Full opinion text
Opinion EAGLESON, J. The sole issue in this case is whether Civil Code section 47, subdivision 3, affords a broad privilege, sometimes referred to as a “public-interest privilege,” to the news communications industry (news media) to make false statements regarding a private individual. Section 47(3) provides a privilege to communications made without malice on occasions in which the speaker and the recipient of the communication share a common interest. Defendants (a television station and its reporter) and several amici curiae argue that when the news media publish and broadcast matters of public interest they have a common interest with their audiences and that the publications and broadcasts should be privileged under section 47(3). Under that privilege, the plaintiff in a defamation action would be required to prove malice by the news media defendant to recover compensatory damages. As we will explain, there is no such privilege for the news media under section 47(3). We hold that a publication or broadcast by a member of the news media to the general public regarding a private person is not privileged under section 47(3) regardless of whether the communication pertains to a matter of public interest. Thus, a private-person plaintiff is not required by section 47(3) to prove malice to recover compensatory damages. Facts Defendant Kelly Broadcasting Company (Kelly) owns and operates KCRA-TV, a television station broadcasting on Channel 3 in Sacramento. Defendant Brad Willis (Willis) was employed by Kelly as a reporter and appeared on Channel 3 programs. Willis narrated two stories in May 1984 concerning plaintiff on “Call 3 for Action” (Call 3), a consumer affairs segment of KCRA’s daily news show. The stories were about two homeowners who had received home improvement loans made by the federal government and administered by the Sacramento Housing and Redevelopment Agency (SHRA). One of the homeowners, Lawson, had entered into a home improvement contract with plaintiff Brown, a licensed contractor. In the first broadcast, Willis claimed that Lawson was the victim of a failure of the SHRA to correct mistakes made by plaintiff in remodeling Lawson’s home. Willis alleged that Lawson had suffered through “a series of warped doors, and is still left with peeling paint, cracking plaster, blistered wallpaper, shoddy work, inside and out.” The story included pictures of various problems including bubbling and peeling wallcovering, peeling paint, cracked plaster, and faulty doors. Willis asserted that Call 3 had attempted to call plaintiff to discuss the remodeling problems but that she had not returned the calls. He also said that plaintiff had returned $225 to Lawson and had been released by SHRA from further responsibility for the remodeling. In the second broadcast, another contractor who had been criticized in the first story defended his remodeling work. Willis claimed in the second broadcast that plaintiff had been given the same opportunity to defend herself but had refused to do so. After serving a written demand for a retraction on Kelly, which it rejected, plaintiff filed suit against Kelly and Willis alleging slander per se, negligence, and malice. Defendants responded with a motion for summary judgment. In opposition, plaintiff submitted a declaration stating that KCRA had not attempted to contact her, that the allegations of substandard work were false, that much of it was done by other contractors, and that the Contractor’s State License Board had told KCRA before the broadcasts that the board would not investigate Lawson’s complaints against plaintiff because there was no factual support for them. The trial court sustained defendants’ evidentiary objections to portions of plaintiff’s opposition and granted defendants’ motion for summary judgment on the grounds that the broadcasts were conditionally privileged under section 47(3) and that plaintiff had failed to raise a triable issue of material fact as to whether the privilege was overcome by defendants’ malice. The Court of Appeal reversed the judgment. The court agreed with the trial court that section 47(3) afforded a conditional privilege to the broadcasts, thus requiring plaintiff to prove malice, but found sufficient evidence to raise a triable issue of material fact as to whether defendants had acted with malice. We affirm the Court of Appeal’s judgment, but we do so not because there is a triable issue as to malice but because the broadcasts are not subject to a privilege under section 47(3). Discussion The broad public-interest privilege claimed under section 47(3) is not constitutionally mandated or appropriate. In recent years, the common and statutory law of defamation has been supplanted in many respects by decisions of the United States Supreme Court construing the federal Constitution. Thus, although the question before us can be answered by statutory construction, it is best understood in light of the high court’s decisions. Defendants do not contend those decisions mandate a privilege under section 47(3) but argue that they provide policy support for a statutory public-interest privilege for the news media under section 47(3). We disagree. The United States Supreme Court has construed the federal Constitution as imposing certain limitations on plaintiffs seeking to recover for defamation. The high court, however, has expressly rejected the privilege sought by defendants in this case. For approximately 175 years after the First Amendment to the federal Constitution was ratified, libelous statements were afforded no constitutional protection. The law of defamation was almost exclusively the business of state courts and legislatures. (Eldredge, The Law of Defamation (1978) § 50, pp. 252-254 (hereafter Eldredge).) The court did not squarely hold until 1931 that the First Amendment applies to the states by reason of the Fourteenth Amendment. (Stromberg v. California (1931) 283 U.S. 359, 368-369 [75 L.Ed. 1117, 1122-1123, 51 S.Ct. 532, 73 A.L.R. 1484].) As recently as 1957, the court reiterated that, “[T]he unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech.” (Roth v. United States (1957) 354 U.S. 476, 483 [1 L.Ed.2d 1498, 1506, 77 S.Ct. 1304], citing Beauharnais v. Illinois (1952) 343 U.S. 250, 266 [96 L.Ed. 919, 932, 72 S.Ct. 725].) Only seven years later, however, the court found for the first time that libel is protected by the federal Constitution under certain circumstances. In New York Times v. Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710, 95 A.L.R.2d 1412], the court held that “The constitutional guarantees [of freedom of speech and the press] require ... a federal rule that 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 [11 L.Ed.2d at p. 706], italics added.) Although the New York Times restriction applied only to public officials, by finding constitutional protection for defamation, the court “effected a profound change in the hitherto settled law of defamation and overruled the prior common law of practically every state.” (Eldredge, supra, § 51, p. 255.) Shortly after New York Times, supra, 376 U.S. 254, the court further restricted the common law of defamation by holding that “public figures”— like public officials—must also prove malice under the New York Times standard to recover for defamatory criticism. (Curtis Publishing Co. v. Butts (1967) 388 U.S. 130, 162-165 [18 L.Ed.2d 1094, 1115-1117, 87 S.Ct. 1975] (conc. opn. of Warren, C. J.).) The New York Times privilege was taken one step further in Rosenbloom v. Metromedia (1971) 403 U.S. 29, 52 [29 L.Ed.2d 296, 316-317, 91 S.Ct. 1811], in which a plurality of the court concluded the malice standard should extend to defamatory falsehoods relating to private persons if the statements concerned matters of general or public interest. That is essentially the same conclusion defendants ask us to reach in this case. Rosenbloom, supra, 403 U.S. 29, however, was short lived. In Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323 [41 L.Ed.2d 789, 94 S.Ct. 2997], a majority of the court soundly rejected the “general or public interest” test adopted by the Rosenbloom plurality for defamation actions by private persons. The court reaffirmed its support for the New York Times standard of liability but concluded that, “the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them.” (Gertz, supra, 418 U.S. 323, 343 [41 L.Ed.2d 789, 807].) The court stated that, “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” (Id., at p. 347 [41 L.Ed.2d at p. 809].) Thus, Gertz holds that the public-interest privilege advocated by defendants under section 47(3) is not required by the federal Constitution. Moreover, Gertz refutes defendants’ policy argument that federal constitutional protections for freedom of the press weigh in favor of creating a public-interest privilege in defamation actions by private-figure plaintiffs. The Gertz court carefully balanced the competing values of society’s interest in a free press and society’s need to prevent and redress attacks on reputation and found that a public-interest privilege is not constitutionally required. The language of section 47(3) does not support a broad public-interest privilege for the news media. Defamation has two forms—libel and slander. (§ 44.) Each is statutorily defined as “a false and unprivileged publication.” (§ 45 [libel] and § 46 [slander], italics added.) Section 47(3) provides a privilege to specified communications made “without malice.” For purposes of section 47(3), malice has been defined as “a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person.” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 944 [160 Cal.Rptr. 141, 603 P.2d 58].) If section 47(3) applies to the occasion on which a communication is made and if it was made without malice, it is privileged and cannot constitute a defamation under California law. With this understanding of how section 47(3) operates, we turn to the issue of whether it provides a special public-interest privilege to the news media. We begin with the fundamental rule that our primary task in construing a statute is to determine the Legislature’s intent. (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal.Rptr. 144, 514 P.2d 1224].) “The court turns first to the words themselves for the answer.” (People v. Knowles (1950) 35 Cal.2d 175, 182 [217 P.2d 1]; Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 501 [247 Cal.Rptr. 362, 754 P.2d 708].) Section 47 states: “A privileged publication or broadcast is one made ...[])] 3. In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or (3) who is requested by the person interested to give the information.” The statutory language contains no reference to a “public interest” or any special privilege for the news media. If the Legislature had intended to create a broad public-interest privilege for the news media, the Legislature could easily have done so in reasonably clear language. Although not dispositive, the language of other subdivisions of section 47 suggests the Legislature did not intend such a privilege. Subdivision 4 grants a privilege to “a fair and true report in a public journal” of judicial, legislative, and other official proceedings. (Italics added.) Thus, subdivision 4 depends in part on the status of the publisher, i.e., being a public journal. The omission from subdivision 3 of any reference to public journals, coupled with such a reference in subdivision 4, suggests the Legislature did not intend subdivision 3 to provide a special privilege to communications by the news media based on their status. Similarly, subdivision 5 grants a privilege to “a fair and true report” of a public meeting if “the publication of the matter complained of was for the public benefit.” (Italics added.) Subdivision 3, by contrast, does not at any point refer to the public benefit or any similar concept, including the public interest. The differences are illustrative. “It is a well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.” (Ford Motor Co. v. County of Tulare (1983) 145 Cal.App.3d 688, 691 [193 Cal.Rptr. 511]; see generally 2A Sutherland, Statutory Construction (4th ed. 1984 rev.) § 47.23, p. 194.) If the Legislature had intended subdivision 3 to apply to the news media as such or to communications on matters of public interest, the Legislature could have used the same clear language as in subdivisions 4 and 5. Most important, the privilege sought by defendants would be so broad that it would apply to almost every defamatory communication. Presumably, the news media generally publish and broadcast only matters that the media believe are of public interest, and the media defendant in every defamation action would therefore argue that the communication was a matter of public interest. We think it would be a rare case in which a media defendant would contend that its viewers or readers were not interested in the communication or that the defendant itself was not also interested. Thus, the practical result sought by the news media would be that nearly everything they publish and broadcast would be privileged. A privilege is an exception to a general rule of liability, but under defendants’ view of section 47(3), the privilege would be the general rule for the news media and liability would be the exception. We believe the Legislature would have made clear its intention for such a drastic restriction on the common law of defamation, especially because the statute was enacted when strict liability was the standard of fault for defamation actions. (See discussion at pp. 726-727, post.) The statutory language does not suggest the broad public-interest privilege claimed by defendants. To the contrary, subdivision 3, and section 47 as a whole, show that no such privilege was contemplated by the Legislature. Legislative history confirms that section 47(3) is narrow in scope. Although we need not look beyond the clear language of the statute, we find strong support for our conclusion in the legislative history of section 47(3). It was enacted as part of the Civil Code in 1872. At that time, in the common law of England and the United States, defamation was subject to strict liability, that is, liability without fault as to truth or falsity. (Eldredge, supra, § 5, pp. 14-25; Prosser & Keeton, The Law of Torts (5th ed. 1984) § 113, p. 804.) The standard of liability was succinctly phrased in Lord Mansfield’s often quoted statement that, “Whenever