(dissenting). Former Coach Mary Murphy concedes that in the presence of coaches and the University of Wisconsin Women's Basketball *537Team, she stated that Amy Bauer was a disgrace to the University of Wisconsin and the basketball team. Bauer alleges in her Second Amended Complaint for defamation that:
8. On or about February 20, 1991, the defendant Murphy publicly asserted that [Bauer] had an improper relationship of a sexual nature with then Assistant Women[']s[] Basketball Coach Michael Peckham.
11. ... During the course of this meeting [with the team] the defendant Murphy stated publicly that [Bauer] was a disgrace to the University of Wisconsin and a disgrace to the basketball team.
On summary judgment, we first examine the pleadings to determine whether the complaint states a claim. Grams v. Boss, 97 Wis. 2d 332, 339, 294 N.W.2d 473, 477 (1980). "A claim should not be dismissed 'unless it appears to a certainty that no relief can be granted under any set of facts that plaintiff can prove in support of his allegations.'" Id. at 352, 294 N.W.2d at 483 (quoting Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723, 732, 275 N.W.2d 660, 664 (1979)).
Murphy argues that referring to Bauer as a "disgrace" was not slanderous per se even when the context in which the epithet was applied is considered. Murphy's alleged slanderous remark "was made in a context of a team meeting." In its oral decision, the trial court stated:
Now in this instance we have a basic agreement as to what it is Defendant Coach Murphy purportedly said, at least for summary judgment purposes, *538and that is that the Plaintiff, Ms. Bauer, was a disgrace to her team and to the university. And although it is disputed that the statement was actually made, the statement was made in a context of a team meeting following an announcement by the women's athletic director, Ms. Marra, that Coach Peckham had been suspended for an inappropriate relationship with a player, which all of those present at the meeting knew to be [Bauer] from circumstantial, the circumstantial surroundings, given the fact that she was told not to attend the meeting and so forth, as well as prior suspicions on the part of the players.
(Emphasis added.)
The trial court clearly intended its oral ruling to apply to the question of privilege and not to the question of whether Murphy's statement was slanderous per se. The majority does not address the question of privilege and I confine my dissent to the majority's conclusion that Murphy's description of Bauer as a disgrace to the team and to the University was not slanderous per se.
Generally, a defamatory communication must be a statement of fact. WlS J I — CIVIL 2500. Murphy argues that her communication was merely an "evaluative opinion" and even if directed toward Bauer's relationship with the assistant coach, it was merely "rhetorical hyperbole" and not actionable. However, "communications are not made nondefamatory as a matter of law merely because they are phrased as opinions, suspicions or beliefs." Converters Equip. Corp. v. Condes Corp., 80 Wis. 2d 257, 263-64, 258 N.W.2d 712, 715 (1977).
Murphy can hardly claim that she intended her communication to express her opinion as to Bauer's performance as a member of the team. The record con*539tains numerous newspaper articles reporting the suspension of Peckham and Bauer's possible involvement with Peckham in an intimate relationship. Further, Murphy deposed that the purpose of the team meeting was not to discuss Bauer's performance as a basketball player or her fidelity to the team, but was intended specifically to deal with the fact that Peckham had been suspended because of his improper relationship with Bauer. In fact, when members of the team voiced criticisms of Bauer's performance as ,a member of the team, Murphy brought them back to the issue of Bauer's improper relationship with Peckham. In her deposition, Murphy was asked the following question and gave the following answer:
Q ... Do you recall there coming a point in the meeting when people had been talking about whether Amy passed the ball enough and various aspects of her social life, where you redirected the conversation to the situation involving Michael Peckham?
A Yes.
She also deposed as follows:
Q And you didn't offer them any guidance, did you?
A Yes, I did. I wanted a discussion of what was going on.
Q Right. The only guidance that you offered them was when they seemed to be avoiding talking about the subject of Peckham and Amy Bauer you redirected them into that subject, didn't you?
A Correct.
*540Murphy argues that an expression of opinion generally cannot be the basis of a defamation action. See Wis J I — Civil 2500. Where the defamer departs from expressing "pure opinion" and communicates what the courts have described as "mixed opinion," however, liability may result. Id. "Mixed opinion" is a communication which blends an expression of opinion with a statement of fact. Id. This type of communication is actionable if it implies the assertion of undisclosed defamatory facts as the basis of the opinion. Id. (citing Restatement (Second) of Torts § 566 (1977)).
