This novel, which is presented to its readers as a work of fiction, contains a portrayal of nude encounter therapy, and its tragic effect upon an apparently happy and well-adjusted woman who subjected herself to it. Plaintiff is a practitioner of this kind of therapy. His grievance, as described in his testimony and in his briefs on appeal, is provoked by that institutional criticism.1 Plaintiff’s “concession” that he *85is a public figure appears to be a tactic to enhance his argument that any unflattering portrayal of this kind of therapy defames him.
The decision of the majority upholding a substantial award of damages against the author and publisher poses a grave threat to any future work of fiction which explores the effect of techniques claimed to have curative value.
The majority opinion rests upon a number of misconceptions of the record and the law of libel. I mention a few of them.
Defamation.
Libel is a false and unprivileged publication which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation. (Civ. Code, § 45.) A libel which is defamatory without the necessity of explanatory matter is said to be a libel on its face. Language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a result thereof. (Civ. Code, § 45a.)
Whether or not matter is on its face reasonably susceptible of a libelous meaning is a question of law. (McLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 546 [343 P.2d 36].)
The complaint in this action quotes verbatim the portions of the defendant’s novel which are alleged to be libelous. No explanatory matter or special damages are alleged. The only arguably defamatory matter I can find in that complaint is in the passages which portray the fictional therapist using coarse, vulgar and insulting language in addressing his patients. Some of the therapeutic techniques described in the quoted passages may seem bizarre, but a court cannot assume that such conduct is so inappropriate that a reputable therapist would be defamed if that technique were imputed to him. The alleged defamation therefore is limited to the imputation of vulgar speech and insulting manners.
The defendants asked the trial court to give an instruction to the jury identifying the matter which it could consider as defamatory. The trial court refused. Instead, the court sent the case to the jury without distinction between actionable defamation and constitutionally protected criticism. In addition, the trial court’s instructions authorized the jury to *86award special damages for loss of income which could have resulted from the lawful expression of opinion.
Identification.
Whether or not an allegedly defamatory communication was made “of and concerning the plaintiff” is an issue involving constitutional rights. (New York Times v. Sullivan (1964) 376 U.S. 254, 288 [11 L.Ed.2d 686, 711, 84 S.Ct. 710, 95 A.L.R. 1412]; see Rest. 2d Torts, § 580A com. (g).) Criticism of an institution, profession or technique is protected by the First Amendment; and such criticism may not be suppressed merely because it may reflect adversely upon someone who cherishes the institution or is a part of it.
Defendants’ novel describes a fictitious therapist who is conspicuously different from plaintiff in name, physical appearance, age, personality and profession.
Indeed the fictitious Dr. Herford has none of the characteristics of plaintiff except that Dr. Herford practices nude encounter therapy. Only three witnesses, other than plaintiff himself, testified that they “recognized” plaintiff as the fictitious Dr. Herford. All three of those witnesses had participated in or observed one of plaintiff’s nude marathons. The only characteristic mentioned by any of the three witnesses as identifying plaintiff was the therapy practiced.
Plaintiff was cross-examined in detail about what he saw that identified him in the novel. Every answer he gave on this subject referred to how the fictitious Dr. Herford dealt with his patients. (See appendix C to opening brief of Mitchell.)
Plaintiff has no monopoly upon the encounter therapy which he calls “nude marathon.” Witnesses testified without contradiction that other professionals use something of this kind. There does not appear to be any reason why anyone could not conduct a “marathon” using the style if not the full substance of plaintiff’s practices.
Plaintiff’s brief discusses the therapeutic practices of the fictitious Dr. Herford in two categories: Those practices which are similar to plaintiff’s technique are classified as identifying. Those which are unlike plaintiff’s are called libelous because they are false. Plaintiff has thus resurrected the spurious logic which Professor Kalven found in the position of the *87plaintiff in New York Times v. Sullivan, supra, 376 U.S. 254. Kalven wrote: “There is revealed here a new technique by which defamation might be endlessly manufactured. First, it is argued that, contrary to all appearances, a statement referred to the plaintiff; then, that it falsely ascribed to the plaintiff something that he did not do, which should be rather easy to prove about a statement that did not refer to plaintiff in the first place. . . .” Kalven, The New York Times Case: A Note on “The Central Meaning of the First Amendment,” 1964 Sup. Ct. Rev. 191, 199.
Even if we accept the plaintiff’s thesis that criticism of nude encounter therapy may be interpreted as libel of one practitioner, the evidence does not support a finding in favor of plaintiff.
Whether or not a publication to the general public is defamatory is “whether in the mind of the average reader the publication, considered as a whole, could reasonably be considered as defamatory.” (Patton v. Royal Industries, Inc. (1968) 263 Cal.App.2d 760, 765 [70 Cal.Rptr. 44]. See Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 682 [150 Cal.Rptr. 258, 586 P.2d 572]; Rest. 2d Torts, § 559, com. (e).)
