Khawar v. Globe International, Inc.

Opinion

We granted review to decide certain issues concerning the federal Constitution’s guarantees of freedom of speech and of the press *259 insofar as they restrict a state’s ability to impose tort liability for the publication of defamatory falsehoods. More specifically, we address the definition of a “public figure” for purposes of tort and First Amendment law, the existence in this state of a privilege for “neutral reportage,” and the showings required to support awards of compensatory and punitive damages for the republication of a defamatory falsehood.

On these issues, we conclude: (1) A young journalist who was photographed near a nationally prominent politician moments before the politician’s assassination, but who was never a suspect in the government’s investigation of the assassination, whose views on the assassination were never publicized, and who never sought to influence public discussion about the assassination, was not a public figure in relation to a tabloid newspaper’s article reporting a book’s false accusation that the journalist assassinated the politician; (2) this state does not recognize a neutral reportage privilege for republication of a libel concerning a private figure (and we need not and do not decide here whether this state recognizes a neutral reportage privilege for republication of a libel concerning a public official or public figure); and (3) the evidence produced at the trial in this case supports the jury’s findings of negligence and actual malice, which in turn support the awards of compensatory and punitive damages.

I. Facts

In November 1988, Roundtable Publishing, Inc., (Roundtable) published a book written by Robert Morrow (Morrow) and entitled The Senator Must Die: The Murder of Robert Kennedy (the Morrow book). The Morrow book alleged that the Iranian Shah’s secret police (SAVAK), working together with the Mafia, carried out the 1968 assassination of United States Senator Robert F. Kennedy (Kennedy) in California and that Kennedy’s assassin was not Sirhan Sirhan, who had been convicted of Kennedy’s murder (see People v. Sirhan (1972) 7 Cal.3d 710 [102 Cal.Rptr. 385, 497 P.2d 1121]), but a man named Ali Ahmand, whom the Morrow book described as a young Pakistani who, on the evening of the Kennedy assassination, wore a gold-colored sweater and carried what appeared to be a camera but was actually the gun with which Ahmand killed Kennedy. The Morrow book contained four photographs of a young man the book identified as Ali Ahmand standing in a group of people around Kennedy at the Ambassador Hotel in Los Angeles shortly before Kennedy was assassinated.

Globe International, Inc., (Globe) publishes a weekly tabloid newspaper called Globe. Its issue of April 4, 1989, contained an article on page 9 under the headline: Former CIA Agent Claims: Iranians Killed Bobby Kennedy For *260 The Mafia (the Globe article). Another headline, appearing on the front page of the same issue, stated: Iranian secret police killed Bobby Kennedy. The Globe article, written by John Blackburn (a freelance reporter and former Globe staff reporter), gave an abbreviated, uncritical summary of the Morrow book’s allegations. The Globe article included a photograph from the Morrow book showing a group of men standing near Kennedy; Globe enlarged the image of these individuals and added an arrow pointing to one of these men and identifying him as the assassin Ali Ahmand.

In August 1989, Khalid Iqbal Khawar (Khawar) brought this action against Globe, Roundtable, and Morrow, alleging that he was the person depicted in the photographs and identified in the Morrow book as Ali Ahmand, and that the book’s accusation, repeated in the Globe article, that he had assassinated Kennedy was false and defamatory and had caused him substantial injury. Three months later, Khawar’s father, Ali Ahmad (not Ahmand), brought a separate defamation suit against the same defendants and based on the same publications. These two actions were consolidated.

Morrow defaulted, and Roundtable settled with both Khawar and Ahmad before trial. As part of the settlement, Roundtable executed a retraction disavowing “any and all statements, intimations, or references that Khalid Iqbal Khawar or Ali Ahmad were in any way associated with or committed the assassination of United States Senator Robert F. Kennedy.” A jury trial ensued on the claims against Globe.