a man publishes he publishes at his peril.” (The King v. Woodfall (1774) Loftt 776, 781 [98 Eng. Rep. 914, 916].) Justice Holmes subsequently stated the rule in equally clear fashion: “If the publication was libellous the defendant took the risk.” (Peck v. Tribune Co. (1909) 214 U.S. 185, 189 [53 L.Ed. 960, 962, 29 S.Ct. 554]; “libellous” is now archaic spelling.) To ameliorate the harshness of the strict-liability standard, certain privileges and defenses developed in the common law. The one that is most relevant to the question before us is the common-interest privilege, which protected communications made in good faith on a subject in which the speaker and hearer shared an interest or duty. This privilege applied to a narrow range of private interests. The interest protected was private or pecuniary; the relationship between the parties was close, e.g., a family, business, or organizational interest; and the request for information must have been in the course of the relationship. (Rancho La Costa, Inc. v. Superior Court (1980) 106 Cal.App.3d 646, 664-665 [165 Cal.Rptr. 347] [describing limited nature of privilege]; see, e.g., Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 796 [197 P.2d 713] [recognizing that a privilege ordinarily exists for communications among church members]; Cate, Defining California Civil Code Section 47(3): The Resurgence of Self-Governance (1987) 39 Stan.L.Rev. 1201, 1204-1205 (hereafter Cate).) The legislative history of section 47(3) indicates the Legislature intended to codify the narrow common law privilege of common interest, not to create any broad news-media privilege. We find special significance in Wilson v. Fitch (1871) 41 Cal. 363, which we decided only one year before section 47(3) was enacted. The plaintiff was an owner of a mining corporation; defendants were the editors of a general circulation newspaper that had published an article suggesting financial wrongdoing by the corporation towards its investors. In response to a libel suit, the defendants contended their article was privileged because “. . . it was published by public journalists as a matter of general and peculiar public interest, and related to the conduct of the plaintiff . . . .” (Id., at p. 382.) We squarely rejected this argument: “Nor can a defamatory publication in a public journal be said to be privileged simply because it relates to a subject of public interest, and was published in good faith, without malice, and from laudable motives. No adjudicated case, that I am aware of, has ever gone so far.” (Id., at pp. 382-383, italics added.) We noted a “due regard to the freedom of the press” but explained that the privilege sought by the newspaper would result in “little security for private character.” (Id., at p. 383.) In light of Wilson, supra, 41 Cal. 363, the Legislature surely would have made clear any intent to create thereafter a broad public-interest privilege in section 47(3) for the news media. “ ‘It is a generally accepted principle that in adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing on them.’” (Estate of McDill (1975) 14 Cal.3d 831, 839 [122 Cal.Rptr. 754, 537 P.2d 874], quoting Buckley v. Chadwick (1955) 45 Cal.2d 183, 200 [288 P.2d 12].) The Legislature could have created the privilege sought by defendants either by the language of the statute (the most likely and better approach) or by a disapproving reference to Wilson. The Legislature did neither. We also find significance in the drafters’ comments to section 47(3). The wording of section 47(3) was identical to that of section 31 of the original New York Civil Code published in 1865 as a codification of the common law (N.Y. Civ. Code, § 31 (Field 1865)). In the comments following section 47(3), its drafters cited two New York cases dealing with the common-interest privilege. (Cal. Civ. Code Ann., § 47 annotation (Haymond & Burch 1872).) Neither involved a privilege even remotely similar to that claimed by defendants in the present case. The first case cited was Lewis and Herrick v. Chapman (1857) 16 N.Y. 369. A banker had received for collection from a mercantile house a note payable at the bank and drawn by plaintiffs. When the banker remitted payment for the note he informed the payee in a confidential letter that payment had been as an accommodation to the plaintiffs, suggesting that they had insufficient funds to pay the note. The court found the communication privileged on the ground that a banker entrusted by a creditor with the collection of the note has a privilege to inform the holder of the note of the inability of the maker to pay at maturity. (Id., at p. 375.) The common interest involved was private and pecuniary. No news report was involved and there was not even a question as to the public interest. The other case cited by section 47(3)’s drafters was Thorn v. Moser (N.Y. Sup. Ct. 1845) 1 Denio 488, in which the plaintiff sought to recover for statements by the payee of a check drawn by plaintiff charging him with forgery of the check. The court found no privilege on the facts of the case. Moreover, neither a news report nor the public interest were at issue. The drafters also cited a treatise on the common law, Hilliard, The Law of Torts or Private Wrongs (1859) chapter XIV, page 317. We have found nothing in that work to support the privilege claimed by defendants. Although not referring to a common-interest privilege by name, the author discussed communications made in connection “with some matter of lawful business” and communications by “employers, in reference to the character of their servants.” (Hilliard, supra, (3d ed. 1866) at pp. 347 and 351.) There is no discussion of a general public-interest privilege to make false accusations against a private person. The authorities cited by section 47(3)’s drafters suggest no intent to extend the common-interest privilege to the news media. Quite the contrary, they demonstrate that the privilege was meant to be quite limited. It had previously applied to essentially private interests, not matters of public interest, and there had to be a genuine common interest. (Rancho La Costa, Inc. v. Superior Court, supra, 106 Cal.App.3d 646, 664-665, quoting 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, §§ 306-309, pp. 2577-2580; Cate, supra, 39 Stan.L.Rev. 1201, 1204-1205.) The interest a news publisher has in a story may or may not be shared by its audience. Even if there is a shared interest, it is not “common” within the meaning of the common-interest privilege codified in section 47(3). Moreover, under the common law it was clear that, “A newspaper proprietor has no greater privileges than any other person. He is to stand or fall by the same rules and principles of law.” (Folkard, Starkie on Libel and Slander (4th ed. 1877) § 266, p. 326; Townshend, Libel and Slander (3d ed. 1877) § 252, p. 482; Newell, Slander and Libel (4th ed. 1924) § 441, pp. 477-478.) We find nothing in the legislative history or background of section 47(3) to indicate any legislative intent to create a public-interest privilege for the news media. Judicial constructions of section 47(3) do not support an expansive public-interest privilege. A. This court’s decisions We have construed section 