¶64 (dissenting) — On April 30, 1975, respondent Norman Le watched as Communist North Vietnamese forces stormed the South Vietnamese capital city. 7 Verbatim Report of Proceedings (VRP) at 1372. He saw a North Vietnamese soldier lower the Republic of Vietnam flag from the top of the Independence Palace and replace it with the flag of North Vietnam. Id. at 1372-73. Because of his civil government position in the Republic of Vietnam, Norman Le was arrested as a political prisoner. Id. at 1367-68, 1373. Mr. Le was continuously imprisoned in a Communist labor camp for nine years and seven months. Id. at 1376. In 1990, he escaped Vietnam by boat to try to find freedom. Id. at 1386. Approximately one million Vietnamese were not as fortunate.10
¶65 In his flight for freedom, Mr. Le settled in Washington, where he opened a business in addition to directing a refugee center. Id. at 1387. He has been an administrator, consultant, and volunteer for countless charitable organizations since. Id. at 1388. After escaping to the United States, he earned both an MBA (master of business administration) and a PhD (doctor of philosophy). Id. at 1364. Mr. Le is charitably active, especially in the Vietnamese refugee community.11
*676¶66 In contrast, a petitioner’s admission found in the majority opinion notes that “[Tan’s] release” from a Communist labor camp “was contingent upon signing a loyalty pledge to the Communist Party. To secure his release, Tan signed the pledge.” Majority at 653.
¶67 Based on genuine beliefs supported by nondefamatory disclosed facts, Mr. Le and the other respondents believed and alleged that the petitioners in this action retained Communist sympathies. The majority today reverses the Court of Appeals and reinstates a jury verdict, which found the respondents liable for defamation and awarded $310,000 in damages. The majority’s holding is a miscarriage of justice for Mr. Le and all those who have risked everything to enjoy the protections of the United States Constitution, its First Amendment, and article I, section 5 of the Washington State Constitution.
¶68 The United States Supreme Court has recognized that “there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). “The First Amendment creates an open marketplace where ideas, most especially political ideas, may compete without government interference.” N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 208, 128 S. Ct. 791, 169 L. Ed. 2d 665 (2008) (citing Abrams v. United States, 250 U.S. 616, 630, 40 S. Ct. 17, 63 L. Ed. 1173 (1919)). Extolling the significance of this marketplace of ideas, Judge Learned Hand wisely noted that the First Amendment “ ‘presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.’ ” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) (quoting United *677States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943)). Considering our First Amendment jurisprudence in light of these principles, this court has recognized that “the best remedy for false or unpleasant speech is more speech, not less speech.” Rickert v. Pub. Disclosure Comm’n, 161 Wn.2d 843, 855-56, 168 P.3d 826 (2007). This court has also noted that “[a] basic cost of defamation law is its potential chilling effect on the press.” Dunlap v. Wayne, 105 Wn.2d 529, 534, 716 P.2d 842 (1986). Because the majority fails to accord full protection to the First Amendment’s marketplace of ideas, the cost of chilling speech, and the more protective provisions in article I, section 5 of Washington’s constitution, I respectfully dissent.
¶69 The majority does not recognize the First Amendment’s inherent protection of conjecture within a political debate. Furthermore, while the majority states the New York Times standard for determining whether the evidence supports a finding of actual malice, I disagree with this application of the standard. I would therefore hold that the respondents’ allegations that Due Tan and the Vietnamese Community of Thurston County (VCTC) are Communists or Communist sympathizers are opinions based on disclosed facts within the context of a political debate and thus nonactionable. I would further hold that the petitioners have failed to show that the respondents acted with actual malice in making the underlying factual allegations. Accordingly, I would affirm the Court of Appeals.
A. Respondents’ Assertions That Petitioners Are Communist Sympathizers
¶70 The respondents’ assertions that the petitioners are Communists or Communist sympathizers are, at most, conjecture. “Conjecture, when recognizable as such, alerts the audience that the statement is one of belief, not fact. The audience understands that the speaker is merely putting forward a hypothesis. Although the hypothesis involves a *678factual question, it is understood as the author’s ‘best guess.’ ”Milkovich v. Lorain Journal Co., 497 U.S. 1, 28 n.5, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990) (Brennan, J., dissenting). “[CJonjecture is intrinsic to ‘the free flow of ideas and opinions on matters of public interest and concern’ that is at ‘the heart of the First Amendment.’ ” Id. at 34 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988)). Conjecture is a powerful means of “fueling a national discourse . . . and stimulating public pressure for answers from those who know more.” Id. at 35. The cost of punishing conjecture is wiping out “a genuinely useful mechanism for public debate.” Id. at 36.
