UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

 

(Continued) 

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, 

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 
11 

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.