I dissent. It is my view that Canon 19 of Judicial Ethics of the American Bar Association relative to dissenting opinions is in the public interest and should be carefully adhered to by reviewing courts. Insofar as material here, it reads: ‘‘ Except in case of conscientious difference of opinion on fundamental principle, dissenting opinions should be discouraged in courts of last resort.” (Vol. 62, Reports of American Bar Association (1937), p. 1129, canon 19.) (Italics added.)1
In the present ease I conscientiously differ from the conclusions and reasoning of the majority opinion. It is my view that one of the most important duties of the judiciary is to maintain the freedom of the press. Article I, section 9, of the Constitution of the State of California reads, in part: “Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. ’ ’ The First Amendment to the Constitution of the United States reads, in part: “Congress shall *555make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.”
I state that it is one of the most important duties of the judiciary to maintain the freedom of the press, for the reason that it is my belief that a free and independent government can only be preserved by maintaining a well-informed electorate. History has demonstrated that the best method of keeping the citizenry informed is through the medium of the press. It is my considered opinion that the free press’ foremost obligation is to advise the electorate of all the qualifications or disqualifications of each candidate for public office, which obviously includes his party affiliations, be they communist or otherwise, his associates, the individuals, organizations and groups by whom he is endorsed and who are seeking his election to public office.
In my opinion, in the present case the defendant has merely, within the constitutional guarantee, endeavored to comply with the public duty it owed to the citizenry concerning a candidate for public office.
Plaintiff was a candidate for the City Council of Oakland at the April 1955 election. Thereafter he filed a complaint against defendant, Tribune Publishing Co., Inc., alleging that he was a doctor of dental surgery practicing in Oakland and that prior to the publication in the Oakland Tribune hereinafter set forth, he enjoyed a good name and reputation in his profession and occupation.
It was further alleged:
“That on the 19th day of April, 1955, in all the editions of said newspaper, defendants printed, published, and circulated, or caused to be printed, published, and circulated in said newspaper, on the front page thereof, an article or statement in writing in which said defendants falsely and maliciously and with intent to injure, disgrace, and defame plaintiff, used and published the following language of and concerning the plaintiff:
‘Red Paper Issues Election Extra
‘The San Francisco People’s World, recognized throughout the state as the mouthpiece of the communist party, distributed a last-minute extra edition in Oakland yesterday, on the eve of the city election.
*556‘It verified reports that the paper is showing unusual interest in Oakland and its city election.
‘The Communist-line paper defended the proposal to revive ward politics in Oakland and printed a list of recommendations which included the names of council candidates John F. Quinn, John W. Holmdahl, and Dr. Grover H. MacLeod. It also listed recommendations against police reorganization measures which were endorsed by the Alameda County Grand Jury following its recent investigation.
‘The polls are open until 7 p.m. today.’
“That said article and publication was read by the readers of said newspaper at said time and on said occasion in the city of Oakland and in the County of Alameda and throughout the State of California; and that said defendants by said publication intended to be understood by the general public and readers, and it was so understood by them, as charging, asserting, and imputing that this plaintiff was a communist sympathizer or fellow traveler, and that this plaintiff had received a recommendation from ‘The San Francisco People’s World,’ and that the said San Francisco People’s World had ‘distributed a last-minute extra edition in Oakland’ which allegedly contained the recommendation as aforesaid, (when in truth and in fact The San Francisco People’s World did not endorse or recommend plaintiff in said article), and all said charges, references, assertions, and imputations were false, malicious, and unprivileged, and were calculated to and did expose plaintiff to hatred, contempt, ridicule, and obloquy, causing him to be shunned and avoided, and proximately caused him to sustain a severe and continuing nervous shock and strain and to suffer great mental anguish, mortification, humiliation, and shame; all to his damage in the sum of $200,000.00.”
As a result of the publication of the article, plaintiff alleges that he has suffered pecuniary loss, in that an unusually large percentage of old and established patients have been cancel-ling appointments and that there has been a sharp decline in the number of new patients normally to be expected.
