Opinion

This case poses the question, among others, whether a joke may give rise to a cause of action for defamation.

Petitioners, comedian Robin Williams (Williams), cable television programmer Home Box Office (HBO), Simon & Schuster, Inc., Paramount[*546] Pictures Corp., Time-Life Films, Inc., Polygram Records, Inc., Casablanca Records, Inc., Mr. Happy Productions, Inc., and Little Andrew Enterprises, Inc., seek a writ of mandate to compel the respondent court to set aside its order overruling their demurrers, based upon failure to state a cause of action, to the first amended complaint of real party in interest, David H. Rege (Rege), and to enter an order sustaining their demurrers. We issued an order to show cause and stayed the proceedings in the court below. We now determine that the demurrers must be sustained and accordingly direct the issuance of a peremptory writ.

Focusing solely upon a joke told by Williams during a comedy performance at the Great American Music Hall, a San Francisco nightclub, Rege’s amended complaint sets forth causes of action asserting “trade libel,” personal defamation, intentional and negligent infliction of emotional distress, invasion of privacy, and intentional and negligent interference with prospective economic advantage. ^[1] All of the causes of action were premised upon injury and damage allegedly arising out of the publication of the joke through either distribution of record albums or audio tapes of Williams’ -comedy performance, distribution of video tapes of the performance, or the displaying of the performance over HBO cable television. ^[2]

Rege brought suit individually and dba Rege Cellars and Rege Wine Cellars. He alleged that since 1977 he has sold and distributed assorted varieties of “Rege” brand wines from his San Francisco store, Rege Cellars. He claimed to have suffered damage and injury through publication of essentially the same joke in two slightly different versions, one distributed in audio format and the other in video format.

Rege alleged that the audio format version was distributed through record albums and tapes entitled “Throbbing Python of Love,” composed of a performance by Williams containing the following words: “Whoa—White Wine. This is a little wine here. If it’s not wine it’s been through somebody already. Oh.—There are White wines, there are Red wines, but why are there no Black wines like: Rege, a Motherfucker. It goes with fish, meat,[*547] any damn thing it wants to. I like my wine like I like my women, ready to pass out.” ^[3]

The complaint alleged that the video format version was distributed through “On Location” cable television broadcasts, composed of a performance by Williams containing the following words: “There are White wines, there are Red wines, but why are there no Black wines like: Rege a Motherfucker. It goes with fish, meat, any damn thing it wants to. [1f] (Comment from a member of the audience) [f] Thank you Lumpy, [1] Isn’t it nice, though, having someone like Mean Joe Green advertising it—You better buy this or I’ll nail your ass to a tree.” ^[4]

Rege avers in his complaint that the above statements caused damage to his business by conveying a meaning that his wines were inferior. Petitioners contend that the complaint fails to state a cause of action because (1) the joke, told as part of a comedy performance, cannot under the circumstances be reasonably understood as any serious or literal statement of fact and is fully protected speech under the First Amendment and article I, section 2 of the California Constitution; ^[5] (2) Rege’s claim that the joke is defamatory because it purportedly associated his products with black consumers should be rejected as a matter of law; (3) the joke is purely an expression of opinion and as such is not actionable; and (4) the joke cannot reasonably be understood as being “of and concerning” Rege’s products. We agree with petitioners’ first two contentions and find it unnecessary to reach the third and fourth.

I.

The parties all contend, and we agree, that the central question in this case is whether Williams’ joke is as a matter of law actionable as defamation. The parties maintain, however, that this issue arises not simply in connection with Rege’s three causes of action expressly alleging defama[*548] tion—which respectively relate to publication of the joke by audio recording, cable television and videotape—but as well as a result of three corresponding causes of action for “trade libel.” Though the basis upon which we resolve this case does not compel us to address the issue of “trade libel,” we think it appropriate to briefly do so in the exercise of our power “to insure the just and rational development of the common law in our state.” (Rodríguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 394 [115 Cal.Rptr. 765, 525 P.2d 669].)

