Duc Tan, of Thurston Cnty., Corp. v. Le
| Decision Date | 09 May 2013 |
| Docket Number | No. 86021–1.,86021–1. |
| Citation | 300 P.3d 356,177 Wash.2d 649 |
| Parties | DUC TAN, a single man; and Vietnamese Community of Thurston County, a Washington corporation, Petitioners, v. Norman LE and Phu Le, husband and wife; Tuan A. Vu and Huynh T. Vu, husband and wife; Phiet X. Nguyen and Vinh T. Nguyen, husband and wife; Dat T. Ho and “Jane Doe” Ho, husband and wife; Nga T. Pham and Tri V. Duong, wife and husband; and Nhan T. Tran and Man M. Vo, wife and husband, Respondents. |
| Court | Washington Supreme Court |
OPINION TEXT STARTS HERE
Gregory M. Rhodes, Younglove & Coker, PLLC, Olympia, WA, Kenneth Wendell Masters, Shelby R. Frost Lemmel, Masters Law Group PLLC, Bainbridge Island, WA, for Petitioners.
Michael Barr King, James Elliot Lobsenz, Justin Price Wade, Carney Badley Spellman PS, Howard Mark Goodfriend, Smith Goodfriend PS, Seattle, WA, Nigel Stephen Malden, Nigel Malden Law, Rebecca Marie Larson, Davies Pearson PC, Tacoma, WA, for Respondents.
Michele Lynn Earl–Hubbard, Allied Law Group LLC, Seattle, WA, amicus counsel for Allied Daily Newspapers of Washington, Washington Newspapers Publishers, Pioneer Newspapers and Spokesman Review.
[177 Wash.2d 652]¶ 1 In 2003, members of the Committee Against the Viet Cong Flag disseminated an e-mail message throughout the Olympia Vietnamese community accusing Duc Tan and the Vietnamese Community of Thurston County (VCTC), a nonprofit corporation, of engaging in procommunist activities. Additionally, defendant Norman Le authored three newsletter articles repeating allegations from the e-mail and also accusing Tan and the VCTC of being undercover Viet Cong agents. Tan and the VCTC sued the authors of the publications for defamation.
¶ 2 The trial judge determined that Tan and the VCTC were public figures as a matter of law at summary judgment.1 The case then proceeded to trial where a jury found Le and his coauthors liable for defamation and awarded Tan and the VCTC $310,000 in damages. The Court of Appeals reversed and remanded for dismissal, finding the statements in the e-mail and newsletters were protected opinion supported by disclosed facts, with the exception of the allegation that members of the VCTC, including Tan, are undercover Viet Cong agents. The court found Tan and the VCTC failed to make the requisite showing that the authors published any of the statements with actual malice.
¶ 3 We hold that the defamatory statements made by Norman Le and the other authors were not protected opinion and therefore actionable. We also hold that clear, cogent, and convincing evidence supports the jury's finding of actual malice with respect to those statements. We reverse the Court of Appeals and reinstate the jury's verdict.
¶ 4 Tan was a teacher in Vietnam when the Southern Vietnamese Army drafted him for military training in 1968. After training, he returned to teaching, retaining his military ranking. The Vietnamese Communist Army captured Saigon in April 1975 and sent Tan to a communist reeducation camp. They released him after six months to resume his teaching position. His release was contingent upon signing a loyalty pledge to the Communist Party. To secure his release, Tan signed the pledge.
¶ 5 Tan worked for the Communist Party as a teacher until September 1978, when, fearing for his safety, he fled Vietnam with his family. After spending time in a Malaysian refugee camp, in 1979, the family settled near Olympia where Tan became active in the Vietnamese community as the principal of a Vietnamese language school and member of the VCTC.
[177 Wash.2d 654]¶ 6 The VCTC was started in the 1970s and became a nonprofit corporation in 1997. Duc Hua was elected its president in 1995. Tan is its director of education and is recognized as one of the organization's leaders, although apparently his position is not part of the executive committee. The VCTC's purpose is to provide cultural support for Vietnamese refugees in Thurston County.
¶ 7 Norman Le, Dat Ho, Phiet Nguyen, Nhan Tran, and Nga Pham (defendants) were all born in Vietnam. Tan and the VCTC (together generally referred to as plaintiffs) brought this lawsuit against these five defendants as well as their marital communities. Tran and Ho escaped Vietnam when Saigon fell in 1975. Norman Le was imprisoned in a labor camp for nine years and seven months. Phiet Nguyen was imprisoned in a labor camp for six years and six months.
