WEBBER v. TELEGRAM TRIBUNE COMPANY

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Court of Appeal, Second District, Division 6, California.

James A. WEBBER, Plaintiff and Appellant, v. TELEGRAM–TRIBUNE COMPANY, et al., Defendants and Respondents.

Civ. B017381.

Decided: August 20, 1987

James A. Webber, in pro. per. Harrison & Watson and Robert Robinson, San Diego, for defendants and respondents.

 Here we hold that a plaintiff in a libel action is a limited public person when through his intentional acts he draws attention to himself, so that he creates and becomes part of a newsworthy story.

We affirm the summary judgment in favor of defendant Telegram-Tribune Company, publisher of the Telegram-Tribune, because plaintiff, James Webber, is a limited public figure and because he has not shown clear and convincing evidence of actual malice by the newspaper in publishing the defamatory statements.

FACTS

In January 1979, James Webber was dismissed from his job as a planner for the San Luis Obispo County Planning Department.   He contends he was fired because he complained of unethical and unlawful practices within county government.   An appeal to the civil service commission and entreaties to the board of supervisors failed to produce his reinstatement or an investigation into his charges.   Webber then pursued a unique, if not bizarre, course of action.   He sent letters to each of the judges of the Superior Court of San Luis Obispo, demanding that they intercede in his case or he would throw a cup of gasoline and a lighted cigarette in the face of any supervisor who opposed his reinstatement.

Not surprisingly, Webber was arrested.   In the fall of 1981 he was tried on charges of extortion and sending threatening letters to public officials.   He was more persuasive with the jurors sitting on his criminal case than he had been with the board of supervisors.   The jury found him not guilty.   Not losing sight of his goal, Webber then filed a writ of mandamus against San Luis Obispo County (County) seeking reinstatement of his job and back wages.

He also resumed his epistolary strategy.   In the spring of 1982 he wrote a series of letters to the supervisors demanding he be reinstated by the afternoon of April 5, or the County will face “actions which significantly escalate and alter the nature of this dispute.”   He threatened to bring his grievance to the attention of the state bar, the United States Attorney, other public officials, and the public.   Webber also left messages on the home telephone answering machine of Supervisor Kurt Kupper, for whom Webber once managed an electoral campaign.   In one of these messages he warned that he would hold a press conference announcing the formation of a committee opposing Kupper's electoral bid for the state assembly because of the supervisor's support of “criminal acts and unethical practices.”

On April 6 the Telegram-Tribune, a daily newspaper in San Luis Obispo County, carried an article entitled “Ominous letters from ousted planner vex county board.”   The article described precautions taken by the board of supervisors and other county personnel purportedly in response to these “threatening” letters written by Webber to county officials.   The article quoted officials saying they felt “threatened” by the letters, that they believed Webber to be “losing control of himself,” and that the situation was “spooky.”   By way of anecdote the article suggested that county employees were anxious over possible violence by Webber against the supervisors.   The article reported that the precautions taken by the County included having two sheriff's detectives sit “protectively” at the board's public session of April 5, 1982, and having curtains in the supervisors' offices lined so that the officials could not be seen from the street below.

Webber contends that the letters and phone messages contained threats only to take legal or political action against the county officials, and that he made no threats of physical violence.   His view of the situation was reported by the Tribune in a follow-up story published the next day, entitled “Ousted planner says letters to supervisors all ‘factual’ ”.

Webber filed suit against the San Luis Obispo Telegram-Tribune, its editor and managing editor, and against various county officials, alleging libel and other causes of action in that county officials and the newspaper deliberately contrived to defame and discredit him by falsely portraying the contents of his letters as threats against the safety of the officials.   The superior court granted summary judgment as to all causes of action in favor of the Telegram-Tribune and its employees on the grounds that Webber is a limited-purpose public figure who has not shown actual malice on the part of the newspaper, and because the articles are privileged as opinion and literary license.   Webber appeals.