It was also averred that plaintiff served on defendant a demand for retraction, as provided in section 48a of the Civil Code, but that defendant failed and refused to publish a retraction. The alleged demand, a copy of which was attached to the complaint, reads:
*557April 27, 1955
J. R. Knowland Publisher, Oakland Tribune Tribune Tower Oakland, California
Dear Mr. Knowland:
I wish to call your attention to a purported news report which appeared in the Oakland Tribune on Tuesday, April 19, 1955, in all editions on Page 1 of your publication. The article reads as follows:
“Red Paper Issues Election Extra “The San Francisco People’s World, recognized throughout the State as the mouthpiece of the communist party, distributed a last-minute extra edition in Oakland yesterday, on the eve of the city election.
“It verified reports that the paper is showing unusual interest in Oakland and its city election. The communist-line paper defended the proposal to revive ward polities in Oakland and printed a list of recommendations which included the names of council candidates John F. Quinn, John W. Holmdahl and Dr. Grover H. MacLeod. It also listed recommendations against police reorganization measures which were endorsed by the Alameda County Grand Jury following its recent investigation.
“The polls are open until 7 p.m. today.”
This article is grossly libelous and I therefore demand that the same be corrected or retracted as provided in Section 48(a) of the Civil Code of the State of California.
Very truly yours,
s/ Grover H. MacLeod, D.D.S.
Grover H. MacLeod, D.D.S.
GHM/mjn
The prayer of the complaint was for special damages in the sum of $5,000, general damages of $200,000 and exemplary damages of $200,000.
These questions are presented:
First. Bid the complaint state a cause of action?
No, for the following reasons:
1. The article printed by defendant was not libelous as to *558plaintiff, since the only statement concerning him he concedes to he true.2
The sole statement concerning plaintiff is that the San Francisco People’s World printed a list of recommendations for candidates for the City Council of Oakland and plaintiff’s name was included thereon.
The law is established in California that there is no libel if the charge against the plaintiff is true, irrespective of the wording used by the defendant in making the charge. (Emde v. San Joaquin County etc. Council, 23 Cal.2d 146, 160 [8] [143 P.2d 20, 150 A.L.R. 916]; Babcock v. McClatchy Newspapers, 82 Cal.App.2d 528, 536 [186 P.2d 737] ; Glenn v. Gibson, 75 Cal.App.2d 649, 661 [6] [171 P.2d 118]; McLaughlin v. Standard Acc. Ins. Co., 15 Cal.App.2d 558, 566 [59 P.2d 631].)
The gist of the charge against plaintiff is that the San Francisco People’s World printed a list of recommendations for the office of councilman of the city of Oakland, which list included plaintiff’s name. Therefore, since it is conceded that the charge was true, defendant is exempt from liability. (Emde v. San Joaquin County etc. Council, supra, p. 160.)
2. The article printed by defendant is not libelous because, under plaintiff’s own statement, there is no libelous matter in the alleged defamatory article.
The substance of the article is that the San Francisco-People’s World, a San Francisco mouthpiece of the Communist Party, issued an election extra on the eve of a city election in Oakland showing an unusual interest in an Oakland city election; defended the proposal to revive ward politics in Oakland; printed a list of recommendations for the city council, which list included plaintiff’s name; and listed recommendations against certain police reorganization measures endorsed by the grand jury. The article further stated the hours when the polls would be open. Plaintiff, at the hearing on the demurrer and in this court, has taken the position that all of the Tribune article is false.3
*559Plaintiff is confronted with this dilemma:
(a) If it is assumed, as plaintiff unequivocally contends, that all of the Tribune article is false, then he asserts the San Francisco People’s World is not a communistic newspaper. For the purposes of the demurrer, the trial court properly assumed this to be the fact.
The charge concerning plaintiff in the article is the single statement that the San Francisco People’s World printed a list of recommendations which included the names of council candidates, among others that of plaintiff. Accordingly, the gist of the alleged defamatory matter is that the San Francisco People’s World, declared noneommunistic by plaintiff, printed a list of recommendations for the city council, among which plaintiff’s name was included.
Obviously, there is no defamatory sting in the statement concerning plaintiff. The meaning of the charge is plain. He is not accused of wrongdoing of any kind; in fact, he is not accused of doing anything. A third party, a San Francisco newspaper, is charged with printing his name along with those of two others as recommended candidates.