The evidence at trial showed that in June 1968, when Kennedy was assassinated, Khawar was a Pakistani citizen and a free-lance photojournalist working on assignment for a Pakistani periodical. At the Ambassador Hotel’s Embassy Room, he stood on the podium near Kennedy so that a friend could photograph him with Kennedy, and so that he could photograph Kennedy. He was aware that television cameras and the cameras of other journalists were focused on the podium and that his image would be publicized. When Kennedy left the Embassy Room, Khawar did not follow him; Khawar was still in the Embassy Room when Kennedy was shot in the hotel pantry area. Both the Federal Bureau of Investigation (FBI) and the Los Angeles Police Department questioned Khawar about the assassination, but neither agency ever regarded him as a suspect.

In April 1989, 21 years later, when the Globe article was published, Khawar was a naturalized United States citizen living with his wife and children in Bakersfield, California, where he owned and operated a farm. His father, Ali Ahmad, had likewise become a naturalized United States citizen and settled in Bakersfield. After Khawar read the Globe article, he became *261 very frightened for his own safety and that of his family. He received accusatory and threatening telephone calls about the article from as far away as Thailand, he and his children received death threats, and his home and his son’s car were vandalized. A Bakersfield television station interviewed Khawar about the Globe article.

The trial court granted Globe’s motion for nonsuit as to Ahmad on the ground that the allegedly defamatory statements in the Globe article were not “of and concerning” Ahmad. As to Khawar, the jury returned, among others, these special verdicts: (1) the Globe article contained statements about Khawar that were false and defamatory; (2) Globe published the article negligently and with malice or oppression; (3) with respect to Kennedy’s assassination, Khawar was a private rather than a public figure; and (4) the Globe article was a neutral and accurate report of the Morrow book. The parties had previously agreed that the jury’s findings on the last two issues would be advisory only. The jury awarded Khawar $100,000 for injury to his reputation, $400,000 for emotional distress, $175,000 in presumed damages, and, after a separate punitive damages phase, $500,000 in punitive damages.

After the return of these special verdicts, the trial court reviewed those that were deemed advisory and determined as a matter of law that (1) the Globe article was not an accurate and neutral report of the statements and charges made in the Morrow book (thus disagreeing with and rejecting the jury’s advisory special verdict); and (2) with respect to the events in question, Khawar was a private and not a public figure (thus agreeing with and adopting the jury’s advisory special verdict). The trial court’s finding that the Globe article was not an accurate and neutral report of the Morrow book was apparently based on the court’s subsidiary finding that although Khawar could be identified from the photograph of him that appeared in the Globe article, which included an arrow pointing directly at Khawar, it was impossible to identify Khawar from the smaller, darker, and less distinct image of him, without an arrow, that appeared in the Morrow book. Based upon its findings that Khawar was not named in and could not be identified from the photographs in the Morrow book, the trial court vacated Morrow’s default and ultimately entered judgment in his favor. The court granted judgment on the special verdicts for Khawar and against Globe in the amount of $1,175,000.

Globe appealed from the judgment. The Court of Appeal reached these conclusions: (1) Khawar was not a public figure; (2) California has not adopted a neutral reportage privilege for private figures; (3) in light of these conclusions, it was unnecessary to decide whether California has adopted a *262 neutral reportage privilege for public figures or whether the Globe article was a neutral and accurate report of the Morrow book; and (4) the evidence supported the trial court’s findings of negligence and actual malice. The Court of Appeal affirmed the judgment.

We granted Globe’s petition for review raising these issues: (1) When a published book places a person at the center of a public controversy, is that person an involuntary public figure for the limited purpose of a media report about that book and that controversy? (2) Does the First Amendment to the federal Constitution mandate a privilege for a media defendant’s publication of a neutral and accurate report about a controversial book’s allegations regarding matters of public concern? (3) Does the evidence support the jury’s special verdict finding of actual malice? (4) Does the evidence support the jury’s special verdict finding of negligence? (5) Did the trial court usurp the jury’s role and violate Globe’s right to due process of law when it determined the Globe article to be an “original libel” without giving Globe the opportunity to be heard or present evidence on that issue?