I.

PUBLIC FIGURE

Libel is a “false and unprivileged publication ․ which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”   (Civ.Code, § 45.)   The modern law of libel and slander attempts to accommodate the First Amendment rights of the defendant to speak and write freely and the right of the plaintiff to seek redress for wrongful injury to reputation or status.  (Gertz v. Welch (1974) 418 U.S. 323, 341–42, 94 S.Ct. 2997, 3007–08, 41 L.Ed.2d 789, 806;  Hutchinson v. Proxmire (1979) 443 U.S. 111, 133–34, 99 S.Ct. 2675, 2687, 61 L.Ed.2d 411, 430;  McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 858, 231 Cal.Rptr. 518, 727 P.2d 711.)

 When applied to two classes of plaintiffs—public officials and public figures—the balance between these conflicting rights is clearly tipped in favor of free speech and press.   In order to provide the “breathing space” necessary for uninhibited, robust and open debate, public officials or public figures may not prevail in an action for libel unless they can show clear and convincing evidence of “actual malice” —that the statement was published with knowledge of falsity or reckless disregard of whether it is false or not.   (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 701;  Gertz v. Welch, supra, 418 U.S. 323, 342, 94 S.Ct. 2997, 3008;  Rancho La Costa, Inc. v. Superior Court (1980) 106 Cal.App.3d 646, 653, 165 Cal.Rptr. 347.)

This qualified privilege imposes a heavy burden on public officials and public figures who sue a newspaper for defamation.  (Franklin v. Benevolent Etc. Order of Elks (1979) 97 Cal.App.3d 915, 922, 159 Cal.Rptr. 131;  Rancho La Costa Inc. v. Superior Court, supra, 106 Cal.App.3d at p. 653, 165 Cal.Rptr. 347.)   Many deserving plaintiffs, including those intentionally maligned, will be “unable to surmount the barrier” of showing actual malice.  (Gertz v. Welch, supra, 418 U.S. 323, 342, 94 S.Ct. 2997, 3008.)   Despite the “legitimate state interest ․ [in compensating] individuals for the harm inflicted on them by defamatory falsehood,” (id. at p. 341, 94 S.Ct. at p. 3008) the First Amendment “requires that we protect some falsehood in order to protect speech that matters.”  (Ibid.)  The California Supreme Court noted that whether the plaintiff is a public official or public figure is “a question of law which is crucial to the proper resolution” of the libel claim.   (Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 252, 208 Cal.Rptr. 137, 690 P.2d 610.)

In Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d 244, 252, 208 Cal.Rptr. 137, 690 P.2d 610, our Supreme Court summarized the view of the United States Supreme Court concerning the “actual malice” requirement imposed on public figure plaintiffs.1  “In Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323 [41 L.Ed.2d 789, 94 S.Ct. 2997], the court provided a twofold rationale for extending the New York Times rule to ‘public figures.’   First, it recognized that public figures are generally less vulnerable to injury from defamation because of their ability to resort to effective ‘self help.’   Such persons ordinarily enjoy considerably greater access than private individuals to the media and other channels of communication.   This access in turn enables them to counter criticism and to expose the fallacies of defamatory statements.  [Citation.]  Second, and more significantly, the court cited a normative consideration that public figures are less deserving of protection than private persons because public figures, like public officials, have ‘voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.’  [Citation.]

“Having thus explained the rationale for the public figure classification, the Gertz decision defined two classes of public figures.   The first is the ‘all purpose’ public figure who has ‘achieve[ed] such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.’   The second category is that of the ‘limited purpose’ or ‘vortex’ public figure, an individual who ‘voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.’  [Citation.]  Unlike the ‘all purpose’ public figure, the ‘limited purpose’ public figure loses certain protection for his reputation only to the extent that the allegedly defamatory communication relates to his role in a public controversy.”  (Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d 244, 253–54, 208 Cal.Rptr. 137, 690 P.2d 610.)

