definitive but by those articles that, more modestly, raise questions and prompt investigation or debate.   By giving weight on the opinion side of the scale to cautionary and interrogative language, courts provide greater leeway to journalists and other writers and commentators in bringing issues of public importance to the public's attention and scrutiny.”  (Ollman v. Evans, supra, 750 F.2d at p. 983, quoted in Baker v. Los Angeles Herlad Examiner, supra, 42 Cal.3d at p. 269, 228 Cal.Rptr. 206, 721 P.2d 87.)   And a matter may be of public concern whether or not the defendant is a so-called media defendant;  the First Amendment protects the inherent worth of informing the public, and does not depend on the identity of the source.  (Miller v. Nestande (1987) 192 Cal.App.3d 191, 198, 237 Cal.Rptr. 359, citing Philadelphia Newspapers, Inc. v. Hepps (1986) 475 U.S. 767, 779–780, 106 S.Ct. 1558, 1565–1566, 89 L.Ed.2d 783 [conc. opn. of Brennan, J.].)

 We turn to the statement before us.   The question of racism on the college campus, and accusations of racism against the head staff officer of a university college, are clearly matters of public concern.  (Cf. Stevens v. Tillman, supra, 855 F.2d at p. 403 [accusations of racism against high school principal concern the public];  see also Carney v. Santa Cruz Women Against Rape (1990) 221 Cal.App.3d 1009, 1019, 271 Cal.Rptr. 30 et seq. [women's rights in the community are a matter of public concern].)  A university campus is a community in which the need for free discussion and airing of matters of concern is great;  it has been said that “the campus is the sacred ground of free discussion.”  (White v. Davis (1975) 13 Cal.3d 757, 770, 120 Cal.Rptr. 94, 533 P.2d 222.)

 The fact that the subject matter of the utterance is one of public concern not only implicates constitutional values, but also for our purposes makes irrelevant the question whether Vandenberg is a “public” or a “private” figure.   As the cases have held—sometimes framing the holding as a finding of “limited purpose public figure” 3 —if the defamation plaintiff is embroiled in a discussion touching on public concerns in the community, then that discussion is due the same constitutional protection as is rhetoric directed against a so-called “public figure.”  (See, e.g., Ollman v. Evans, supra, 750 F.2d at p. 975 [whether plaintiff a private or public figure, “opinions” protected];  Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 747, 257 Cal.Rptr. 708, 771 P.2d 406 [if speech is a matter of public concern, private figure plaintiff must prove “New York Times malice” (publication with reckless disregard of its truth) to recover presumed or punitive damages];  Stevens v. Tillman, supra, 855 F.2d at p. 403 [even if high school principal not a public figure for all purposes, the way she ran her school is a matter of public concern].)

Accordingly, because the matter here concerns the public, that factor in the equation favors the defendants because the First Amendment was intended particularly to protect and encourage “uninhibited, robust, and wide-open” debate on public issues.  (New York Times Co. v. Sullivan, supra, 376 U.S. at p. 270, 84 S.Ct. at p. 721.)

Vandenberg claims that the letter here accuses him of being racist and bigoted, and of impeding the University's affirmative action policy, and that the letter implies undisclosed defamatory facts which Kimura asserts to be true.   However, the language of the letter, and particularly its use of the epithet “racist,” does not have the tone of a reasoned accusation, but rather is more like the emotional rhetoric characteristic of debate in this area.   One decision has noted that the term “racist” has no precise meaning, can imply many different kinds of facts, and is no more than meaningless name-calling, not actionable under Illinois state defamation law.  (Stevens v. Tillman, supra, 855 F.2d at pp. 401–402.)   That court observed:  “Accusations of ‘racism’ no longer are ‘obviously and naturally harmful.’   The word has been watered down by overuse, becoming common coin in political discourse.”  (Id. at p. 402.)  Stevens concluded that accusations of racism by members of the Black community directed at a White principal were not actionable defamation under Illinois state law.

Another decision found the charge of “ ‘bigot,’ ” in context, mere rhetoric, since it was found in an exaggerated attack on the plaintiff noting his unfitness to shine another's shoes and expressing the opinion he should be “exiled to sagebrush country with other skunks and coyotes.”  (Sall v. Barber (Colo.App.1989) 782 P.2d 1216, 1218.)   The court concluded that a fair reading of the letter in question would not lead a reasonable reader to infer that it is based on undisclosed defamatory material.  (Id. at p. 1219.)   In fact, the court said the letter was clearly based on previously published material concerning an ongoing dispute.  (Ibid.)  The situation here is similar in that the Kimura letter plainly refers to and is primarily based on the known fact that Vandenberg cancelled the Filipino dinner.