II. Public Figure

We consider first Globe’s contention that the trial court and the Court of Appeal erred in concluding that Khawar is a private rather than a public figure for purposes of this defamation action.

A. Background

The federal Constitution’s First Amendment, made applicable to the states by the Fourteenth Amendment (Near v. Minnesota (1931) 283 U.S. 697, 707 [51 S.Ct. 625, 627-628, 75 L.Ed. 1357]), guarantees freedom of speech and of the press. In New York Times Co. v. Sullivan (1964) 376 U.S. 254 [84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412], the United States Supreme Court for the first time construed these constitutional guarantees as imposing ' limitations on a state’s authority to award damages for libel. Specifically, the court held that the First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” (Id. at pp. 279-280 [84 S.Ct. at p. 726].) The court later explained that the publisher of a defamatory statement acts with reckless disregard amounting to actual malice if, at the time of publication, the publisher “in fact entertained serious doubts as to the truth of his publication.” (St. Amant v. Thompson (1968) 390 U.S. 727, 731 [88 S.Ct. 1323, 1325, 20 L.Ed.2d 262].) In Curtis Publishing Co. v. Butts (1967) 388 U.S. *263 130, 134 [87 S.Ct. 1975, 1980-1981, 18 L.Ed.2d 1094], the high court held that this “actual malice” requirement for defamation actions brought by public officials applied also to defamation actions brought by “public figures.”

In Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323 [94 S.Ct. 2997, 41 L.Ed.2d 789] (Gertz), the court explained that it had imposed the actual malice requirement on defamation actions by both public officials and public figures because such persons “usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy” (id. at p. 344 [94 S.Ct. at p. 3009]) and because they “have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them” (id. at p. 345 [94 S.Ct. at p. 3010]). Concerning the latter justification, the court stated: “Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare.” (Ibid.)

The court then explained that there are two types of public figures: “Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.” (Gertz, supra, 418 U.S. 323, 345 [94 S.Ct. 2997, 3009].) The court reiterated the distinction in these words: “[The public figure] designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.” (Id. at p. 351 [94 S.Ct. at pp. 3012-3013].)

The court contrasted these two types of public figures—the all purpose public figure and the limited purpose public figure—with an ordinary private individual: “He [the private individual] has not accepted public office or assumed an ‘influential role in ordering society.’ [Citation.] He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they *264 are also more deserving of recovery.” (Gertz, supra, 418 U.S. 323, 345 [94 S.Ct. 2997, 3010].) The court declined to impose the actual malice requirement on the recovery of damages for actual injury caused to a private figure by the publication of a defamatory falsehood. (Id. at pp. 345-348 [94 S.Ct. at pp. 3009-3011].)

In three later decisions, the United States Supreme Court has applied this form of analysis, similarly concluding in each that a plaintiff in a libel action was a private rather than a public figure. (Wolston v. Reader’s Digest Assn., Inc. (1979) 443 U.S. 157, 166-169 [99 S.Ct. 2701, 2706-2708, 61 L.Ed.2d 450] (Wolston); Hutchinson v. Proxmire (1979) 443 U.S. 111, 133-136 [99 S.Ct. 2675, 2687-2689, 61 L.Ed.2d 411]; Time, Inc. v. Firestone (1976) 424 U.S. 448, 451-455 [96 S.Ct. 958, 963-966, 47 L.Ed.2d 154].)

B. Analysis

We begin with the standard of review. At trial, whether a plaintiff in a defamation action is a public figure is a question of law for the trial court. (Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 252 [208 Cal.Rptr. 137, 690 P.2d 610]; Tavoulareas v. Piro (D.C. Cir. 1987) 817 F.2d 762, 772 [260 App.D.C. 39]; see Smolla, Law of Defamation (10th ed. 1996) § 2.29[2], p. 2-101.) On appeal, the trial court’s resolution of disputed factual questions bearing on the public figure determination is reviewed for substantial evidence, while the trial court’s resolution of the ultimate question of public figure status is subject to independent review for legal error. (See Wolston, supra, 443 U.S. 157, 166-168 [99 S.Ct. 2701, 2706-2707] [apparently applying these standards]; Gertz, supra, 418 U.S. 323, 352 [94 S.Ct. 2997, 3013] [same]; Reader’s Digest Assn. v. Superior Court, supra, 37 Cal.3d 244, 255-256 [same].)