But the United States Supreme Court in Gertz did not intend for its public controversy test to be the only standard against which to measure whether a plaintiff is a private or a public figure.   After setting out the definitions of public figures (see Reader's Digest Assn. v. Superior Court, quoted ante ) Justice Powell, writing for the majority, cautioned that “[e]ven if the foregoing generalities do not obtain in every instance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.”  (Gertz v. Welch, supra, 418 U.S. 323, 345, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789, 808.)

The public figure is shadowy and illusive.  “Courts and commentators have had considerable difficulty in determining the proper scope of the public figure doctrine.  [Fn. omitted.]  One district court opined that the task of demarcating between public and private figures ‘is much like trying to nail a jelly fish to the wall.’ ”  (Marcone v. Penthouse Intern. Magazine for Men (3rd Cir. 1985) 754 F.2d 1072, 1082, quoting Rosanova v. Playboy Enterprises, Inc. (S.D.Ga. 1976) 411 F.Supp. 440, 443, affd. (5th Cir. 1978) 580 F.2d 859.)   Some may argue that the task is more like nailing the First Amendment to the wall.

A.

 The trial court found Webber to be a limited purpose public figure.   Since the trial court also found no clear and convincing evidence of actual malice on the part of the Tribune, it granted the Tribune's motion for summary judgment.

Webber contends on appeal that he is not a public figure.   If a private figure, he would need only to make a showing of libel by a preponderance of the evidence.  (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 119 Cal.Rptr. 82.)   Alternatively, Webber argues that if a public figure, he has presented sufficiently clear and convincing evidence of actual malice to justify a trial.

The threshold issue for review, therefore, is whether the trial court was correct in finding Webber to be a limited purpose public figure.   To answer that question we must determine whether Webber thrust himself into a public controversy, or did he otherwise engage in conduct that makes him a public figure?  (Gertz v. Welch, supra, 418 U.S. 323, 345, 94 S.Ct. 2997, 3009.)

B.

In its order for summary judgment the court found Webber to be a public figure because of his “[s]eeking a civil service hearing concerning the termination of his employment, a civil action against the county arising out of it, his unorthodox method of bringing attention to the case through the letters to the board of supervisors[2 ], the subsequent criminal prosecution and acquittal, his involvement in local politics, his threats to hold a press conference and form a public committee to stop the election of a supervisor, his threats to involve the State Bar Association and the U.S. Attorney, his published interviews with the press, and his subsequent letters to supervisors, county counsel, district attorney and other county officials to get his job back.”   Absent from the order is an express finding of a particular public controversy.

The Tribune argued that Webber was involved in a public controversy.   It points to Webber's charges of misconduct on the part of County officials, his assertion that his dismissal was improper, and the methods he used in his campaign for reinstatement, to support his contentions.

Webber, on the other hand, argues that neither his dismissal, his charges of official misconduct, nor his efforts for reinstatement ever rose to the level of a public controversy as that term is used in Gertz and its progeny.   He argues that the purpose of his conduct—seeking reinstatement through the civil service commission, sending purportedly threatening letters to public officials, and seeking back wages through judicial proceedings—was not to influence the outcome of a matter of public concern, but only to regain his job or receive compensation for a private wrong.

We agree with Webber that the events surrounding his crusade for reinstatement do not amount to a public controversy.   This may be presumptuous because we are no more sure of what a public controversy is than our colleagues in other courts throughout the land.  (See Note, Defining a Public Controversy in the Constitutional Law of Defamation, op. cit. supra, at p. 956.)   It is as hard to define as it is to crucify our jellyfish or to grab hold of some formless protoplasm.   Nevertheless, we are no different from many other courts;  this deficiency will not stand in the way of our discussing it.

