Filed: Feb. 20, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1102 JAMES SOO CHOI, Plaintiff - Appellee, v. KYU CHUL LEE; INSIDE THE WORLD, INCORPORATED; CHUNG MU SON, Defendants - Appellants. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:06-cv-00475-CMH) Argued: December 2, 2008 Decided: February 20, 2009 Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges. Vacated and remanded by unpub
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1102 JAMES SOO CHOI, Plaintiff - Appellee, v. KYU CHUL LEE; INSIDE THE WORLD, INCORPORATED; CHUNG MU SON, Defendants - Appellants. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:06-cv-00475-CMH) Argued: December 2, 2008 Decided: February 20, 2009 Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges. Vacated and remanded by unpubl..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1102
JAMES SOO CHOI,
Plaintiff - Appellee,
v.
KYU CHUL LEE; INSIDE THE WORLD, INCORPORATED; CHUNG MU SON,
Defendants - Appellants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:06-cv-00475-CMH)
Argued: December 2, 2008 Decided: February 20, 2009
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Chang Ho Lie, LAW OFFICE OF LIE & ASSOCIATES, L.L.C., McLean,
Virginia, for Appellants. John Chapman Petersen, SUROVELL,
MARKLE, ISAACS & LEVY, P.C., Fairfax, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chung Mu Son, Inside the World, Inc., and Kyu Chul Lee
appeal from a jury verdict in favor of James Soo Choi on Choi’s
defamation claims springing from the publication of certain
newspaper columns. We vacate and remand for a new trial.
I.
Plaintiff Choi is a businessman and leader in the Korean-
American community. Over the years Choi has held various
positions with the Federation of Korean Associations of America
(the “Federation”), a non-profit corporation seeking to advance
the interests of the Korean-American community in the United
States. Appellant Lee, a syndicated columnist, wrote four
columns about Choi that were published by appellant Son in Son’s
Inside the World, a Korean-language newspaper. The columns
painted Choi in an unfavorable light, describing him as a thug
and a gangster, and alleging, among other things, that Choi
improperly titled a building in the name of a corporation he
controlled even though the building was bought with Federation
funds, and that Choi was intoxicated and poorly behaved at a
Federation convention in 2005. 1
1
The appellants failed to include in the Joint Appendix the
English translations of the columns at issue. While the
translations would have facilitated our review of this case,
(Continued)
2
Choi thereafter brought this action, asserting, as is
relevant to this appeal, that he was defamed in the columns
written by Lee. The district court limited the jury’s
consideration of the defamation claims to three groups of
statements contained in the columns -- the descriptions of Choi
as a thug and a gangster, the allegations that Choi was drunk at
a Federation convention, and the allegations that Choi
improperly transferred title to the Federation building. The
jury found in favor of Choi on the gangster and public
intoxication claims, awarding Choi $25,000 in compensatory
damages and $50,000 in punitive damages. This appeal followed. 2
II.
To establish a defamation claim under Virginia law, the
plaintiff must show “(1) publication of (2) an actionable
Choi’s complaint and the portions of the trial transcript
included in the joint appendix provide a minimally sufficient
description of the contents of the columns.
2
Choi asserted other claims against the defendants that
were dismissed by the district court or rejected by the jury,
and Choi also contended that portions of the columns other than
those submitted to the jury amounted to defamation. Because
Choi has not cross-appealed to challenge the district court’s
rulings on these issues, the only issues before us are the
appellants’ challenges to the jury verdict on the defamation
claims.
3
statement with (3) the requisite intent.” Jordan v. Kollman,
612 S.E.2d 203, 206 (Va. 2005). An actionable statement is one
that is both false and defamatory. See
id.
A statement is defamatory if it “tend[s] so to harm the
reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing
with him.” Chapin v. Knight-Ridder, Inc.,
993 F.2d 1087, 1092
(4th Cir. 1993) (internal quotation marks omitted).
“[D]efamatory words are those that make the plaintiff appear
odious, infamous, or ridiculous. Merely offensive or unpleasant
statements are not defamatory.”
Id. (citation and internal
quotation marks omitted).
“The application of the state law of defamation is limited,
of course, by the First Amendment to the Constitution of the
United States.” CACI Premier Tech., Inc. v. Rhodes, 536 F.3d
280, 293 (4th Cir. 2008) (internal quotation marks omitted).
