Lead Opinion
ON PETITION TO TRANSFER
In grappling with the right to freedom of speech provided by the First Amendment versus the right of individuals to be protected from attacks upon their reputations, the Court of Appeals determined that Bandido’s failed to prove by clear and convincing evidence that the Fort Wayne Journal-Gazette newspaper published a subheadline with actual malice. While we agree with the Court of Appeals’s conclusion, we write to hold that the actual malice standard of proof required in defamation cases involving matters of public or general concern applies not only to public figures, but to private individuals as well.
Background
Bandido’s is a Mexican-style restaurant with three locations in Fort Wayne Indiana, and one in Lima, Ohio. On September 13, 1988, the Allen County Board of Public Health conducted á health inspection of the north-side Bandido’s in Fort Wayne. In the report, the inspector identified several violations and made the following relevant remarks: “Evidence of flies, roaches and rodents noted. Advise exterminator to do a full clean out of premise. Rodent droppings noted only in restroom.” (R. at 631.) Immediately thereafter, Mr. Schindler, the owner of Bandido’s, received a letter from the Fort Wayne — Allen County Board of Public Health advising him of a hearing to determine whether the restaurant permit should be revoked. On October 3, the day before the hearing, another inspector visited the restaurant for the sole purpose of gathering information for the hearing. At this time, the inspector did not find any evidence of rodents. On October 4, without permitting Mr. Schindler to speak, the Board of Public Health revoked Bandido’s permit and closed the restaurant. In a letter dated October 5, 1988, to Mr. Schindler, Dr. Irmscher, the Commissioner for 'the Board of Public Health, stated, “This permit was revoked after a full and complete hearing and review of all food inspections for 1988.” (R. at 1155.)'
June Remley was assigned the task of writing an article concerning the closing of Bandido’s for the Fort Wayne Journal-Gazette, a daily newspaper. Once written, the story was turned over to her supervisor, Gabby Jacobs, the Assistant Metro Editor. The story was untitled and Remley never saw the story again before publication. Jacobs’s job was to resolve any questions or ambiguities and generally get -the story ready for publication. The story was then submitted to the news editor, Ellen Garner. Garner’s role was to lay out the story for publication, do an initial edit, and make sure the story was still current. Garner also determined how much space was available for the story and for the headline. Next, the story proceeded to the copy editor, Sheila Pinkley. Pinkley’s responsibility was to do a final edit of the story which required a word for word, line by line read. Pinkley’s job was also to make any necessary changes to meet the spacing guidelines. Finally, Pinkley wrote the headline and the subh’eadline which are at issue in this case. The story with the headline was then submitted to Pinkley’s supervisor, Bill Leonard. Leonard’s duty was to approve everything that had been done, do a final review, make sure the layout was acceptable, and make sure the headline accurately summarized the story. The story then went to the Managing Editor, Ellen Garner.
The article was published on October 6, 1998, and the headline read:
While the story itself was accurate, the sub-headline inaccurately used the word “rats.” The health board never discovered rats at Bandido’s and the word “rats” never appeared in the article. The next day, Mr. Schindler advised the Journal-Gazette of the mistake and asked for an immediate retraction. On October 7, 1988, the Journal-Gazette published another article in which it noted the mistake and apologized.
The trial court concluded that there was no genuine issue of material fact with respect to the element of actual malice and granted summary judgment in favor of the Journal-Gazette. On appeal, the Court of Appeals determined that there were facts in dispute and conflicting inferences on the issue of actual malice, reversed the trial court’s decision, and remanded for a trial on the merits. Bandido’s, Inc. v. Journal-Gazette Co.,
We will provide additional facts when necessary.
Discussion
Bandido’s defamation suit against the Journal-Gazette implicates the First Amendment to the United States Constitution. The First Amendment secures freedom of the press.
In the process of protecting reputation, limitations have been placed on the freedom of speech. This was a result of the long standing principle that defamation was not protected speech, Chaplinsky v. New Hampshire,
In New York Times, the Supreme Court held that the Constitution mandates “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he pi’oves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80,
Three years later, observing that there had been a “general problem of reconciling the law of defamation with the First Amendment,” the Supreme Court reconsidered its decision in Rosenbloom. Gertz v. Robert Welch, Inc.,
The Indiana Court of Appeals defined the standard it would apply for defamation of private individuals in Aafco Heating & Air Conditioning Co. v. Northwest Publications, Inc.,
I
Today, we expressly adopt the Aafco approach establishing an actual malice standard in matters of public or general concern for private individual plaintiffs.
Our decision to uphold Aafco is also based on our strong commitment to protecting the freedom of speech and expression provided in the First Amendment to the United States Constitution. Such commitment, we believe, should persist irrespective of the status of an alleged defamed plaintiff.
“If a matter is subject [sic] of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not ‘voluntarily’ choose to become involved. The public’s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant’s prior anonymity or notoriety.”
Aafco,
Second, we believe that in most instances there is little disparity in the ability of private versus public individuals to obtain access “to the channels of effective communication” in order to “counteract false statements.” But see Gertz,
Only rarely will a public official or public figure have attained sufficient prominence to commend media attention which willprovide a meaningful chance to rebut and defend against defamatory falsehood. Even in the rare ease where an adequate opportunity for reply is afforded, it is unlikely that the rebuttal statements will receive the same degree of public attention as the published defamation. It would appear that the proper solution for any lack of access on the part of all citizens, whether “public” or “private” is not the expansion of the right to sue for defamation, but rather the passage of state laws creating a limited right to respond to defamatory falsehoods.
Aafco,
Third, we do not find that public figures’ voluntary exposure to public scrutiny necessarily entitles non-public figures to greater protection from defamation.
The argument that public officials and public figures assume the risk of defamation by voluntarily placing themselves in the public eye is a misconception of the role which every citizen is expected to play in a system of participatory self-government. Every citizen, as a necessary part of living in society, must assume the risk of media comment when he becomes involved, whether voluntarily or involuntarily, in a matter of general or public interest. It has long been recognized that “[e]xposure of the self to others in varying degrees is a concomitant of life in a civilized community.”
Id. at 588 (alteration in original) (quoting Time, Inc. v. Hill,
[T]he idea that certain “public” figures have voluntarily exposed their entire lives to public inspection, while private individuals have kept theirs carefully shrouded from public view is, at best, a legal fiction. In any event, such a distinction could easily produce the paradoxical result of dampening discussion of issues of public or general concern because they happen to involve private citizens while extending constitutional encouragement to discussion of aspects of the lives of “public figures” that are not in the area of public or general concern.
Rosenbloom,
We acknowledge the appeal of the arguments made in Gertz and think that the news media bear a heavy moral responsibility not to invade the private lives of private citizens with respect to their private affairs. And when they do, they not only damage their own reputations, but undermine support for their First Amendment protections. But, moral responsibility is not in this context identical to legal liability. In our view, imposing legal liability only when the news media engage in conduct with actual malice in matters of public or general concern protects the rights and values embodied in the First Amendment to the fullest extent. A negligence standard in matters of public or general concern for private individuals likely would require the news media to censor stories of public or general concern or avoid publication of controversial articles. See Aafco,
II
In exploring the parameters of public figure status, the United States Supreme Court established two classes of public figures: general-purpose and limited-purpose public figures. Gertz,
Whether an individual is a public figure is a question of law for the court to resolve. Rosenblatt v. Baer,
Moreover, even had Bandido’s sought to contest its status as a limited-purpose public figure, we conclude that the authority on this issue cuts squarely against such a challenge. Restaurants and other establishments that actively advertise and seek commercial patronage have been routinely held to be public figures, at least for the limited purpose of consumer reporting on their goods and services. See, e.g., Steaks Unlimited, Inc. v. Deaner,
Ill
Bandido’s contends that the Court of Appeals exceeded the proper standard of review in determining that there was insufficient evidence to support the jury verdict that the Journal-Gazette published the incorrect subheadline with actual malice. Additionally, Bandido’s suggests that the “applicable appellate standard of review in a libel case is whether the evidence and reasonable inferences drawn therefrom support the verdict.” Appellee’s Br. at 2. The Journal-Gazette contends that the appellate court should undertake an independent and searching review of the record to determine whether Bandido’s has met its burden of proof. We agree with the Journal-Gazette.
This Court’s duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across “the line between speech unconditionally guaranteed and speech which may legitimately be regulated.” In cases where that line must be drawn, the rule is that we “examine for ourselves the statements in issue and the circumstances under which they were made to see ... whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.” We must “make an independent examination of the whole record,” so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.
Id. (omission in original) (citations omitted): In Rosenbloom, the Court emphasized that it “has an ‘obligation to test challenged judgments against the guarantees of the First and Fourteenth Amendments,’ and in doing so ‘[it] cannot avoid making an independent constitutional judgment on the facts of the case.’ ” Rosenbloom,
In justifying the use of an independent examination, the Supreme Court stated that “the rule of independent review assigns to judges a constitutional responsibility that cannot be delegated to the trier of fact, whether the factfinding function be performed in the particular case by a jury or by a trial judge.” Bose Corp.,
The requirement of independent appellate review reiterated in New York Times Co. v. Sullivan is a rule of federal constitutional law. It emerged from the exigency of deciding concrete eases; it is law in its purest form under our common law heritage. It reflects a deeply held conviction that judges — and particularly Members of this Court — must exercise such review in order to preserve the precious liberties established and ordained by the Constitution. The question whether the evidence in the record in a' defamation ease is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact. Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to' cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of “actual malice.”
