Journal-Gazette Co. v. Bandido's, Inc.

conviction history, included a 1986 juvenile while intoxicated and operating COMPANY, INC., JOURNAL-GAZETTE theft; circum- facts and conviction (Defendant below), Appellant crime, Willey including that

stances of the crime; v. the dura- and initiated the instigated great “the conspiracy process and tion of the BANDIDO’S, INC., Appellee the bru- planning process;” and care in the (Plaintiff below). a victim who tality against of the murder court The trial “physically infirmed.” No. 57S03-9709-CV-00495. mitigating no circumstances. found Supreme Court of Indiana. im Willey trial court contends the aggravating circumstances properly found as June a reduction of remorse and that his lack the serious depreciate would the sentence address crime. need not

ness of the We single aggrava

these contentions because may sup sufficient

ting circumstance be v. Thacker

port an enhanced sentence. (Ind.1999);

State, Sweany 709 N.E.2d (Ind.1993). State, If 607 N.E.2d v. aggra improperly applies an the trial court exist,

vator, aggravators other valid upheld. enhancement still sentence State, N.E.2d

See Gibson (Ind.1998) State, 690 (citing Blanche (Ind.1998)). light N.E.2d unchallenged aggravating circum

significant

stances, did not find that the trial court we enhanced by imposing its discretion

abuse

and consecutive sentences.

Conclusion Willey’s R. and sen-

James convictions affirmed. case is remanded

tences are This explained clerical errors

for correction

in footnote

SHEPARD, C.J., DICKSON, and SELBY, JJ., concur.

SULLIVAN (65) ment, years; pronouncement you sixty-five odds to the maximum term of but at with the oral II, believe, sentencing COUNT I TO COM- hearing. CONSPIRACY at the FELONY, BURGLARY, the Court MIT CLASS A sentencing trial court’s comments clear- (50) fifty you to sentences the maximum term I, III, merged ly V indicate that Counts into years; of one for a maximum term consecutive II and IV sentenced the defen- Counts and that it (115) days years.” hundred and fifteen Three latter Based on dant on the two counts. Judg- signed later the trial court an Abstract unambiguous oral nature of the trial court’s sen- fifty years ment that sentenced the defendant V, tencing pronouncement, we conclude sixty-five years for Count II for Count later, Judgment Sentencing Order con- Abstract burglary days felony. as a A Class Five errors case sentencing tain clerical and remand this trial court order issued its written Judg- of those that was consistent correction errors. the Abstract Scott, P.C., Fenton,

James P. Eilbacher Walda, Shrader, Bar- Cathleen M. John D. Indiana, Wayne, McNagny, rett & Fort At- torneys Appellant. for Jr., Bauer, Murphy, Edward L. Diana C. Boxberger Murphy, Carson & Robert Miller Connolly, Wyneken Connolly, O’Dowd & E. Indiana, Wayne, Attorneys Appel- permit Fort Health revoked Bandido’s and closed lee. restaurant. In a letter dated October Schindler, Irmscher, to Mr. Dr. Commissioner 'the Board of Public TRANSFER ON PETITION TO Health, stated, permit “This was revoked SULLIVAN, Justice. after a and complete hearing full and review (R. inspections all food 1988.” grappling with the freedom 1155.)' speech provided the First Amendment right of protect- versus the individuals Remley assigned June the task reputations, upon ed from attacks their writing concerning closing an article Court of Appeals determined Bandido’s Wayne Bandido’s for the Fort Journal-Ga- convincing failed to prove clear and evi- zette, daily written, newspaper. Once Wayne dence Fort that the Journal-Gazette story was turned to her supervisor, over newspaper ac- published a subheadline with Jacobs, Gabby the Assistant Metro Editor. agree tual malice. While we the Court story The was Remley and untitled never conclusion, Appeals’s of write to we hold that story again publication. saw the before Ja- proof the required actual malice standard job any cobs’s was questions to resolve involving pub- defamation cases matters of ambiguities generally get story -the general only lic applies concern ready publication. story The then was public figures, but to individuals editor, submitted to the news Ellen Garner. well. lay role story Garner’s was to out the edit,