Plaintiff, a candidate for councilman, is not defamed by a statement that he is one of three who were recommended for the office of city councilman. To say that a candidate for public office in one city has been recommended by a newspaper published in another city is no more than saying that the candidate, without any solicitation on his part, has received support from a source which he believes will not help him politically. The fact that a publication is unpleasant or hostile does not make it actionable. (Mortensen v. Los Angeles Examiner, 112 Cal.App. 194, 202 [2] [296 P. 927].)
It is established law that it is not libelous to accuse one of doing a legal act, even though strong epithets are used in describing the act. (Sullivan v. Warner Bros. Theatres, Inc., 42 Cal.App.2d 660, 663 [5] [109 P.2d 760] [hearing denied by the Supreme Court].) It is also established that in every actionable defamation it is necessary that there be defamation apparent from the words themselves, for no innuendo can alter their sense. (Emde v. San Joaquin County etc. Council, supra, p. 159 [7]; Grand v. Dreyfus, 122 Cal. 58, 62 [54 P. 389].)
The complaint here fails to show any defamation apparent from the words themselves. The words used concerning plaintiff are simple and clear and do not defame. Charging that a candidate for public office received a recommendation from *560a source which he believes will injure him in his political campaign may offend him, but where, as here, he is not charged with anything other than having received the recommendation and he concedes that fact to be true, it does not libel him. Clearly, therefore, it was not defamatory to charge truthfully that a noneommunistie newspaper printed a list of recommended candidates in which plaintiff’s name was included.
Counsel for defendant in oral argument aptly illustrated the point that the article was not libelous per se, as follows:
“I wonder if it can be said that the man in the street believes that Franklin Delano Roosevelt was a Communist, or a Communist sympathizer, or a Communist Fellow-Traveler-
“The Chief Justice.- Some do.
“Mr. Houlihan:-simply because he was endorsed, if you please, which is more than we said in the publication, by the Communist Party in publications; by reason of the treatment that he received at the hands of the Communist press, the most favorable treatment, can it be said that any type of statement of that kind leaves the man in the street with the exclusive conviction that Franklin Delano Roosevelt was a Communist or a Communist sympathizer, or a Communist Fellow-Traveler? That is the kind of construction that is forbidden by all of the decisions of this Court and the District Court of Appeal, in determining whether or not the language is libelous per se, because when we get into strained construction we confess the existence of a covert meaning, and the covert meaning is not what we are looking for in a libel per se case.”
In connection with the foregoing statement, the words of Mr. Chief Justice Gibson, speaking for this court in Communist Party v. Peek, 20 Cal.2d 536, 547 [127 P.2d 889], are here pertinent. He said: “Not only do plaintiffs vigorously assert that the Communist Party does not advocate force and violence, but the decided cases have definitely demonstrated that the fact here alleged to exist is not the subject of judicial notice. In State v. Peeves, 5 Wn.2d 637 [106 P.2d 729, 130 A.L.R. 1465], the attorney general of Washington urged, as do defendants here, that the Communist Party should be kept off the ballot and that the courts could take judicial knowledge of the fact that the party advocated force and violence. The Supreme Court refused to take judicial notice of that fact for the reason that the litigants denied it. Furthermore, it was said, if the court in the election case were to make a *561judicial finding on the question it would be tantamount to holding all registered communists were guilty of violating the criminal syndicalism act in the absence of evidence on the question. The court pointed out that the cases relied upon by the attorney general in that case (as are most of the cases relied upon by defendants) dealt with the deportation of aliens, and were cases reviewing an administrative record which did not involve judicial notice at all. In Ex parte Fierstein, 41 F.2d 53, a similar contention was made before the Ninth Circuit Court of Appeals. There the court reversed an order of deportation which had been predicated on proof the alien was a communist. Judge Wilbur, speaking for a unanimous court, held that the court could not take judicial notice of the fact that the Communist Party advocates force and violence, and that the order could not stand in the absence of evidence of that fact. Referring to some of the cases relied upon by defendants in the present case, the court stated (p. 54) : ‘While the character of this organization has frequently been considered by the court, and in some very recent eases, Whitney v. California, 274 U.S. 357 [47 S.Ct. 641, 71 L.Ed. 1095]; Antolish v. Paul (C.C.A.), 283 Fed. 957; Skeffington v. Katzeff, 277 Fed. 129; Ex parte Jurgans (D.C.), 17 F.2d 507, the decisions in these cases are based upon the evidence adduced before the court with reference to the character of this organization, and the statements made in the opinions of the court with reference to that organization are based upon the testimony before the court, and in no instance has the court attempted to take judicial notice of the character of this organization.’