¶ 8 Like Tan, defendants are politically active in the Vietnamese community. Norman Le was the VCTC's secretary for several years. The defendants are all members of the Committee Against the Viet Cong Flag, which was formed in 2003 to seek removal of the Socialist Republic Vietnamese flag from the lobby of South Puget Sound Community College. Many Vietnamese refugees view Vietnam's current flag as the “communist flag,” eliciting painful memories and emotions. The local Vietnamese community has divided over strategies for seeking the removal of communist flags in the region.
¶ 9 The e-mail message and newsletter articles at issue relate to the series of incidents described below.
¶ 10 The VCTC was formed in 1975 as the Vietnamese Mutual Assistance Association. In 1995, the organization voted to change its name. Defendant Le suggested that the new name include the word “national” or “nationalist” to signal a clear anticommunist agenda. Le's proposal was defeated. The organization was renamed the “Vietnamese Community Association of Thurston County,” which was eventually shortened to “Vietnamese Community of Thurston County.” Le later interpreted the decision to not include “nationalist” in the name to signal the organization's communist sympathies.2 In the defendants' signed letter (the “Public Notice”), at issue in this case, they noted, “all the local anti-communist organizations, societies, had boycotted and did not recognize it from the beginning,” after the name change. Ex. 8.
¶ 11 Following the name change, defendant Le raised concerns about a local market owner's monetary contribution to the VCTC. Le was uncomfortable accepting a donation from the market owner because the owner previously distributed free calendars that had been printed by the Communist Party in Ho Chi Minh City. The VCTC called a meeting to ask the owner why he had printed the calendars in Ho Chi Minh City. Satisfied that the owner had the calendars printed in Vietnam because it was cheaper, the VCTC accepted his monetary donation. Le testified that at the meeting, Hua, president of the VCTC, stated, “There is nothing wrong with receiving V.C. [ (Viet Cong) ] money.” 7 Verbatim Report of Proceedings (VRP) at 1398. Hua denies saying this, testifying that he said only that the VCTC accepts any donation as long as no conditions are attached.3
¶ 12 On October 4, 1997, the VCTC organized an event to honor a Vietnamese poet. At the start of the event, one member of the hired band, a recent refugee from Vietnam, began to play Vietnam's current national anthem. After the first few notes, the band apologized for playing the wrong anthem and proceeded with the national anthem of the Republic of South Vietnam. At trial, there was conflicting testimony regarding the crowd's reaction, with plaintiffs' witnesses claiming the crowd barely noticed and defendants' witnesses alleging there was a negative reaction. Two local Vietnamese newsletters published articles about the incident, at least one of which was authored by Le. Le wrote this article despite not being present to hear the wrong anthem played or to see the crowd's reaction. The VCTC held a press conference to apologize for the mistake.
¶ 13 In the fall of 1999, the VCTC newsletter suggested scheduling a cultural event on September 2. The event, Armed Forces Day, commemorates the establishment of the Southern Vietnamese Army and is typically held on June 19. The Vietnamese community knows September 2 as the date of the “Fall Revolution,” when the Communist Party declared independence from the French. Additionally, one of the defendants testified that events sponsored by the VCTC sometimes occurred on April 30, the anniversary of the fall of Saigon. At least one defendant testified that these dates were inappropriate for any Vietnamese celebration or event.
¶ 14 Plaintiff Tan ran a Vietnamese language school for children of Vietnamese refugees. Lacking its own facility, the language school borrowed classrooms from a private school. Before every class, the students gathered in the hallway to salute the flag of the Republic of South Vietnam and sing its national anthem. One of the classrooms displayed flags from around the world, including the current flag of the Socialist Republic of Vietnam. Tan testified that because the classroom was on loan from the private school, the language school's policy was not to touch or modify the display. The defendants accused Tan of not acting vigorously enough to oppose the display of the flag. Facing resistance from the classroom's teacher, the private school principal decided not to display any Vietnamese flag. Although the defendants knew Tan had the students honor the nationalist flag before every class, the defendants sent a delegation to the school to meet with the teacher and the principal. Eventually, the principal agreed they could display the nationalist flag at the school although his reason for doing so is disputed.
¶ 15 In early 2003, several concerned community members met to discuss how to stop the community college from displaying the communist flag of Vietnam. The committee elected Le cochair at the first meeting. At the second meeting, because of Le's controversial involvement in other organizations and a dramatic increase...
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