publication, do an initial sure make Background story the was still current. Garner also de- space termined how much was available for Mexican-style is a Bandido’s restaurant Next, story the and for the headline. the Indiana, Wayne with three locations in Fort story editor, proceeded copy to the Sheila Lima, September and one in Ohio. On Pinkley. Pinkley’s responsibility do was to County the Allen Board of Public story required final edit the which a word inspection Health conducted á health word, Pinkley’s job line line read. was Wayne. north-side Bandido’s in Fort In the any necessary changes also to make to meet report, inspector the identified several viola- spacing guidelines. Finally, Pinkley the following tions and made the relevant re- wrote the the headline and subh’eadline flies, marks: “Evidence of roaches and ro- story are issue in this case. The dents noted. Advise exterminator to do with the headline then was submitted premise. full clean droppings out Rodent Pinkley’s supervisor, Bill Leon- Leonard. (R. 631.) noted in restroom.” Imme- duty approve everything ard’s was to thereafter, Schindler, diately Mr. the owner done, review, had been do a final make sure Bandido’s, received a letter from the Fort layout acceptable, and make the sure Wayne County Board of Public —Allen accurately story. headline summarized advising hearing Health him of a to deter- Editor, story The then Managing went to the permit mine whether the restaurant should story Ellen Garner.1 Garner reviewed the day On revoked. October before editor, Finally, page proof and headline. the hearing, inspector another visited the Jones, errors, typographical Tom looked for purpose gathering restaurant for sole story things problems and headline time, hearing. information for the At this that sort. inspector did not find evidence of permitting rodents. On October published without The article was on October to speak, Mr. Schindler Board of Public and the headline read:2 Ordinarily, Sylvia Manag- surrounding Wayne. as the Smith'worked Indiana counties Fort The evening. Wayne published Editor but was off that final edition is for the Fort provided area. The headline in the ran in text publishes The Journal-Gazette three the first edition con- editions while the second edition' headline, day. each The first edition circulated tained not the in north- subheadline. provided Consequently, western Ohio. The second the trial edition court determined that granted the element of malice and Bandido’s actual shuts doors of board Health summary rats, eatery judgment in favor of Journal- at local find roaches Inspectors Appeals appeal, Gazette. On accurate, sub- story itself was While dispute determined that there were facts inaccurately the word “rats.” used headline conflicting inferences on the issue rats at discovered health board never malice, actual reversed the trial court’s deci- ap- “rats” never and the word Bandido’s sion, and remanded for a trial on the merits. day, next Mr. peared in the article. Co., Bandido’s, Inc. v. Journal-Gazette the Journal-Gazette Schindler advised (Ind.Ct.App.1991), de- N.E.2d 324 transfer immediate retrac- for an mistake and asked trial, jury nied. At the conclusion of Journal-Ga- tion. On October $985,000 damages. awarded Bandido’s in which published another article zette appealed and the Court The Journal-Gazette next apologized.3 The the mistake and noted court, finding Appeals the trial reversed attorney, day, Wright, Bandido’s Robert convincing proof that there was not clear and Journal- and the wrote the Journal-Gazette malice. Co. v. of actual Journal-Gazette attorney expressing his and a letter Gazette’s Bandido’s, (Ind.Ct.App. 672 N.E.2d 969 1996). with the article Schindler’s satisfaction Mr. story, appeared apology and the provide facts when nec- We will additional hope- that the correction would and his belief essary. damages Mr.