Bose Corp.,
We believe the language in the cases cited supra indicates that the Supreme Court has mandated that appellate courts use independent examination of the whole record as the
IV
In the final part of our analysis, we must review the evidence to determine whether there was sufficient evidence to support a finding of actual malice. We hold that the evidence was insufficient.
Actual malice must be shown by clear and convincing evidence. Heeb v. Smith,
The question of whether there is sufficient evidence to support a finding of actual malice is a question of law to be determined by the court. See Harte-Hanks Communications,
Bandido’s contends that there were five significant pieces of evidence indicating that the Journal-Gazette published the inaccurate newspaper subheadline with actual malice: (1) printing a subheadline using the word “rats”; (2) a warning provided by the Allen Superior Court when it ruled “that public disclosure of the inspection reports might result in improper inferences or interpretations as to the seriousness of the violations noted;” (3) job evaluations of two Journal-Gazette employees; (4) the Journal-Gazette’s failure to publish a retraction in accordance with Ind.Code § 34-4-15-1; and (5) the sub-headline appeared in the first and final editions of the Journal-Gazette, but not in the second edition. We review each piece of evidence to determine whether any of these items alone shows by clear and convincing evidence that the Journal-Gazette acted with
A
It 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. Woods,
A-l
Our first inquiry is to decide whether the subheadline and the article should be read together or independently in order to determine whether the subheadline was defamatory.
Both Bandido’s and the Journal-Gazette rely on Sprouse v. Clay Communication, Inc.,
Generally where the headline is of normal size and does not lead to a conclusion totally unsupported in the body of the story, both headlines and story should be considered together for their total impression. However, where oversized headlines are published which reasonably lead the average reader to an entirely different conclusion than the facts recited in the body of the story, and where the plaintiff can demonstrate that it was the intent of the publisher to use such misleading headlines to create a false impression on the normal reader, the headlines may be considered separately with regard to whether a known falsehood was published.
Id. at 686 (emphasis added).
The Sprouse court viewed the headline independently of the article but emphasized that its reason for doing so was “because the plaintiff proved that the newspaper abdicated its traditional role of fairly reporting the news and became a participant in a scheme or plan, the object of which was to employ grossly exaggerated and patently untrue assertions, embodied primarily in headlines, to destroy the character of Sprouse.” Id. at 691. In this case, there is no evidence that the Journal-Gazette engaged in such conduct.
“The majority of jurisdictions support the rule that headlines are to be construed in conjunction with their accompanying articles.” Molin v. Trentonian,
“If the headline is a fair index of an accurate article, it is not actionable. If it is not a fair index [ — does not fairly indicate the substance of the matter to which it refers — ] then the headline must be examined independently to determine whether it is actionable under general principles of libel.”
Burgess,
We agree with the minority of jurisdictions that follow the “fair index” rule for the reasons mentioned herein and adopt this approach when determining whether a headline is defamatory. We believe this to be the best approach because in many respects, a defamatory headline may be much more injurious to a party than a defamatory article where the false statement may be buried in the story and go unnoticed by the average reader. This is especially true when an individual reads only the headline and not the story. In Indiana, a defamatory headline will be actionable even if the story following it is accurate, unless the headline is a fair index of the accurate article. “[I]n determining whether a headline fairly indicates the substance of the matter to which it refers, the headline and article must be considered together.” Burgess,
The headline in this case read: “Health Board Shuts Doors of Bandido’s” and the subheadline read: “Inspectors find rats, roaches at local eatery.”
A-2
To determine whether the subheadline is defamatory, we must decide whether the substitution of the word “rats” for “rodents” was false. Webster’s New World Dictionary (3d ed.1988) defines rodent as “any of a very large order (Rodentia) of gnawing mammals including rats, mice, squirrels, beavers, etc., characterized by constantly growing incisors adapted for gnawing or nibbling; esp., in popular usage, a rat or mouse.” (emphasis added). Rat is defined as “any of numerous long-tailed rodents ..., resembling, but larger than, the mouse; ... rats are very destructive pests and carriers of highly contagious disease, as bubonic plague, typhus, etc.” Id. As indicated by the definition, every rat is a rodent although every rodent is not necessarily a rat. Rodent is a more generic term whereas rat denominates a specific type of rodent.
During trial, Bandido’s contended that if the headline had used the words “evidence of rodent droppings” instead of “rats,” there would be no dispute and the impact would not have been nearly the same.
One might say that the word “rat” is common usage for the more proper term “rodent” or that “rat” is often used in colloquial speech to refer to “rodent.”
Clearly, if the subheadline had read “investigators find evidence of rodents,” the average reader would infer that there were rodents in the restaurant.
Whatever distinction one might draw between a rat and rodent, we believe the difference “fits easily within the breathing space that gives life to the First Amendment.” Bose Corp.,
All that being said, we do not rest our decision in this case on the basis that the subheadline was substantially true. See St. Amant,
B
Bandido’s most compelling piece of evidence that the Journal-Gazette acted with actual malice is the Journal-Gazette’s use of the word “rats” instead of “rodents” in the subheadline. Bandido’s contends that because the word “rats” does not appear in the article, the mere fact that the word “rats” was erroneously used in the subheadline was more than an extreme departure from normal professional standards and in fact is indicative of actual malice.
Contrary to Bandido’s assertion, “[m)alice cannot be deduced from the mere fact of publication alone.” LaBruzzo v. Associated Press,
During trial, Sheila Pinkley, the author of the headline, testified that she thought the headline was accurate.
In Time, Inc. v. Pape,
In Bose Corp. v. Consumers Union of United States, Inc., an engineer for a consumer product testing organization prepared a report on a loudspeaker system suggesting that instruments had a tendency to “wander about the room.”
I was under the assumption that because there was a local angle, that the reason the story was being written was that the local person was the gist of the story.... I was confused. So in my confusion, I saw a local person; and I assumed that oh, this local person must be the primary focus of the story and I was trying to simplify it.
Id. The editor never spoke with the writer during the editing process even though there was opportunity to do so and also did not have access to the information upon which the writer relied in drafting the story. The court determined that a review of the record revealed “no indication that anyone at [the newspaper] knew that the facts being published were false.” Id. at 429. Additionally, the court commented that while the record ‘“would justify a finding of an irresponsible and uncaring attitude on [the newspaper’s] part,” id., this was not the same as reckless disregard, since there must be clear and convincing proof that the statements, were published with a “high degree of awareness of their probable falsity,” or with “serious doubts as to the truth of [the] publication,” id. at 430 (citations omitted) (alteration in original).
In Woodcock v. Journal Publishing Co.,
We similarly believe that while the Journal-Gazette may have exhibited an “irresponsible and uncaring attitude” in meeting its goal of accuracy, the evidence did not demonstrate awareness of the inaccuracy in the subheadline. Pinkley (author of the headline) testified that she spent “ten minutes tops” reading the article prior to writing the headline. She stated that “[w]hen I wrote the headline, I considered them to be accurate.” (R. at 24-25.) “I looked at the words rodent droppings and I came up with rats.”
c
Bandido’s contends that the Journal-Gazette’s failure to heed Judge Sheldon’s warning about the dangers inherent in misinterpreting the inspection reports suggests that the Journal-Gazette acted with actual malice. Our review of the record indicates that Ban-dido’s has misinterpreted Judge Sheldon’s findings of fact and conclusions of law.
Prior to 1988, inspection reports prepared by the Board of Health were not accessible by the general public in Fort Wayne-Alien County. In order to obtain access to the Food Establishment Inspection Reports, the Journal-Gazette filed a lawsuit against the Board of Health arguing that the reports were public records to which the newspaper was entitled. Journal-Gazette Co. v. Fort Wayne-Allen County Bd. of Pub. Health, No. 02D01-CT-8802-302 (Allen Sup.Ct. filed Feb. 26, 1988). On March 1, 1988, Judge Sheldon conducted a hearing in connection with the Journal-Gazette’s application for a Preliminary Injunction and Order of Mandate requesting the Board of Health to disclose certain public records. The court ordered the Fort Wayne — Allen County Board of Public Health to disclose all records dealing with the inspection of Allen County restaurants and food establishments because such records were public records within the meaning of Ind.Code § 5-14-3-1 et. seq. (R. at 17Ó2.) The court made the following relevant findings which Bandido’s interprets as a warning:
There is no question in the Court’s mind that the Defendant, Fort Wayne — AllenCounty Board of Public Health, in denying disclosure, acted in good faith and pursued an established policy it had adopted many years ago. Nearly all its concerns, which it suggested were the basis for its policy, were reasonable. For example, there is a possibility that public disclosure of the inspection reports might result in improper inferences or interpretations as to the seriousness of the violations noted. However, such policy considerations clearly fall outside the exceptions to disclosure authorized in Section 4 of the Access to Public Records Act.
(R. at 1702.) (emphasis in original). We view these findings to be neither a warning nor the opinion of the court, but instead a recitation of the Board of Public Health’s policy reason for not disclosing its inspection re-r ports. Even if were to assume for the sake of argument that this was a warning to the Journal-Gazette, such warning reveals nothing with respect to the newspaper’s state of mind when the headline was published. Indeed, Pinkley testified that she never participated in any discussions at the Journal-Gazette relating to the standard of care to be used when dealing with matters concerning restaurants and Board of Public Health inspection reports. Craig Klugman, a news editor, testified that Pinkley was never given any directions or precautions to be taken when dealing with Board of Public Health inspection reports of restaurants. The record also indicates that Leonard was never advised of any limitations, or cautions, that the Journal-Gazette allegedly received from Judge Sheldon. Leonard also testified that he did not give the story more careful consideration than any other story and did not take special precautions to insure that the word “rats” appeared in the story. Cf. McDowell v. Paiewonsky,
D
Bandido’s also contends that job evaluations of Pinkley and Leonard indicate that the newspaper acted with actual malice. At trial, Bandido’s introduced the job evaluations of both Pinkley and Leonard. A job evaluation of Pinkley provided the following relevant information:
While you can write an excellent feature headline, news headlines remain your weak area. You are prone to overuse cliches, and the tone of some headlines comes uncomfortably close to slang (“folks” should be used rarely, for instance). Bill has worked with you on these points and reports some improvement, but your headline performance lacks consistency. There have been instances when you’ve produced inaccurate heads — and this is something we just can’t have. For instance, on a story about the Boeing jet that lost part of its roof over the Pacific, you referred to a jet “crash.” That flight did not crash. You are very responsive to redoing a head when you are asked, but you need to work on accuracy and tone in the next review period. Please don’t lose your lovely touch for feature heads, however — especially the heads you give to newsmaker stories. Those heads are superb examples of good headline writing.