“None of the cases cited compels a contrary conclusion. Most, if not all, of the federal cases relied upon did not involve the question of judicial notice at all. They were cases involving reviews of determinations by the Department of Labor, which by law is vested with fact-finding power and whose determinations were predicated on evidence. These eases were so distinguished in the Reeves and Fierstein cases, supra. In the ease of In re Coon, 44 Cal.App.2d 531 [112 P.2d 767], the appellate court did state (p. 543) : ‘It is a matter of common knowledge that the Communist Party comes within that category’—that is, within the group that advocates and practices the overthrow of government by subversive activities. The statement was not only dictum, but it had no reference to the doctrine of judicial knowledge which was not involved in the case. The same can be said *562of Field v. Hall, 201 Ark. 77 [143 S.W.2d 567]. As was pointed .out in the Reeves case, supra, to hold that this court will take judicial notice of the alleged fact that the Communist Party advocates force and violence, without any evidence of that fact, would not only require judicial notice of a fact which plaintiffs and their counsel vehemently deny, but it would also necessitate a finding that every registered communist is a felon and could be convicted of a violation of our criminal syndicalist law upon mere proof of membership in the Communist Party. That is not the law. ’ ’
(b) If, on the other hand, it is assumed, contrary to plaintiff’s claim, that the People’s World is a communistic publication, we find there was a charge that a communistic newspaper printed recommendations favoring measures which were not communistic and recommendations favoring plaintiff as a candidate. There is no clear meaning from this charge that plaintiff was a communist.
In Harris v. Curtis Publishing Co., 49 Cal.App.2d 340, 345 [3] et seq. [121 P.2d 761], a charge that many in the plaintiff’s community were communists, contained in an article which severely criticized the plaintiff and others for their radical policies as officeholders, was held 'not to be defamatory as to the plaintiff even though in the article there were veiled inferences of communistic connections and it was probably intended to imply that the plaintiff was one of the communist group. The charge was held to lack the required certainty of having a clear meaning that the plaintiff was a communist.
Even though a defamatory implication is shown upon the face of a publication, if it is also subject to innocent interpretation the language is said to be equivocal, and the publication thereof is not libelous per se. (Washer v. Bank of America, 21 Cal.2d 822, 828 [2] [136 P.2d 297, 155 A.L.R. 1338] ; Babcock v. McClatchy Newspapers, supra, p. 534 [3] ; Peabody v. Barham, 52 Cal.App.2d 581, 584 [3] [126 P.2d 668] [hearing denied by the Supreme Court].)
Under either assumption of fact, the article did not charge that plaintiff was a communist, and it was therefore not libelous.
3. Plaintiff cannot by innuendo allegations make libelous a nondefamatory, simple statement which is not libelous.
Plaintiff has admitted the truth of the gist of the charge, to wit. the printing of a list by a San Francisco newspaper, and since there was no defamatory sting in the statement concerning plaintiff, there was no libel.
*563The rule is settled that where the words of a charge are not libelous according to their common usage, the pleader will not be allowed to change or enlarge their meaning so as to make such words libelous. (Emde v. San Joaquin County etc. Council, supra, p. 159 [7]; Jackson v. Underwriters’ Report, Inc., 21 Cal.App.2d 591, 597 [6] [69 P.2d 878] ; Vedovi v. Watson & Taylor, 104 Cal.App. 80, 88 [7] [285 P. 418] [hearing denied by the Supreme Court] ; cf. Peabody v. Barham, supra, p. 584 [3].)