fully the suffered reduce Shortly letter was writ- after this Schindler. Discussion lawyer. ten, a new Mr. Schindler retained against suit Bandido’s defamation 18, 1988, Connolly, Ban- Robert On October implicates the Journal-Gazette the First attorney, sent the Journal-Ga- dido’s new to the United States Constitu Amendment 7, indicating that the October letter zette a tion. The First Amendment secures free 1988,follow-up story insufficient because was press.4 It dom of the “was fashioned no reference to a retrac- the headline made interchange assure unfettered of ideas for requested This letter the Journal-Ga- tion. bringing political and social about of print a headline retraction the same zette to changes people.”5 desired New York original story and in the same size as the 269, Sullivan, 254, 84 Times Co. v. 376 U.S. Journal-Gazette did not com- location. The (1964) (quoting S.Ct. 11 L.Ed.2d 686 consequently Ban- request ply with States, 476, 484, Roth v. United 77 on November filed a defamation suit dido’s (1957)). S.Ct. 1 L.Ed.2d 1498 There is 21,1988. principle to the a “national commitment public was no on should be uninhibit The trial court concluded that there debate issues ed, robust, 270-71, respect wide-open.” Id. at 84 genuine issue of material fact with thereof; defamatory. abridging The third exercise or the freedom of edition was not second speech, press; right "Inves- contained a revised subheadline: or of the or the edition rats, assemble, eatery.” tigators bugs people peaceably petition at north-side find and to government grievances. a redress of titled, says "Owner Bandido’s 3. The article was today.” paragraph likely reopen The third goal protecting speech 5.The First Amendment following story contained the relevant state- Smith, purposes. Gerald R. serves several Of ments: (1992). Men, Val. U.L.Rev. 43 Malice and 27 error, editing headline—not Because of an First, free flow of information in the 'mar- ”[t]he story Thursday’s Jour- some editions —in vitality ketplace of ideas’ ensures the of a demo- inspectors had found rats and nal-Gazette said govern- government, provides cratic a check on bugs restaurant. abuse, among mental and aids in the choices found at the restau- No evidence of rats was Second, competing opinions options.” apologizes for the inac- rant. Journal-Gazette valve, "[fjreedom speech safety also acts as a curacy of the headline. reducing the incidence of more destructive (R. 1203.) expressing modes of dissatisfaction.” And final- following: provides the ly, self-fulfillment, expression promotes 4. The First Amendment to free also ”[t]he growth personal Congress respecting an es- and self-realiza- law shall make no the free tion.” Id. at 44. religion, prohibiting tablishment of

451 partic 710. The First Amendment has 279-80, S.Ct. whether it was false or not.” Id. at ularly protected press because is the thereafter, 84 S.Ct. Supreme 710. Soon through public means informed Court requirement determined that the same government actions and other matters of “public apply figures.” should Curtis However, rights Butts, interest. under Publ’g v. 388 Co. U.S. absolute, (1967). the First Amendment are not S.Ct. 18 L.Ed.2d 1094 Several weighed against must be other societal later, years Metromedia, in Rosenbloom v. society example, interests. For because has rejected any the Court distinction between a strong in protecting upon interest attacks individual because it made reputation, the individual law of defamation “no sense in terms First Amendment was created. A communication 29, 46, guarantees.” U.S. 91 S.Ct. defined as to harm one “tends so (1971). Instead, 29 L.Ed.2d 296 the Rosen- reputation of another as to him in the lower bloom Court controlling determined that the community estimation of the deter or to third in determining' issue when the New York associating dealing persons from with Times applied standard actual malice Hospital, him.”6 Doe v. Methodist whether issue concerned a matter of (Ind.1997) N.E.2d (quoting Restate Rosenbloom, general concern. (Second) (1977)); § ment of Torts see U.S. at Org. Hair, Community Near East Side later, years Three observing that there (Ind.Ct.App.1990); N.E.2d problem had been “general reconciling Indianapolis Cochran v. Newspapers, the law of defamation with the First Amend- Ind.App. 372 N.E.2d ment,” Supreme Court reconsidered its (1978). decision in Rosenbloom. Gertz Robert process reputation, In the of protecting Welch, Inc., placed limitations have been freedom (1974). so, doing 41 L.Ed.2d 789 speech. was a of long of This result the Supreme Court determined “that the state standing principle that defamation was not interest in compensating injury repu- to the protected speech, Chaplinsky Hamp- v. New private tation of requires individuals that a shire, 568, 571-72, 62 S.Ct. 86 respect different rule should obtain with to (1942), L.Ed. 1031 and therefore could be them.” Id. 94 at S.Ct. 2997. Conse- legislated individually. by the states Howev- quently, changed the posi- Court its Supreme er, the of dramatically law defamation has negligence tion and that a decided standard changed in the last few decades. In the imposed would be for defamation suits Times, landmark decision of New York 376 brought by private in individuals federal U.S. 84 S.Ct. the United States court, up but left to define States to for Supreme placed liability Court limits the appropriate themselves the of liabil- standard just defamation. New for York Times was ity defamatoiy for about statements made beginning Supreme the the of Court’s at- private individual. Id. at 94 S.Ct. 2997. tempt to confine the state laws on defamation privileges. to conform with First Amendment Appeals The of Indiana Court defined the Times, apply In standard it New York the would for defamation of Supreme Court Heating in private that individuals & Air held the Constitution mandates “a feder- Aafco Publications, prohibits Conditioning al rule that Co. v. public official from Northwest recovering defamatory Ind.App. for 162 N.E.2d damages false- 321 580 (1974), denied, relating hood official unless he cert. 424 to his conduct U.S. (1976).