“Trade libel,” which has been defined by one California court as “an intentional disparagement of the quality of property, which results in pecuniary damage to plaintiff” (Erlich v. Etner (1964) 224 Cal.App.2d 69, 73 [36 Cal.Rptr. 256]), is a confusing concept that has not been subjected to rigorous judicial analysis in California. ^[6] The confusion arises primarily from uncertainty whether “trade libel” should be treated as a species of defamation, as all parties herein appear to believe, or instead constitutes the distinct tort of injurious falsehood, which “usually involves the publication of matter disparaging to the property in land, chattels or intangible rights or disparaging to their quality.” (Rest.2d Torts (1977) div. 6, ch. 28, Introd. Note, p. 333.) The concept is also confusing because of the lack of clarity whether, as the name suggests, “trade libel” can only be occasioned by “a publication by writing ... or other fixed representation to the eye” (Civ. Code, § 45 [definition of libel]) or whether publication may also be uttered orally or by other means; that is, whether “trade libel” may be effected by slander (see Civ. Code, § 46 [definition of slander]).

The Restatement view is that, like slander of title, what is commonly called “trade libel” is a particular form of the tort of injurious falsehood and need not be in writing. This is so, according to the Restatement, “because the earliest cases were those of written aspersions cast upon the quality of the plaintiff’s goods by which he was prevented from selling them, and the decisions went upon a supposed analogy to personal defamation. The extension of liability to other forms of injurious falsehood has left ‘trade libel’ as a mere name occasionally applied to this particular type. The name no longer has any significance of its own; and in particular it is to be noted that actionable disparagement of quality need not be in writing.” (Rest.2d Torts, supra, § 626, com. a, p. 346.)

As the Restatement points out, and as the commentators agree, the torts of injurious falsehood and defamation “protect different interests and[*549] have entirely different origins in history. The action for defamation is to protect the personal reputation of the injured party; it arose out of the old actions for libel and slander. The action for injurious falsehood is to protect economic interests of the injured party against pecuniary loss; it arose as an action on the case for the special damage resulting from the publication, [f] From the beginning, more stringent requirements were imposed upon the plaintiff seeking to recover for injurious falsehood in three important respects—falsity of the statement, fault of the defendant and proof of damage. At common law a defamatory statement was presumed to be false and truth was a matter to be proved by the defendant; in an action for injurious falsehood, the plaintiff must plead and prove that the statement is false. At common law, a defendant in a defamation action was held to strict liability insofar as falsity of the statement was concerned; in an action for injurious falsehood he was subject to liability only if he knew of the falsity or acted with reckless disregard concerning it, or if he acted with ill will or intended to interfere in the economic interests of the plaintiff in an unprivileged fashion. In defamation, it was only in [a] limited number of situations that a plaintiff was required to prove special damages; in injurious falsehood, pecuniary loss to the plaintiff must always be proved.” (Rest.2d Torts, supra, § 623A, com. g, pp. 340-341; Prosser & Keeton, Torts (5th ed. 1984) § 128, pp. 962-977; 1 Harper & James, The Law of Torts (1956) § 6.4, pp. 486-489; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 330, pp. 2596-2597; see also, Note, Corporate Defamation and Product Disparagement: Narrowing the Analogy to Personal Defamation (1975) 75 Colum.L.Rev. 963, 968; Developments in the Law—Competitive Torts (1964) 77 Harv.L.Rev. 888, 893; Comment, The Law of Commercial Disparagement (1953) 63 Yale L.J. 65.)