There is no evidence that Webber's dismissal, bid for reinstatement, or his allegations of governmental misconduct became the subject of discussion or debate by governmental officials or the media (except for an apparently unpublicized civil service commission hearing).   No civil service commissioner, supervisor or newspaper reporter investigated or otherwise treated Webber's allegations of government misconduct seriously.   Webber, therefore, did not create a bona fide public controversy despite his dogged and persistent attempts to stir the waters of controversy.  (See, e.g., McDowell v. Paiewonsky (3d Cir.1985) 769 F.2d 942 [a matter which is the focus of governmental investigations and news coverage becomes a public controversy];  cf. Weingarten v. Block (1980) 102 Cal.App.3d 129, 162 Cal.Rptr. 701;  Kaufman v. Fidelity Fed. Sav. & Loan Assn. (1983) 140 Cal.App.3d 913, 189 Cal.Rptr. 818.)

Webber's filing for a writ of mandate in superior court seeking reinstatement does not elevate the dispute into a public controversy.  (Time Inc. v. Firestone (1976) 424 U.S. 448, 454, 96 S.Ct. 958, 965, 47 L.Ed.2d 154;  Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 254, 208 Cal.Rptr. 137, 690 P.2d 610.)   Finally, there is no evidence that the resolution of the employment dispute would have “substantial ramifications” for those not directly involved (Waldbaum v. Fairchild Publications Inc., supra, 627 F.2d at p. 1297), or for the taxpaying public.   Concern for general public expenditures does not make plaintiff a public figure.  (Hutchinson v. Proxmire, supra, 443 U.S. 111 at p. 135, 99 S.Ct. 2675 at p. 2688.)

Even though Webber may have stayed just outside the boundary of a public controversy, he may still be a public figure.  “The dual rationale for special treatment of public figures articulated in Gertz ” is “access to the media for rebuttal and voluntary assumption of risk.”  (Brewer v. Memphis Pub. Co., Inc. (5th Cir.1980) 626 F.2d 1238, 1254, cert. den. 452 U.S. 962, 101 S.Ct. 3112, 69 L.Ed.2d 973.)   Thus, even if an actual public controversy does not exist, a plaintiff may still be a public figure for “seeking publicity or voluntarily engaging in activities that necessarily involve the risk of increased exposure and injury to reputation.”  (Ibid.)

Webber argues that irrespective of which test we apply, each of the incidents cited by the trial court and the Tribune when viewed in isolation, do not elevate him into a public figure.   A person is not a “ ‘public figure’ solely because that person ․ is a criminal defendant․”  (Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d 244, 254, 208 Cal.Rptr. 137, 690 P.2d 610, quoting Wolston v. Reader's Digest Assn, Inc. (1979) 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450.)   Webber was involved in a criminal trial, and there is no evidence that the trial engendered public controversy.

That an individual allegedly threatens public officials may be a matter of public interest or concern, or be newsworthy, but that alone is insufficient to make that individual a public figure.  (Time Inc. v. Firestone, supra, 424 U.S. 448, 455–57 [47 L.Ed.2d 154, 164, 96 S.Ct. 958];  Wolston v. Reader's Digest Assn., Inc., supra, 443 U.S. 157, 167–68, 99 S.Ct. 2701, 2707, 61 L.Ed.2d 450, 460.)   Of course, one who commits a heinous and well publicized crime such as an attempted or successful assassination of a public official may be deemed an all-purpose public figure for achieving “pervasive ․ notoriety․”  (Gertz v. Welch, supra, 418 U.S. at p. 351, 94 S.Ct. at p. 3013.)   This is not Webber.

But to isolate these factors creates a distorted view.   Our Supreme Court in Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d at page 255, 208 Cal.Rptr. 137, 690 P.2d 610, noted that the determination of whether a plaintiff is a public figure “is often a close question which can only be resolved by considering the totality of the circumstances which comprise each individual controversy.”

