                              UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