(R. at 1625.) A performance review of Leonard was also introduced at trial because of its reference to Pinkley. The following statements are relevant:
You have done good work in the past year in the development of several of the new copy editors. Now its time to concentrate on Sheila [Pinkley], giving her one-on-one feedback sessions at least three times a week. She has potential and needs a guiding hand, particularly in headline writing. Despite all the successes in the headline area, there are still headlines that arevague, off-target or inappropriate.[ 33 ] Sometimes those heads appear when you are in slot; more often they appear on your days off....
(R. at 1632.)
Bandido’s contends that this circumstantial evidence reflecting Pinkley’s difficulties in writing accurate headlines suggests that the newspaper acted with actual malice when it allowed the headline to be printed. Although not stated in Bandido’s brief, we assume based upon the direct examination of Leonard at trial, Bandido’s argument is that Leonard acted with actual malice by failing to check more thoroughly Pinldey’s work. In other words, since Leonard was at least aware of Pinkley’s alleged problem with writing inaccurate headlines,
We disagree with Bandido’s that this circumstantial evidence rises to the level of actual malice. In Washington Post Co. v. Keogh,
[pjroof of isolated instances of inaccuracy, therefore, in a 35-year career during which [the author] has published well over 10,000 columns, cannot be accorded significance, since the relevant rule of law contemplates that “erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the breathing space they need to survive.”
Id. at 971-72 (quoting Garrison,
E
Bandido’s argues that the Journal-Gazette’s failure to retract the subheadline in the manner prescribed by Ind.Code § 34-4-15-1(1988)
In New York Times,
Under the circumstances of this case, because the Journal-Gazette has admitted without hesitation from the very beginning that it made a mistake and because it printed a correction story the next day along with an apology, albeit not in compliance with the retraction statute, we find the refusal to print a headline retraction not to be sufficient proof of actual malice.
F
Lastly, Bandido’s argues that the fact that the inaccurate subheadline appeared in the first edition, was removed from the second edition, and then revised and added back into the third edition is proof of actual malice.
We attach no significance to the deletion of the subheadline in the second edition. Publishing the subheadline in all editions would be more probative of malice. In any event, Leonard testified that he was unaware of who made the decision to delete the subhead-line from the second edition.
Leonard also testified that he requested a change be made from the first to the third edition. Leonard asked that “local eatery” be changed to “north-side eatery” because he wanted to make a distinction since he “was aware that Bandido’s had three restaurants” and wanted the “readers to know that it was not the entire chain.” Although Leonard requested the change, he did not re-write the headline. The subheadline in the third edition was also altered from the first edition in that the word “inspector” was substituted for “investigator” and the word “bugs” was substituted for “roaches.” Leonard provided no explanation for these changes. Pinkley testified, “Well, I believe if you look at the second line,'north side takes up more room than local, so roaches was shortened to bugs.” (R. at 2508.) She did not explain why “inspectors” was changed to “investigators,” but when asked if there wasn’t enough room for
Conclusion
Having previously granted transfer, we adopt Aafco and hold that both private individuals and public figures must prove actual malice to recover in a defamation suit involving matters of public or general concern. We also hold that Bandido’s has failed to prove that Journal-Gazette acted with actual malice and hereby reverse the judgment of the trial court.
DICKSON, J., dissents with separate opinion in which SHEPARD, C.J., concurs.
Notes
. Ordinarily, Sylvia Smith'worked as the Managing Editor but was off that evening.
. The Journal-Gazette publishes three editions each day. The first edition is circulated in northwestern Ohio. The second edition is provided to Indiana counties surrounding Fort Wayne. The final edition is published for the Fort Wayne area. The headline provided in the text ran in the first edition while the second edition' contained the headline, but not the subheadline. Consequently, the trial court determined that the
. The article was titled, "Owner says Bandido’s likely to reopen today.” The third paragraph of the story contained the following relevant statements:
Because of an editing error, a headline — not the story — in some editions of Thursday’s Journal-Gazette said inspectors had found rats and bugs at the restaurant.
No evidence of rats was found at the restaurant. Journal-Gazette apologizes for the inaccuracy of the headline.
(R. at 1203.)
. The First Amendment provides the following:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
.The First Amendment goal of protecting speech serves several purposes. Gerald R. Smith, Of Malice and Men, 27 Val. U.L.Rev. 39, 43 (1992). First, ”[t]he free flow of information in the 'marketplace of ideas’ ensures the vitality of a democratic government, provides a check on governmental abuse, and aids in the choices among competing opinions and options.” Second, "[fjreedom of speech also acts as a safety valve, reducing the incidence of more destructive modes of expressing dissatisfaction.” And finally, ”[t]he right to free expression also promotes self-fulfillment, personal growth and self-realization.” Id. at 44.
. “Whether [a communication] is defamatory ‘depends, among other factors, upon the temper of the times, the current of contemporary public opinion, with the result that words, harmless in one age, in one community, may be highly damaging to reputation at another time or in a different place.’" Schermerhorn v. Rosenberg,
. As stated under Background, supra, the trial court initially granted summary judgment in favor of the Journal-Gazette. Bandido's appealed the grant of summary judgment and in the course of remanding to the trial court for a trial on the merits, the Court of Appeals referred to Bandido’s as a “private individual.” Bandidos, Inc. v. Journal-Gazette Co.,
. See Nelson v. Parker,
. See Aafco,
"In .the normal civil suit where [the preponderance of the evidence] standard is employed, 'we view it as more serious in general for there to be an erroneous verdict in the defendant’s favor.’ In re Winship,397 U.S. 358 , 371,90 S.Ct. 1068 ,25 L.Ed.2d 368 (1970). In libel cases, however, we view an erroneous verdict for the plaintiff as most serious. Not only does it mulct the defendant for an innocent misstatement ... but the possibility of such error, even beyond the vagueness of the negligence standard itself, would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate.”
Id. (quoting Rosenbloom,
. The trial court’s instruction stated, in pertinent part: "In this case, the statements upon which suit has been brought relate to a limited purpose public figure as well as a mater of public interest at least for the purpose of the statements at issue.” (R. at 850.)
. Because Bandido’s is a public figure, see Part II, supra, we do not address the appellate standard of review to be employed in reviewing a judgment in a defamation case involving matters
. The Burgess court álso agreed with the following comments made by the court in Black v. Nashville Banner Publishing Co.,
“The headline of an article or paragraph, being so conspicuous as to attract the attention of persons who look casually over a paper without carefully reading all its contents, may in itself inflict very serious injury upon a person, both because it may be the only part of the article which is read, and because it may cast a graver imputation than all the other words following it. There is no doubt that in publications ... claimed to be libelous, the headlines directing attention to the publication may be considered as a part of it, and may even justify a court or jury in regarding the publication as libelous when the body of the article is not necessarily so."
Burgess,
. This is how the subheadline read in the first edition. As mentioned earlier, the subheadline was deleted from the second edition and the third edition contained the following subhead-line: “Investigators finds rats, bugs at north-side eatery.” We do acknowledge that the headline as published is in bold type face and oversized and the subheadline, while smaller than the headline, is somewhat larger than the text of the article.
. The subheadline’s reference to the discovery of rats in and of itself is not entirely accurate, but is at least substantially true. See infra Part A-2 for a discussion of this issue.
. Jan Ashburn, a witness for Bandido’s, provided the following testimony when asked what her reaction to the subheadline was:
Uh, I was, uh, in shock and I was really upset thinking about rats. I envisioned rats running through. I envisioned sitting at a restaurant much like, uh, as I say in my deposition, I’ve done some, uh, quite a bit of traveling, so I envisioned some, some places that we have been in some third world countries where there was just, uh, you couldn't eat a meal because of, of the bugs and the filthy conditions. And so that’s what I, when I looked at the headline that’s what I envisioned. Was just completely filthy conditions. With rats, I equate rats with, with filth.
(R. at 1991.) Beverly Zuber, another witness for Bandido's, testified that when she read the sub-headline, she "was appalled" and "imagined bowls [of] white rice and rats jumping from bowl to bowl.” (R. at 2014.)
. We note that in Woodcock v. Journal Publishing Co.,
.After an in depth cross-examination pf Mr. Schindler, the owner of Bandido’s restaurant, regarding all the health violations of the restaurant in recent years and the other violations noted by the Board of Health in the September 13, 1988, inspection which discovered the evidence of rodent droppings, the following colloquy occurred:
Q: Alright. Don’t you think, Sir, that those are all things that might influence whether or not people want to eat in a restaurant?
A: I don’t think it would have near the impact as rat headline, if that’s the question.
Q: So you think you'd been a lot better off if the headline wouldn’t sai — , would have said, inspectors find rodent droppings, roaches at local eatery?