Thus, despite the fact that what has come to be known as “trade libel” is similar to defamation in that both involve the imposition of liability for injuries sustained through publication to third parties of a false statement affecting the plaintiff, the two torts are distinct; that is, “trade libel” is not true libel and is not actionable as defamation. Admittedly, the statutory definitions of libel and slander, which are the means by which defamation may be effected (Civ. Code, § 44), could be expansively construed so as to embrace “trade libel.” Civil Code section 45 defines libel as including a “false and unprivileged publication by writing . . . which has a tendency to injure [any person] in his occupation.” Similarly, under Civil Code section 46, slander includes “a false and unprivileged publication, orally uttered . . . which: . . . [t]ends directly to injure [any person] in respect to his . . . trade or business ... by imputing something with reference to his . . . trade [] or business that has a natural tendency to lessen its profits.” (Civ. Code, § 46; see also Albertini v. Schaefer, supra, 97 Cal.App.3d 822, 830, and Di Giorgio Fruit Corp. v. AFL-CIO (1963) 215 Cal.App.2d 560,[*550] 571 [30 Cal.Rptr. 350], holding that corporate reputation is protected by Civ. Code, § 46.) However, we read these statutes as concerned with statements that cast aspersions upon the plaintiff directly or by imputation fairly implied, not statements that, though disparaging of the quality of his business or goods, do not call into question the plaintiff’s honesty, integrity or competence or reasonably imply any reprehensible personal characteristic. (See Shores v. Chip Steak Co., supra, 130 Cal.App.2d 627, 630.) We recognize that the distinction between personal aspersion and commercial disparagement will sometimes be difficult to draw, because statements may effectuate both harms. “It might be possible to imply some accusation of personal inefficiency or incompetence, at least, in nearly every imputation directed against a business or its product. The courts have gone to some lengths, however, in refusing to do so, particularly where the most that can be made out of the words is a charge of ignorance or negligence.” (Prosser & Keeton, Torts, supra, § 128, p. 965, fns. omitted; Rest.2d Torts, supra, § 623A, com. g, p. 341.)

The allegations set forth in Rege’s causes of action denominated “trade libel” do not make out a claim of defamation. These causes of action are all based upon the principal assertions that “Defendant Williams’ statements disparaged plaintiff’s . . . business and goods in that defendant Williams’ statements falsely indicated that plaintiff’s . . . business goods were of inferior quality,” and that “[a]s a proximate result of defendants’ publication of the statements, prospective customers have been deterred from buying plaintiff’s wines and from otherwise dealing with plaintiff, and plaintiff has thereby suffered injury to his business and sales of his wine, as well as loss of investors and prospective investors in his business, all in an amount according to proof at trial.”

Accepting these allegations as true, as for present purposes we must, it seems to us clear that false statements simply indicating that plaintiff’s business goods “were of inferior quality,” though conceivably tortious as injurious falsehoods, do not accuse plaintiff of dishonesty, lack of integrity or incompetence nor even imply any reprehensible personal characteristic, and are therefore not defamatory.

Thus the question of defamation, to which we now turn, arises in this case solely as a result of those causes of action for personal defamation, which assert that publication of the statements caused Rege embarassment, humiliation, ridicule and anxiety. ^[7] Our resolution of the defamation claims dispenses of all others.

[*551] II.

The question whether a statement is defamatory can be reached on a demurrer as a matter of law. (Okun v. Superior Court (1981) 29 Cal.3d 442, 449-451, 460 [175 Cal.Rptr. 157, 629 P.2d 1369], cert. den., 454 U.S. 1099 [70 L.Ed.2d 641, 102 S.Ct. 673]; Tschirky v. Superior Court (1981) 124 Cal.App.3d 534 [177 Cal.Rptr. 357]; Forsherv. Bugliosi (1980) 26 Cal.3d 792, 805-806 [163 Cal.Rptr. 628, 608 P.2d 716].) If the material complained of is not fairly susceptible of a defamatory meaning, it is proper to dismiss the action. Conversely, if the material is unambiguous and actionable on its face, it is proper to so instruct the jury and refuse to permit the publisher to show that the utterance was used and understood in an innocent sense. If the language is capable of two meanings, one harmless and one defamatory, it is the province of the trier of fact to determine in which sense the language was used and understood. (Arno v. Stewart (1966) 245 Cal.App.2d 955, 960 [54 Cal.Rptr. 392].) ^[8]