pi’oves Aafco, made the statement with L.Ed.2d was is, knowledge ‘actual of Appeals malice’ —that that Court decided to continue with disregard approach applying it was false or with reckless of the Rosenbloom of aging reputation to or in a “Whether is another time differ [a communication] factors, place.’" ‘depends, temper Rosenberg, among upon the ent other Schermerhorn (1980) times, public (quot of A.D.2d contemporary 426 N.Y.S.2d of current words, Chesley, opinion, Mencher 75 N.E.2d harmless in N.Y. with the result that (1947)). age, highly community, may one dam- in one involved, individual is or because in some actual malice standard New York Times concern, ‘voluntarily’ irre- did general sense individual public of or matters public’s choose to allegedly defamed become involved. spective of whether event; private primary public interest is in or individual. plaintiff public was a participant since focus is on the conduct of the Although it over two decades has been effect, content, of significance and approach adopted this conduct, an- participant’s prior to ad- not the opportunity first Appeals, is our notoriety.” onymity liability required dress standard of claiming defamation. private individuals Aafco, (quoting at 586-87 Rosen N.E.2d 1811). bloom, S.Ct.

I Appeals properly Indiana Court of noted that applying negligence private standard to Today, expressly adopt the we Aaf actual individuals and an malice standard establishing actual malice approach an co figures society public “assumes that has a public general con in matters of standard repu greater protecting ‘private’ in interest For private plaintiffs.7 cern individual community safeguarding tation than nearly twenty-three years the law in Indiana standing repute ‘public officials’ and private individuals and has been that both ” ‘public figures.’ Id. at an as 587. Such figures prove malice in public must actual sumption exist in does not Indiana matters order to in a defamation suit. As we recover occasions, public general concern “[t]he where have commented on numerous we figures reputations offi high precedent place a value on adherence to quantum merit protection cials the same primary providing the as a instrument as those of private citizens.” Id. body predictable of our state a people pressing find no reason law.8 Because we Second, instanc- we believe most law, affirm to be the change we Aafco disparity ability es there little in the in Indiana. law versus individuals obtain access “to commu- the channels effective uphold also based Our decision Aafco nication” order “counteract false strong protecting on our commitment to Gertz, statements.” But see 418 U.S. at expression speech provided freedom (stating public fig- First States Amendment the United easily ures can false state- believe, more rebut commitment, Constitution. Such we ments due to increased access to communi- of persist irrespective should the status of an channels). cation alleged plaintiff. defamed subject Only public rarely public public a of or a or [sic] “If matter is will official interest, suddenly figure general prominence it cannot be- attained sufficient merely private to come less so because a commend media attention which will Background, supra, object 7. As stated the trial dido's did to this under not characterization at judgment (R. 850.) initially granted summary in court fa- trial. To the that extent Bandido’s appealed vor of the Journal-Gazette. Bandido's limited-purpose figure, public was tried as a judgment grant summary in the of holding in is not to resolve relevant Aafco remanding of to the for a course trial court trial properly case at the issue hand nor is before this merits, Appeals to on the the Court referred Nevertheless, appropriate Court. we find it to Bandidos, “private Bandido’s as a individual.” address our view on it relates to as Aafco Co., 324, 326 Inc. v. 575 N.E.2d Journal-Gazette future of defamation law Indiana. trial, (Ind.Ct.App.1991). During jury published instructed if the con- material Parker, (Ind. 8. See Nelson v. 687 N.E.2d concern, public general cerned an or event 1997) importance (recognizing the of settled required prove by then Bandido's was to Aafco stability property rules in is desir- law and that (R. 882.) actual malice. A determination of outcomes); State, predict able to Marsillett controversy general public a whether is or (Ind. 1986) ("Under N.E.2d the doctrine question concern is a of law to be determined decisis, principle of stare this Court adheres to a judge jury. Consequently, the trial and not the firmly law Im- provide which has been established. was error for the court to this instruc- portant policy jury Bandi- considerations militate in favor of tion. The was also instructed that law.”). public figure continuity limited-purpose predictability Ban- do’s is a in the provide meaningful ly produce chance to rebut and paradoxical result of damp- against defamatory defend falsehood. ening discussion of public issues of or in the adequate Even rare ease where an general they concern because happen to afforded, opportunity reply it is un- private involve extending citizens while likely that the rebuttal statements will re- encouragement constitutional to discussion degree public ceive the same attention aspects “public figures” lives of published ap- as the defamation. It would that are not in the public area of gen- or pear proper that the solution for lack eral concern. citizens, part of access on the of all wheth- Rosenbloom, 403 U.S. at 91 S.Ct. 1811. “public” “private” expan- er or is not the defamation, right sion of the to sue for acknowledge appeal argu We passage creating rather the of state laws a ments made in Gertz and think that the news respond limited fal- heavy media bear a responsibility moral not sehoods. private invade the of private lives citizens omitted). (footnote Aafco, 321 N.E.2d at 587 respect with to their private affairs. And Third, public figures’ do, we do not find that they when damage their voluntary exposure public scrutiny neces- reputations, own but undermine support for sarily non-public figures greater entitles But, their protections. First Amendment protection from defamation. responsibility moral is not in this context argument view, public pub- legal liability. officials and identical to In our im figures posing