Applying the standard here, we note, first, that Globe does not contend that Khawar is a public figure for all purposes but merely that he is a public figure for limited purposes relating to particular public controversies. Globe’s main argument appears to be that publication of the Morrow book drew Khawar into public controversies surrounding Kennedy’s assassination and that Khawar is therefore an involuntary public figure for the limited purpose of a report on that book. In making this argument, Globe relies on the language in Gertz, supra, 418 U.S. 323, that it is possible for a person “to become a public figure through no purposeful action of his own” (id. at p. 345 [94 S.Ct. at p. 3009]), and that a person can become a public figure by being “drawn into a particular public controversy” (id. at p. 351 [94 S.Ct. at p. 3013]). Thus, Globe concedes, at least for purposes of this one argument, that Khawar did not intentionally thrust himself into the vortex of any public controversy.

*265 We find Globe’s argument unpersuasive because characterizing Khawar as an involuntary public figure would be inconsistent with the reasons that the United States Supreme Court has given for requiring public figures to prove actual malice in defamation actions. As we have explained, the high court imposed the actual malice requirement on defamation actions by public figures and public officials for two reasons: They have media access enabling them to effectively defend their reputations in the public arena; and, by injecting themselves into public controversies, they may fairly be said to have voluntarily invited comment and criticism. (Gertz, supra, 418 U.S. 323, 344-345 [94 S.Ct. 2997, 3009-3010].) By stating that it is theoretically possible to become a public figure without purposeful action inviting criticism (id. at p. 345 [94 S.Ct. at pp. 3009-3010]), the high court has indicated that purposeful activity may not be essential for public figure characterization. But the high court has never stated or implied that it would be proper for a court to characterize an individual as a public figure in the face of proof that the individual had neither engaged in purposeful activity inviting criticism nor acquired substantial media access in relation to the controversy at issue. We read the court’s decisions as precluding courts from affixing the public figure label when neither of the reasons for applying that label has been demonstrated. Thus, assuming a person may ever be accurately characterized as an involuntary public figure, we infer from the logic of Gertz that the high court would reserve this characterization for an individual who, despite never having voluntarily engaged the public’s attention in an attempt to influence the outcome of a public controversy, nonetheless has acquired such public prominence in relation to the controversy as to permit media access sufficient to effectively counter media-published defamatory statements.

We find in the record no substantial evidence that Khawar acquired sufficient media access in relation to the controversy surrounding the Kennedy assassination or the Morrow book to effectively counter the defamatory falsehoods in the Globe article. After the assassination and before publication of the Morrow book, no reporter contacted Khawar to request an interview about the assassination. Nor was there any reason for a reporter to do so: Khawar was not a suspect in the investigation, he did not testify at the trial of the perpetrator of the assassination, and, so far as the record shows, his own views about the assassination were never publicized.

Nothing in the record demonstrates that Khawar acquired any significant media access as a result of publication of either the Morrow book or the other book, RFK Must Die (1970) by Robert Blair Kaiser, in which, according to Globe, questions were raised about Khawar’s activities in relation to the assassination. There is no evidence that either book enjoyed substantial *266 sales or was reviewed in widely circulated publications. Indeed, the evidence showed that when the Globe article appeared, Roundtable had sold only 500 of the 25,000 printed copies of the Morrow book, and that although Roundtable had sent 150 copies of the Morrow book to various media entities, only Globe published a report concerning it. Before publication of the Globe article, no reporter contacted Khawar to interview him about either book, and he remained unaware of their publication.