“[S]tatements that cannot reasonably be interpreted as stating
actual facts about an individual” are constitutionally
protected.
Id. (internal quotation marks and alteration
omitted); accord Fuste v. Riverside Healthcare Ass’n, Inc.,
575
S.E.2d 858, 861 (Va. 2003). “[S]tatements of opinion[,
therefore,] are generally not actionable because such statements
cannot be objectively characterized as true or false.”
Jordan,
612 S.E.2d at 206. Likewise, “rhetorical hyperbole,” even if
4
“insulting, offensive, or otherwise inappropriate,” is not
actionable because such statements cannot “reasonably be
understood to convey a false representation of fact.” Yeagle v.
Collegiate Times, 497 S.E.2d 136, 137 (Va. 1998) (internal
quotation marks omitted); see
CACI, 536 F.3d at 293 (explaining
that “rhetorical hyperbole, a vigorous epithet and loose,
figurative, or hyperbolic language” are constitutionally
protected (internal quotation marks omitted)).
A.
As noted above, the jury found in favor of Choi with regard
to the statements describing Choi as a thug and a gangster. On
appeal, the appellants contend that those statements should be
viewed, as a matter of law, as non-actionable opinion or
hyperbole. See Yeagle, 497 S.E.2d at 138 (“The threshold issue,
whether the complained of phrase including inferences fairly
attributable to it could reasonably be interpreted as stating
actual facts about [the plaintiff] and, therefore, be actionable
defamation, is a matter of law to be resolved by the trial
court.”). We disagree.
We recognize that there are statements within the columns
suggesting that Lee used “gangster” as a hyperbolic, shorthand
label for the long-standing pattern of boorish behavior by Choi.
See, e.g., J.A. 14-15 (second column supported its
characterization of Choi as “not just an organized gangster, but
5
a thug” with a description of an incident where Choi was
discourteous to an elder). Nonetheless, other portions of the
columns describe conduct of a more serious nature -- for
example, alleging that Choi accepted a bribe to appoint someone
to a board and accepted money to conceal the whereabouts of and
generally look after a woman alleged to be the illegitimate
daughter of the South Korean premier. Under these
circumstances, we believe that the descriptions of Choi as a
gangster can reasonably be understood as stating actual facts
about Choi. See Hyland v. Raytheon Tech. Servs., Inc., ____
S.E.2d ___, 2009 WL 103546, at *4 (Va. Jan. 16, 2009) (“In
determining whether a statement is one of fact or opinion, a
court may not isolate one portion of the statement at issue from
another portion of the statement. Rather, a court must consider
the statement as a whole.” (internal citations omitted)); cf.
Richmond Newspapers, Inc. v. Lipscomb,
362 S.E.2d 32, 43 n.8
(Va. 1987) (finding no error in the trial court’s decision to
submit to the jury in a defamation action statements of opinions
“laden with factual content” (internal quotation marks
omitted)). Accordingly, in this case it is appropriate for a
jury to decide whether the gangster statements are in fact
defamatory. See Gazette, Inc. v. Harris,
325 S.E.2d 713, 733
(Va. 1985) (“[T]he publication was sufficiently defamatory on
its face . . . to permit a jury to decide whether in fact the
6
statement actually was defamatory. Thus, the trial court did
not err in failing to decide the question as a matter of law.”).
B.
The appellants also contend that the district court’s
instructions to the jury were incomplete and inaccurate, thus
requiring a new trial. We review jury instructions for abuse of
discretion. See Chaudhry v. Gallerizzo, 174 F.3d 394, 408 (4th
Cir. 1999).
The test of adequacy of instructions properly
challenged on appeal is not one of technical accuracy
in every detail. It is simply the practical one of
whether the instructions construed as a whole, and in
light of the whole record, adequately informed the
jury of the controlling legal principles without
misleading or confusing the jury to the prejudice of
the objecting party.
Spell v. McDaniel, 824 F.2d 1380, 1395 (4th Cir. 1987).
(1)
As to the gangster claims, the appellants argue that the
court’s instructions did not provide sufficient guidance for the
jury to intelligently resolve whether the gangster comments were
actionable defamation. We agree.