¶71 In Dunlap, this court explicitly adopted the rule of Restatement (Second) of Torts § 566 (1977), holding that statements of opinion that do not imply the allegation of undisclosed defamatory facts are not actionable in defamation. 105 Wn.2d at 538. Although the United States Supreme Court in Milkovich, 497 U.S. at 17, held that there is not a separate First Amendment protection for defamatory opinion statements, Dunlap is still good law in the state of Washington. This court has not held to the contrary. Although declining to acknowledge the existence of separate protection for statements of pure opinion, the Court in Milkovich determined that protection of opinion was dictated by existing doctrine. Id. at 14-17; see also id. at 24 (Brennan, J., dissenting).
¶72 This court in Dunlap formulated a three part test for determining whether a statement should be characterized as nonactionable. “[A] court should consider at least (1) the medium and context in which the statement was published, (2) the audience to whom it was published, and (3) whether the statement implies undisclosed facts.” Dunlap, 105 Wn.2d at 539. Here, all three factors weigh in favor of finding that the respondents’ conjecture that the petitioners are Communists or Communist sympathizers is nonactionable opinion.
*679¶73 First, the context of the statements was an ongoing political debate about how to best achieve the goals of the Vietnamese refugee community. Recognizing that speech from both sides may bring the truth to the surface, the public notice called for a press conference and meeting to debate the allegations. The petitioners chose not to attend.
¶74 Second, the audience mainly comprised Vietnamese immigrants who would have been familiar with the disagreements between the petitioners and respondents. Some members of the audience would have had firsthand knowledge of the circumstances described in the publications. Furthermore, those audience members who are also Vietnamese immigrants can likely interpret the respondents’ statements within a broader cultural context. Mr. Le expressed this principle in his testimony:
[A]n American reader of that announcement, they might have a different perspective than a person at advanced age, experience, and hardship with the community - - with the communists. They have a different perspective while reading the article.
We have suffered 50 years of hardship, extortion, propaganda. So it create [sic] in our minds a different perspective of things when you read the article.
8 VRP at 1364.1 agree. In light of their cultural background and familiarity with the events described, the audience was uniquely situated to determine the validity of the respondents’ claims.
¶75 Third, the conjecture that petitioners are Communists or Communist sympathizers does not imply undisclosed facts. The statements include the respondents’ versions of incidents that they believe support their allegations that the petitioners harbor Communist sympathies. In this way, the audience was given all the necessary information to determine the validity of the respondents’ conjecture.
¶76 The significance of undisclosed facts is well illustrated by an example from Restatement (Second) of Torts *680§ 566 comment c, as explained by Justice Brennan in his Milkovich dissent:
[A] statement that “I think C must be an alcoholic” is potentially libelous because a jury might find that it implies the speaker knew undisclosed facts to justify the statement. In contrast... the following statement could not be found to imply any defamatory facts:
“A writes to B about his neighbor C[,] ‘He moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio listening to a news broadcast, and with a drink in his hand. I think he must be an alcoholic.’ ”
Milkovich, 497 U.S. at 27 n.3. Here, the respondents’ statements are analogous to the Restatement’s example. The conjecture that the petitioners are Communists or Communist sympathizers is based on the disclosed facts of the apron incident, the flag issues, the national anthem incident, and other such verifiable events. As in the Restatements example, the link between the disclosed facts and the respondents’ conjecture is tenuous. Nevertheless, because the basis for the conjecture is disclosed, the audience may judge for themselves the validity of the allegations. “[A]s long as it is clear to the reader that he is being offered conjecture and not solid information, the danger to reputation is one we have chosen to tolerate in pursuit of ‘individual liberty [and] the common quest for truth and the vitality of society as a whole.’ ” Milkovich, 497 U.S. at 36 (Brennan, J., dissenting) (alteration in original) (internal quotation marks omitted) (quoting Falwell, 485 U.S. at 50-51). Based on the factors set out in Dunlap, the respondents’ conjecture that the petitioners are Communists or Communist sympathizers is nonactionable.