lic assume the risk of defamation legal liability only when the news by voluntarily placing in the engage themselves media in conduct with actual malice public eye misconception is a of the role public general matters of or concern pro every expected citizen play in a rights tects the and values embodied in the system participatory self-government. First Amendment to the fullest extent. A citizen, Every necessary part living negligence standard in matters of or society, must assume the risk of media general concern for likely individuals involved, comment when he becomes would the news media to censor sto require voluntarily involuntarily, whether or in a general ries of concern avoid general matter of It interest. publication of controversial articles. See long recognized “[e]xposure has been Aafco, 321 N.E.2d 588. This is because a of the self to varying degrees others in is a negligence permit private standard would in concomitant of life in a civilized communi- dividuals to judgments obtain favorable ty.” the basis that the news media failed to use (alteration uncertainty original) (quoting Id. at 588 reasonable care. “The attendant Time, Hill, upon Inc. v. reasonable care standard would (1967)). 534, 17 L.Ed.2d 456 charge press The Rosen- ‘the intolerable burden responded arguments bloom Court to similar guessing jury might how assess the following manner: steps verify reasonableness of taken it to name, accuracy every “public” idea reference to a figures [T]he that certain ” Time, picture portrait.’ voluntarily exposed (quoting have their Id. 385 entire lives 534). 389, 87 public inspection, U.S. at while individ- S.Ct. Such a rule would kept carefully uals theirs curtail the press shrouded freedom of the and under is, best, public legal view at mine attempt protect speech fiction. our that re event, In a distinction public general such could easi- lates to matters of concern.9 Aafco, plaintiff 9. See 321 N.E.2d 588-89. for the as most serious. Not does it mulct the defendant for an innocent mis- preponder- "In [the .the normal civil suit where error, possibility ... statement but the of such employed, evidence] ance of the standard is beyond vagueness negligence even of the general 'we view it as more serious for there itself, strong impetus standard would create a to be an erroneous verdict in the defendant’s self-censorship, toward which the First Winship, favor.’ In re 397 U.S. 90 Amendment cannot tolerate.” 1068, (1970). Rosenbloom, 50, 25 L.Ed.2d 368 In libel (quoting Id. 403 U.S. at 91 S.Ct. cases, however, 1811) (alteration added). we view an erroneous verdict 454 reasons, objection no was made foregoing adopt we struction to which For all case). becomes law and hold it to be the law

the rule in Aafco Indiana. Moreover, sought even had Bandido’s limited-purpose to contest its status as a