47(3) several times since its enactment in 1872. Although we have found under certain limited conditions a privilege for the news media under section 47(3), we have never found the broad public-interest privilege sought by defendants. We have sometimes referred to the public interest, and defendants misinterpret those references to mean there is a privilege to publish anything about a private individual in which the general public might have an interest. We have never applied the statute, however, in cases involving private individuals defamed in the mass media. As noted above, only one year before section 47(3) was enacted, we held in Wilson v. Fitch, supra, 41 Cal. 363 that a newspaper publication was not privileged merely because it related to a matter of public interest. Our first applicable decision after the enactment of section 47(3) was Edwards v. Publishing Soc. (1893) 99 Cal. 431, in which we affirmed a judgment for the plaintiff in a libel action against a newspaper which had published an article asserting that plaintiff would attempt to bribe voters in a municipal election. The meaning of section 47(3) was not an issue, but the court discussed the related issue of whether evidence of the newspaper’s good faith or lack of malice should have been admitted in mitigation of damages. We found that such evidence had been properly excluded. (Id., at p. 437.) We explained that, “A newspaper proprietor is not privileged as such in the dissemination of the news, but is liable for what he publishes in the same manner as any other individual.” (Id., at p. 439.) Although bribery of voters was clearly a matter of public concern, our reasoning suggested there was no public-interest privilege for the news media. We specifically addressed the scope of section 47(3) in Gilman v. McClatchy (1896) 111 Cal. 606 [44 P. 241], The defendant newspaper published an article in which plaintiff, a private citizen, was accused by his household servant of raping her. The newspaper contended its publication was privileged under section 47(3). The argument was essentially the same as in the present case: “[A] newspaper is a purveyor of news; the people have the right to read the news; any story gleaned by a reporter as this was gleaned, and published in the ordinary course of newspaper business without personal malevolence against the victim of the tale, should be held privileged.” (Id., at pp. 613-614.) We rejected the claim of privilege, emphasizing that the plaintiff was a private citizen. “In support of this contention there is neither authority, law, nor justice. No point of similarity can be found between this case and those which protect a publisher who in good faith discusses the habits, qualifications, and official conduct of a person holding a public office or presenting himself as a candidate therefor.” (Gilman v. McClatchy, supra, 111 Cal. at p. 614.) The distinction we made nearly a century ago between private persons and public officials was appropriate. Before the enactment of section 47(3), there arose in the common law a defense of fair comment, which applied to communications regarding certain conduct of public officials and others who put themselves or their work before the public. (Cate, supra, 39 Stan.L.Rev. at p. 1205.) The Gilman court made clear this defense did not apply to private individuals. “[T]o extend this doctrine . . . against a private individual, would be to put upon the people a greater evil than that which the constitution sought to prevent. [1J] The contention is completely disposed of in this state by the case of Wilson v. Fitch, 41 Cal. 363.” (Gilman v. McClatchy, supra, 111 Cal. at p. 614.) Defendants and amici curiae in this case argue that the public has an interest in news and assert this as a justification for a broad privilege. The Gilman court rejected this argument with a lengthy quotation from a Michigan case. A portion merits repeating. “ ‘It is argued that a newspaper in this day and age of the world, when people are hungry for the news, and almost every person is a newspaper reader, must be allowed some latitude and more privilege than is ordinarily given under the law of libel as it had heretofore been understood. . . . [^] [N]o sophistry of reasoning, and no excuse for the demand of the public for news, or of the peculiarity and magnitude of newspaper work, can avail to alter the law, except, perhaps, by positive statute, which is doubtful....’” (Gilman v. McClatchy, supra, 111 Cal. at pp. 614-615, quoting McAllister v. Detroit Free Press Co. (1889) 76 Mich. 338 [43 N.W. 431, 437].) The Gilman court plainly rejected the notion that the news media have a privilege under section 47(3) to disseminate a falsehood regarding a private citizen merely because the subject is allegedly a matter of public interest. We expressly reaffirmed the Gilman holding in Newby v. Times-Mirror Co. (1916) 173 Cal. 387 [160 P. 233], in which we reversed a judgment after jury verdict in favor of a newspaper, which had published a series of articles and cartoons accusing the plaintiff, a well-known lawyer who was active in a political reform campaign, of being a hypocrite and improperly tampering with court documents. The court found no privilege under section 47(3): “The duty of a newspaper to the public does not justify the publication of false and defamatory matter concerning a private citizen merely because he is active in promoting his own political views.” (Id., at p. 394, italics added; see also Earl v. Times-Mirror Co. (1921) 185 Cal. 165, 197 [196 P. 57] [citing Newby, supra, 173 Cal. 387, with approval and affirming a judgment against a newspaper].) As is apparent from the foregoing decisions, we have consistently distinguished between public and private citizens. The importance of this distinction was clearly illustrated in Snively v. Record Publishing Co. (1921) 185 Cal. 565 [198 P. 1], A general circulation newspaper published a cartoon that portrayed plaintiff, the Los Angeles Chief of Police, as a corrupt public official. We found the publication was privileged under section 47(3). The linchpin of our decision was the plaintiff’s status as a public official. “Since the conduct of public officers in the administration of their offices is a matter in which every citizen of the community which they serve is interested, the publication in question, if otherwise privileged, must be considered as one made to persons interested, and on an occasion which would ordinarily afford reasonable grounds for supposing that it was made from innocent motives.” (Id., at p. 572, italics added.) The privilege was not based on the argument that newspapers generally publish matters of public interest or that the public is interested in the news. The privilege “does not arise from the fact that the publication is made in a newspaper. It is based on the fact that the official conduct of public officers . . . is a matter of public concern of which every citizen may speak in good faith and without malice. The privilege of the newspaper is nowise different from that of any citizen of the community.” (Id., at p. 571, italics added.) The court in Snively, supra, 185 Cal. 565, spoke in terms of a public interest, but the defense it recognized