Applying the foregoing rules to the facts of the present case, it is apparent that the words of the article published by defendant do not have a defamatory meaning when reasonably interpreted; therefore, they are not libelous. The language of the charge is as simple, plain and commonplace as language can be. Nothing is hidden or concealed in the words. They are admittedly true. Reasonably interpreted, they convey no defamatory meaning. Plaintiff, by innuendo, has attempted to alter the sense of simple, ordinary, unambiguous, truthful words to make defamatory language that is not defamatory. Under the above stated rules he cannot do this.
Second. Was the article published by defendant “fair comment”?
Yes. Mere expressions of opinion or severe criticism are not libelous if they clearly go only to the merits or demerits of a condition, cause or controversy which is under public scrutiny, even though they may reflect adversely upon the political activities or fitness for office of an individual who is intimately connected with the principal object of the attack. (Howard v. Southern Calif. etc. Newspapers, 95 Cal.App.2d 580, 584 [3] [213 P.2d 399] ; Babcock v. McClatchy Newspapers, supra, p. 535 [6]; Eva v. Smith, 89 Cal.App. 324, 328 [2] et seq. [264 P. 803] ; cf. Glenn v. Gibson, supra, p. 659 [4]; Gosewisch v. Doran, 161 Cal. 511, 514 [119 P. 656. Ann.Cas. 1913D 442].)
From the article published, it appears that it was the aim of defendant to emphasize what it said was an unusual occurrence—the great interest shown by a San Francisco newspaper in an Oakland city election. It appeared that at this election the people were to vote on police reorganization measures which had been endorsed by the Alameda County Grand Jury, a proposal to revive ward politics in Oakland, and the election of members of the city council. The article stated that a San Francisco newspaper immediately before *564the election defended the proposal to revive ward politics in Oakland, printed a list of recommendations, which included the name of plaintiff, and also listed recommendations against the police reorganization measures. The language of the article was mild, dignified and tempered and was devoid of epithets and vituperative, scurrilous or abusive statements. Malversation on the part of plaintiff was not charged.
The article called attention to the fact that it was unusual for a San Francisco newspaper to print recommendations on what defendant regarded as purely local issues at a local election in another city. Obviously, the issues referred to in the article were matters of public interest. The article dealt with an opinion on how the people should vote on measures and candidates. The cause which was under public scrutiny related to the merits and demerits of measures and candidates. Defendant was here calling to public attention the fact that a San Francisco newspaper was opposing the recommendations of the Alameda County Grand Jury and favoring a measure to restore the ward system in the city of Oakland.
Defendant deemed that it was in the public interest to oppose the views of the San Francisco newspaper.
It might be implied from the article that since the recommendations printed by the San Francisco newspaper were unsound as to important measures, they were probably equally unsound when applied to candidates.
The article was one by which defendant sought to convey pertinent information to the public on matters of public interest, and it is obvious that it did not exceed the limits of fair comment.
The rule is thus stated in Howard v. Southern Calif, etc. Newspapers, supra, p. 584: “Publications by which it is sought to convey pertinent information to the public in matters of public interest are permitted wide latitude. In controversies of a political nature, in particular, the circumstances often relieve statements, which might otherwise be actionable, of possible defamatory imputations. Mere expressions of opinion or severe criticism are not libelous if they clearly go only to the merits or demerits of a condition, cause or controversy which is under public scrutiny, even though they may adversely reflect upon the public activities or fitness for office of individuals who are intimately connected with the principal object of the attack.”
In the present case the article was fair comment, made in a *565political contest dealing with matters of public concern, where a broad area of discussion is permitted without civil responsibility for damages.
Third. Was plaintiff’s demand for a retraction effectual?
No. Section 48a of the Civil Code provides, in part: “In any action for damages for the publication of a libel in a newspaper . . . plaintiff shall recover no more than special damages unless a correction be demanded and be not published ... as hereinafter provided. Plaintiff shall serve upon the publisher, at the place of publication ... a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. Said notice and demand must be served within 20 days after knowledge of the publication ... of the statements claimed to be libelous.” (Italics added.)
The demand for a retraction is ineffectual unless it specifies the statements claimed to be libelous. (Anderson v. Mearst Publishing Co., 120 P.Supp. 850, 852 et seq.) In the present case plaintiff’s demand for a retraction was ineffectual because it failed to specify the statements claimed to be libelous.