Murphy's argument that an "opinion" cannot be actionable was rejected by the United States Supreme Court in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). Milkovich involved a media defendant. Respondent had authored an article implying that Milkovich, a local high school wrestling coach, lied under oath in a judicial proceeding about an incident involving petitioner and his team which occurred at a wrestling match. The Court granted certiorari to consider whether there was a constitutionally required "opinion" exception to the application of a state's defamation laws. Id. at 10. The Court concluded that, "[w]e are not persuaded that, in addition to these protections, an additional separate constitutional privilege for 'opinion' is required to ensure the freedom of expression guaranteed by the First Amendment." Id. at 21.
"These protections" included: (1) the requirement that a public official or figure or a private person involved in an issue of public concern show that a defamatory falsehood relating to his or her official conduct must be made with "actual malice," New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964), and Curtis Publishing Co. v. Butts, 388 U.S. 130, 155 *541(1967); (2) such showing of malice must be made by clear and convincing evidence, Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974); (3) the New York Times test applies to criticism of public figures "who are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large," Curtis Publishing, 388 U.S. at 164 (Warren, C.J., concurring); (4) "the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern," Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986); (5) rhetorical hyperbole or vigorous epithets are not actionable, GreenBelt Coop. Publishing Ass'n, Inc. v. Bresler, 398 U.S. 6, 13 (1970); (6) "in cases raising First Amendment issues ... an appellate court has an obligation to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression,'" Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) (quoting New York Times, 376 U.S. at 284-86). Milkovich, 497 U.S. at 14-17.
In Milkovich, the Court noted that comment (a) to the Restatement stated that the common law generally did not place any restrictions on the type of statement that could be actionable other than that the defamed private citizen had to prove that a false publication would subject him or her to hatred, contempt or ridicule. Id. at 12-13 (quoting Gertz, 418 U.S. at 370 (White, J., dissenting)). However, as Milkovich noted, because of concerns that unduly burdensome defamation laws could stifle valuable public debate, the privilege of "fair comment" was incorporated into the *542common law as an affirmative defense to an action for defamation. Id, at 13. The privilege of "fair comment" was employed to strike the appropriate balance between the need for vigorous public disclosure and the need to redress injury to citizens wrought by invidious or irresponsible speech. Id. at 14.
The Court traced the "constitutional evolution" which restricted recovery by public officials and public figures, and private individuals in defamation actions involving matters of public concern. Id. at 14-16. The Court also traced the constitutional limits on the type of speech which may be the subject of state defamation actions. Id. at 16-17. No liability attaches for utterances of words which "even the most careless reader must have perceived . . . [as] no more than rhetorical hyperbole, [or] a vigorous epithet...." Id. at 17 (quoting Greenbelt Coop., 398 U.S. at 13-14).
The Court also determined that "in cases raising First Amendment issues ... an appellate court has an obligation to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression.'" Id. at 17 (quoting Bose Corp., 466 U.S. at 499 (quoting New York Times, 376 U.S. at 284-86)). I conclude from my review of the record that a judgment that Murphy defamed Bauer would not intrude upon Murphy's right to free expression.
The Milkovich Court rejected respondent's argument that the Court should recognize, in addition to the established safeguards, another First-Amendment-based protection for defamatory statements which are categorized as "opinion" as opposed to "fact." 497 U.S. at 17-18. Respondents relied on the dictum of Gertz that "[u]nder the First Amendment there is no such thing as a false idea." Id. (quoting Gertz, 418 U.S. *543at 339-40). The Court concluded that, read in context, the Gertz dictum "was merely a reiteration of Justice Holmes' classic 'marketplace of ideas' concept." Id. at 18 (quoting Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting)).
The Milkovich Court concluded: "Thus, we do not think this passage from Gertz was intended to create a wholesale defamation exemption for anything that might be labelled 'opinion.'" Id. The Court said that "[n]ot only would such an interpretation be contrary to the tenor and context of the passage, but it would also ignore the fact that expressions of 'opinion' may often imply an assertion of objective fact." Id. To illustrate its point, the Court stated that "[i]f a speaker says, 'In my opinion John Jones is a liar,' he implies a knowledge of facts which lead to the conclusion that Jones told an untruth." Id.