was the right of fair comment, recognized at common law, which protected “expressions of opinion about public officials, scientists, artists, composers, performers, authors, and other persons who place themselves or their work in the public eye.” (Cate, supra, 39 Stan.L.Rev. at p. 1205.) That defense did not protect defamation of private citizens. It is clear that the court was speaking narrowly of a public interest in the official conduct of public officials, not a privilege as to every person or subject in which there might be some public interest. Two years after Snively, supra, 185 Cal. 565, we once again reiterated the distinction between public officials and private citizens in Stevens v. Storke (1923) 191 Cal. 329 [216 P. 371]. The plaintiff was a public roads contractor. A local general circulation newspaper published an editorial in opposition to a judge’s candidacy for public office. The gist of the editorial was that plaintiff was a man of such poor character that his support for a particular candidate should cause the people to vote for someone else. (Id., at p. 334.) In particular, the editorial disparaged the quality of plaintiff’s road construction and financial practices. The newspaper contended the editorial was privileged because it concerned a public work in which taxpayers had an interest. We found no privilege because the newspaper’s remarks were not intended as criticism of the road work itself or of the plaintiff as a builder of public roads but were directed at him personally. (Id., at p. 337.) The newspaper also claimed a privilege under section 47(3) on the ground that the plaintiff had become a “public man” by supporting a candidate for public office. We found there is no justification for defaming “a private citizen merely because he is active in promoting his own political views.” (Ibid., italics added.) It seems clear the public was interested in the quality of publicly funded roads and in the quality of candidates for public office. Despite such interest, the Stevens court declined to find a privilege under section 47(3). Defendants mistakenly rely on our decision in Emde v. San Joaquin County etc. Council (1943) 23 Cal.2d 146 [143 P.2d 20, 150 A.L.R. 916]. The owners of a dairy sued a labor newspaper based on a report that the owners had violated a union contract. We found the publication was privileged under section 47(3), but our decision provides no support for the broad public-interest privilege claimed in this case. That the defendant in Emde published a newspaper was not relevant to the decision. We stressed that the newspaper was devoted exclusively to the interests of organized labor and was the official organ of a labor council. We viewed the newspaper not as a mass media publisher but rather as a participant in a labor controversy. We referred to “the union, and those directly interested in and connected with the labor cause” and noted that the privilege would not apply if the publication had gone beyond the group interest. (Id., at p. 155, italics added.) The privilege applied not because a newspaper was involved but because the union had a privilege to communicate to its members a matter of common interest. Emde does not support defendants’ view that a communication is privileged merely because it is made by a member of the news media. Defendants also incorrectly rely on our decision in Maidman v. Jewish Publications, Inc., supra, 54 Cal.2d 643. We found that an editorial in a Jewish newspaper criticizing the plaintiff was libelous per se but potentially protected as fair comment. (We also found, however, that the plaintiff had sufficiently alleged malice and reversed a judgment sustaining a demurrer to his complaint.) The basis for the possible defense was the plaintiff’s status. We repeatedly noted the plaintiff’s “position of prominence in the Southern California Jewish community.” (Id., at pp. 649 and 651-652.) Indeed, he was the officer of a rival newspaper. We explained that, “ ‘It is not only the privilege but the duty of every citizen and every newspaper in the community to fairly and impartially criticize the faults and misconduct of public officers . . . .’ Maidman [the plaintiff] held a position of importance in the Southern California Jewish community.” (Id., at pp. 651-652, italics added, quoting Jones v. Express Pub. Co. (1927) 87 Cal.App. 246, 257 [262 P. 78].) It is clear the Maidman court was relying on the fair-comment defense, not a public-interest privilege applicable against a private person. Our prior decisions demonstrate that the public interest sufficient to give rise to a privilege under section 47(3) was the public’s interest in public officials, candidates for public office, and those who would be deemed public figures under current law. In each of our decisions, the plaintiff can fairly be said to have been in one or more of those categories. Even if we had not emphasized the public status of the plaintiffs, our decisions would be limited by their facts. None of the plaintiffs were private figures. “It is the general rule that the language of an opinion must be construed with reference to the facts presented by the case, and the positive authority of a decision is coextensive only with such facts.” (River Farms Co. v. Superior Court (1933) 131 Cal.App. 365, 369 [21 P.2d 643]; People v. Winkler (1858) 9 Cal. 234, 236; cf. Rouch v. Enquirer & News of Battle Creek (1986) 427 Mich. 157 [398 N.W.2d 245, 256] [noting that none of that state’s supreme court decisions had applied a public-interest privilege against a private figure plaintiff].) We also note our observation of “[t]he wisdom of limitations on qualified privileges.” (Brewer v. Second Baptist Church, supra, 32 Cal.2d 791, 797.) Our prior decisions offer no support for a news media public-interest privilege under section 47(3). B. Court of Appeal decisions Numerous Court of Appeal decisions also reflect the limited nature of the privilege under section 47(3). (Jones v. Express Pub. Co., supra, 87 Cal.App. 246 [deputy district attorney]; Taylor v. Lewis (1933) 132 Cal.App. 381, 384 [22 P.2d 569] [city councilman]; Morcom v. San Francisco Shopping News (1935) 4 Cal.App.2d 284, 287-288 [40 P.2d 940] [city council president]; Harris v. Curtis Publishing Co. (1942) 49 Cal.App.2d 340, 349 [121 P.2d 761] [school board president]; Babcock v. McClatchy Newspapers (1947) 82 Cal.App.2d 528, 535-536 [186 P.2d 737] [district attorney seeking reelection]; Noonan v. Rousselot (1966) 239 Cal.App.2d 447, 452-453 [48 Cal.Rptr. 817] [candidate for Congress].) Despite this substantial body of law, the Courts of Appeal have on rare occasion either found or suggested a privilege under section 47(3) even when there was no common interest within the meaning of the statute. These isolated cases are incorrect. In Glenn v. Gibson (1946) 75 Cal.App.2d 649 [171 P.2d 118], the plaintiff was the owner of a motel, which law enforcement authorities claimed was being used by military men to engage in illicit sex. The defendant newspapers had published a series of articles that reported legal proceedings against plaintiff. The court affirmed the dismissal of her libel action on the ground that she had failed to allege the falsity of the