Petitioners’ argue that Williams’ allegedly defamatory monologue “is not actionable as a matter of law because an obvious joke, told during an obvious comedy performance, is a form of irreverent social commentary, is not taken seriously, and thus does not affect reputation in a manner actionable in defamation.” For the reasons later set forth, we shall agree that the foregoing statement is a substantially accurate characterization of the facts of this case and conclude that real party’s claims are therefore not legally actionable. ^[9] Before explaining this conclusion, however, we think it[*552] necessary to clarify our position with respect to an idea vigorously advanced by petitioners in connection with the contention just set forth.

Petitioners do not simply maintain that the statements at issue in this case are not defamatory, but that comedy is a form of expression that is categorically protected by the First Amendment. They base this argument not only on the ground that humor is a useful and even necessary form of social commentary, comparable in certain respects to political speech and religious expression (see, e.g., Salomone v. MacMillan Pub. Co. (1978) 97 Misc.2d 346, 349-350 [411 N.Y.S.2d 105, 108]), ^[10] but on the theory that comedy is, virtually by definition, not taken seriously or literally. ^[11] We reject this latter theory.

First of all, the suggestion that humor cannot serve serious aims or, as one court put it, “sharpen the cutting edge of truth” (Salomone v. MacMillan Pub. Co., supra, 411 N.Y.S.2d at p. 108.), is not easy to reconcile[*553] with petitioners’ concomitant assertion, which we find it easier to accept, that humor is an important form of social commentary. Furthermore, caricature, satire or other forms of humor which ridicule may in certain circumstances convey a defamatory meaning and be actionable even if the words used could not be understood in their literal sense or believed to be true. (Prosser & Keeton, Torts, supra, § 111, p. 780.) Most significantly, however, petitioners’ argument assumes that the concept of “comedy” or “humor” can be judicially defined; for unless this is so the courts could not usefully adopt and consistently apply the rule, urged upon us, that comedy, as such, is a protected form of speech.

Comedy, “the most complex and elusive, [if] not the most profound, aesthetic attitude” (Cook, The Dark Voyage and the Golden Mean: A Philosophy of Comedy (W.W. Norton & Co. 1966) foreword), does not, in our view, admit of definition by any readily ascertainable general principle. ^[12] What is one man’s amusement is another’s calumny. (Cf. Cohen v. California (1971) 403 U.S. 15, 25 [29 L.Ed.2d 284, 293-294, 91 S.Ct. 780]; Winters v. New York (1948) 333 U.S. 507, 510 [92 L.Ed. 840, 847, 68 S.Ct. 665]; Hannegan v. Esquire, Inc. (1946) 327 U.S. 146, 157-158 [90 L.Ed. 586, 593, 66 S.Ct. 456].) Mindful that judicial efforts to define a concept similarly resistant to explication, i.e., “obscenity,” have confused rather than clarified the jurisprudence of the First Amendment (see, e.g., Interstate Circuit, Inc. v. City of Dallas (1968) 390 U.S. 676, 704 [20 L.Ed.2d 225, 243-244, 88 S.Ct. 1298], conc. and dis. opn. of Harlan, J.) and because, in any event, as we explain, no definition is here necessary, we decline to undertake what would almost surely prove a quixotic endeav- or. Such judicial timidity should not distress advocates of the constitutional rights of comedians and humorists; for if judges assumed the responsibility to decide what is amusing and made the protections of the First Amendment turn upon their views, perhaps less putative humor would be safeguarded than our restrained approach permits. ^[13] (Cf. Federal Communications Com [*554] mission v. Pacifica Foundation (1978) 438 U.S. 726 [57 L.Ed.2d 1073, 98 S.Ct. 3026].)

