concurring in result.
I concur in the result because the designated evidence in this record is insufficient to create an issue of fact on the questions of defamatory imputation and malice.8 On a more complete record, Hamilton might well have created a genuine issue of material fact and avoided summary judgment. More complete designated evidence might well have raised a doubt as to what conclusion a jury could reach and have precluded summary judgment. See Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, *1249908-09 (Ind.2001). The Website suggests that Prewett is not a mere humorist9 but is pre-occupied with Hamilton. Perhaps evidence outside the four corners of the Website would support an inference for a jury to find that Prewett’s motive is not benign. Thus, this case is not far removed from a scenario in which a similarly situated plaintiff could sustain an action for defamation. Had there been evidence of actual malice, parody would not defeat a defamation action as a matter of law.
As an initial matter, I fully concur with most of the majority’s opinion. Regarding the majority’s discussion of the law of parody, however, I agree with only the following comments, to the extent that they can be separated and read in isolation from the rest of the majority’s reasoning: an idea or opinion that conveys a defamatory imputation of fact, even if couched in humor, can be actionable; a defendant who couches a defamatory imputation of fact in humor cannot simply avoid liability by “dressing his wolfish words in humorous sheep’s clothing,” op. at 1245; and evidence of actual malice may rebut the affirmative defense of parody. Those propositions support the conclusion that parody is not a blanket exemption in the law of defamation, a conclusion with which I concur. Nonetheless, the majority also insists that parody and defamation are “mutually exclusive,” implying that parody is entitled to wholesale protection from defamation actions. I cannot concur with the majority’s persistent use of that false dichotomy.
Thus, I write separately because I respectfully disagree with the majority’s premise that parody and defamation are mutually exclusive and that, therefore, a statement generally characterized as parody is necessarily exempt from an action for defamation. The majority asserts that, “the Website is not subject to a defamatory interpretation because, as in Hustler [Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) ], no reasonable person could believe these claims to be true.” Op. at 1246. Thus, the majority holds that the Website is not defamatory as a matter of law. I cannot agree with the majority’s reasoning. The Website contains statements that, if made with actual malice or reckless disregard for the truth, would constitute defamation per se. “A statement is defamation per se if it imputes: 1) criminal conduct; 2) a loathsome disease; 3) misconduct in a person’s trade, profession, office, or occupation; or 4) sexual misconduct.’ ” Cortez v. Jo-Ann Stores, Inc., 827 N.E.2d 1223, 1230 (Ind.Ct.App.2005) (quoting Rambo v. Cohen, 587 N.E.2d 140, 145 (Ind.Ct.App.1992), trans. denied). Here, the Website contains statements that impute to Hamilton misconduct in his trade, profession, or occupation, as well as sexual misconduct.
As a procedural matter, the “no reasonable person” standard is restricted in its potential applicability. In Journal-Gazette, Inc. v. Bandido’s, Inc., 712 N.E.2d 446, 457 (Ind.1999), our supreme court stated, “[i]t is a question of law for the court to decide whether a statement considered in its entirety is capable of possessing a defamatory meaning or implication. If a statement is susceptible to both defamatory and non-defamatory meanings, the matter of interpretation should be left for the jury.” (Citation omitted.) The role of judges as gatekeepers in defamation actions should be limited to those cases where, as here, the nonmoving party wholly fails to designate any evidence that could establish a genuine issue of material *1250fact on the questions of defamatory interpretation and actual malice. Whether defamation has in fact occurred, in most cases, should be a question for the jury, and every inference must be indulged in favor of the nonmoving party. See Cobb, 754 N.E.2d at 909.
Substantively, the majority opinion relies on a false dichotomy that parody is “mutually exclusive” of defamation—that is, a fact that is somehow humorous cannot, at the same time, be defamatory. Op. at 1244. This dichotomy applies, erroneously, the “principle of bivalence,” a logic tracing back to Aristotle, which asserts that a proposition must be either “A” or “not A.” Under the majority’s premise, without regard to malice, an otherwise defamatory statement is not actionable if it is clothed in parody.' The majority assumes, incorrectly, that parody, satire, or rhetorical hyperbole are a prophylactic against defamation.
In the absence of Indiana precedent, the majority relies on “generally applicable authority,” namely, a treatise on American jurisprudence. But a close reading of that section of the treatise and the opinions it relies upon demonstrates that the proposition cited by the majority is not supported by the cases cited in the treatise. Specifically, the treatise purports to draw authority from three California cases and one New York case. But the first California case, Patrick v. Superior Court, 27 Cal. Rptr.2d 883 (Cal.Ct.App.1994), was withdrawn as a publishable order by the California Supreme Court. As such, that case is not law even in California. See Cal. R. of Court 977. The second and third California cases, San Francisco Bay Guardian v. Superior Court, 17 Cal.App.4th 655, 21 Cal.Rptr.2d 464 (Cal.Ct.App.1993), and Polygram Records, Inc. v. Superior Court, 170 Cal.App.3d 543, 216 Cal.Rptr. 252, 257-59 (Cal.Ct.App.1985), respectively, both support the position that parody and defamation are in fact not mutually exclusive. As the California Court of Appeals stated, “forms of humor which ridicule may in certain circumstances convey a defamatory meaning and be actionable.” San Francisco Bay Guardian, 21 Cal.Rptr.2d at 467. See also Polygram Records, 216 Cal.Rptr. at 258 n. 11. That principle is also endorsed in New York: “the danger implicit in affording blanket protection to humor or comedy should be obvious[:] ... one’s reputation can be as effectively and thoroughly destroyed with ridicule as by any false statement of fact.” Frank v. Nat’l Broad. Co., 119 A.D.2d 252, 506 N.Y.S.2d 869, 875 (N.Y.App.Div.1986) (citing Triggs v. Sun Printing & Publ’g Ass’n, 179 N.Y. 144, 71 N.E. 739, 742 (N.Y.1904); Donoghue v. Hayes, [1831] Hayes Exch. 265, 266 [Ire.]). Thus, the sources cited in the treatise do not support the proposition that “[d]efamation is, by its nature, mutually exclusive of parody.” See 50 Am.Jur.2d Libel & Slander § 156 (2006).
