Baker v. Los Angeles Herald Examiner

• Citation: 721 P.2d 87,42 Cal.3d 254,228 Cal.Rptr. 206
• Court: United States State Supreme Court (California)
• Decision Date: 31 July 1986
• Parties: , 721 P.2d 87, 55 USLW 2203, 13 Media L. Rep. 1159 Walter BAKER, Plaintiff and Appellant, v. LOS ANGELES HERALD EXAMINER et al., Defendants and Respondents. L.A. 32147.

Page 206

228 Cal.Rptr. 206

42 Cal.3d 254, 721 P.2d 87, 55 USLW 2203, 13 Media L. Rep. 1159

Walter BAKER, Plaintiff and Appellant, v. LOS ANGELES HERALD EXAMINER et al., Defendants and Respondents.

L.A. 32147.

Supreme Court of California,

In Bank.

July 31, 1986.

Wanda Grasse, Laurence E. Clark, Monterey Park, for plaintiff and appellant.

Stephen G. Contopulos, Donovan, Leisure, Newton & Irvine, Los Angeles, for defendants and respondents.

BIRD, Chief Justice.

The question before this court is whether the Court of Appeal erred in holding that an alleged defamatory statement in a television program review which began with the phrase, "My impression is," was a statement of fact rather than a statement of opinion.

I.

Defendant, Peter Bunzel, writes a regularly featured editorial column entitled "Peter Bunzel on Television," for defendant Los Angeles Herald Examiner (Herald Examiner). On December 29, 1983, the Herald Examiner published a column by Bunzel entitled, "Birds and bees bomb in 'Sex Education' tonight." (Bunzel, Birds and bees bomb in 'Sex Education' tonight, Los Angeles Herald Examiner (Dec. 29, 1983) p. C3, cols. 1-2.)

The column reviewed a television documentary entitled "Sex Education: How Far Should We Go?" Plaintiff Baker was the producer of this documentary.

The column consisted of eight paragraphs. ¹ The first four paragraphs did not discuss the documentary, but provided background on the author's experience with the subject of sex education. First, Bunzel discussed the sex education he received from his father, an obstetrician/gynecologist. He continued this personal perspective through the second paragraph, in which he briefly discussed his efforts at sex education with his children. He commented that they would soon be "issuing their own invitations to a birds-and-bees chat" to his grandchildren.

Bunzel then opined that "[m]ore and more parents, apparently, are relinquishing their traditional roles as primary sex tutors." One reason for this, he believed, is that the subject is so delicate it "makes even the strongest adults go limp." Other reasons are the weakening of the family unit and parental deference in matters of sex education.

The fourth paragraph discussed the quality of sex education in the schools and the various points of view on that subject. Bunzel noted that while groups such as the Moral Majority give the quality of sex education in the public schools "a flunking grade," others argue that a classroom setting is "far preferable to poor instruction by parents or to the exchange of abysmal misinformation among kids who profess more experience than they actually possess."

It was not until the fifth paragraph that Bunzel introduced the topic of the documentary scheduled to air that night. He first expressed his overall conclusion that the program "does little to advance the subject [of sex education] and a lot to exploit it." He then stated: "My impression is that the executive producer Walt Baker, who is also vice president in charge of programs for Channel 9, told his writer/producer, Phil Reeder, 'We've got a hot potato here--let's pour on titillating innuendo and as much bare flesh as we can get away with. Viewers will eat it up!' " It is this passage which the Court of Appeal found defamatory.

The next two paragraphs chronicled Bunzel's disapproval of the program. He commented that those interviewed on the show had nothing "original to say" and that the documentary presented no "clear idea of [the] benefits or drawbacks" of sex education in the public schools. He further recounted scenes from the show, which purportedly included both "flashes of erotic photographs" and "a protracted tour of L.A.'s sexiest hotspots ... [where] [a]n anonymous nude dancer [was] shot discreetly from the rear while in action."

The review ended with Bunzel's agreeing with the charge that television is one of the worst exploiters of sex and asserting that his father, the doctor, "would recoil at such hypocritical sleaze."