A: Uh, they didn’t find it. It would be mis — , it would still be wrong. Read the report. On the back it says "evidence of”. They never found the first one.
. When asked whether she could think of anything by way of connotation from rat that is nice, June Remley responded, "Well, sir, I’m aware that some people do keep them as pets so in some circles they are considered very acceptable pets.” (R. at 1609.)
. June Remley’s deposition was read into the record with another witness reading her responses.
. We take judicial notice that the words "rats” and "rodents” are frequently used interchangeably. See, e.g., Lynn Snowden, Attack of the Giant Rats, George, July, 1998, at 90, 92 ("[C]on-ditions for rodents were so favorable that a rat blithely wandered up to Mayor Rudolph Giuliani.... [T]he mayor announced the $8 million Comprehensive Rodent Control Initiative, an all-out war against rats.”).
. See Zerangue v. TSP Newspapers, Inc.,
. During a deposition, one of Bandido’s witnesses stated that when she hears the term “rodents,” she thinks of rats. (R. at 2018.) Another Bandido's witness stated during a deposition which was admitted at trial that when she sees the word "rodents,” she thinks of mice; however, even if the headline had used the word "rodents,” she still would not have gone back to the restaurant. (R. at 2024.)
. At trial, Bandido's admitted into evidence its October 18, 1988, letter to the Journal-Gazette expressing dissatisfaction with the Journal-Gazette’s follow-up correction story. In the letter, Bandido’s alleged that if the Journal-Gazette had interviewed inspectors at the Board of Health, it would have discovered that "as a matter of course, use of the term ‘rodents' means ‘mice’ and use of the term ‘rats' means ‘rats.’ " (R. at 1272.) At trial, Bandido's often used the words "rodent” and "mice” interchangeably, (R. at 1450), and even tried to elicit testimony suggesting that a headline using the word "mice” would have been far less damaging. (R. at 1227.) Ban-dido’s called the health inspector who observed the Bandido’s restaurant on October 4, 1988, in order to gather information for the revocation hearing testified at trial. The inspector testified that before inspecting Bandido’s, she reviewed the September 13, 1988, health inspection report which noted the discovery of "evidence of rodent droppings” and talked with the inspectors who
. We acknowledge that one of Bandido's expert witnesses, Professor Dennis Hale, who teaches Journalism testified that "the word ‘rats' is much more damaging, much more threatening. The
. During trial, Bandido’s attempted to show that the Journal-Gazette had a general rule that for a word to appear in a headline, the word must appear in the article. According to Bandi-do’s, the failure to apply this rule is proof that the Journal-Gazette departed from its professional standards. However, we find that even if the Journal-Gazette did maintain such a rule (and the record appears to reflect that it did), the Journal-Gazette's failure to apply the rule in this case may be evidence of an extreme departure from professional standards, but is not evidence of actual malice. See Harte-Hanks Communications, Inc. v. Connaughton,
. In its brief to this Court, Bandido’s states that the evidence at trial showed that the Journal-Gazette's publication of the headline was an "extremely careless error.” (Appellee's Br. at 5-6.) Careless error is not the equivalent of actual malice.
.Testimony by a defendant that he or she published in good faith or believed the publication to be true is not sufficient to dispel the notion that the defendant acted with actual malice. See St. Amant v. Thompson,
■ In St. Amant, the Court set forth several circumstances in which profession of a good faith by the defendant would not be persuasive; (1) where a story is fabricated by the defendant; (2) where the story is the product of defendant’s imagination; (3) where the stoiy is based wholly on an unverified anonymous telephone call; (4) where the defendant’s allegations are so inherently improbable that only a reckless person would have put them in circulation; and (5) where there are obvious reasons to doubt the veracity of the informant or the accuracy of the informant’s reports. Id.,
. The Court also supported its conclusion with the following comments:
The author of the Time article testified, in substance, that the context of the report of the [police brutality] incident indicated to him that the Commission believed that the incident had occurred as described. He therefore denied that he had falsified the report when he omitted the word "alleged.” The Time researcher, who had read newspaper stories about the incident and two reports from a Time reporter in Chicago, as well as the accounts of [the police detective's] earlier career, had even more reason to suppose that the Commission took the charges to be true.
Time,
. The Court made the following comments with respect to the engineer’s refusal to admit his mistake:
"[The engineer] displayed a capacity for rationalization. He had made a mistake and when confronted with it, he refused to admit it and steadfastly attempted to maintain that no ’ mistake had been made — that the inaccurate was accurate. That attempt failed, but the fact that he made the attempt does not establish that he realized the inaccuracy at the time of publication."
. Schwartz was an appeal from the denial of summary judgment for the defendant newspaper.
. The court in Schwartz also made the following comments:
[Plaintiff! presented no evidence to contradict or throw doubt on [the editor’s] testimony that, in his haste to edit the article while managing multiple responsibilities, he pared [the writer's] text down to make it more readable, without realizing that his snap conclusions had actually changed the story's intended focus. That explanation does not excuse the unfortunate result, but also does not provide clear and convincing evidence of reckless disregard for the truth.
Schwartz,
. When courts have found the defendant to have published statements with actual malice, the evidence has been far more compelling than the evidence presented in this case. See, e.g., Carson v. Allied News Co.,
. Leonard testified that he interpreted the statements to mean that Pinkley’s headlines were vague, off-target or inappropriate as opposed to his own. (R. at 1634.)
. Leonard's testimony suggests that he does not recall ever seeing the job evaluation of Sheila Pinkley. (R. at 1627.) There was also some debate as to whether this was really a job evaluation.
. Ind.Code§ 34-4-15-1 (1988) provides in relevant part:
(b) If it appears at the trial of the action that the article was published or transmitted in good faith, and that its falsity was due to mistake or misapprehension of the facts, the plaintiff in the case is entitled to recover only actual damages if:
(1) full and fair retraction of any factual statement alleged to be false and defamatory was published in the regular issue of the newspaper or transmitted to its members or subscribers by the news service:
(A) within three (3) days by a news service;
(B) within five (5) days, if the newspaper is a daily publication; or
(C) within ten (10) days, if the newspaper is a weekly publication;
after the mistake or misapprehension was brought to the knowledge of the publisher or bureau chief; and
(2) the retraction was published in as conspicuous a place and type as the original item appeared in the newspaper or was transmitted by a news service to all members or subscribers to whom the original item was transmitted.
. During trial, the Journal-Gazette claimed that its decision not to print a retraction pursuant to the statute was based on its understanding that at least Bandido’s first attorney was satisfied with the follow-up story. We make no comment on the reasonableness of the justification provided by the Journal-Gazette. See Connelly v. Northwest Publications, Inc.,
. The Court of Appeals noted that a "plausible explanation is that the item was not as newsworthy in areas serviced by the second edition.” Bandido's,
. Another edition used "bugs” instead of "roaches.”
Concurrence Opinion
concurring.
For the reasons set forth in Justice Sullivan’s opinion, I agree that the free flow of ideas and information requires giving the press considerable latitude in reporting on matters of public concern. Specifically, I agree that the “actual malice” standard should be applied to reports on matters of public concern, and that clear and convincing evidence should be required for a defamation recovery on a matter of public concern. I agree that this standard should apply to discourse on matters of public concern irrespective of the characterization of the plaintiff as a public or private figure. In the vast majority of cases involved, it may make little practical difference whether this higher standard is based on the activity rather than the persons because a matter of public concern seems to generate a finding of public or “quasi public” figure. Nevertheless, in considering the extent to which we should tip the scales in favor of free expression, I believe it is helpful to think in terms of the activity rather than the persons involved. Finally, I agree with Justice Sullivan that the fair index test, generously construed, is the proper standard for evaluating a headline.
I reach all of these conclusions purely as a matter of Indiana defamation law. I agree with Justice Sullivan that this case can be resolved under existing federal constitutional precedent and that this analysis produces the same result as I reach under state law and the Court of Appeals reached under Aafco Heating & Air Conditioning v. Northwest Publications Inc.,
The “Fair Index” Test
First, I would conclude that the “fair index” test is met on the facts of the case. The fair index test requires a court to determine whether the headline fairly indicates the substance of the matter to which it refers. Maj. op. at 458 (quoting Burgess v. Reformer Publishing Corp.,
Even if the headline were not a fair index of the article, I agree that Bandido’s failed to demonstrate that the paper acted with actual malice. I reach that conclusion under state law alone, applying the clear and convincing evidence standard. For the reasons Justice Dickson explains in Part B.5. of his dissent, state law should adhere to the conventional standard of appellate review of jury verdicts. Applying that standard, I nonetheless agree with Justice Sullivan’s ultimate resolution of this case. The Journal Gazette may properly adopt an internal rule that headlines should be comprised of terms taken from the story, but failure to observe that guideline is not in itself evidence of malice or reckless disregard for the truth. To the contrary, in my view a headline writer’s translation of “rodents” to “rats” does not by itself come close to supporting a finding of actual malice. I base that conclusion not on the testimony of the headline writer but on ordinary usage. As a matter of law some latitude in choice of language is required and substitution of rats for rodents in this context is within that permissible range.
I also write separately to make clear my view that Indiana law need not parallel federal public figure law in all respects. The federal constitution may require a higher degree of malice for claims by a public official or public figure. However Gertz v. Welch,
Apart from the specific facts in this case, the “reckless disregard” prong of “actual malice” should be satisfied under Indiana law if one publishes a report with no idea whether it is true or not. Accordingly, although New York Times Co. v. Sullivan,
Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of the his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they likely prevail when the publisher’s allegations are so inherently improbable that only a reckless [person] would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of the [informant’s] reports.