II authority public figure, we conclude that the squarely against cuts such a parameters of this issue exploring challenge. Restaurants and other establish status, United Su public figure States actively ments that advertise and seek com two classes of preme Court established routinely patronage mercial have been held limited-purpose figures: general-purpose and public figures, at least for the limited to be Gertz, 418 U.S. at 94 public figures. purpose reporting on their of consumer figures purpose public “General S.Ct. 2997. See, e.g., goods and services. Steaks Unlim per ‘achieve such are those individuals who (3d ited, Deaner, F.2d Inc. v. notoriety [they] be vasive fame or Cir.1980); Quantum Elec. v. Consumers Un figure purposes for all and in come[ a] States, F.Supp. ion United ” En all contexts.’ Trotter Jack Anderson (D.R.I.1995); Co. v. Jacor S & W Seafoods Cir.1987) (5th ters., Inc., 818 F.2d Atlanta, Ga.App. Broad. of Gertz, (quoting 418 U.S. at 94 S.Ct. 2997 (1989); S.E.2d v. Columbus Greer (both original)). Consequently, alterations Monthly Publ’g App.3d Corp., Ohio general fame or clear evidence “[a]bsent (1982). O.B.R. 448 N.E.2d notoriety community, pervasive Hence, necessarily Bandido’s while society, involvement in the affairs of an indi public figure have been a before the health person a public vidual should not be deemed restaurant, department closed the we find Gertz, ality aspects for all of his life.” certainly public figure that it became 352, 94 In the case of U.S. at S.Ct. 2997. purpose concerning the limited of issues purpose public figures, achieve limited department’s report health circum by “thrust[ing] themselves to the their status giving closing stances rise to the of the res particular public forefront of controversies taurant. order to influence the resolution of issues involved.” Id. 94 S.Ct. 2997. Ill Bandido’s contends that the Court of public fig an individual is a Whether Appeals proper exceeded the standard question is a for the court to ure law determining review in that there was insuffi Baer, resolve. Rosenblatt v. support jury cient evidence verdict (1966). 15 L.Ed.2d 597 In the published that the Journal-Gazette the incor case, present dispute there was no as to rect actual malice. subheadline with Addi Bandido’s status. The trial court instructed tionally, suggests “appli Bandido’s that the jury limited-pur Bandido’s was appellate cable standard of review in a libel pose public figure, lodged Bandido no case whether evidence and reasonable objection to this characterization.10 Given support inferences drawn therefrom the ver made, objection that no we find this Appellee’s dict.” Br. 2. The Journal-Ga binding instruction to be on Bandido’s and appellate zette contends that court sufficient to establish its status as a limited- independent should undertake an and search purpose figure. See Groves First ing review of the record to determine wheth Valparaiso, Nat’l Bank 518 N.E.2d proof. er Bandido’s has met its burden of (Ind.Ct.App.1988) (finding agree an 824 in- We with the Journal-Gazette.11 stated, figure, perti- 10. The trial court’s instruction 11. Because Bandido’s is a see Part case, part: upon II, nent "In the statements supra, appellate we do stan- not address brought which suit has been relate to a limited reviewing employed dard of review to be purpose figure as well as a mater of judgment involving case in a defamation matters purpose interest at least for the of the statements (R. 850.) at issue.”

455 Times, (1982); In New York the United States S.Ct. 73 L.Ed.2d 1215 Green Supreme Cooperative Publ’g Bresler, Court determined that because belt Ass’n v. 6, 11, required malice was for libel proof (1970); actual U.S. 90 S.Ct. 26 L.Ed.2d 6 by public plaintiffs, brought Thompson, actions official Amant St. v. 390 U.S. 732- judicial required (1968)) (In effective administration re- 88 S.Ct. 20 L.Ed.2d 262 issues, of the entire record to determine raising view wheth- cases First Amendment “an constitutionally support appellate er the evidence could an obligation court has to ‘make an independent judgment. U.S. at S.Ct. examination of the whole rec ”). Additionally, following the Court made the ord.’

comments: In justifying independent the use of an duty This is not Court’s limited to the examination, Supreme Court stated that principles;

elaboration of constitutional we “the independent rule of assigns review proper must also in cases review evi- judges a constitutional responsibility principles dence to certain that make those cannot be delegated fact, to the trier constitutionally applied. have been This is factfinding per- function be whether case, such particularly question since the particular jury formed in the aby case alleged trespass is one of judge.” across “the line a trial Corp., Bose unconditionally speech guaran- between 104 S.Ct. 1949. speech may legitimately