newspapers’ allegations against her. (Id., at pp. 657-658.) In dictum, the court stated that the articles were privileged under section 47(3) because they were published in a time of war in a community in which extensive war activities were being conducted and the welfare of those engaged were a matter of “vital concern to every right-thinking person.” (Id., at p. 659.) The court cited no authority for its broad dictum. Defendants also rely on Williams v. Daily Review, Inc., supra, 236 Cal.App.2d 405. The plaintiff was an engineer who had been awarded a city road paving contract. The defendant newspaper had published statements regarding his work that the Court of Appeal found to be libelous per se. The court reversed a judgment in favor of the newspaper but for purposes of retrial discussed in dictum the newspaper’s claim of a defense of fair comment under section 47(3). The court’s discussion is potentially misleading. It stated that “the scope of the term ‘public interest’ in California is not limited to matters relating solely to public officials.” (Id., at p. 417.) For that proposition, the court cited Glenn v. Gibson, supra, 75 Cal.App.2d 649, and our decision in Maidman v. Jewish Publications, Inc., supra, 54 Cal.2d 643. As we have explained, the discussion in Glenn as to privilege was dictum and unsupported by authority. It therefore was not sound support for the Williams court. In Maidman, we discussed the right of fair comment only in terms of public persons, and as the Williams court acknowledged, the Maidman plaintiff was “an individual of renown.” We disapprove of the Williams and Glenn decisions to the extent they suggest there is a news media public-interest privilege under section 47(3) applicable against private persons. Recent Court of Appeal decisions have more squarely addressed the scope of section 47(3). Two of those decisions sharply conflict as to whether there is a broad public-interest privilege for the news media and have generated considerable commentary. (Rancho La Costa, Inc. v. Superior Court, supra, 106 Cal.App.3d 646 (hereafter referred to as Rancho La Costa) and Rollenhagen v. City of Orange (1981) 116 Cal.App.3d 414 [172 Cal.Rptr. 49] (hereafter referred to as Rollenhagen); Cate, supra, 39 Stan.L.Rev. 1201, 1210-1217; Comment, California Civil Code Section 47(3): Should There Be a Public Interest Privilege in California? (1987) 20 Loyola L.A. L.Rev. 1559; Comment, Fair Comment in California: An Unwelcome Guest (1983) 57 So.Cal.L.Rev. 173.) These two decisions have also led to considerable confusion in the lower courts. In Rancho La Costa, the allegedly defamatory publication was a magazine article that accused the owners of a resort of being members of organized crime. The Court of Appeal issued a writ of mandate directing the trial court to vacate its summary adjudication that the plaintiffs were public figures and that the article was privileged under section 47(3). The magazine claimed the privilege on the ground that the public at large, and thus the magazine’s readership, was interested in organized crime. The Court of Appeal rejected this argument, finding that the “privilege of section 47(3) does not apply to a publication by a magazine or newspaper merely because it relates to a matter which may have general public interest.” (106 Cal.App.3d at p. 664.) This was a correct statement of the law. As the court explained, “The word ‘interested’ as used in the statute refers to a more direct and immediate concern. That concern is something other than mere general or idle curiosity of the general readership of newspapers and magazines.” (Id., at pp. 664-665, citing 4 Witkin, Summary of Cal. Law, Torts, op. cit. supra, §§ 306-309, pp. 2577-2580; see discussion at p. 727, ante.) The common-interest privilege has traditionally not applied to news media reports and “for the most part the privilege has been circumscribed within more defined and limited relationships.” (Smolla, The Law of Defamation (1988) § 3.12[3][a], pp. 8-28 to 8-29.) Shortly after Rancho La Costa, supra, 106 Cal.App.3d 646, a different Court of Appeal found a privilege under section 47(3) but made clear its limited scope. (Institute of Athletic Motivation v. University of Illinois, supra, 114 Cal.App.3d 1.) The plaintiff was a corporation founded by two clinical psychologists to develop and market a psychological test to identify certain personality traits relevant to success in sports. One of the defendants was a university professor who had published extensively on the subject of sports psychology. He wrote a letter critical of plaintiffs’ test, which he sent to numerous professional athletic organizations and sports magazines. The trial court found the letter to be defamatory as a matter of law, and the case went to the jury on the defenses of truth and privilege under section 47(3). The Court of Appeal found that the letter was privileged as a matter of law, but made clear the limited scope of section 47(3). “In this case, unlike Rancho La Costa, the communication was not directed toward the world at large, but mainly toward those involved as professionals in the field of athletics. And those to whom it was directed had a potential interest in the subject matter which went well beyond general or idle curiosity. ... If the contents of the communication were true, it was of professional importance for them to know it.” (Institute of Athletic Motivation, supra, 114 Cal.App.3d 1, 12, italics added.) This explanation acknowledged the Rancho La Costa court’s (supra, 106 Cal.App.3d 646) correct restriction of the privilege to proprietary or narrow private interests. The privilege was greatly expanded in Rollenhagen, supra, 116 Cal.App.3d 414. The plaintiff was a self-employed automobile repairman. As part of a consumer affairs investigation, law enforcement authorities adjusted an automobile and took it to the plaintiff to determine if he would perform unnecessary repairs. Apparently to obtain publicity for their investigation, the authorities alerted a television station of their planned return .to plaintiff’s garage. The station filmed an interview with a disgruntled customer and then accompanied authorities to the garage. As soon as plaintiff accepted payment for the repair, he was arrested for failure to provide a written estimate, “handcuffed, and paraded out before the grinding camera.” (Id., at p. 419.) Two days later, the television station broadcast a story that included the arrest, the interview with the customer, and an interview with the plaintiff. The court construed section 47(3) as “granting a qualified privilege to all publications which concern a matter of legitimate public interest.” (Rollenhagen, supra, 116 Cal.App.3d 414, 422.) The court recognized that its decision was essentially at odds with Rancho La Costa, supra, 106 Cal.App.3d 646, but attempted to harmonize the two decisions on the ground that the Rancho La Costa court’s definition of “interested” would encompass a story about automobile repair because it was a subject of legislation. (Rollenhagen, supra, 116 Cal.App.3d 414 426.) It is clear that the two decisions cannot be harmonized on this ground. Organized crime is no less a subject of governmental legislation