B. Underlying Factual Allegations
¶77 I agree with the majority that conjecture based on disclosed false and defamatory facts is not protected by the First Amendment. However, the majority errs by conflating *681its analysis of the actionability of the conjecture with its defamation analysis of the disclosed facts upon which the conjecture relies. Having concluded that the respondents’ conjecture is nonactionable because the statements were made within a political debate and do not imply the existence of undisclosed facts, we now consider whether the respondents’ underlying factual allegations are defamatory. I conclude that they are not.
¶78 The United States Supreme Court in New York Times established a federal rule that public officials cannot recover damages for defamation unless it is proved that the statement was made with “actual malice.” The Court defined “actual malice” as “knowledge that [the statement] was false or [was made] with reckless disregard of whether it was false or not.” 376 U.S. at 280. In establishing this standard, the Court recognized a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Id. at 270. The Court further noted that an “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need ... to survive.’ ” Id. at 271-72 (alteration in original) (quoting Nat’l Ass’n for Advancement of Colored People v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963)). Three years after New York Times, the United States Supreme Court in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967) (plurality opinion), held that the New York Times “actual malice” standard applies to public figures in addition to public officials. For both public figures and public officials, the New York Times malice requirement is subject to a clear and convincing standard of proof. Gertz, 418 U.S. at 342. The trial judge in this case determined at summary judgment that Tan and the VCTC were public figures as a matter of law, and the petitioners have not challenged this ruling. *682Because the petitioners are deemed public figures as a matter of law, the New York Times “actual malice” standard is proper.
¶79 In applying the malice standard, we must make an “ ‘independent examination of the whole record’ ” in order to ensure that “ ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984) (quoting N.Y. Times, 376 U.S. at 284-86). While purporting to do an independent examination, the majority grants improper deference to the jury. “The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law.” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 685, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989). We must undertake an independent examination of the facts, and the burden lies with the petitioners to prove by clear and convincing evidence that the respondents acted with knowledge of the statements’ falsity or reckless disregard for the statements’ falsity.
¶80 In her dissent in Rickert, Justice Madsen wisely noted the difficulty of meeting the “actual malice” standard:
[T]he actual malice standard is an exceedingly high standard to meet. Most political speech does not even approach being subject to regulation under this standard; the standard prohibits only the very worst untruths — those made with knowledge of their falsity or with reckless disregard to truth or falsity. In addition, the burden of proof is also high — proof must be by clear and convincing evidence. The actual malice standard is deliberately difficult to satisfy, precisely because free speech rights are at issue. Therefore, much nuanced speech, and all speech that constitutes opinion rather than fact, will simply fall short of it.
Rickert, 161 Wn.2d at 859-60 (Madsen, J., dissenting). The justice correctly states the stringent limitations of the malice standard. Here, in addition to being nonactionable as political conjecture based on disclosed facts, the respon*683dents’ allegations that the petitioners are Communists is opinion and thus cannot meet the malice standard. Furthermore, the respondents’ underlying factual allegations certainly do not rise to the level of being “the very worst untruths.” They are the epitome of nuanced speech — written in Vietnamese and translated into English, with testimony being spoken in Vietnamese and translated into English. Considering these facts in addition to the cultural lenses of both the speaker and most of the audience, the nuance of the respondents’ speech weighs against a finding of malice.
¶81 Although the majority purports to apply the New York Times malice standard, they apply strict liability for these statements. This is antithetical to the protections of the First Amendment and causes harm to our system of self-government by chilling valuable political speech. See United States v. Alvarez, _ U.S. _, 132 S. Ct. 2537, 2544-45, 183 L. Ed. 2d 574 (2012) (striking down the Stolen Valor Act of 2005, 18 U.S.C. § 704, and refusing to recognize “false speech” as a category appropriate for content-based regulation); Gertz, 418 U.S. at 334 (“[A] ‘rule compelling the critic of official conduct to guarantee the truth of all his factual assertions’ would deter protected speech.” (quoting N.Y. Times, 376 U.S. at 279)); N.Y. Times, 376 U.S. at 279 (“Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism ... even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They... ‘steer far wider of the unlawful zone.’ ” (quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958))). This “ ‘self-censorship’ ” would most certainly “dampen [ ] the vigor and limit [ ] the variety of public debate.” N.Y. Times, 376 U.S. at 279.
¶82 The United States Supreme Court has “recognized the ‘inevitability of some error in the situation presented in free debate,’ and that ‘putting to the pre-existing prejudices of a jury the determination of what is “true” may effectively *684institute a system of censorship.’ ” Butts, 388 U.S. at 152 (plurality opinion) (citation omitted) (quoting Time, Inc. v. Hill, 385 U.S. 374, 376, 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967) (Harlan, J., dissenting)). For this reason, “mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, the publisher must act with a ‘high degree of awareness of . . . probable falsity.’ ” Gertz, 418 U.S. at 332 (alteration in original) (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968)).