The proper focus of judicial inquiry in a case such as this is not whether the allegedly defamatory statement succeeds as comedy, ^[14] nor whether its audience thought it to be humorous or believed it to be true; the threshold inquiry is simply whether the communication in question could reasonably be understood in a defamatory sense by those who received it. (Rest.2d, Torts, supra, § 563, com. c.) This is not to say that the discernibly humorous intent of the publisher is irrelevant, or that a court may not consider and give weight to the comedic context in which publication occurred, or the nature of audience response; for considerations of this sort invariably will bear upon the determination whether a defamatory meaning could reasonably be attached to the communication in question.

Arno v. Stewart, supra, 245 Cal.App.2d 955, illustrates the proper judicial approach. It was alleged in that case that the host of a television dance show (not a comedy show) had referred to the plaintiff as an “iron-clad member of the Mafia,” and had thereby “identified him as a member of ‘a[*555] hereditary Sicilian organization, conspiratorial in nature, violent in deed, and criminal in every aspect.’ ” (Id., at p. 960.) Pointing out that “acceptance of plaintiff’s definition of the nature of the [Mafia] does not resolve the question [of defamation]” (ibid.), the court commenced its analysis with the following principle, first expressed by our Supreme Court in Bettner v. Holt (1886) 70 Cal. 270, 274 [11 P. 713]: “[N]ot only is the language employed to be regarded with reference to the actual words used, but according to the sense and meaning under all the circumstances attending the publication which such language may fairly be presumed to have conveyed to those to whom it was published. So that in such cases the language is uniformly to be regarded with what has been its effect, actual or presumed, and its sense is to be arrived at with the help of the cause and occasion of its publication. ” (Italics added; accord, Kapellas v. Kofman (1969) 1 Cal.3d 20, 33 [81 Cal.Rptr. 360, 459 P.2d 912]; MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 546-547 [343 P.2d 36]; Stevens v. Storke (1923) 191 Cal. 329, 334 [216 P. 371]; Correia v. Santos, supra, 191 Cal.App.2d 844, 851-852; Blake v. Hearst Publications Inc. (1946) 75 Cal.App.2d 6, 11-12 [170 P.2d 100]; Information Control Corp. v. Genesis One Computer Corp. (9th Cir. 1980) 611 F.2d 781, 784; Rest.2d, Torts, supra, § 563, coms. d & e, pp. 163-164.) In discussing this principle, the Amo court emphasized that “[r]esort to humor will not preclude responsibility for defamatory matter” (245 Cal.App.2d at p. 962), and that California courts have recognized “that the jocular intent of the publisher will not relieve him from liability if it is reasonable to not understand the utterance as a joke.” (Id., at p. 964.) The court also pointed out that it is not necessary that anyone believe the defendant’s words in order for them to be defamatory, “since the fact that such words are in circulation at all concerning the plaintiff must be to some extent injurious to his reputation—although obviously the absence of belief will bear upon the amount of the damages. There must be, however, a defamatory meaning conveyed. Thus it is always open to the defendant to show that the words were not understood at all, that they were taken entirely in jest, or that some meaning other than the obvious one was attached by all who heard or read. ” (Id., at p. 963, quoting Prosser, The Law of Torts (3d ed. 1964) § 106, pp. 763-764.)

Examining the “entire auditory and visual impression” created by the defendants in that case, the court in Arno v. Stewart concluded that no defamatory meaning could reasonably attach to the communication because “it could only be interpreted as a joke.” (Id., at p. 962, italics added.) This conclusion was based on evidence showing “that reference to the Mafia had been frequently used as a gag in a jocular manner by other entertainers; and that on the occasion in question the reference was made in a jolly and friendly atmosphere and was greeted with laughter from all.” (Ibid.)