The interview by the Bakersfield television station, which was the only interview in which Khawar ever participated that related in any way to the Kennedy assassination, the Morrow book, or the Globe article, occurred after and in response to the publication of the Globe article. Although this single interview demonstrates that Khawar enjoyed some media access, it is only the media access that would likely be available to any private individual who found himself the subject of sensational and defamatory accusations in a publication with a substantial nationwide circulation. (Globe distributed more than 2.7 million copies of the issue containing the Globe article.) If such access were sufficient to support a public figure characterization, any member of the media—any newspaper, magazine, television or radio network or local station—could confer public figure status simply by publishing sensational defamatory accusations against any private individual. This the United States Supreme Court has consistently declined to permit. As the court has repeatedly said, “those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.” (Hutchinson v. Proxmire, supra, 443 U.S. 111, 135 [99 S.Ct. 2675, 2688]; see Smolla, Law of Defamation, supra, § 2.10, p. 2-34; see also Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 752-753 [257 Cal.Rptr. 708, 771 P.2d 406].)

Although Globe’s primary argument is that publication of the Morrow book made Khawar an involuntary public figure, Globe may be understood to argue further that Khawar’s involvement with the Kennedy assassination controversies was not entirely involuntary because, immediately before the assassination, Khawar sought and obtained a position close to Kennedy on the podium knowing that there would be substantial media coverage of the event. For a variety of reasons, this conduct does not demonstrate that Khawar voluntarily elected to encounter an increased risk of injury from defamatory falsehoods in publications like the Globe article.

First, Khawar’s conduct occurred before any relevant controversy arose. The controversies discussed in the Globe article related to Kennedy’s assassination and the particular theory concerning it that was proposed in the Morrow book. Khawar’s conduct in standing near Kennedy at the hotel was *267 not a voluntary association with either of those controversies because the conduct occurred before the assassination and before the Morrow book’s publication. Khawar did not know, nor should he have known, that Kennedy would be assassinated moments later, much less that a book would be published 20 years thereafter containing the theory proposed in the Morrow book. We do not disagree with Globe that Kennedy’s campaign for his party’s nomination to the presidency may be described as a public issue or controversy, nor do we disagree that Khawar voluntarily associated himself with this public issue or controversy by allowing himself to be photographed with Kennedy at a campaign press conference. But these facts have no legal significance for purposes of this libel action. The subject of the Globe article was not Kennedy’s candidacy as such, but rather Kennedy’s assassination and the theory put forward in the Morrow book.

Second, even as to the public issues or controversies relating to Kennedy’s candidacy, the role in these controversies that Khawar voluntarily assumed by standing near Kennedy on the podium was trivial at best. As the United States Supreme Court has stressed, “[a] private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention.” (Wolston, supra, 443 U.S. 157, 167 [99 S.Ct. 2701, 2707].) Khawar’s conduct in standing near Kennedy foreseeably resulted in his being photographed with Kennedy, but a journalist who is photographed with other journalists crowded around a political candidate does not thereby assume any special prominence in relation to the political campaign issues.

Third, appearing on the podium was not conduct by which Khawar “engaged the attention of the public in an attempt to influence the resolution of the issues involved.” (Wolston, supra, 443 U.S. 157, 168 [99 S.Ct. 2701, 2707], italics added.) Khawar, who was an admirer of Kennedy, wanted to be photographed with Kennedy because the resulting photographs would have a strictly personal value as souvenirs. Khawar did not anticipate, nor did he have reason to anticipate, that inclusion of his image would make the photographs more newsworthy or would in any way affect the resolution of any public issue related to Kennedy’s run for the presidency. In brief, by appearing in close proximity to Kennedy, Khawar did not engage in conduct that was “calculated to draw attention to himself in order to invite public comment or influence the public with respect to any issue.” (Ibid.)

Having concluded that Khawar did not voluntarily elect to encounter an increased risk of media defamation and that before publication of the Globe article he did not enjoy media access sufficient to prevent resulting injury to his reputation, we agree with the trial court and the Court of Appeal that, for *268 purposes of this defamation action, Khawar is a private rather than a public figure.

III. Neutral Reportage Privilege

Globe contends that the trial court and the Court of Appeal erred in holding that the neutral reportage privilege does not apply to insulate from defamation liability its republication of the Morrow book’s defamatory falsehoods.