Accusations of racism in a college community are more apt to be expressions of anger, resentment, and possibly political differences of opinion, than to be factual accusations intended to be taken literally.   As was said in the context of student accusations of racism against the police at Rutgers University, “A consideration of the societal context at the time of the statements would reveal that the college community was to a degree polarized in its support of radical and conservative political views, and ․ the statements referring to the mounted police would not suggest to the average reader that they were remiss in their duty or actually deserving of the invective, but that the author was angry, upset and resentful towards the police.”  (Scelfo v. Rutgers University (1971) 116 N.J.Super. 403, 282 A.2d 445, 449.)   The accusations alleged as libelous in Scelfo included a headline in the student newspaper “ ‘YAFs, Cops, Rightists:  Racist Pig Bastards.’ ”  (Id. 282 A.2d at p. 447.)   That decision differed from ours in that the students did not identify specific policemen, so that the case turned mainly on the failure to identify the person defamed rather than on whether the accusations were defamatory in themselves.   Nevertheless the foregoing observations as to the meaning of accusations of racism in a university community hold true here as well, and the letter here is even more readily characterized as an expression of anger and resentment which will not be regarded in that community as a literal, factual accusation.

Vandenberg relies on the decision in Fleming v. Moore (1981) 221 Va. 884, 275 S.E.2d 632, which found that an accusation of racism could be an actionable defamation.   There, a Black housing developer wished to develop land near that of a White university professor who attended public hearings opposing the development on grounds of pollution and conservation.   After the responsible agency disapproved the development, the developer published an attack on the professor in the local paper captioned “RACISM” which accused the professor and others of opposing the project because they lacked concern for the “have-nots,” and were greedy people incapable of seeing other viewpoints.   The article also said the pollution excuse was a “sham.”   The professors were referred to as “tenured position-holders who live off the public dole at the expense of the working people․”  (Id. 275 S.E.2d at p. 634, fn. 3.)   It also said the professor did not “want any black people within his sight.”  (Ibid.)  The court did not explain why these statements constituted “fact” or “opinion” nor did it engage in an overt totality of the circumstances analysis;  it simply assumed that the developer's accusations were factual.4  One judge dissented, saying that “racism” is a word “bandied about in our society with complete abandon” to which he attached little significance.  (Id. at p. 639, dis. opn. of Harrison, J.)   Later, after the second trial, the Virginia court affirmed a judgment for the plaintiff but reduced the amount of the award, assuming without discussion that the accusation of racism contained sufficient factual content to be actionable.  (See Gazette, Inc. v. Harris (1985) 229 Va. 1, 325 S.E.2d 713, 746.)   Its total comment was that “Fleming abandoned all judgment and reason in composing and publishing the advertisement.   For example, he accused Moore of racial prejudice without possessing any objective basis for the charge.”  (Ibid.)  The decision did not consider whether in fact there could be a demonstrable factual basis for the charge, nor did it elaborate on the evidentiary basis, if any, for its conclusion that Fleming had no objective basis for the charge.

There are other published decisions dealing specifically with the epithet “racist” or related accusations, but they are too few in number to present any definitive “majority” or “minority” view as to whether these terms may constitute actionable libel.   Two such Federal decisions were decided before Gertz v. Robert Welch, Inc., supra, 418 U.S. at p. 323, 94 S.Ct. at p. 2997, and without benefit of that decision's concept of the non-actionable opinion as contrasted with the factual libel, reach opposing results.   They are Raible v. Newsweek, Inc. (D.C.Penn.1972) 341 F.Supp. 804, 807 [to call one a bigot “or other appropriate name descriptive of his political, racial, religious, economic or sociological philosophies gives no rise to an action for libel” ];  and Afro–American Publishing Co. v. Jaffe (D.C.Cir.1966) 366 F.2d 649 [implying that proprietor of news vending outlet in Negro neighborhood was a racist and bigot was defamatory].   The Jaffe court emphasized that there was a lack of public concern in the issue which involved cancellation of the distribution of a Negro-oriented newspaper.  (See Afro–American Publishing Co. v. Jaffe, supra, 366 F.2d at p. 656.)   As later decisions such as Ollman v. Evans, supra, 750 F.2d at p. 970, have made plain, the public concern factor weighs heavily in favor of protecting the speech, and its absence may have influenced the Jaffe decision which found the implied accusations of racism actionable.   In the Raible decision, on the other hand, summary judgment for the libel defendant was granted on the basis that name-calling is not actionable libel;  the court pointed out that “Americans have been hurling epithets at each other for generations․   Certainly such name calling, either expressed or implied, does not always give rise to an action for libel.”  (Raible v. Newsweek Inc., supra, 341 F.Supp at pp. 808–809.)