The Milkovich Court rejected respondent's suggestion that the Court should rely on factors developed by the lower courts in deciding whether an alleged defamatory utterance is "opinion" or "fact." 497 U.S. at 19. The Court said that the breathing space which freedom of expression requires in order to survive "is adequately secured by existing constitutional doctrine without the creation of an artificial dichotomy between 'opinion' and fact." Id.
Foremost in "existing constitutional doctrine" is the proposition that a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least where a media defendant is involved. Id. at 19-20. The Court reserved judgment on cases involving nonmedia defendants. Id. at 20 n.6.
It would be charitable to characterize Murphy's alleged defamation as "a statement on matters of pub-*544lie concern." However, accepting that proposition, it is apparent that Murphy's statement may be provable as false. Imbedded in Murphy's expression of contempt for Bauer is her belief that Bauer engaged in an illicit course of sexual conduct with the assistant coach. That accusation may be provable as false.
Next, the Milkovich Court stated that a "line of cases provides protection for statements that cannot 'reasonably [be] interpreted as stating actual facts' about an individual." 497 U.S. at 20 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988)).
Further, the Court concluded that the New York Times-Butts-Gertz culpability requirements insure that debate on public issues remains "uninhibited, robust, and wide-open." Id. (quoting New York Times, 376 U.S. at 270). Thus, where a statement of "opinion" on a matter of public concern reasonably implies false and defamatory facts as to public figures or officials, or a private figure on a matter of public concern, a plaintiff must show that "the false connotations were made with some level of fault as required by Gertz." Id. at 20-21. If, as Murphy claims, Bauer is "an all-purpose public figure" or "a limited purpose public figure," she will be required to show that when Murphy termed her a "disgrace" to the team and the University because of her improper association with Peckham, Murphy knew the "false implications" of her utterance or acted with reckless disregard of the truth. See id. at 20.
Finally, we will be required to make an independent examination of the whole record to make sure that "the judgment does not constitute a forbidden intrusion on the field of free expression." 497 U.S. at 17 (quoting Bose Corp., 466 U.S. at 499 (quoting New York Times, 376 U.S. at 284-86)).
*545Except for enhanced appellate review, the First-Amendment-based protections for defamatory statements categorized as "opinion" all implicate trial considerations. As in Milkovich, the dispositive question here becomes whether a reasonable fact-finder could conclude that the allegedly actionable statement "tends to harm one's reputation [so] as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with him or her." WlS J I — Civil 2500; see Milkovich, 497 U.S. at 21. I think this question must be answered in the affirmative.
The persons to whom Murphy's statement was published could not reasonably have interpreted her statement to apply to anything other than Bauer's improper relationship with Peckham. Murphy's statement that Bauer was a disgrace to the team and the University implied to the listener that she had knowledge of facts which led her to conclude that Bauer had engaged in disgraceful conduct with Peckham. In view of the rampant rumors and Murphy's instructions to the team members that they consider the improper relationship between Bauer and Peckham, the team members could not have reached any conclusion other than that Coach Murphy believed that Bauer had been involved in an improper relationship with Peckham and that her conduct was thus a disgrace to the team and the University. As Justice Holmes observed:
A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.
Towne v. Eisner, 245 U.S. 418, 425 (1918), quoted in Milkovich, 497 U.S. at 26 (Brennan, J., dissenting). *546"[T]he words alone are not determinative; the facts surrounding the publication must also be considered." Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir. 1980).
Murphy's statement can reasonably be interpreted as implying that there were facts known to her which caused her to conclude that Bauer's conduct with Coach Peckham was illicit and improper.
I conclude that we cannot dismiss Bauer's claim for damages for slander. I would then consider Murphy's other defenses: Was Bauer a public figure or a private person involved in a matter of public concern? Is Bauer's defamation action barred by res judicata? Is her defamation claim barred by the Seventh Amendment? May the trial record and jury verdict on Bauer's privacy claim be considered in deciding Murphy's motion for summary judgment on Bauer's defamation claim? And, should the jury's finding on Bauer's invasion of privacy claim extend to Bauer's defamation claim? Until we answer these questions, we cannot conclude this case.