St. Amant v. Thompson,
I also wish to emphasize the point in the majority opinion that matters of public concern do not include every activity of a person who for other reasons is in the public eye. I recognize that drawing a line between matters of public and private concern may prove to be problematic. Over time, however, guidelines will emerge and some are already available, assuming Indiana law will track federal constitutional doctrine on this point. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
Indiana Constitutional Provisions
I agree with Justice Dickson that it is appropriate on occasion to look to constitutional provisions for direction in the development of our common law. See, e.g., Doe v. Methodist Hosp.,
. The conclusion that this headline meets the fair index test is supported by application of the test
Dissenting Opinion
dissenting.
Today’s decision makes life more difficult for Indiana’s citizens when they have been falsely and publicly maligned in front of then-neighbors.
Constructing a regime that affords news organizations a respectable defense for defamation claims might well include some of the walls erected today, but the cumulative effect of this series of barriers is to leave defamed citizens virtually without a remedy. The U.S. Supreme Court and thirty state supreme courts have concluded that a free society can flourish without making it so hard for the average person to defend his or her reputation as it will now be in Indiana. Just one or two state courts have thought otherwise.
I. Cramped Rights for Private Citizens
If somebody posts scandalous and defamatory material about a Hoosier on the internet, sending it all over the world, the victim
The greater irony in this choice is that it is justified with a certain flourish to the effect that in Indiana “[t]he reputations of public figures and public officials merit the same quantum of protection as those of private citizens.” Slip op. at 452 (quoting Aafco Heating and Air Conditioning Co. v. Northwest Publications, Inc.,
How difficult a task injured parties will confront in persuading appellate judges that they have proven their case is made apparent in the many pages, about sixty percent of the whole opinion, that Justice Sullivan takes to lay out his assessment of the evidence. He weighs the effect of using the word “rat” on the minds of newspaper readers, slip op. at 460-61, draws inferences about the state of mind possessed by the author of the headline, slip op. at 464-65, and about the level of consciousness of others who worked on the Bandido’s story, slip op. at 466-67.
As for what evidence appellate judges think would warrant damages, today’s decision is bleak news for the injured. Justice Sullivan gives us examples, such as cases in which the news organization actually fabricates a story or a reporter writes defaming material based solely on the reporter’s imagination. Slip op. at 465 n. 32.
II. In Short, Pretty Much Every Citizen Loses
At the end of the day, we have a case before us in which a copy editor wrote a defaming headline that could not be justified on the basis of the reporter’s story about reports from the board of health. The copy editor was an employee whose job evaluations reveal that the newspaper knew she produced inaccurate headlines. A local judge had warned the newspaper about the special risks of improper inferences or interpretations of health department inspection reports. Nevertheless, newspaper management had never given the copy editor any directions or cautions about dealing with health department reports on restaurants. Finally, when newspaper management did focus on what its editors had done, it decided not to publish a retraction conforming to Indiana’s statute on retractions.
A jury of people in Albion were satisfied that all this showed reckless indifference and that this small business was badly hurt. The
Most injured plaintiffs will not have the smoking guns that Bandido’s brought to this lawsuit. When the Court declares its dissatisfaction with the jury and the evidence in this ease, it effectively says to other injured citizens, “You’re toast.”
. Justice Boehm describes the apparent paradigm in an equally narrow way as cases in which one "publishes a report with no idea whether it is true or not.” Boehm, concurring, slip op. at 470.
. The dismissive assessment of this part of the plaintiff's evidence, slip op. at 469-470, reflects on the seriousness of the earlier suggestion that a solid remedy to defamation of citizens would be "passage of state laws creating a limited right to respond to defamatory falsehoods.” Slip op. at 453 (quoting Aafco,
. This is likely the future result for other injured Hoosiers. A national study suggests that appellate judges (who, as a class, spend more time thinking about how the press will portray their actions than jurors do) tend to rule for the press and that jurors tend to rule for injured parties. Seth Goodchild, Note, Media Counteractions: Restoring the Balance to Modem Libel Law, 75 Geo.L.J. 315, 323-24 (1986).
Dissenting Opinion
dissenting.
I respectfully dissent from the majority opinion as to its disapproval of Indiana’s traditional common law standard, the failure to use reasonable care (often referred to as “negligence”), in private defamation cases against media defendants. The majority instead chooses the actual malice standard, which federal constitutional jurisprudence mandates only in certain other specified circumstances.
A. Limitations Imposed by Federal Jurisprudence ■
Defamation actions, when brought against media defendants, are subject to limitations imposed by the First Amendment
1. The Plaintiffs Status as a Factor
The highest standard — the one most protective of media publication — applies when public officials
The same standard that governs public officials also applies to a second category of plaintiffs, public figures. In defamation actions brought by public figure plaintiffs, the New York Times standard applies, and the plaintiffs must prove actual malice. Curtis Publ’g Co. v. Butts,
In the category of public figure plaintiffs are three subcategories of public figures. The first subcategory is comprised of involuntary public figures. Gertz v. Robert Welch, Inc.,
The second and third subcategories include “those who ... have assumed roles of especial prominence in the affairs of society.” Id. at 345,
The third subcategory of public figures is most common. These individuals are not public figures for all purposes, but rather only for limited or particular purposes. Limited purpose public figures are those who have “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Id. at 345,
In contrast to the standard of proof required for media defamation actions brought by public officials/figures, actions brought by private individuals are not governed by the same federal constitutional constraints. When private individuals, who are neither public officials nor public figures and who have not interjected themselves into particular public controversies, sue for injury caused by libelous statements, the more demanding New York Times standard does not apply. Id. at 343,
has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.
Id. at 345,
2. Individual Reputation as a Factor
Notwithstanding the important constitutional interests involving the freedom of speech and the press, the U.S. Supreme Court has acknowledged the high value of
The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. See New York Times Co. v. Sullivan, supra, at 293,84 S.Ct. 710 (Black, J., concurring); Garrison v. Louisiana,379 U.S., at 80 ,85 S.Ct. 209 (Douglas, J., concurring); Curtis Publishing Co. v. Butts,388 U.S., at 170 ,87 S.Ct. 1975 (opinion of Black, J.). Such a rule would, indeed, obviate the fear that the prospect of civil liability for injurious falsehood might dissuade a timorous press from the effective exercise of First Amendment freedoms. Yet absolute protection for the communications media requires a total sacrifice of the competing value served by the law of defamation.
Gertz,
The Supreme Court has recognized that society also values the reputation of individuals. The Gertz Court stated that “[t]he legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose.... ” Id. at 341,
Our accommodation of the competing values at stake in defamation suits by private individuals allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times. This conclusion is not based on a belief that the considerations which prompted the adoption of the New York Times privilege for defamation of public officials and its extension to public figures are wholly inapplicable to the context of private individuals. Rather, we endorse this approach in recognition of the strong and legitimate state interest in compensating private individuals for injury to reputation.
Id, at 348-49,
The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being— a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.
We use misleading euphemisms when we speak of the New York Times rule as involving “uninhibited, robust, and wide-open” debate, or “vehement, caustic and sometimes unpleasantly sharp” criticism. What the New York Times rule ultimately protects is defamatory falsehood. No matter how gross the untruth, the New York Times rule deprives a defamed public official of any hope for legal redress without proof that the lie was a knowing one, or uttered in reckless disregard of the truth.
That rule should not be applied except where a State’s law of defamation has been unconstitutionally converted into a law of seditious libel. The First and Fourteenth Amendments have not stripped private citizens of all means of redress for injuries inflicted upon them by careless liars. The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.
Moreover, the preventive, effect of liability for defamation serves an important public purpose. For the rights and values of private personality far transcend mere personal interests. Surely if the 1950’s taught us anything, they taught us that thepoisonous atmosphere of the easy lie can infect and degrade a whole society.
Rosenblatt v. Baer,
3. Subject Matter as a Factor
Following New York Times in 1964, the U.S. Supreme Court initially focused primarily on the plaintiffs status (i.e., whether the plaintiff is a public official, public figure, or private figure). However, in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., the Court shifted its focus to the subject matter of the defamatory statemént in reaching its holding.
The Dun & Bradstreet plurality opinion, authored by Justice Powell and joined by Chief Justice Rehnquist and Justice O’Con-nor, characterized its cases after New York Times as “all involving public issues.” Id. at 755,
The Court continued, “In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest adequately supports awards of presumed and punitive damages— even absent a showing of ‘actual malice.’ ” Id. at 761,
To date, U.S. Supreme Court opinions have not directly confronted the First Amendment’s requirements when the plaintiffs are public officials or all purpose public figures and the subject matter is merely of private concern.
Regarding the implications * of Dun & Bradstreet for this issue, Professors Nowak and Rotunda have explained:
There is nothing in the Powell plurality [in Dun & Bradstreet ] that would limit its application to cases where the plaintiff is a private person. That is, for the three Justices who make tip the Powell plurality, it may well be the ease that a public official or public figure could also collect presumed or punitive damages without even showing any negligence on the part of the defendant if the alleged defamation does not involve a matter of “public concern.”
John E. Nowák & Ronald D. Rotunda, Constitutional Law § 16.35, at 1102 (5th ed.1995). Professor Tribe has also noted:
In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., the Court took the bifurcated analysis of public figure-private figure and bifurcated it once more, stating that the first amendment would protect only “speech on matters of public concern.” Accordingly, when the plaintiff is not a public figure and the contested statement is not about a matter of public concern, the “actual malice” standard does not apply.
Laurence H. Tribe, American Constitutional Law § 12-13, at 873 (2d ed.1988). Professor Tribe further explained that, “as Dun & Bradstreet made clear, the Court is especially reluctant to limit the common law of defamation when the subject matter of the speech is ‘purely private.’ ” Id. § 12-13, at 878.