The decision in Ollman considered statements in a newspaper column on the opinion page concerning the appointment of a professor at New York University to be the chairperson of another university's politics and government department.   The column both noted that the professor was a Marxist and also cast aspersions on his scholarly reputation in the academic community.   The decision generated seven opinions, most of which found the accusations of Marxism to be matters of “opinion,” or non-actionable rhetoric;  but the judges differed widely as to the accusations of low professional standing.5  (Five out of eleven judges dissented from all or part of the opinion for the court.)   The holding was based on a careful analysis of the entire context and contents of the column, and particularly emphasized that the nature of the utterance as a whole was that of an opinion, making less important the particular isolated statements and accusations in it.   Referring to the “breathing space” essential to expressions of opinion (Gertz v. Robert Welch, Inc., supra, 418 U.S. at p. 342, 94 S.Ct. at p. 3008), the opinion noted that “[t]he provision of breathing space counsels strongly against straining to squeeze factual content from a single sentence in a column that is otherwise clearly opinion.”  (Ollman v. Evans, supra, 750 F.2d at p. 991.)

In Buckley v. Littell (2d Cir.1976) 539 F.2d 882, the Second Circuit found not actionable accusations of “fascist,” “fellow traveler,” and “radical right” directed against the journalist William Buckley, Jr.   These terms were regarded as expressions on matters of opinion, such as what constitutes a fascist, and not to imply any particular defamatory facts.

In Moyer v. Amador Valley High School Dist., supra, 225 Cal.App.3d at p. 725, 275 Cal.Rptr. 494, statements that a high school teacher was a “babbler” and the worst teacher in the school were found to be not actionable, constituting imprecise terms not intended to be taken literally.

 Focussing on the language of Kimura's letter here, we believe that the audience to which it was addressed and circulated would not reasonably believe that it implied or was based on undisclosed factual accusations.   We reach this conclusion both because of the emotional and angry tone of the letter, which does not imply reasoned debate, and also because its actual accusations are imprecise and difficult if not impossible to verify.   For example, the statement that “Crown College is extremely racist, a growing campus view held by people of color and by enlightened faculty, staff, students and campus administrators” is incapable of demonstration, since terms such as “racist” or “enlightened” lack precise definitions.   Also it is not possible to prove Vandenberg's status in the campus community with any precision.  (Cf. this assessment of the accusations of low standing in the academic community leveled at Professor Ollman:  “The issue the dissents would have tried—the political science academic community's opinion of professor Ollman's stature as a political scientist—is inherently incapable of being adjudicated with any expectation of accuracy.”  [Conc. opn. of Bork, J., in Ollman v. Evans, supra, 750 F.2d at p. 1006.] )   The characterization of Vandenberg's action as an attempt to “punish” young Filipino students is purely opinion, resting on the disclosed fact of his decision not to participate in the dinner.   An “incredible level of bigotry” is imprecise and exaggerated.   Vandenberg argues that the reference to affirmative action means that he impeded the University's affirmative action program, but “affirmative action” is itself an exceptionally imprecise term which lacks uniform understanding.

We do not condone in any way the content and tone of the letter in question.   But we observe that far worse has been found within the penumbra of First Amendment protection.  (Some of the more pungent examples of “unfair, intemperate, scurrilous and irresponsible charges” which have received constitutional protection are detailed in Justice Gardner's classic decision in Desert Sun Publishing Co. v. Superior Court (1979) 97 Cal.App.3d 49, 51–52, 158 Cal.Rptr. 519.)   Restating, again, the test of constitutional protection—“whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion” (Moyer v. Amador Valley J. Union High School Dist., supra, 225 Cal.App.3d at p. 724, 275 Cal.Rptr. 494)—we hold that this unreasonable, emotional and angry letter cannot reasonably be understood as implying any facts, that it is more opinion than fact, and as such is not appropriate for jury determination.   Since it is also part of the rhetoric generated on an explosive topic of public concern, namely, racism on the college campus, an area entitled to constitutional protection, and since we do not think any reasonable reader would take it for a reasoned factual accusation, we conclude that is not an actionable defamation and that it is constitutionally protected expression.   Defendants were therefore entitled to summary judgment in their favor.

DISPOSITION

Let a writ of mandate issue as prayed, directing the respondent court to vacate its order denying defendants' motion for summary judgment, and instead to make a new and different order granting the motion for summary judgment on the cause of action for defamation as to all defendants.   Each party shall bear their own costs.

APPENDIX A

December 12, 1988

BURSAR VAN DEN BERG

Crown College

Re:  Pilipino College Night

Dear Don

I'm certain you've received your share of criticism for how Crown College rejected Pilipino College Night last Wednesday on the basis that it would be inappropriate to serve Asian food on December 7, the anniversary of the bombing of Pearl Harbor.   Let me add my criticism.