The majority opinion contains this juxtaposition of ideas: “Secondly, defendants’ [proposed] instructions that the jury must find that a substantial segment of the public did, in fact, believe that Dr. Simon Herford was, in fact, Paul Bindrim was properly refused. For the tort of defamation, publication to one other person is sufficient, ante.”
The first sentence refers to the question whether the publication was defamatory of plaintiff. The second refers to whether the defamatory matter was published. The former is an issue in this case. The latter is not. Of course, a publication to one person may constitute actionable libel. But this has no bearing on the principle that the allegedly libelous effect of a publication to the public generally is to be tested by the impression made on the average reader.
The jury instruction on identification.
The only instruction given the jury on the issue of identification stated that plaintiff had the burden of proving “That a third person read the statement and reasonably understood the defamatory meaning and that the statement applied to plaintiff.”
*88That instruction was erroneous and prejudicial in that it only required proof that one “third person” understood the defamatory meaning.
The word “applied” was most unfortunate in the context of this instruction. The novel was about nude encounter therapy. Plaintiff practiced nude encounter therapy. Of course the novel “applied to plaintiff,” particularly insofar as it exposed what may result from such therapy. This instruction invited the jury to find that plaintiff was libeled by criticism of the kind of therapy he practiced. The effect is to mulct the defendants for the exercise of their First Amendment right to comment on the nude marathon.
Malice.
The majority opinion adopts the position that actual malice may be inferred from the fact that the book was “false.” That inference is permissible against a defendant who has purported to state the truth. But when the publication purports to be fiction, it is absurd to infer malice because the fiction is false.
As the majority agrees, a public figure may not recover damages for libel unless “actual malice” is shown. Sufficiency of the evidence on this issue is another constitutional issue. (St. Amant v. Thompson (1968) 390 U.S. 727, 730 [20 L.Ed.2d 262, 266-267, 88 S.Ct. 1323].) Actual malice is a state of mind, even though it often can be proven only by circumstantial evidence. The only apparent purpose of the defendants was to write and publish a novel. There is not the slightest evidence of any intent on the part of either to harm plaintiff. No purpose for wanting to harm him has been suggested.
The majority opinion seems to say malice is proved by Doubleday’s continuing to publish the novel after receiving a letter from an attorney (not plaintiff’s present attorney) which demanded that Doubleday discontinue publication “for the reasons stated in” a letter addressed to Gwen Davis. An examination of the latter demonstrates the fallacy of that inference.
The letter to Davis [Mitchell] asserted that the book violated a confidential relationship, invaded plaintiff’s privacy, libelled him and violated a “common law copyright” by “using the unpublished words” of plaintiff. It added “From your said [television] appearances, as well as from the book, it is unmistakable that the ‘Simon Herford’ mentioned in your book refers to my client.”
*89The letters did not assert that any statement of purported fact in the book was false. The only allegation of falsity was this: “In these [television] appearances you stated, directly or indirectly, that nude encounter workshops, similar to the one you attended, are harmful. The truth is that those attending my client’s workshops derive substantial benefit from their attendance at such workshops.”
These letters gave Doubleday no factual information which would indicate that the book libelled plaintiff.
The letters did not put Doubleday on notice of anything except that plaintiff was distressed by the expression of an opinion unfavorable to nude encounter therapy—an expression protected by the First Amendment. (See Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339 [41 L.Ed.2d 789, 805, 94 S.Ct. 2997]; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600 [131 Cal.Rptr. 641, 552 P.2d 425].)
From an analytical standpoint, the chief vice of the majority opinion is that it brands a novel as libelous because it is “false,” i.e., fiction; and infers “actual malice” from the fact that the author and publisher knew it was not a true representation of plaintiff. From a constitutional standpoint the vice is the chilling effect upon the publisher of any novel critical of any occupational practice, inviting litigation on the theory “when you criticize my occupation, you libel me.”
I would reverse the judgment.
A petition for a rehearing was denied May 7, Í979, and the opinion was modified to read as printed above. Files, P. J., was of the opinion that the petition should be granted. The petition of the defendants and appellants for a hearing by the Supreme Court was denied July 12, 1979.
The record demonstrates the essential truth of the author’s thesis. A tape recording of an actual encounter session conducted by plaintiff contains this admonition to the departing patients: “ . . . Now, to top that off you’re turned on, that is you’re about as turned on as if you’ve had 50 or 75 gammas of LSD. That’s the estimate of the degree of the turn-on is. And it doesn’t feel that way, because you’re [y/c] been getting higher a little bit at a time. So don’t wait to find out, take my word for it, and drive like you’ve had three or four martinis. Drive cautiously.”