As discussed in the preceding sections, the U.S. Supreme Court recognizes that individual states have the option to select the standard of proof applicable when private individual plaintiffs assert defamation actions against media defendants regarding matters of public concern. While the states may choose the New York Times actual malice standard, which the Supreme Court applies to require public official/figure plaintiffs to prove actual malice when their public conduct is at issue, this standard is not obligatory upon the states in private defamation cases. The U.S. Supreme Court has expressly recognized that the states have the authority to define the appropriate standard of liability in cases in which media defendants are alleged to have defamed private figure plaintiffs. Gertz,
The Gertz Court refused to follow the Ro-senbloom plurality opinion which would have extended the New York Times test to those defamation cases brought by private figure plaintiffs and involving issues of public concern. Gertz,
The “public or general interest” test for determining the applicability of the New York Times standard to private defamation actions inadequately serves both of the competing values at stake. On the one hand, a private individual whose reputation is injured by defamatory falsehood that does concern an issue of public or general interest has no recourse unless he can meet the rigorous requirements of New York Times. This is true despite the factors that distinguish the state interest in compensating private individuals from the analogous interest involved in the context of public persons. On the other hand, a publisher or broadcaster of a defamatory error which a court deems unrelated to an issue of public or general interest may be held liable in damages even if it took every reasonable precaution to ensure the accuracy of its assertions....
Gertz,
The Gertz Court provided two rationales for its creation of two different standards for defamation plaintiffs: (1) private figures are more vulnerable to injury because they typically have less media access than public officials/figures to counteract defamatory speech, and (2) private figures are more deserving of recovery because they have not voluntarily become involved in public controversies in order to influence their outcome. Gertz,
Therefore, private figure plaintiffs must at least prove negligence to recover in defamation actions against media defendants for injury to their reputations. See Philadelphia Newspapers, Inc. v. Hepps,
One can discern in these decisions two forces that may reshape the common-law landscape to conform to the First Amendment. The first is whether the plaintiff is a public official or figure, or is instead a private figure. The second is whether the' speech at issue is of public concern. When the speech is of public concern and the plaintiff is a public official or public figure, the Constitution clearly requires the plaintiff to surmount a much higher barrier before recovering damages from a media defendant than is raised by the common law. When the speech is of public concern but the plaintiff is a private figure, as in Gertz, the Constitution still supplants the standards of the common law, but the constitutional requirements are, in at least some of their range, less forbidding than when the plaintiff is a public figure and the speech is of public concern. When the speech is of exclusively private concern and the plaintiff is a private figure, as in Dun & Bradstreet, the constitutional requirements do not necessarily force any change in at least some of the features of the common-law landscape.
Philadelphia Newspaper's,
Thus, in defamation actions brought by private figure plaintiffs against media defendants, and presumably in those by public officials/figures involving private matters, states may apply their own common law or statutory standards. The Gertz Court seemed to. contemplate at least two alterna
5. Standard of Appellate Review
The U.S. Supreme Court has imposed a special standard of appellate review when federal First Amendment implications require application of the New York Times actual malice standard. In such cases, appellate courts must independently review trial court determinations of actual malice to ensure that the correct standard was applied— that plaintiffs proved by clear and convincing evidence that the defendants acted with actual malice in publishing falsehood with knowledge of the falsity or reckless disregard for whether it was false. Bose Corp. v. Consumers Union of United States, Inc.,
However, the U.S. Supreme Court has not imposed this special standard of independent appellate scrutiny upon the states when reviewing verdicts in defamation cases involving private figure plaintiffs, even in matters of public concern, or in those involving public officials/figures and private concerns. The states remain free to determine the applicable standard of appellate review in such cases.
B. Determining the Rules for Indiana Defamation Law
As noted above, the decisions of the U.S. Supreme Court have recognized the substantial authority of the states to determine state law regarding private figure defamation cases against media defendants in matters of public and private concern. In the absence of statute, the Indiana Supreme Court must select the appropriate common law standards of proof for our state, considering both freedom of the press and media accountability for defamatory falsehoods about private individuals.
Neither this challenge nor its resolution is of recent vintage. Two hundred and one years ago, three years before he became Chief Justice of the United States, John Marshall wrote:
Among those principles deemed sacred in America, among those precious rights considered as forming the bulwark of their liberties, which the Government contemplates with awful reverence; ... there is no one ... more deeply impressed on the public mind, than the liberty of the press. That this liberty is often carried to excess, that it has sometimes degenerated into licentiousness, is seen and lamented; but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good to which it is allied, perhaps it is a shoot which cannot be stripped from the stalk, without wounding vitally the plant from which it is torn. However desirable those measures may be, which might correct without enslaving the press, they have never yet been devised in America. No regulations exist which enable the government to suppress whatever calumnies or invectives any individual may ch[oo]se to offer to the public eye, or to punish such calumnies and invectives otherwise, than by a legal prosecution in courts, which are alike open to all who consider themselves as injured.
Letter from John Marshall to Talleyrand (Apr. 3, 1798), in 3 The Papers of John Marshall 447 (1984) (emphasis added). Later, as Chief Justice, Marshall declared for the unanimous Court: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” Marbury v. Madison,
Shortly after the U.S. Supreme Court in Gertz expressly permitted individual states to determine the applicable standard of proof in private figure defamation cases, a divided panel of the Indiana Court of Appeals issued its opinion in Aafco Heating & Air Conditioning Co. v. Northwest Publications, Inc.,
The precedential value of Aafco is dubious for several other reasons. Aafco was handed-down just six months after the U.S. Supreme Court decided Gertz,
Article I, Section 12 of the Indiana Constitution provides: “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase, completely, and without denial; speedily, and without delay.” Ind. Const. art. I, § 12 (emphasis added). When confronted with a choice between alternative common law policies, this Court will find guidance in the values embodied in our state constitution, particularly this provision assuring remedy for injury to reputation. Bals v. Verdmco,
But the principles embraced in Section 12 have a long and distinguished history. For millennia, many of the world’s major cultures and religions have placed immense value on the preservation of an individual’s good name or reputation. The ancient Wisdom Literature of the Jewish and Christian religions declares that “[a] good name is to be chosen rather than great riches.” Proverbs 22:1 (Revised Standard). See 1 Raymond E. Brown, The Law of Defamation in Canada 4 (1987) (“Some form of legal or social constraints on defamatory publications ‘are to be found in all stages of civilization, however imperfect, remote, and proximate to barbarism.’”) (quoting Henry C. Folkard, The Law of Slander and Libel 7 (5th ed. 1891)); Martin L. Newell, The Law of Slander and Libel in Civil and Criminal Cases 1-28 (Mason H. Newell ed., 3d ed.1914). In fact, many of the earliest law codes subjected defamatory speech to severe criminal and civil sanction. See Newell, supra, at 1-18.
These principles were embodied in the 1215 Magna Charta. Its provisions were transmitted to America largely through Lord Edward Coke’s highly influential commentary on the Magna Charta, which was among the most frequently read legal texts in colonial America. See David Schuman, The Right to a Remedy, 65 Temp. L.Rev. 1197, 1199 (1992). The historical antecedent of Article I, Section 12 of the Indiana Constitution is vividly seen in Article 40 of the Magna Charta, which Coke restated as providing:
[Ejvery Subject of this Realm, for injury done to him in [goods, land, or person], ... may take his remedy by the course of the Law, and have justice and right for the injury done him, freely without sale, fully without any denial, and speedily without delay.
Hereby it appeareth, that Justice must have three qualities, it must be [Free, for nothing is more iniquitous than justice for sale; Complete, for justice should not do things by halves; and Swift, for justice delayed is justice denied]; and then it is both Justice and Right.
Faith Thompson, Magna Carta Its Role in MaKing of the English Constitution, 1300-1629, at 365 (1948) (quoting Sir Edward Coke, Seoond Institute 55-56 (4th ed. 1671)). Although neither the original federal Constitution nor its Bill of Rights contains a remedies clause, the drafters of many of the original state constitutions did include a remedies clause, and, as other states were added to the Union, many adopted similar provisions. See John H. Bauman, Remedies Provisions in State Constitutions and the Proper Role of the State Courts, 26 Wake Forest L.Rev. 237, 243-44 (1991). English common law and American colonial governments protected reputation as a property interest. See Ronald J. Krotoszynski, Jr., Fundamental Property Rights, 85 Georgetown L.J. 555, 592 (1997).
Presently, thirty-nine state constitutions contain,
Of the thirty-nine states with a remedies provision, thirty-one
The adoption of a requirement of actual malice cannot, of course, be justified on the theory that such a requirement furthers some overriding public policy of this State, for prior to New York Times it was not considered that liability for defamation required any showing of fault at all, let alone proof of actual malice. Moreover, the constitutions of this State have from the outset recognized as fundamental the rights of “enjoying and defending life and liberty, and acquiring, possessing and protecting property and reputation.” (Const, of 1818, art. VIII, sec. 1.) From the outset it has been recognized that an individual is entitled to a remedy “for all injuries and wrongs that he may receive in his person, property or character.” (Const, of 1818, art. VIII, sec. 12; Const, of 1848, art. XIII, sec. 12.) (In the most recent constitutions the word “reputation” is substituted for “character.” Const, of 1870, art. II, sec. 19; Const, of 1970, art. I, sec. 12.) The freedom of speech provisions of both our former and present constitutions (Const, of 1870, art. II, sec. 4; Const, of 1970, art. I, sec. 4) recognize the interest of the individual in the protection of his reputation, for they provide that the exercise of the right to speak freely shall not relieve the speaker from responsibility for his abuse of that right.