As one of the few Asian administrators on campus, particular of Japanese descent, I have to say to you and Peggy that I am absolutely appalled and disgusted with your cancellation of Pilipino College Night.   Your actions reinforce the view that Crown College is extremely racist, a growing campus view held by people of color and by enlightened faculty, staff, students, and campus administrators.

The very notion that you would attempt “to punish” our young Pilipino students for an unfortunate act of aggression which occurred 47 years ago by the Japanese government, demonstrates not only an incredible level of bigotry, but also a total ignorance of two of the most fundamental requirements of affirmative action:  the need to recognize ethnic differences and the ability to not discriminate because of those differences.

Sadly, your unwillingness to recognize and even to admit a wrongdoing is the real tragedy.   You and Peggy are perfect examples of what enlightened people of all ethnic and cultural backgrounds define as “racist” and “bigoted,” and are at least responsible for severely impeding in a major way the campus' ability to mount a truly effective affirmative action program.   The commitment to affirmative action starts at the top levels of institutions and, unfortunately, for the faculty, staff, and students of Crown College, stops at the level of provost and bursar.

A white friend of mine visited Hiroshima recently.   As she stood in front of a memorial which acknowledged the names of thousands of Japanese people who died as a result of the Atomic bomb dropped by the United States, she was overcome by the devastation and carnage that took place, and was ashamed at what Americans had done over 40 years ago.   As tears were streaming down her face, an elderly Japanese man walked up to her and said, “You're not responsible for what happened here, just as our Japanese children are not responsible for what happened at Pearl Harbor.   We must learn to forgive and to forget.”

Although I remember little of the internment camp I was born in, I recall the stories of how hard the years of relocation were on my parents.   Following our return from a series of different internment camps, I remember as a young child having rocks thrown through the windows of our house and listening to racial slurs and personal threats.   I remember listening helplessly as my grandmother, who was one of the people in Hiroshima at the time of the bomb, coughed herself to death from radiation poisoning.   Her badly disfigured and burned body was a constant reminder to my family of the destructive capability of a nuclear bomb, so powerful that it has been used as a weapon only twice in history (by the United States against Japan's cities of Hiroshima and Nagasaki).   The point here is that many people of all ethnic backgrounds and cultures have suffered.

I would prefer that you and Peggy not respond either in writing, by person, or by telephone.   I'm afraid the racist rhetoric and perverted excuses you and Peggy have been spouting will only make me more angry and more upset.

        Sincerely

        Vic

        Victor Kimura

cc:  Assistant Chancellor Armstrong

Chair of the COP Isbister

Vice Chancellor Moore

Provost Musgrave

Admissions Counselor Ogimachi

Assistant Vice Chancellor Pacheco

Chancellor Stevens

Associate Director Walker

Asian and Pacific Island Student Association

City on the Hill Press

TWANAS

FOOTNOTES

1.   The cause of action for intentional infliction of emotional distress is not before us since the summary judgment motion was not directed at that cause.   We observe, however, that if it is based on the same facts as the defamation claim, it will meet the same constitutional fate.  (See Readers Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 265, 208 Cal.Rptr. 137, 690 P.2d 610;  Miller v. Nestande (1987) 192 Cal.App.3d 191, 202, 237 Cal.Rptr. 359.)

2.   “Expressions of Opinion[.]  A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.”  (Rest.2d Torts, § 566.)

3.   See O'Donnell v. CBS, Inc. (7th Cir.1986) 782 F.2d 1414, 1417;  Stevens v. Tillman, supra, 855 F.2d at page 403, speculating whether there may be a “ ‘limited purpose public official’ ” just as there is a limited purpose public figure, but concluding the point is not important when the matter discussed concerns the public.

4.   The court opinion was mainly concerned with its holding that the libel was not “per se.”   After reversing a judgment for the professor because of incorrect instructions, the court sent the matter back for retrial.   The conclusion that as a matter of law the developer's statements were actionable is necessarily implied by the opinion but is nowhere expressly stated.   Accordingly, the opinion in Fleming offers no convincing underpinning for its result.

5.   The professor was an avowed Marxist and the accusations of Marxism as such were therefore not actionable nor centrally in issue.   He had published articles overtly supporting building a Marxist movement.  (See e.g. “On Teaching Marxism and Building the Marxist Movement,” an article in the Winter 1978 issue of New Political Science, referenced in Ollman v. Evans, supra, 750 F.2d at p. 1030, conc. opn. of Bork, J.)  But the question whether he was a recognized scholar or an “activist” (whatever that may mean) was hotly debated.

PREMO, Acting Presiding Justice.

COTTLE and ELIA, JJ., concur.