What emerges from all the circumstances here is the portrait of a disgruntled public employee who upon being fired, relentlessly pursued a course of action to get his job back in a manner that asked for a spotlight.   He called attention to himself in a way that risked creating a public controversy out of an otherwise private employment matter.  (See DiLeo v. Koltnow (1980) 200 Colo. 119, 613 P.2d 318.)   Webber so orchestrated his dispute with the County that he tantalized the press.   It was as if Webber wore a sign that said:  “Look how unusual I am.”   He made himself a newsworthy person by the manner in which he called attention to what he perceived to be unlawful and unethical activities in the county planning department.

Even though these allegations were first made in a confidential memorandum to a supervisor, they were openly discussed at a civil service commission hearing his appeal from dismissal.   After losing his appeal, Webber next turned to the board of supervisors, seeking an investigation of his allegations.   Had the supervisors heeded his call, such an investigation would undoubtably have been a public controversy.  (See McDowell v. Paiewonsky, supra, 769 F.2d 942.)   When that effort failed, he sought intercession from the superior court, and threatened violence to members of the board of supervisors.

After his acquittal on charges of threatening public officials, Webber was interviewed and featured in a Tribune newspaper profile.   The article accurately portrayed him as an iconoclastic, clever individual obsessed with seeking justice against what he saw as an unfair and corrupt county government.

Webber insists that he never intended his actions to attract publicity.   He contends that his letter to the superior court, threatening to throw gasoline and a lighted cigarette in the face of any county official opposing his reinstatement was only part of his strategy to gain reinstatement.   It is disingenuous to expect that this threat would not draw public attention and news coverage of the reaction of those public officials.

The second set of letters upon which the news media reported took on particular significance by virtue of the earlier letters which threatened officials with violence.   These letters were not written by an unknown person, but by the former county employee who a year earlier was tried and acquitted on charges of extortion and threatening public officials.   By intentionally choosing this course of action, Webber “stimulated and encouraged the news coverage that caused him to become a public figure.”  (Di Leo v. Koltnow, supra, 613 P.2d at p. 322.)

By warning Kupper that he would hold a press conference to announce his opposition to the Supervisor's bid for the Assembly, Webber revealed his own sense of newsworthiness.   He presumably believed that the media would attend a press conference and find his political stance of interest to the public.

If Webber had fortuitously been involved in a newsworthy story or had merely sought reinstatement or compensation through normal administrative and judicial processes, he would not be a public figure for defamation purposes.   Through his unusual conduct, however, he “voluntarily exposed himself to the increased risk of injury to his reputation resulting from defamatory falsehoods․”  (Ibid.)

In Time Inc. v. Firestone, supra, 424 U.S. 448, 96 S.Ct. 958, the United States Supreme Court held that a well known socialite in the midst of a newsworthy divorce proceeding was not a public figure, partly because she did not “choose to publicize issues as to the propriety of her married life.   She was compelled to go to court by the State in order to obtain legal release from the bonds of matrimony.   We have said that in such an instance ‘[r]esort to the judicial process ․ is no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court.’  [Citation.]”  (At p. 454.)

Mrs. Firestone did not threaten public officials or engage in idiosyncratic or bizarre conduct which would call attention to herself.   She merely exercised her right as a citizen to file a legal action.   Webber, on the other hand, did more than seek redress.   His conduct attracted “attention and comment” in his community.   In his methods, Webber made himself a public figure even though he was not involved in a public controversy.

As the characters in a novel give it substance and vitality, so too did Webber through his intentional acts give the Telegram-Tribune story its substance and vitality.   The reporter wrote the story, but Webber provided the material that made the story newsworthy and of interest.   In asking whether Webber “has a legitimate call upon the court for protection in light of his prior activities and means of self-defense ․” (Curtis Publishing Co. v. Butts (1967) 388 U.S. 130, 154, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094, 1111), the answer is no.   Webber is a public figure.