Plaintiff has repeatedly asserted that he meant by his pleading that all the statements in the defendant’s article were false and libelous. As pointed out above, if all the statements were untrue, there is no possibility of plaintiff’s having been libeled, because it is obvious that a statement that a candidate received a recommendation from a noncommunist newspaper is not defamatory.
Faced with the knowledge that plaintiff claimed that all the statements in defendant’s article were false, defendant could neither retract nor determine what it was expected to retract. Defendant could not retract its statement that the San Francisco People’s World printed a list of recommendations containing plaintiff’s name, because that statement is true, as plaintiff admits. Defendant could not retract its statement that the San Francisco People’s World was a communist newspaper, or if it had retracted such statement in response to plaintiff’s claim that it was untrue, such action would not have benefited plaintiff. Defendant could not have been expected to retract any of the other statements in the article, because such statements were alleged by plaintiff to be true.
Defendant, engaged in “complex and far-flung activities,” is not required to retract true statements or to guess what statements plaintiff desired retracted, in view of the require*566ment of the statute that plaintiff specify the statements claimed to be libelous.
Fourth. Was plaintiff’s demand for special damages valid?
No. The rule is established that when special damage is claimed, the nature of the loss or injury must be particularly set forth. It is necessary that the declaration set forth precisely in what way the special damage resulted. (Anderson v. Hearst Publishing Co., supra, p. 852; Pollard v. Lyon, 91 U.S. 225, 237 [23 L.Ed. 308]; Peabody v. Barham, supra, p. 585 [6] ; Shook v. Pearson, 99 Cal.App.2d 348, 351 [4] [221 P.2d 757].)
Oberkotter v. Woolman, 187 Cal. 500 [202 P. 669], relied on by plaintiff, is not applicable, for the reason that in such case no special demurrer was directed to the lack of particularity of allegations of special damages, while in the present case there was such a special demurrer.
Fifth. Did the trial court err in sustaining the demurrer withotit leave to amend?
No. The defects in the complaint could not be cured by amendment, for these reasons:
1. The gist of the statement complained of is true. It is true that the San Francisco People’s World printed a list of recommendations of candidates in which plaintiff’s name was included. Obviously, plaintiff cannot amend by now claiming as false what he has pleaded and expressly admitted to be true. Where, as here, the gist of the charge is true, there is no libel. Since plaintiff cannot amend to plead that the gist of the charge is false, this defect cannot be cured by amendment.
2. Defendant’s statements are not defamatory. Plaintiff, by taking the position that' all the article is false, in effect takes the position that the portion of the article stating that the San Francisco People’s World is a communist paper is false. It is likewise obvious that there is no defamation or libel in stating that a noncommunistic newspaper printed an endorsement of plaintiff. Plaintiff cannot amend to remedy this defect or change a position which he has taken throughout the entire litigation. It is clearly not defamatory to charge that a candidate received an unsolicited recommendation from a newspaper—be it communistic or noncommunistic —and the meaning of such charge cannot be enlarged or changed so as to make it defamatory. Plaintiff, by the use of innuendo, cannot state a cause of action.
3. The complaint shows that defendant’s statements were *567fair comment, for the article was one which contained its mildly expressed views on the measures and candidates in a municipal election. Plaintiff cannot amend to show that the fair comment privilege did not apply, nor can he amend to show actual malice, since pleading of actual malice would require an allegation that defendant, in making its statement, knew or should have known the charge to be false. Plaintiff cannot allege that defendant knew or should have known the statement to be false, for the reason that the statement was true, as plaintiff admits.
Since plaintiff could not plead a cause of action through amending his complaint, the court properly sustained the demurrer without leave to amend.
I would affirm the judgment.
My views relative to dissenting opinions will be found in Priebe v. Sinclair, 90 Cal.App.2d 79, at p. 87 [202 P.2d 577].
At the time of the argument, the following colloquy between the court and plaintiff’s counsel occurred:
“The Court: In other words, do I understand that you deny that the paper printed a list of recommendations which included the name of the Plaintiff 9
“Mr. MacLeod: We do not deny that, your Honor.”
Plaintiff, in his opening brief, p. 13, states that he “takes the position that all of said article is false, and he has so pleaded in his complaint. ’ ’