than is automobile repair. (See, e.g., the federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.) Rollenhagen and Rancho La Costa directly conflict as to whether there is a general public-interest privilege for the news media in section 47(3). (Smolla, The Law of Defamation, supra, § 3.10, p. 3-24, fn. 90 [noting the conflict].) The Rollenhagen court, supra, 116 Cal.App.3d 414, misconstrued the scope of section 47(3). The decision has been correctly questioned for assuming that the common law privilege codified in the statute is so expansive as to cover “the whole spectrum of matters in the public interest.” (Smolla, The Law of Defamation, supra, § 3.10, p. 3-24, fn. 90.) This court has employed the concept of public interest for more than a century only in connection with communications regarding public officials and those who would now be characterized as public figures. We did not extend a public-interest privilege to communications regarding private persons. We disapprove of Rollenhagen to the extent that it states a public-interest privilege applicable against private figures. There is no public-interest privilege under section 47(3). We hold that a publication or broadcast by a member of the news media to the general public regarding a private person is not privileged under section 47(3) regardless of whether the communication pertains to a matter of public interest. Sound policy reasons support our decision not to extend the scope of section 47(3). Because the question before us can be answered by statutory construction, our sole function has been to determine legislative intent, not to reach a decision based on public policy, as we might do when dealing with the common law. Defendants and the news media amici curiae, however, argue at length that public policy considerations weigh in favor of a public-interest privilege for the news media under section 47(3). Thus, we believe it appropriate to note several public policy considerations that, if we had some doubt as to the Legislature’s intent, would nonetheless lead us to conclude that we should not broadly construe section 47(3) to provide a public-interest privilege. A. Legislative prerogative The breadth of the privilege sought by defendants is difficult to overstate. As noted above, a news media defendant would almost certainly argue in every case that the defendant’s publication or broadcast was a matter of public interest. (See discussion at p. 725, ante.) Indeed, the result implicitly sought by the media in this case is a rule that in effect would be, “If it is published, it is privileged.” Such an expansion of section 47(3) would raise serious public policy questions including the need for further restriction of a defamed person’s right to recover and whether such restriction should be accompanied by other changes in the law of defamation. Legal commentators, the news media, and defamation plaintiffs are increasingly urging comprehensive reform of defamation law including substitution of declaratory judgment actions for recovery of damages. (Annenberg Washington Program, Proposal for the Reform of Libel Law (1988), pp. 9-12 (hereafter Libel Reform Project); Editorial, Reforming Libel Law, National L. J. (Oct. 24, 1988) p. 12, col. 1.) Such changes require analysis of empirical data and are better dealt with in the legislative arena. (Cahill v. Hawaiian Paradise Park Corporation (1975) 56 Hawaii 522 [543 P.2d 1356, 1366] [court refused to create a public-interest privilege and deferred to that state’s legislature].) Section 47(3) is a creation of the Legislature, which can act accordingly if it believes the statute should be expanded. For example, in response to the decision in Branzburg v. Hayes (1972) 408 U.S. 665 [33 L.Ed.2d 626, 92 S.Ct. 2646], that the First Amendment does not prohibit compelled disclosure by the news media to a grand jury of confidential information, the Legislature proposed and the voters adopted a reporter’s shield law. (Cal. Const., art. I, § 2, subd. (b).) “It has not often been thought, by the way, that the press is among the least effective of legislative lobbyists.” (Ollman v. Evans (D.C. Cir. 1984) 750 F.2d 970, 1039 [242 App.D.C. 301] (dis. opn. of Scalia, J.); McDonald, Should Punitive Damage Awards in Defamation Suits Be Abolished?, National L. J. (Nov. 19, 1984) p. 22 [noting extensive legislative lobbying efforts by newspapers].) B. Other jurisdictions A public-interest privilege under section 47(3) would impose a malice requirement on private persons that would be contrary to the overwhelming weight of authority from other states. In Gertz, supra, 418 U.S. 323, the court held that, provided they do not impose liability without fault, the individual states may define for themselves the appropriate standard of liability for defamation of private individuals. (Id., at p. 347 [41 L.Ed.2d at p. 809].) Since then, almost every state to consider the issue has declined to impose a malice requirement on private persons. (Rest.2d Torts, § 580B, reporter’s notes, pp. 465-466; Smolla, The Law of Defamation, supra, §§ 3.10-3.11, pp. 8-22 to 8-28.) At least 33 states have clearly adopted a negligence standard for private-figure plaintiffs. Six have applied a negligence standard without discussion. In two states, federal courts have interpreted state law as having adopted a negligence standard. Puerto Rico and one other island jurisdiction have apparently done likewise. Only three states have clearly adopted a malice standard. This overwhelming weight of authority is reflected in the American Law Institute’s approval in the Restatement of Torts of a negligence standard for private plaintiffs. (Rest.2d Torts, § 580B, pp. 221-222.) Similarly, the Libel Reform Project recently recommended that negligence be the minimum standard of fault for private-figure plaintiffs. (Libel Reform Project, supra, pp. 17 and 23.) In adopting a negligence standard, several states have rejected the argument that a malice standard should apply merely because the communication is one of general public interest. (Troman v. Wood, supra, 340 N.E.2d 292, 299; Jadwin v. Minneapolis Star & Tribune Co., supra, 367 N.W.2d 476, 489, fn. 16; Gazette, Inc. v. Harris, supra, 325 S.E.2d 713, 724-725; Taskett v. KING Broadcasting Company (1976) 86 Wn.2d 439 [546 P.2d 81, 84-86].) We see no reason to deny California citizens protection for their reputations equal to that provided in other states. We decline to diverge from the near unanimous authority that a private person need prove only negligence (rather than malice) to recover for defamation. C. The importance of reputation The news media contend the threat of defamation actions has a “chilling effect” on their willingness to report the news. Stated conversely, the argument is that obstacles to recovery for defamation increase the media’s ability to report the news. “The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. . . . Yet absolute protection for the communications media requires a total sacrifice of the competing value served by the law of defamation.” (Gertz, supra, 418 U.S. at p. 341 [41 L.Ed.2d at p. 806].) There must be a “proper accommodation between the law of defamation and the freedoms of speech and