¶83 In New York Times, the newspaper published an editorial advertisement that expressed opinions, recited grievances, and sought financial support for the civil rights movement. A commissioner of the city of Montgomery, Alabama, brought a libel action against the newspaper’s publisher and the individuals who signed the editorial. The trial court awarded $500,000 to the plaintiff, and the Supreme Court of Alabama affirmed. The United States Supreme Court reversed, establishing the malice standard for public officials and holding that the evidence was constitutionally insufficient to support judgment for the plaintiff. The editorial contained certain factual inaccuracies. The Court noted:
It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in Montgomery. Although ... students staged a demonstration on the State Capitol steps, they sang the National Anthem and not “My Country, ’Tis of Thee.” Although nine students were expelled by the State Board of Education, this was not for leading the demonstration at the Capitol, but for demanding service at a lunch counter in the Montgomery County Courthouse on another day Not the entire student body but most of it, had protested the expulsion, not by refusing to register, but by boycotting classes on a single day; virtually all the students did register for the ensuing semester. The campus dining hall was not padlocked on any occasion, and the only students who may have been barred from eating there were the few who had neither signed a preregistration appli*685cation nor requested temporary meal tickets. Although the police were deployed near the campus in large numbers on three occasions, they did not at any time “ring” the campus, and they were not called to the campus in connection with the demonstration on the State Capitol steps, as the third paragraph implied. Dr. King had not been arrested seven times, but only four; and although he claimed to have been assaulted some years earlier in connection with his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there was such an assault.
N.Y. Times, 376 U.S. at 258-59. Although the United States Supreme Court acknowledged these factual inaccuracies, it still found in favor of the defendants due to a lack of malice on the plaintiffs’ behalf. As in New York Times, the facts at issue here are disputed and, at times, inaccurate. Exactly what happened with the apron, the national anthem, the flag in the classroom, and the conversation with the shop owner is unclear. However, New York Times instructs us that even factual inaccuracies concerning a public figure are constitutionally insufficient to support a defamation judgment.
¶84 The majority’s recitation of the claimed “clear and convincing” evidence of malice in this case is unpersuasive. First, the majority claims that “defendants knew that people did not boycott the VCTC because Le himself remained associated with the VCTC for years after the name change.” Majority at 672. This statement contains a logical fallacy. Knowing that others boycotted an organization and remaining associated with the organization oneself are not mutually exclusive.
¶85 Second, the majority asserts that “Le knew that Hua never said he would accept Viet Cong money because Le was present when Hua spoke and the defendants did not accuse the market owner who donated the funds of being pro-Communist.” Majority at 672. A review of the record reveals that there is much disagreement about what was said at that meeting, heightened by the issue of translation *686of testimony from Vietnamese to English. See 7 VRP at 1398. I am not convinced that Hua did not say he would accept Viet Cong money. See Harte-Hanks, 491 U.S. at 688-89 (“Although credibility determinations are reviewed under the clearly-erroneous standard . . . the reviewing court must ‘examine for [itself] the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment . . . protect.’ ” (most alterations in original) (internal quotation marks omitted) (quoting N.Y. Times, 376 U.S. at 285)).
¶86 Third, the majority claims that “the defendants were aware that the playing of the Vietnam national anthem was an accident.” Majority at 672. This is incorrect at best, unlikely at least. At trial, when asked if he thought the playing of the wrong national anthem was a mistake, Mr. Le testified that “[a] political issue is not that simple, especially when you have experience of how the communists do business.” 8 VRP at 1347. He also testified that “[t]o me, with my experience, it’s a big deal, because I know [the Communists] operate by increments.” 7 VRP at 1400. Although the majority claims “the defendants were aware” that the anthem incident was an accident, Mr. Le’s testimony indicates that he genuinely believed the playing of the anthem was no mistake but was orchestrated by Communist sympathizers.
¶87 Fourth, the majority cites as evidence of malice that “the committee members made no attempt to contact Tan before publishing the Public Notice” and “the defendants failed to investigate any of the facts before publication, including the authenticity of the apron.” Majority at 673. Our case law is clear. “Failure to investigate does not in itself establish bad faith.” St. Amant, 390 U.S. at 733. The evidence of malice cited by the majority is tenuous at best. The petitioners fail to meet the high bar of proving malice by clear and convincing evidence.