The district court instructed the jury that “[d]efamation
is a false statement of fact as opposed to a statement of
opinion.” J.A. 108. The court, however, provided almost no
guidance on how to distinguish between fact and opinion, stating
only that “[a] fact is a matter which can be proved or disproved
7
by evidence,” and that “[t]he entire context of an article may
be considered in determining whether a statement is one of fact
or opinion.” J.A. 108.
Locating the line separating constitutionally protected
speech from actionable defamation can be difficult and requires
consideration of the nature of the language used and the context
and general tenor of the article to determine whether the
statement can reasonably be viewed as an assertion of actual
fact. See Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180, 183-
84 (4th Cir. 1998). Given the nature of the statements at issue
and the factual context surrounding the gangster references, we
do not believe that the district court’s abbreviated
instructions adequately informed the jury of the relevant legal
principles. The instructions sought by the appellants, see J.A.
64-65, were correct statements of the law and would have
provided the jury with significant guidance in resolving an
issue of constitutional dimension. Under these circumstances,
we believe that the district court abused its discretion by
rejecting the instructions sought by the appellants. See United
States v. Lewis,
53 F.3d 29, 32 (4th Cir. 1995) (“A district
court’s refusal to provide an instruction requested by a
defendant constitutes reversible error only if the instruction:
(1) was correct; (2) was not substantially covered by the
court’s charge to the jury; and (3) dealt with some point in the
8
trial so important, that failure to give the requested
instruction seriously impaired the defendant’s ability to
conduct his defense.” (internal quotation marks omitted)).
(2)
The appellants also contend that the jury instructions were
deficient with regard to the public intoxication claims. As
discussed above, a factual statement is actionable in defamation
if the statement is both false and defamatory. See Jordan, 612
S.E.2d at 206. In this case, the district court instructed the
jury that Choi was required to prove that the statements were
false, but the court made no mention of the requirement that the
statements must also be defamatory. The appellants contend that
the omission of this element from the jury instruction
constitutes reversible error. 3 We agree.
3
It is not entirely clear from the limited portions of the
trial transcript included in the appendix whether Choi raised
this precise objection below. Given the importance of the First
Amendment issues implicated when defamation claims are asserted
against a media defendant and the effect of this error on the
appellants’ defense, we would reverse the verdict on the public
intoxication claim even if it were being raised for the first
time on appeal. See Fed. R. Civ. P. 51(d)(2) (“A court may
consider a plain error in the instructions that has not been
preserved . . . if the error affects substantial rights.”);
Dixon v. Edwards, 290 F.3d 699, 719 (4th Cir. 2002) (remanding
for consideration of issue raised for the first time on appeal
“[b]ecause of the compelling importance of preserving First
Amendment principles”); cf. Bose Corp. v. Consumers Union of the
U.S., Inc.,
466 U.S. 485, 499 (1984) (“[I]n cases raising First
Amendment issues we have repeatedly held that an appellate court
has an obligation to make an independent examination of the
(Continued)
9
By omitting an element of the defamation claim, the instructions
as given did not “adequately inform[] the jury of the
controlling legal principles.” Spell, 824 F.2d at 1395. And
given the nature of the public intoxication claims, the omission
clearly prejudiced the appellants’ ability to defend against the
defamation claims. See
id. A defamatory statement is one that
“tend[s] so to harm the reputation of another as to lower him in
the estimation of the community or to deter third persons from
associating or dealing with him.”
Chapin, 993 F.2d at 1092
(internal quotation marks omitted). The public intoxication
claims involve allegations that Choi got drunk and behaved less
than admirably while attending a Federation convention away from
home. While that kind of behavior is certainly embarrassing, it
is commonplace enough that a properly instructed jury might well
have determined that the statements did not lower Choi in the
estimation of the community and thus were not defamatory.
whole record in order to make sure that the judgment does not
constitute a forbidden intrusion on the field of free
expression.” (internal quotation marks omitted)).
10
III.
Because the jury instructions were flawed with regard to
the gangster claims and the public intoxication claims, the
jury’s verdict cannot be sustained. Accordingly, we hereby
vacate the jury verdict and remand for a new trial on those
claims. 4
VACATED AND REMANDED
4
Because we conclude that the errors in the jury
instructions require us to remand for a new trial, we need not
consider the appellants’ claim that the district court erred by
excluding evidence that Choi threatened two witnesses during
trial. Should the appellants seek to introduce that evidence
on remand, the district court is free to consider the relevance
and admissibility issues de novo.
11