press.” (Id., at p. 325 [41 L.Ed.2d at p. 797].) “The great rights guaranteed by the First Amendment carry with them certain responsibilities as well.” (Dun & Bradstreet, Inc. v. Greenmoss Builders (1985) 472 U.S. 749, 764 [86 L.Ed.2d 593, 606, 105 S.Ct. 2939] (cone. opn. of Burger, C. J.).) Accommodation of the value of reputation is also required by this state’s Constitution, which expressly provides that every person must be responsible for the abuse of the right of free speech. (Cal. Const., art. I, § 2, subd. (a).) In refusing to impose a malice standard on private persons, another state court eloquently explained the value of reputation: “[T]he defamation action, properly limited, also plays an important role in a free society as it represents the individual’s sole remedy against the occasional excesses of the print and electronic media which often have vast resources to inflict untoward damage upon an individual. Surely, a decent, open society cannot, in the name of press and speech freedom, so thoroughly undermine this remedy as to render it useless to those people who have been damaged by a defamatory falsehood negligently uttered in the mass media and have not in any way sought the public limelight. This small modicum of privacy for the average person deserves, in our view, protection under the existing law, particularly in a country such as ours which is dedicated to the preservation of the free individual. ... It therefore seems neither sensible nor fair to push the parameters of free press and free speech to such an extent, as urged here, that we needlessly plow under other important individual rights.” (Miami Herald Pub. Co. v. Ane, supra, 423 So.2d at p. 387.) We agree with the Florida court’s observation. “[Technology has immeasurably increased the power of the press to do both good and evil.” (Rosenbloom v. Metromedia, supra, 403 U.S. at p. 60 [29 L.Ed.2d at p. 321] (cone. opn. of White, J.).) News reporting has directly or indirectly led to grand jury and legislative investigations and the resignation or downfall of powerful public officials, including a President of the United States. Such power is considerable, especially when brought to bear on a private individual. “A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow.” (Hand, The Spirit of Liberty (Dillard 1st ed. 1952) p. 190.) A reasonable degree of protection for a private individual’s reputation is essential to our system of ordered liberty. “It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part.” (The Federalist No. 51 (J. Madison) (Cooke ed. 1961) p. 351.) The need to redress defamation is as important now as when the tort of defamation was first recognized, perhaps more so. “In an organized and centralized society, where at least economic relationships are likely to be based on an impersonal or reputational level as opposed to the more decentralized and personal approach characteristic of a bygone era, how we are perceived takes on greater significance. For better or worse, in today’s world, most of us are known by our images.” (Rouch v. Enquirer & News of Battle Creek, supra, 398 N.W.2d 245, 264-265.) A tradesman in the 18th century defamed by a customer could rely on his good reputation with others and perhaps had a reasonable opportunity to present the truth to those who mattered to his livelihood. In today’s business market, there is little realistic opportunity for self-help when a tradesperson, e.g., a contractor like plaintiff in this case, is disparaged to thousands of potential customers by a television program. The concern for individual reputation that led the high court in Gertz to reject a malice standard applicable against private individuals also weighs against adopting such a standard under the rubric of section 47(3). We agree with the high court’s observation that, “the individual’s right to the protection of his own good name ‘reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty.’ ” (Gertz, supra, 418 U.S. at p. 341 [41 L.Ed.2d at p. 806], quoting Rosenblatt v. Baer (1966) 383 U.S. 75, 92 [15 L.Ed.2d 597, 609, 86 S.Ct. 669] (conc. opn. of Stewart, J.).) On a practical level, private individuals have less opportunity than public officials and public figures to effectively counteract false statements and are more vulnerable to injury. (Id., at p. 344 [41 L.Ed.2d at p. 808].) As Mark Twain observed, no one should get into a battle with those who use ink by the barrel. As a general rule, public officials and figures can be said to have voluntarily exposed themselves to public scrutiny and must accept the consequences. Private individuals are thus more deserving of recovery. (Id., at pp. 344-345 [41 L.Ed.2d at p. 808].) The public-interest privilege sought by defendants would be contrary, at least in spirit, to the concept of a “public figure” as developed by the courts since Gertz, supra, 418 U.S. 323. A person is not a public figure merely because he happens to be involved in a controversy that is newsworthy. (Time, Inc. v. Firestone (1976) 424 U.S. 448, 452-455 [47 L.Ed.2d 154, 161-164, 96 S.Ct. 958].) “[A] ‘public figure’ plaintiff must have undertaken some voluntary act through which he seeks to influence the resolution of the public issues involved. As such, the mere involvement of a person in a matter which the media deems to be of interest to the public does not, in and of itself, require that such a person become a public figure for the purpose of a subsequent libel action, [if] In sum, when called upon to make a determination of public figure status, courts should look for evidence of affirmative actions by which purported ‘public figures’ have thrust themselves into the forefront of particular public controversies.” (Reader's Digest Ass’n. v. Superior Court, supra, 37 Cal.3d 244, 254-255, italics in original; Vegod Corp. v. American Broadcasting Companies, Inc. (1979) 25 Cal.3d 763, 768-769 [160 Cal.Rptr. 97, 603 P.2d 14].) A “fairly high threshold of public activity” is necessary to elevate a person to public figure status. (Tribe, American Constitutional Law (2d ed. 1988) § 12-13, p. 881.) It would be anomalous to conclude that a person is not a public figure merely because he is involved in a matter of public interest and thus that he need not show malice, but to find that section 47(3) requires him to show malice in a news media communication because he is involved in a matter of public interest. As other courts have noted, a public-interest privilege would undercut the widely recognized distinction between public and private persons. (See, e.g., Troman v. Wood, supra, 340 N.E.2d 292, 297-298.) Interpreting section 47(3) to require a private person to prove malice might have another curious result. The distinction between public and private persons reflects a special solicitude for private reputation. Under a section 47(3) privilege, however, a private person might have to show a greater degree of culpability by the defendant than would a public person under the common law fair-comment defense and its constitutional-malice standard. The reason is that, “The malice referred to by the statute [section 47(3)] is actual malice or malice in fact, that is, a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another pers