teed and which be The requirement of independent appel- regulated.” cases In where that line must late review reiterated in New York Times drawn, rule is “examine that we Co. v. is a Sullivan rule of federal constitu- ourselves the statements issue and the tional emerged law. It exigency from the they under circumstances were eases; of deciding concrete it is law in its made to ... whether see are of a purest form under our law heri- common the principles character which of the tage. First It a deeply reflects held conviction Amendment, adopted by as the Due Pro- that judges particularly Members of —and cess Clause of Fourteenth Amend- this Court —must exercise such review in ment, protect.” order to preserve precious We must “make an inde- liberties record,” pendent examination of the whole established and ordained the Constitu- question so as to tion. The judg- assure ourselves that the evidence whether a' ment record in defamation is of not constitute a forbidden intru- ease does clarity convincing required strip expression. sion on the of free the ut- field terance of protection First Amendment (omission (citations omitted): original) Id. merely question for the trier of fact. Rosenbloom, emphasized the Court that it Constitution, Judges, expositors an ‘obligation challenged judg “has to test independently must decide whether the ev- against guarantees ments the First idence in the record is to' sufficient cross Amendments,’ doing and Fourteenth and in bars constitutional threshold that making independent so cannot ‘[it] an avoid entry any judgment not sup- judgment constitutional on the facts of the ” ported by convincing proof clear Rosenbloom, case.’ 403 U.S. at 91 S.Ct. “actual malice.” Ohio, (quoting Jacobellis v. 378 U.S. 510-11, Corp., Bose 466 U.S. at 104 S.Ct. 184, 190, (1964) S.Ct. L.Ed.2d 793 principle This recently reaffirmed (alteration added)). “The simple fact is that Hurley aby Court in unanimous Irish- questions First Amendment of ‘constitutional Gay, Group American Lesbian & Bisexual compel fact’ this Court’s de novo review.” Boston, Inc., 515 U.S. Id.; Corp. see also Bose Consumers Union 2338, 132 (1995). L.Ed.2d 487 States, United 466 U.S. (1984) (quoting language S.Ct. L.Ed.2d 502 We believe the in the cases cited Times, U.S., 284-86, New York supra Supreme indicates that the has citing NAACP v. Claiborne appellate indepen- mandated that courts use Co., 886, 933-34, Hardware dent examination whole record as the general or concern and indi- vidual a private plaintiff. 456 by proof subjective may mal- fact and be shown indirect review when actual

standard of Zerangue See v. matter of federal consti- circumstantial evidence. required ice as a (5th 1066, Newspapers, 814 F.2d 1070 in cases. TSP tutional law defamation Cir.1987) Lando, (citing v. 441 U.S. Herbert 153, 165, 1635, 60 L.Ed.2d 115 99 S.Ct. IV Communications, (1979)); 491 Harte-Hanks part analysis, of our we In the final 668, 109 U.S. at S.Ct. 2678. the evidence to determine must review sup there was sufficient evidence whether there is question whether malice. hold that port finding a of actual We support finding evidence to a sufficient the evidence was insufficient. question actual malice is a of law to be by determined the court. See Harte-Hanks by Actual malice must be shown Communications, 685, at 109 S.Ct. 491 U.S. convincing Heeb v. clear and evidence. 510-11, (citing Corp., 2678 Bose 466 U.S. at 416, Smith, (Ind.Ct.App. 613 N.E.2d 419 1949). premised 104 S.Ct. This rule is 1993) Liberty Lobby, (citing Anderson v. (1) important considerations: the “na two 242, 106 2505, Inc., S.Ct. 91 L.Ed.2d 477 U.S. exchange tional commitment to the free 52, (1986)); Rosenbloom, 202 see 403 U.S. at Amendment;” ideas, as enshrined the First exists 91 S.Ct. 1811. Actual malice when “ (2) recognition ‘[j]udges defamatory statement publishes defendant a duty of the Constitution’ a expositors knowledge that it was false or with “with ‘independently decide whether the evidence disregard reckless of whether was false is sufficient to cross the consti the record Times, 279-80, not.” New York 376 U.S. at entry tutional threshold that bars 710; 84 see Masson v. New Yorker S.Ct. judgment by supported that is not clear and 496, 510, Magazine, 501 111 S.Ct. U.S. ’” convincing proof of “actual malice.” Id. at 2419, (1991); 115 L.Ed.2d 447 Harte-Hanks 686, (quoting Corp., 109 S.Ct. 2678 Bose 466 Communications, Connaughton, 491 Inc. (alteration 511, U.S. at 104 S.Ct. 1949 U.S. 109 S.Ct. L.Ed.2d original)). supra in III We discussed Part (1989); Gertz, 418 U.S. at 94 S.Ct. the need to conduct an examination of “the 2997; Rosenbloom, 403 U.S. at 91 S.Ct. factual record in full.” Id. at 109 S.Ct. Co., 1811; Publ’g Curtis 388 U.S. review, independent piece each 2678. In an S.Ct. 1975. conduct is not mea “[R]eekless cumulatively. of evidence be considered by reasonably prudent sured whether a man 689, 109 S.Ct. 2678. See id. published, would have or would have investi Amant, gated publishing.” there before St. Bandido’s contends were five significant pieces indicating U.S. at 88 S.Ct. 1323. To demonstrate of evidence disregard, published reckless must be suffi the Journal-Gazette the inaccurate “[t]here permit newspaper cient evidence to subheadline actual malice: conclusion that (1) printing using the defendant in fact entertained serious a subheadline the word (2) id., “rats”; publication,” warning provided doubts as to the truth of his the Allen proof publication Superior that the was made Court when it ruled “that false degree “high inspection reports might with a of awareness of their disclosure of the Louisiana, probable falsity,” improper interpreta- Garrison v. 379 result in inferences or 64, 74, U.S. 13 L.Ed.2d tions as to the S.Ct. seriousness violations , (3) (1964); noted;” job see evaluations two Journal- Masson (4) 2419; Communications, employees; Harte-Hanks Gazette the Journal-Gazette’s Hence, publish U.S. at 109 S.Ct. 2678. failure to retraction accordance (5) 34-4-15-1; § defendant’s actual state of mind is a critical with Ind.Code the sub- Lando, analysis. appeared factor in the See Herbert v. headline in the first and final edi- Journal-Gazette, 60 L.Ed.2d tions of the but not in the (1979); piece see also Woods v. Evansville second edition. review each We (7th Co., Cir.1986); any of these Press 791 F.2d evidence to determine whether (5th Arcell, Long convincing clear and 618 F.2d items alone shows Cir.1980). A that the Journal-Gazette acted with defendant’s state mind is evidence or the cumu- actual malice whether evidence A-l latively suggests actual malice. inquiry Our first is to decide whether the and the subheadline article should be read