¶88 The majority cites to Margoles v. Hubbart, 111 Wn.2d 195, 201, 760 P.2d 324 (1988), for the proposition *687that professions of good faith are unpersuasive when a publisher’s allegations are so inherently improbable that actual malice may be inferred. Majority at 669. This may be true, but the majority again conflates the analysis of the opinion statements’ actionability with the defamation analysis of the disclosed underlying facts. Here, the “extreme statements” alluded to by the majority are the respondents’ allegations that the petitioners are Communists or Communist sympathizers. These statements are opinions, not facts that should be analyzed under the New York Times malice standard. Rather, after deciding the actionability of the opinion statements, courts should turn to a defamation analysis of the underlying disclosed facts. Here, the underlying disclosed facts are not extreme.
¶89 Each event described by the respondents actually happened. The description was the respondents’ interpretation of events, colored by their cultural and political experience. Because the disclosed facts were not extreme or improbable, the respondents’ professions of good faith should weigh against a finding of malice. The respondents’ invitation for the petitioners to participate in a public debate also weighs in favor of this finding.
¶90 Finally, the malice standard requires consideration of the speakers’ mens rea. The majority suggests that “the personal experiences and histories of the parties” are not “legally relevant to the issues before us.” Majority at 674 n.9. This assertion is patently incorrect and reveals the majority’s misunderstanding of the malice standard. Here, the respondents’ experiences and history weigh against a finding that they had knowledge that the statements were false or acted with reckless disregard of the statements’ falsity. See N.Y. Times, 376 U.S. at 280. Individuals with their experiences and history would be more sensitive to interpreting events as motivated by Communist sympathies. Because the malice standard requires a consideration of the speaker’s mens rea, it is improper (and at times culturally insensitive) to disregard a speaker’s history and experiences.
*688f 91 It is inappropriate to apply either strict liability for a statement’s falsity or even a reasonable person standard. Instead, courts must interpret the evidence to determine the speaker’s mental state with respect to his statements. The burden is on the petitioners to prove malice by clear and convincing evidence. A lack of evidence means a defamation action cannot stand. Mr. Le testified about his emotional and psychological connections with Communism:
So if you know anything about communism at all, those regime’s doctrines, they left a very deep scar, and so a lot of horror [sic] impression in my mind. So when I see any display of their symbol, it give [sic] me a big scare. For example, 70 percent of the nights when I sleep here, I still dream about my days in their prison.
7 VRP at 1378. Mr. Le and the other respondents have been greatly impacted by Communism. Mr. Le spent nearly 10 years of his life in a Communist labor camp and has worked tirelessly since his escape to rehabilitate other Vietnamese refugees who have been harmed by Vietnam’s current government. Mr. Le and the other respondents are more inclined than most to be mindful of potential Communist infiltration of their community.
¶92 The majority admits that “there is no single smoking gun proving actual malice in this case” but still finds that “there is clear and convincing evidence here justifying the inference of actual malice.” Majority at 674. I disagree. Constitutional free speech rights are not destroyed by such inferences. As did the Court of Appeals, I find that the petitioners have failed to meet the high bar of proving by clear and convincing evidence that respondents acted with knowledge of or reckless disregard for the statements’ falsity. The evidence is constitutionally insufficient to support a defamation judgment.
¶93 The respondents’ allegations that Tan and the VCTC are Communists or Communist sympathizers are opinions based on disclosed facts within the context of a political debate and thus nonactionable. The First Amendment to the *689United States Constitution and article I, section 5 of the Washington State Constitution protect such political speech. That an immigrant may be financially destroyed by a $310,000 verdict for engaging in constitutionally protected rights is unacceptable and violative of precedent in this court and the United States Supreme Court. I respectfully dissent.
Motions for reconsideration denied August 15, 2013.
See Charles Hirschman, Samuel Preston & Vu Manh Loi, Vietnamese Casualties During the American War: A New Estimate, 21 Population & Dev. Rev. 783, 807 (1995).
Contrary to the majority’s assertion, the experiences and histories of the parties are undeniably relevant to the legal questions at hand. Here, the petitioners have an exceedingly high burden of proving that the respondents acted with knowledge of or reckless disregard for the statements’ falsity. The respon*676dents’ experiences with Communism are most certainly relevant to this analysis. This issue is discussed further, infra p. 687.