Baker v. Los Angeles Herald Examiner

In Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, the California Supreme Court held that the issue of whether a written statement is a factual assertion or a protected opinion is a question of law to be decided by the court. (Id. at p. 260.) In Baker, supra, 42 Cal.3d at page 260, the Supreme Court explained: "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. ' "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 the law, but by the natural and probable effect upon the mind of the average reader." ' " The Baker court further explained: "The distinction as to what is a statement of fact and what is a statement of opinion is frequently a difficult one. 'What 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.' " (Baker, supra, 42 Cal.3d at p. 260.) The Baker court concluded: "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. . . . P Next, the context in which the statement was made must be considered. . . .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. ' "The publication in question must be considered in its entirety; 'it may not be divided into segments and each portion treated as a separate unit.' It must be read as a whole in order to understand its import and the effect which it was calculated to have on the reader , and construed in the light of the whole scope and apparent object of the writer, considering not only the actual language used, but the sense and meaning which may have been fairly presumed to have been conveyed to those who read it. If the publication so construed is not reasonably susceptible of a defamatory meaning and cannot be reasonably understood in the defamatory sense pleaded, the demurrer was properly sustained. " ' " (Id. at pp. 260-261.) In the words of the Baker court, "this conclusion is strengthened finally by examining the statements and their meaning in the societal context in which the messages were posted, the audience it intended to address, and the public debate to which it was meant to contribute. This broad contextual inquiry focuses on how such circumstances influenced the average reader's reasonable interpretation of the disputed statement." (Baker, supra, 42 Cal.3d at p 267.) The Court also observed that "'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.'" (Ibid.)