The Brewer court noted that “the Court in Gertz did not define all subcategories of the public figure classification.   Rather, after determining that the plaintiff in that case was not an all-purpose public figure, the Court set forth the more limited basis that might arguably have applied to that plaintiff, an attorney who had become involved in a local controversy over relations between police and minorities.   We note that in describing two subcategories that Court used words like ‘some,’ ‘more commonly,’ ‘for the most part.’   In describing the whole class of public figures the court included those who seek public attention or whose achievements gain notoriety, and commented that all public figures, ‘invite attention and comment’ and, later, that they ‘assume special prominence in the resolution of public questions.’   To determine plaintiffs' status based on the latter formulation, however, would require us to decide what is and is not a public question, a task the Court has stated is inappropriate for judges, and to make an ad hoc determination when, according to the Court, such determinations provides too little protection for freedom of the press.   We therefore focus instead on plaintiffs' actions in seeking publicity or voluntarily engaging in activities that necessarily involve the risk of increased exposure and injury to reputation.”  (Brewer v. Memphis Pub. Co., Inc., supra, 626 F.2d 1238, 1252, cert. den. 452 U.S. 962, 101 S.Ct. 3112, 69 L.Ed.2d 973.)

II.

ACTUAL MALICE

 Because Webber is a public figure, he cannot prevail in this defamation suit unless he proves by clear and convincing evidence that the allegedly libelous statements were made with “ ‘actual malice’— that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”   (New York Times Co. v. Sullivan, supra, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706–07;  Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d 244 at p. 256, 208 Cal.Rptr. 137, 690 P.2d 610.)

Summary judgment is a “favored” remedy in defamation cases involving the issue of actual malice unless there is sufficient evidence “to permit a trier of fact to find for the plaintiff and for an appellate court to determine that the resulting judgment ‘ “does not constitute a forbidden intrusion on the field of free expression.” ’ ”  (Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 252, 208 Cal.Rptr. 137, 690 P.2d 610, quoting Bose Corp. v. Consumer's Union (1984) 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502, 515.)

The standard of review for all summary judgment cases involving First Amendment defamation is “ ‘․ whether the record, construed in a light most favorable to the party against whom the judgment has been entered, demonstrates there are genuine issues of fact which, if proven, would support a jury verdict for that party.   Since, however, a jury verdict in a defamation case can only be supported when the actual malice is shown by clear and convincing evidence, rather than by a preponderance of evidence as in most cases [citation], the evidence and all the inferences which can reasonably be drawn from it must meet the higher standard.’ ”  (Rebozo v. Washington Post (5th Cir.1981) 637 F.2d 375, 381, as quoted in Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 252, 208 Cal.Rptr. 137, 690 P.2d 610.)

In order to find actual malice, there must be “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of the publication.”  (St. Amant v. Thompson (1968) 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, 267.)   The fact finder “must determine whether the publication was indeed made in good faith.”  (Ibid.)  We agree with the trial court that Webber has not met his burden of proof.

Webber asserts that the newspaper had an “independent basis” for entertaining doubts about the nature of the letters because the reporter read the letters before writing the article, and therefore knew they contained no threats of physical harm.   He also claims that the reporter relied on information provided by public officials whom she knew was biased against him.

It is true that the letters do not contain physical threats against anyone, and are exclusively concerned with various potential legal ramifications of the County's conduct toward Webber.   It cannot be said however that in view of Webber's previous threats against the supervisors and the language of the letters, the reporter was acting in bad faith by describing the letters as “threatening.”   The letters exhibit tremendous hostility and frustration, and are generously laced with obscenities and hyperbole.   Webber closed one letter this way:

“At 4:30 Monday the shit is going to hit the fan if I'm not reinstated.   From that point on, this case will take a quantum leap toward a very unsatisfactory resolution from your viewpoint.   You can invite the disaster, or you can come to your senses and do what any honest persons would do—simply comply with the law.   The choice is yours and you have all the information you need to make that choice with your eyes open.   Whatever choice you make, you are responsible for.   I think a word to the wise should be sufficient.”