Based on the passage attributed to him in Bunzel's article, plaintiff filed this action, alleging he had been defamed by the article. Defendants demurred, asserting that (1) the allegedly defamatory statement was a constitutionally protected expression of opinion; (2) since the statement was not libelous per se, plaintiff failed adequately to plead the requisite special damages; and (3) since the statement was subject to the "fair comment" privilege, ² plaintiff failed adequately to plead the requisite actual malice.

The trial court ruled that the statement at issue constituted nonactionable opinion, sustained the demurrer without leave to amend, and entered a judgment of dismissal. ³ Plaintiff appealed.

The Court of Appeal reversed, finding that the statement went beyond a mere critique and effectively charged plaintiff "with an intentional presentation of pornography, obscenity, and lewdness." Holding that the statement constituted "alleged fact" and was defamatory to plaintiff as a matter of law, the Court of Appeal remanded the cause to the trial court for the sole purpose of a trial on the issue of damages.

This court granted review to ascertain whether the Court of Appeal's summary analysis could withstand scrutiny under settled principles of First Amendment law.

II.

"Libel is a false and unprivileged publication by writing ... which exposes any person to hatred, contempt, ridicule, or obloguy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." (Civ.Code, § 45.) "The sine qua non of recovery for defamation ... is the existence of a falsehood." (Letter Carriers v. Austin (1974) 418 U.S. 264, 283, 94 S.Ct. 2770, 2781, 41 L.Ed.2d 745.)

The falsehood requirement is grounded in the First Amendment itself. "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." (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339-340, fn. omitted, 94 S.Ct. 2997, 3006-3007, fn. omitted, 41 L.Ed.2d 789; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600-601, 131 Cal.Rptr. 641, 552 P.2d 425.) "In this context courts apply the Constitution by carefully distinguishing between statements of opinion and fact, treating the one as constitutionally protected and imposing on the other civil liability for its abuse." (Gregory, supra, 17 Cal.3d at p. 601, 131 Cal.Rptr. 641, 552 P.2d 425.)

The crucial question in this case is whether the statement at issue was a statement of fact or a statement of opinion. This is a question of law to be decided by the court. (See generally, Letter Carriers v. Austin, supra, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745; Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6; see also Okun v. Superior Court (1981) 29 Cal.3d 442, 450, 175 Cal.Rptr. 157, 629 P.2d 1369; Gregory, supra, 17 Cal.3d at p. 601, 131 Cal.Rptr. 641, 552 P.2d 425.) In making such a determination, the court must place itself in the position of the hearer or reader, and determine the sense or meaning of the statement according to its natural and popular construction. (Cf. MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 547, 343 P.2d 36.) " 'That is to say, the publication is to be measured not so much by its effect when subjected to the critical analysis of a mind trained in law, but by the natural and probable effect upon the mind of the average reader.' " (Ibid.)

The distinction as to what is a statement of fact and what is a statement of opinion is frequently a difficult one. "[W]hat constitutes a statement of fact in one context may be treated as a statement of opinion in another, in light of the nature and content of the communication taken as a whole. Thus, 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." (Gregory, supra, 17 Cal.3d at p. 601, 131 Cal.Rptr. 641, 552 P.2d 425.)

For these reasons, California courts have developed a "totality of the circumstances" test to determine whether an alleged defamatory statement is one of fact or of opinion. First, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense. (See, e.g., Okun v. Superior Court, supra, 29 Cal.3d at p. 450, 175 Cal.Rptr. 157, 629 P.2d 1369; see also Prosser & Keeton on the Law of Torts (5th ed.1984) p. 780.) Where the language of the statement is "cautiously phrased in terms of apparency," ⁴ the statement is less likely to be reasonably understood as a statement of fact rather than opinion. (See, e.g., Gregory, supra, 17 Cal.3d at p. 603, 131 Cal.Rptr. 641, 552 P.2d 425.)

Next, the context in which the statement was made must be considered. Since "[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 [,]" the facts surrounding the publication must also be carefully considered. (See Towne v. Eisner (1918) 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372.)

This 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 was directed. (See Gregory, supra, 17 Cal.3d at pp. 602-603, 131 Cal.Rptr. 641, 552 P.2d 425.) " '[T]he publication in question must be considered in its entirety; "[i]t may not be divided into segments and each portion treated as a separate unit." [Citation.] It must be read...