Additionally, the majority asserts that the California and New York cases cited above are irrelevant in light of the more recent decision in Falwell. Although the majority gives no consideration to the Supreme Court’s still more recent decision in Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), which limited its holding in Falwell and is in line with the California and New York cases, it is worth noting the contradictory nature of the majority’s position. The majority in one breath relies on the secondary treatise as authoritative, but in another repudiates the very sources that treatise relies on as antiquated. Indeed, the majority’s entire discussion of “parody” is contradictory. The majority defines parody as a statement that cannot reasonably be interpreted as stating an actual fact, and therefore as a statement that is *1251not actionable, but goes on to emphasize that a defendant cannot simply avoid liability by “dressing his wolfish words in humorous sheep’s clothing.” Op. at 1245.
Here, the majority’s complete separation of parody from defamation is grounded in the notion that where there is parody, there cannot also be defamation. But the Milkovich Court explicitly held that there is no “wholesale defamation exception for anything that might be labeled ‘opinion’ ” rather than “fact.” Milkovich, 497 U.S. at 18-19, 110 S.Ct. 2695. Hence, what is relevant for the application of First Amendment principles is not the category of speech that is at issue, but whether the facts asserted are capable of defamatory imputation. See Milkovich, 497 U.S. at 21, 110 S.Ct. 2695.
Thus, an idea or opinion that conveys a defamatory imputation of fact, even if couched in humor, can be actionable. As the Illinois Supreme Court recently stated:
there is no artificial distinction between opinion and fact: a false assertion of fact can be defamatory even when couched within apparent opinion or rhetorical hyperbole .... Dubinsky v. United Airlines Master Executive Council, 303 Ill.App.3d 317, 324, 708 N.E.2d 441, 236 Ill.Dec. 855 (1999) (“expressions of opinion may often imply an assertion of objective fact and, in such cases, would be considered actionable”). Indeed, “[i]t is well established that statements made in the form of insinuation, allusion, irony, or question, may be considered as defamatory as positive and direct assertions of fact.” Berkos v. National Broadcasting Co., 161 Ill.App.3d 476, 487, 515 N.E.2d 668, 113 Ill.Dec. 683 (1987). Similarly, “[a] defendant cannot escape liability for defamatory factual assertions simply by claiming that the statements were a form of ridicule, humor or sarcasm.” Kolegas [v. Heftel Broad. Corp.], 154 Ill.2d [1,] 16 [607 N.E.2d 201] [Ill. 1992]. The test is restrictive: a defamatory statement is constitutionally protected only if it cannot be reasonably interpreted as stating actual fact. Kolegas, 154 Ill.2d at 14-15, 180 Ill.Dec. 307, 607 N.E.2d 201.
Solaia Tech., LLC v. Specialty Publ’g Co., 221 Ill.2d 558, 304 Ill.Dec. 369, 852 N.E.2d 825, 840 (2006).
Here, the majority maintains that facts underlying parody and defamation are mutually exclusive and, hence, that if there is parody there is no defamation. That is, the majority insists that the category of speech controls the outcome. Along with the courts cited above, I believe this to be an erroneous and oversimplified statement of the law. What matters is not the category of speech, but whether the facts support a defamatory imputation. As such, facts mingled with humor may nonetheless be defamatory. In considering this, a court must look to the entirety of the statement and evidence supporting a finding of actual malice. If the only conclusion that can be reached is that the statement was so obviously in jest that no reasonable person would conclude that the statement was one of fact, then the action for defamation cannot stand. However, even a statement uttered in jest may contain express or implied facts that are defamatory. Parody is an effective defense only when the jest in its entirety cannot reasonably be interpreted as stating or implying any false fact, but that conclusion does not mean that parody and defamation are mutually exclusive.
Humor may sugarcoat a defamatory barb, but if the barb contains an assertion of fact that is false and made with malice or reckless disregard for the truth the barb may be deemed defamatory. The fact that a statement may be uttered in jest does not necessarily insulate that *1252statement from an action for defamation. An otherwise humorous statement may have embedded within it an express or implied assertion of fact that would support a defamatory imputation if malice can be shown. Again, as the Illinois Supreme Court recognized, “expressions of opinion may often imply an assertion of objective fact and, in such cases, would be considered actionable.” Solaia Tech., 304 Ill. Dec. 369, 852 N.E.2d at 840 (quoting Dubinsky, 236 Ill.Dec. 855, 708 N.E.2d at 447).
On this record, I am bound to conclude that Hamilton has failed to rebut the defense of parody, having not designated evidence showing there is a genuine issue of material fact on the questions of defamatory imputation and actual malice. But I do not find Prewett’s website entirely humorous. The suggestion that Hamilton’s female customers are his targets and that he routinely offers to exchange professional services for sexual favors is potentially libelous. On a properly designated record, an issue of fact on the questions of defamatory imputation and actual malice might well preclude summary judgment. Accordingly, I concur in result.
. Hamilton’s appellate counsel did not participate in the proceedings before the trial court and first appeared on behalf of Hamilton after the court had granted Prewett’s motion for summary judgment.
. I use parody, satire, humor, caricature, rhetorical hyperbole, and other references to "humorous” statements synonymously.