concurring in part and dissenting in part.
I concur in the decision to affirm the order denying the motion to disqualify Spence’s counsel and the decision to reverse the summary judgment. I disagree, however, with the majority’s analysis regarding the alleged defamatory statements and propose an alternate guideline for the district court.
Actionable and Nonactionable Statements
With respect to the question of whether the statements in the published article are actionable, I agree with most of Justice Golden’s analysis. I part company, however, at the point where he determines, as a matter of law, that all the statements are nonactionable opinion or rhetorical hyperbole. See 816 P.2d at 790 (Golden, J., concurring in part and dissenting in part). This case should be remanded for a factual determination of whether some of the statements are actionable factual assertions. If those statements are statements of opinion relating to matters of public concern which contain a provably false factual connotation and if they can reasonably be interpreted as stating actual facts, then they are actionable factual assertions. Milkovich v. Lorain Journal Co., — U.S. -, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). Otherwise, the statements are nonactiona-ble opinion or rhetorical hyperbole.
While the United States Supreme Court has not declared that the determination of whether a statement is an actionable factual assertion or a protected opinion is a question of law or a question of fact, several courts have utilized principles articulated by the Supreme Court to hold that close calls should be turned over to a fact finder. Yetman v. English, 168 Ariz. 71, 811 P.2d 323 (1991); Flotech, Inc. v. E.I. Du Pont de Nemours & Company, 814 F.2d 775 (1st Cir.1987); Aldoupolis v. Globe Newspaper Company, 398 Mass. 731, 500 N.E.2d 794 (1986); Good Government Group of Seal Beach, Inc. v. Superior Court of Los Angeles County, 22 Cal.3d 672, 150 Cal.Rptr. 258, 586 P.2d 572 (1978). In Yetman, 811 P.2d at 331, the Arizona Supreme Court stated:
[OJnly in the clearest cases may courts, applying the principles laid down in Mil-kovich, determine as a matter of law that the assertions before them state or imply actual facts and are therefore entitled to no constitutional protection. See White v. Fraternal Order of Police, 909 F.2d 512, 523 (D.C.Cir.1990); Beasley v. St. Mary’s Hosp., 200 Ill.App.3d 1024, 146 Ill.Dec. 714, 720, 558 N.E.2d 677, 683 (1990). In other cases, it will be clear that the assertions at issue employ “loose, figurative or hyperbolic language,” and cannot reasonably be interpreted as stating or implying actual facts.
The court held that, in cases involving statements to which reasonable people might give conflicting yet plausible interpretations, a fact finder should determine the nature of the statements. Id.
Under the Arizona Supreme Court’s standard, Hustler’s article must be analyzed to determine which statements are, as a matter of law, either protected or unprotected and which statements should be examined by a fact finder. Justice Golden lays out the following four-prong test which governs that determination:
*7821. The full context of the statements in the article since other unchallenged language surrounding the allegedly defamatory statement will influence the average reader’s readiness to infer that a particular statement has factual content;
2. The broad social context or setting within which the allegedly defamatory statement appears;
3. The common usage or meaning of the specific language of the challenged statements;
4. Whether the statement is capable of being verified, that is, objectively characterized as true or false.
816 P.2d at 785 (Golden, J., concurring in part and dissenting in part). Applying that test, I agree with Justice Golden’s conclusion that “vermin-infested turd dispensers,” “shameless shitholes,” “hemorrhoidal types,” “[ajsshole,” “reeking rectum,” and “parasitic scum-suckers” are either expressions of opinion or rhetorical hyperbole. The statement, “In her latest publicity-grab, Dworkin has decided to sue HUSTLER,” is not directed toward Spence and, therefore, is not relevant to his case.
The character of the following statements is not clear and should be determined by a fact finder:
1. Spence is a lawyer and lawyers “are eager to sell out their personal values, truth, justice and our hard-won freedoms for a chance to fatten their wallets.”
2. Spence’s “log-cabin image is * * * phony.”
3. “Spence is more interested in promoting his bank account than the traditional values he’d like us to believe he cherishes.”
4. “This case is a nuisance suit initiated by Dworkin.”
A reasonable jury could conclude that statements 1, 2, and 3 imply that Spence intentionally deceives the legal system for monetary gain. Such a conclusion would give rise to an actionable assertion of fact. The same jury could also decide that those statements do not suggest the existence of provable facts or that they are merely rhetorical hyperboles which disparage Spence. In that case, the statements would be protected. Statement 4 is a problem because it refers to Dworkin’s suit as a “nuisance suit.” While some readers may not consider that phrase in terms of professional ethics, an attorney who files a nuisance suit can be punished pursuant to Rule 3.1 of Wyoming’s Rules of Professional Conduct for Attorneys at Law. Hence, the filing of a nuisance suit can be a provable fact, and a reasonable jury could conclude that statement 4 connotes the existence of such a fact. In contrast, a reasonable jury could also find that Hustler’s statement is simply an expression of its opinion that Dworkin is not entitled to a recovery and not an assertion that Spence committed an ethical violation. I would send all four statements back to the district court for a factual determination of their character.
Spence’s Status as a Public Figure
The majority opinion concludes that the issue of whether Spence is a public figure or a private individual should be remanded for a determination by a fact finder. 816 P.2d at 776. I agree with that conclusion and emphasize that a lawyer should not be deemed a public figure just because he takes on a notorious case or represents a client who is a public figure. I also write to advocate for the use of a standard— when addressing the public figure versus private individual issue — similar to the standard expressed in the previous section of this opinion. In cases which, under the principles enunciated in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), involve a person who is clearly a public figure or a private individual, the court may determine the person’s status as a matter of law. See Adams v. Frontier Broadcasting Company, 555 P.2d 556 (Wyo.1976). Otherwise, the factual question should be presented to and decided by a fact finder.