[*556] The substance of the communication at issue here and the context in which it was made are even more indicative that there was no defamation than were the circumstances in Arno v. Stewart, supra, 245 Cal.App.2d 955. At least in Arno it was conceded that the allegedly defamatory words referred to the plaintiff. Here there is a genuine dispute whether Williams’ statements were intended by him or believed by others to refer to real party’s products. ^[15] In any event, the statements, which Rege acknowledges were “made in jest,” and which represented a very small part of a rather long comedy performance, were a spoof or parody of advertising practices and wine snobbery based upon the fantasy of a black wipe “tough enough” to be advertised by “Mean Joe Green.” ^[16] Williams, who was performing in a nightclub before an audience that knew him as a comedian, not a wine connoisseur, seems to have made it clear that the wine to which he referred did not exist, because his joke was constructed around the rhetorical question “why are there no black wines like . . . .” Suggestions that the hypothetical wine is a “motherfucker, ” ^[17] black in color, tastes like urine, ^[18] goes with anything “it” damn well pleases, or is “tough” or endorsed by ruffians are obvious figments of a comic imagination ^[19] impossible for any sensible[*557] person to take seriously. ^[20] For this reason, and in light of the occasion at which the joke was delivered and the attending circumstances, we conclude that, as a matter of law, it was not defamatory. To hold otherwise would run afoul of the First Amendment and chill the free speech rights of all comedy performers and humorists, to the genuine detriment of our society.

Decisions made in slightly different though still relevant contexts fully support our views. (See, e.g., Yorty v. Chandler (1970) 13 Cal.App.3d 467, 475 [91 Cal.Rptr. 709] [political cartoon could not be deemed defamatory as serious statement of fact]; Blake v. Hearst Publications Incorporated, supra, 75 Cal.App.2d 6, 11 [cartoon “extremely distasteful” to plaintiff not defamatory]; Pring v. Penthouse International Ltd., supra, 695 F.2d 438 [no reasonable reader could reasonably believe statements in sexual-humor article].)

III.

As indicated, the defamation claim in this case rests in part on the argument that Williams’ joke “associates ‘Rege’ brand wines with blacks,” allegedly “a socio-economic group of persons commonly considered to be the antithesis of wine connoisseurs,” who “harbor obviously unsophisticated tastes in wines. ” This argument is utterly untenable. Assuming, purely for the sake of argument, that the joke did convey the meanings ascribed by Rege, he could not recover damages based upon a theory that his wine had been disparaged by association with a particular racial or ethnic group, or a segment thereof. Courts will not condone theories of recovery which promote or effectuate discriminatory conduct. (See generally Palmore v. Sidoti (1984) 466 U.S. 429 [80 L.Ed.2d 421, 104 S.Ct. 1879] [reversing state court decision denying custody to Caucasian mother who married a black man (not the father of the child) because trial court decided child would be stigmatized by private racial biases]; Shelley v. Kraemer (1948) 334 U.S. 1 [92 L.Ed. 1161, 68 S.Ct. 836, 3 A.L.R.2d 441] [refusing to enforce racially-discriminatory restrictive covenant].) As the Supreme Court stated in Palmore, “the law cannot, directly or indirectly, give [private biases] effect.” (Palmore v. Sidoti, supra, 466 U.S. 429, 433 [80[*558] L.Ed.2d 421, 426, 104 S.Ct. 1879, 1882].) Thus Rege’s contention that the joke disparaged his wine products by associating them with blacks is repugnant to values embedded in our Constitution and must be resoundingly rejected.

IV.

Since Rege’s claims are all based upon publication of the joke, and because “liability cannot be imposed on any theory for what has been determined to be a constitutionally protected publication” (Readers Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 265 [208 Cal.Rptr. 137, 690 P.2d 610]), the demurrers must be sustained as to all of Rege’s alleged causes of action.

Let a peremptory writ of mandate issue commanding respondent court to vacate its order overruling petitioners’ demurrers, to enter an order sustaining their demurrers and to enter a judgment of dismissal. The stay heretofore imposed shall be dissolved upon finality of this opinion.

Rouse, J., and James, J., * concurred.