Troman v. Wood,
Defamation law is concerned primarily with protecting reputation.
Clearly, legal recognition and protection of a person’s reputational interest is deeply entrenched in our history and practice. The Indiana Constitution expressly protects an individual’s right to remedy for harm to reputation. This fact is particularly significant in determining how Indiana should exercise the Gertz option. Strongly favoring reasonable recourse to remedy for defamation injuries, our express constitutional provision supports a common law rule of accountability upon proof of failure to use reasonable care, rather than one imposing responsibility only upon proof of actual malice. This is consistent with the jurisprudence of an overwhelming majority of other states.
3. Responsibility for Abuse of Free Speech
In protecting the freedom of speech and the press, the Indiana Constitution does not merely reiterate the language of the First Amendment. Rather, it both emphasizes the broad scope of the freedom and requires responsibility for its abuse. Indiana’s provision states: “No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever, but for the abuse of that right, every person shall be responsible." Ind. Const.
Section 9 was certainly not intended to create a private warrant by which an individual might impair the fundamental rights of private persons. Our common law of torts, the mechanism by which we vindicate such private encroachments, makes this clear.25 When the expressions of one person cause harm to another in a way consistent with common law tort, an abuse under § 9 has occurred.
Price v. State,
Indiana citizens have long understood that the clause “every person shall be responsible” means accountability by liability for damages in our courts of law. Contemporaneous with the constitutional convention that resulted in the adoption of the Indiana Constitution, this Court affirmed a judgment awarding damages in a defamation action against a newspaper, stating:
It is plain, from the general context of the decisions in cases of this kind, that booksellers and publishers of newspapers are considered as standing in situations of peculiar responsibility, and far from relaxing in their favor the general rule that all persons are bound so to carry on their trade or business as not to injure others, the Courts of law have felt the necessity of applying it in their cases with the utmost stringency. The press is a most potent engine for the diffusion of both good and evil, and, while on the one hand we can scarcely estimate too highly the advantages of its perfect freedom, for all useful purposes, on the other, we cannot but be sensible of the necessity of a strong curb to prevent such freedom from degenerating into licentiousness. The law, however, in- holding publishers of books and newspapers responsible for slanderous attacks upon private character, only carries out, with respect to them, the same principles which are applicable to injuries resulting from the transaction of other kinds of bush ness.
Dunn & Another v. Hall,
Neither the framers of the Indiana Constitution nor this Court, past or present, have intended to cloak defamation with immunity under Indiana’s free speech clause. The express inclusion of the “responsibility for abuse” limitation in Section 9 is clear instruction to the contrary.
Numerous other states have expressly relied upon their state constitution’s “responsibility for abuse” provision, finding that it mandated or guided their choice of the negligence standard under the Gertz option. The Kentucky Supreme Court determined that, “while it is our option under Gertz to adopt a standard of fault, Kentucky Const., Sec. 8,
4. What’s Best for Indiana: “Negligence” or “Actual Malice”?
The “responsibility for abuse” clause of Section 9 and the “remedy for harm to reputation” clause of Section 12, separately and collectively, counsel this Court to conclude that, in private defamation actions, media defendants should be held accountable upon proof of failure to use reasonable care, rather than only upon proof of actual malice.
The U.S. Supreme Court has reserved to the states the power to fashion their statutory or common law of defamation as it applies to private individuals because that Court recognized the important, legitimate state interest in protecting the reputations of its citizens. This important value has been memorialized in our constitution and the decisions of our courts, until Aafco. The Indiana Constitution calls us to respect both of the constitutional interests that are in issue here— the free speech interest and the reputational interest. While vigorously preserving the crucial right of Indiana citizens to speak, write, and print freely, we should also preserve the rule of accountability for failure to exercise reasonable care when a private individual suffers harm from the publication of a defamatory falsehood. The applicable standard for private figure plaintiffs should be that of negligence, whether the subject matter is one of public or private concern.
The same negligence standard should likewise apply in defamation cases where public official/figure plaintiffs sue media defendants, but where no matter of public concern is involved. Just like the state prerogative to choose the negligence standard for private figure plaintiffs in matters of public concern, U.S. Supreme Court opinions appear to permit each state to adopt its own standard when the defamatory statements are matters of private concern, regardless of the status of the plaintiff. In these cases, the defamatory statements are not directed to the public conduct of public officials/figures and would thus be beyond the scope of the federal constitutional protections. Thus, I would hold that, to the extent allowed by the U.S. Supreme Court, when public officials/figures bring defamation actions against media defendants and the defamatory speech does not involve his official or public conduct or matters of public concern, the same negligence standard would apply.
5. Preserving Indiana’s Standards of Proof and Appellate Review
In his separate opinion, Justice Boehm asserts not only that Indiana common law should follow the Aafco actual malice requirement, but further that such actual malice must be proven by clear and convincing evidence. I disagree. For the same reasons that I favor the negligence standard rather than actual malice, I am convinced that we should retain our preponderance of the evidence standard
Using the federal independent appellate evaluation of the record standard results in a significant number of jury verdicts being reversed on appeal. This point is graphically illustrated by reports that less than a third of libel verdicts against media defendants survive after independent review. See Nowak & Rotunda, supra, § 16.33, at 1093 (citing Milo Geylelin, Libel Defendants Fare Well on Appeal, Research Finds, Wall STREET J., May 31, 1994, at BIO, col. 1 (midwest ed.)); Seth Goodchild, Note, Media Counteractions: Restoring the Balance to Modem Libel Law, 75 Geo. L.J. 315, 323-24 (1986). Adoption of the federal standard of appellate review and application of the New York Times proof standard (i.e., actual malice by clear and convincing evidence) would mean likely reversal to most jury verdicts awarding damages to defamation litigants in actions against media defendants.
Justice Boehm is also correct in retaining our standard of appellate review because adoption of the federal independent review standard would also detract from the right to jury trial in civil cases which is expressly ensured by Article I, Section 20 of the Indiana Constitution.
C. Conclusion
The majority issued its opinion to elaborate on the state standard of proof required in defamation cases brought by private individuals. It candidly acknowledges that this issue- may not be relevant to this case or properly before the Court, but explains its discussion as appropriate “as it relates to the future of defamation law in Indiana.” Slip op. at 452 n. 7. The facts of the case before us do not present the issue of interest to the majority. This case was not tried to the jury on the basis of the plaintiff being a private individual and thus was not subject to the optional state standards permitted under Gertz. Rather, the trial court here had determined and instructed the jury that the plaintiff, Bandido’s Inc., was a “limited public
Because the trial court determined that Bandido’s was a limited purpose public figure plaintiff, First Amendment jurisprudence as to the actual malice standard necessarily governed this case. This case does not involve the application of a state standard of proof permitted under the Gertz option. It is therefore unnecessary to the resolution of this appeal to discuss the elements of proof for private figure defamation plaintiffs. Because the opinions of my colleagues undertake discussion of an issue not presented by the facts of this case, however, I respond with the foregoing considerations.
The majority’s preference to repudiate the negligence standard of proof in favor of the actual malice standard for private figure defamation cases presents an unnecessary and substantial impairment to the right of injured citizens to seek legal recourse and remedy in Indiana courts. This limitation is opposite to the words, spirit, and history of the Indiana Constitution, contrary to the overwhelming authority from other state jurisdictions, and detrimental to sound public policy. I believe that the majority approach endangers personal privacy, encourages irresponsible journalism, and unnecessarily deprives injured persons of reasonable recourse for harm suffered from defamatory distortions and falsehoods published by entertainment and news media. For these reasons, I dissent.
. The First Amendment provides in part: "Congress shall make no law ... abridging the freedom of speech, or of the press_” U.S. Const. amend. I.
. The designation "public official” "applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Rosenblatt v. Baer,
. The Gertz Court emphatically rejected the Ro-senbloom plurality opinion. Gertz,
. This issue would only arise in a small number of cases involving public officials and all purpose public figures. The involuntary public figures class is small and rare, and such individuals become public figures through no purposeful action of their own. Gertz,
. However, the Gertz Court indicated that the public’s interest in speech about public officials might extend to " ‘anything which might touch on an official's fitness for office.’" Gertz,
.Similarly, Professor Smolla has also provided' the following commentary regarding the implications of Dun & Bradstreet when the plaintiffs are public officials/figures and the subject matter is purely private: "Because the speech is outside of the scope of comment on public officials or public figures to whom the actual malice test applies, those persons may essentially ’revert’ to private figure status, and since the speech is not about a matter of public concern, strict liability may apply.” Rodney A. Smolla, Law of Defamation § 3.04 (1989 ed. & Supp.1998). Professor Smolla continued: "Nevertheless, the implications of Dun & Bradstreet are yet to be worked out, and it seems at least possible that for certain purely private matters, defamatory speech involving public officials and all purpose public figures could revert
. Because of various factors including the burden of other pending cases, particularly criminal cases for which this Court has exclusive constitutional responsibility, the denial of transfer does not necessarily reflect Supreme Court approval of decisions of the Court of Appeals in which transfer is sought. "The denial of a petition to transfer shall have no legal effect other than to terminate the litigation between the parties in the Supreme Court.” Ind. Appellate Rule 11(B)(4).
. The Aafco decision was handed down on December 30, 1974, and the Gertz decision was handed down on June 25, 1974. In his dissent in Aafco, Judge Garrard noted that "at the time the trial court rendered its decision, it was guided only by the plurality opinion of Rosenbloom v. Metromedia, Inc. (1971),
. The Dun & Bradstreet decision was handed down on June 26, 1985.