A. Background

At common law, one who republishes a defamatory statement is deemed thereby to have adopted it and so may be held liable, together with the person who originated the statement, for resulting injury to the reputation of the defamation victim. (See Rest.2d Torts, § 578.) California has adopted the common law in this regard (Frommoethelydo v. Fire Ins. Exchange (1986) 42 Cal.3d 208, 217 [228 Cal.Rptr. 160, 721 P.2d 41]; Gilman v. McClatchy (1896) 111 Cal. 606, 612 [44 P. 241]), although by statute the republication of defamatory statements is privileged in certain defined situations (see, e.g., Civ. Code, § 47).

In a 1977 decision, a federal appellate court held that, under certain circumstances, as an exception to the common law republication rule, the federal Constitution’s First Amendment mandates an absolute privilege for the republication of defamatory statements. (Edwards v. National Audubon Society, Inc. (2d Cir. 1977) 556 F.2d 113, cert. den. 434 U.S. 1002 [98 S.Ct. 647, 54 L.Ed.2d 498] {Edwards).) This privilege has since come to be known as the neutral reportage privilege. The Edwards court defined the privilege this way: “[W]hen a responsible, prominent organization . . . makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter’s private views regarding their validity.” (556 F.2d at p. 120, italics added.) 1

The theory underlying the privilege is that the reporting of defamatory allegations relating to an existing public controversy has significant *269 informational value for the public regardless of the truth of the allegations: If the allegations are true, their reporting provides valuable information about the target of the accusation; if the allegations are false, their reporting reflects in a significant way on the character of the accuser. In either event, according to the theory, the very making of the defamatory allegations sheds valuable light on the character of the controversy (its intensity and perhaps viciousness). As we understand it, the theory also rests on a distinction between publication and republication. Applying this distinction, proponents of the neutral reportage privilege urge that the reporting of a false and defamatory accusation should be deemed neither defamatory nor false if the report accurately relates the accusation, makes it clear that the republisher does not espouse or concur in the accusation, and provides enough additional information (including, where practical, the response of the defamed person) to allow the readers to draw their own conclusions about the truth of the accusation.

The United States Supreme Court has not stated whether it agrees with this theory, and it has never held that the First Amendment mandates a neutral reportage privilege (see Harte-Hanks Communications v. Connaughton (1989) 491 U.S. 657, 660, fn. 1 [109 S.Ct. 2678, 2682, 105 L.Ed.2d 562] [declining to decide the issue]). Nor have we ever addressed the question whether the neutral reportage privilege will be recognized in this 2

In other jurisdictions, some state and federal appellate courts have rejected the privilege entirely (Dickey v. CBS, Inc. (3d Cir. 1978) 583 F.2d 1221, 1225-1226; McCall v. Courier-Journal & Louisville Times (Ky. 1981) 623 S.W.2d 882; Postill v. Booth Newspapers, Inc. (1982) 118 Mich.App. 608 [325 N.W.2d 511]; Hogan v. Herald Co. (1982) 84 A.D.2d 470 [446 N.Y.S.2d 836, 842]), while courts that have adopted it have disagreed as to its elements (compare, e.g., Martin v. Wilson Pub. Co. (R.I. 1985) 497 A.2d 322, 330 [stating that privilege applies “only in the extremely limited situation in which the publication accurately attributes such statements to an *270 identified and responsible source”] with Barry v. Time, Inc. (N.D.Cal. 1984) 584 F.Supp. 1110, 1125-1127 [applying privilege to report of accusations made by other than a “responsible” person or organization]).

Commentators are similarly divided, with some arguing that the privilege is inconsistent with the United States Supreme Court’s First Amendment jurisprudence and therefore should be rejected (Comment, Edwards v. National Audubon Society, Inc.: A Constitutional Privilege to Republish Defamation Should Be Rejected (1982) 33 Hastings L.J. 1203), and others endorsing the privilege in concept but taking differing positio