Even if the reporter's use of the word “threat” is technically inaccurate, it is not an unreasonable interpretation of Webber's tone, and so is protected as an exercise of literary license.  (Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d 244 at p. 261, 208 Cal.Rptr. 137, 690 P.2d 610.)   All first amendment-protected publications “must necessarily be permitted some degree of flexibility in their choice of the proper words and phrases to describe the subject at issue․”  (Ibid.)

The reporter's reliance for information on public officials whom she knew were involved in the dispute with Webber is not evidence that she entertained serious doubts about the truth.   Reliance on sources known to be biased against the plaintiff may be a factor in indicating actual malice by the publisher (Fisher v. Larsen (1982) 138 Cal.App.3d 627, 640, 188 Cal.Rptr. 216), but is only relevant insofar as it reflects on the publisher's subjective attitude.  (St. Amant v. Thompson, supra, 390 U.S. 727 at p. 733, 88 S.Ct. 1323 at p. 1326.)

Here the reporter, after reading the letters, which could reasonably be construed as threatening, reported that the public officials indeed felt threatened.   There is no evidence that the newspaper may have or should have doubted the reaction of the public officials.   It is reasonable to assume that officials had reason for concern about Webber's letters.   He had a long-standing dispute with the County, and had previously threatened County officials with violence.

“Where the publication comes from a known reliable source and there is nothing in the circumstances to suggest inaccuracy, there is no duty to investigate.”   (Bindrim v. Mitchell (1979) 92 Cal.App.3d 61, 73, 155 Cal.Rptr. 29.)   Nor is there a duty to write an objective or accurate account.  (Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d 244 at p. 259, 208 Cal.Rptr. 137, 690 P.2d 610;  Gomes v. Fried (1982) 136 Cal.App.3d 924, 934, 186 Cal.Rptr. 605.)   Where the publisher has no serious doubts concerning truth, it may present but one side of the story.  (Reader's Digest Assn., supra, 37 Cal.3d 244 at p. 259, 208 Cal.Rptr. 137, 690 P.2d 610;  Vandenburg v. Newsweek, Inc. (5th Cir.1975) 507 F.2d 1024, 1028.)

The trial court was correct in finding there was no triable issues of fact concerning actual malice on the part of the newspaper, and the summary judgment is proper.  (Reader's Digest v. Superior Court, supra, 37 Cal.3d 244 at p. 252, 208 Cal.Rptr. 137, 690 P.2d 610.)   Because of our holding we need not reach the issues concerning other grounds for the judgment.

III.

 Webber also sued the Tribune for, in addition to libel, invasion of privacy, conspiracy to commit libel, interference with prospective advantage, and intentional infliction of emotional distress.   Each of these causes of action are based on the same underlying facts as the libel, and our conclusion that Webber has failed to show a triable issue of fact as to actual malice requires summary judgment on every claim based on the Tribune's publication.   “[L]iability cannot be imposed on any theory for what has been determined to be a constitutionally protected publication.”  (Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d 244 at p. 265, 208 Cal.Rptr. 137, 690 P.2d 610.)

The judgment is affirmed.

FOOTNOTES

1.   Since New York Times Co. v. Sullivan courts and commentators have explored in detail the limited-purpose public figure doctrine.  (See, e.g., Franklin v. Benevolent Etc. Order of Elks, supra, 97 Cal.App.3d 915, 159 Cal.Rptr. 131;  Rancho La Costa, Inc. v. Superior Court, supra, 106 Cal.App.3d 646, 165 Cal.Rptr. 347;  and Waldbaum v. Fairchild Publications Inc. (D.C. Cir.1980) 627 F.2d 1287;  Note, Defining a Public Controversy in the Constitutional Law of Defamation (1983) 69 Va.L.Rev. 931.)

2.   The court apparently is referring here to the letters sent to the superior court judges, which resulted in Webber's criminal prosecution.

GILBERT, Associate Justice.

STONE, P.J., and ABBE, J., concur.