. Indiana Court of Appeals Judge Garrard has consistently stated his disagreement with the majority opinion in Aafco, and he was joinéd by Judge Hoffman. See Journal-Gazette Co. v. Bandido’s, Inc.,
.See Jean v. Dugan,
In Aafco ..., a panel of the state’s court of appeals held that in Indiana even private figures must establish actual malice, if the statements relate to an issue of public concern.
Aafco puts Indiana among a small minority of states. According to Rodney Smolla, The Law of Defamation § 3.11 (1989 ed.), only four (Alaska, Colorado, Indiana, and New Jersey) require a private-figure plaintiff to prove actual malice. Michigan recently switched to a negligence standard, Rouch v. Enquirer & News,427 Mich. 157 ,398 N.W.2d 245 (1986), and a federal court has predicted that Alaska will follow suit when it has the chance, Sisemore v.U.S. News & World Report, Inc., 662 F.Supp. 1529 (D.Alaska 1987). Moffatt v. Brown,751 P.2d 939 (Alaska 1988), which rejects the “clear and convincing proof’’ requirement in private figure cases, suggests that Sisemore may be prescient. Aafco itself was the product of a divided panel, and in a later case, Patten v. Smith,172 Ind.App. 300 ,360 N.E.2d 233 (3d Dist. 1977), Judge Garrard, the author of the dissent in Aafco, picked up the support of a newly appointed colleague, Judge Hoffman. Patten did not overrule Aafco ....
... If we had nothing but Aafco and Patten to go on, we would think the law of Indiana muddy. Two subsequent cases have followed Aafco, deeming it authoritative. Cochran v. Indianapolis Newspapers, Inc.,175 Ind.App. 548 ,372 N.E.2d 1211 , 1218 & n. 3 (2d Dist. 1978); Elliott v. Roach,409 N.E.2d 661 , 685-86 (Ind.App. 4th Dist. 1980). No Indiana court has disagreed with Aafco, and four years ago we took Aafco to be the established law of Indiana. Woods v. Evansville Press Co.,791 F.2d 480 , 483 (7th Cir.1986). See also Gintert v. Howard Publications, Inc.,565 F.Supp. 829 , 838-39 (N.D.Ind.1983)....
Aafco has drawn adverse comment from several judges of Indiana — not only Judges Garrard and Hoffman but also the panel in Cochran, which expressed doubts but followed Aafco to maintain uniformity. Yet it does not stand alone, and although the trend in other states is against it, New Jersey adopted the actual malice standard even as Michigan abandoned it. Sisler v. Gannett Co.,104 N.J. 256 ,516 A.2d 1083 (1986). New York uses an intermediate approach, Chapadeau v. Utica Observer-Dispatch, Inc.,38 N.Y.2d 196 ,379 N.Y.S.2d 61 ,341 N.E.2d 569 (1975), and decisions of appellate courts in California go both ways, see Smolla (collecting cases). Skepticism among Indiana’s judges is not the same as conflict in decision. Aafco is straightforward and, for the moment, the reigning expression of state law. The Supreme Court of Indiana has had ample opportunity to express a different view and has so far elected not to do so....
Chang,
. Professor Smolla listed Indiana with Alaska (Gay v. Williams,
. Professor Smolla identified the following jurisdictions as having adopted some form of negligence standard in private defamation actions against media defendants: Alabama (Mead Corp. v. Hicks,
. See also Doe v. Methodist Hosp.,
. This statement is well-supported in Anglo-American and Indiana law. The plurality opinion in Doe v. Methodist Hosp. recognized that “[djefamation law has traditionally addressed similar injuries to reputation.”
The right of reputation was early recognized in Anglo-American law, and the machinery of legal redress is at the disposal of any person to vindicate his good name. Many utterances of a defamatory nature are actionable per se and, in the very beginning of the law of defamation, the rule was established that language which imputed a species of misconduct to which the law attached a criminal punishment was actionable per se, without any allegations or proof of actual pecuniary injury. Thus, it is clear that the law recognizes and protects the individual's interest in his reputation from defamation that imputes criminal misconduct, regardless of pecuniary damage....
State ex rel. Lopez v. Killigrew,
. Ala. Const, art. I, § 13; Ark. Const, art. II, § 13; Colo. Const art. II, § 6; Conn. Const, art. I, § 10; Del. Const, art. I, § 9; Fla. Const, art. I, § 21; Idaho Const, art. I, § 18; III. Const, art. I, § 12; Ind. Const, art. I, § 12; Kan. Const, bill of
. Boswell v. Phoenix Newspapers,
. Twenty-three state constitutions specifically include a reputation interest: Alabama, Connecticut, Delaware, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Mississippi, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming. See Ala. Const, art. I, § 13; Conn. Const, art. I, § 10; Del. Const, art. I, § 9; III. Const, art. I, § 12; Ind. Const, art. I, § 12; Kan. Const, bill of rights, § 18; Ky. Const, bill of rights, § 14; La. Const, art. I, § 22; Me Const, art. I, § 19; Miss. Const, art. Ill, § 24; Neb. Const, art. I, § .13; N.C. Const, art. I, § 18; N.D. Const, art. I, § 9; Ohio Const, art. I, § 16; Okla. Const, art. II, § 6; Or Const, art. I, § 10; Pa. Const, art. I, § 11; S.D. Const, art. VI, § 20; Tenn. Const, art. I, § 17; Tex. Const, art. I, § 13; Utah Const, art. I, § 11; W. Va. Const, art. Ill, § 17; Wyo. Const, art. I, § 8.
. Eleven state constitutions specifically identify a character interest: Arkansas, Colorado, Idaho, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, Rhode Island, Vermont, and Wisconsin. See Ark. Const, art. II, § 13; Colo. Const, art. II, § 6; Idaho Const art. I, § 18; Mass. Const, art. XI; Minn. Const, art. I, § 8; Mo. Const. art. I, § 14; Mont. Const, art. II, § 16; N.H. Const, pt. I, art. 14; R.I. Const, art. I, § 5; Vt. Const, ch. I, art. 4; Wis Const, art. I, § 9.
. Compare states identified supra notes 16 & 17, with states identified supra note 13.
. Compare states identified, supla notes 18 & 19, with states identified supra note 13.
. Other than the Indiana Court of Appeals in Aafco, Colorado appears to be the only state that applies the actual malice standard in private defamation actions notwithstanding a state constitution that specifically ensures a remedy for injury to character. Compare Colo. Const, art. II, § 6, with Diversified Management, Inc.,
. Article I, Section 10 of the Oregon Constitution, which provides in relevant part that "every man shall have remedy by due course of law for injury done him in his person, property, or reputation,” is nearly identical.to Article I, Section 12 of the Indiana Constitution. . • .
. The Aafco court correctly recognized that defamation law protects at least two distinct interests of individuals: (1) the desire to preserve certain aspects of their lives from unwarranted intrusion, and (2) the desire to preserve their reputations and standing in their communities. Aafco,
. In footnote 15, the Price majority stated:
In 1851 our law recognized, as it does now, that expression might constitute a tort actionable by a private party, McJunkins v. State, (1858), 10. Ind. 140, even if it was political in nature. Prosser v. Callis (1889),117 Ind. 105 ,19 N.E. 735 (libel action would lie against newspaper for charge that county auditor "botchfed]” county books); Heilman v. Shanklin (1878),60 Ind. 424 (libel action would lie against newspaper for charge of vote buying).
Price v. State,
. The Court repeatedly used the words "responsible” and "responsibility” when referring to defendants being accountable or liable for defama-toiy statements. Dunn,
. The Kentucky Constitution provides:
Freedom of speech and of the press — Printing presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof. Every person may freely speak, write and print on any subject, being responsible for the abuse of that liberty.
Ky. Const. § 8.
. The Oklahoma Constitution states that “[ejv-ery person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right_Okla Const, art. II, § 22.
. The Illinois Constitution provides in relevant part that "[ajll persons may speak, write and publish freely, being responsible for the abuse of that liberty.” III. Const, art. I, § 4.
. The Iowa Constitution provides in part that "[ejvery person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right_” Iowa Const, art. I,§ 7.
. The Virginia Constitution provides in part that "any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right....” Va. Const, art. I, § 12.
. The Wisconsin Constitution provides in relevant part that "[ejvery person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right....” Wis. Const, art. I, § 3.
.In his opinion concurring with the majority. Justice Boehm opines, "[W]e have a quarter of a century of experience under Aafco and so far the harm to the citizenry is not apparent.” Slip op. at 471. With the actual malice rule of Aafco in place during this period, the unlikelihood of success at trial or on appeal would counsel media-defamed citizens against pursuing any legal action or taking an appeal. To the extent that there may have been harm to our citizenry, it thus would not have reached our attention. This lack of cases on appeal does not establish the absence of actual harm to Indiana citizens.
. This is consistent with Justice Boehm's understanding and implied approval of the majority opinion as holding that the negligence standard is applicable to defamation claims based on matters of no public concern.
. Compare Ind. Civil Pattern Jury Instruction No. 35.13 (1989) (pattern instruction for standard defamation cases), with Ind. Civil Pattern Jury Instruction No. 35.33 (1989) (pattern instruction for public official/figure defamation cases).
. "In all civil cases, the right of trial by jury shall remain inviolate.” Ind. Const, art. I, § 20.
. The trial court instructed the jury: "In this case, the statements on which suit has been brought relate to a limited public purpose figure as well as a matter of public interest at least for the purpose of the statements at issue.” Final Instruction No. 2, Record at 850. The plaintiff did not object to this instruction. See Record at 2913.