A together independently in order deter- to mine the whether subheadline was defamato- question It is a for the law ry. court decide consid to whether statement entirety capable in its possessing ered is Both Bandido’s and the Journal-Gazette Woods, defamatory meaning implication. rely Communication, on Sprouse Clay v. (citing Indianapolis 791 F.2d at 486 Rose v. Inc., (1975), 211 S.E.2d 674 W.Va. (7th Newspapers, 213 F.2d authority the determination of whether Cir.1954)). susceptible If a statement is the subheadline and the article be should defamatory non-defamatory both mean together read or separately. Sprouse, In interpretation ings, the matter of should be court following made the statements: jury. impose left Id. order defamation, Generally where the headline is normal liability for United States size does not lead to a conclusion requires Constitution a false statement Heeb, totally unsupported body in (citing fact. 613 N.E.2d at 421 Hustler story, Falwell, story both headlines and should be Magazine 485 U.S. (1988)); together impres- their considered total Philadelphia 99 L.Ed.2d 41 see However, sion. where oversized Hepps, Inc. headlines Newspapers, (1986) published reasonably are which lead the L.Ed.2d entirely average to an con- reader different (noting a statement on matters of body clusion than the facts recited in the must provable concern as false before story, plaintiff and where the can dem- liability there can be under state defamation law). pub- onstrate that it was intent of “[T]he statement is not considered misleading lisher to such use headlines to false unless it have a “would different effect impression create a false on the normal on the mind of the reader from that which reader, the headlines be considered pleaded truth produced.’” would have Masson, separately regard with to whether a known 501 U.S. at 111 S.Ct. 2419 Sack, Libel, published. Slander, falsehood was (quoting R. and Relat (1980)); Heeb, ed Problems 138 see added). (emphasis Id. at 686 (citing Counseling at 421 N.E.2d AIDS & Television, Inc., The Testing Group Sprouse Centers v. court viewed the inde- W headline (4th Cir.1990)) (“The pendently emphasized 903 F.2d 1000 of the article test for determining doing its reason whether a so “because statement is substan plaintiff newspaper tially proved is that the abdicated true whether inaccuracies caused fairly reporting its traditional role of produce statement to a different effect on produced participant than news and audience would have been became a scheme plan, object employ spoken.”); had the literal truth been of which was to Coch (“In ran, grossly exaggerated patently N.E.2d at 1217 untrue as- determining sertions, headlines, primarily embodied meaning possible, whether a destroy Sprouse.” the character fairly the test is the effect Id. article case, produce In this there is no evidence that impression calculated naturally engender the Journal-Gazette con- engaged would in the mind of the such Jacobs, person.”); average duct. McIlvain v. 14, 16 (Tex.1990) (Substantial

S.W.2d truth is jurisdictions majority sup an absolute defense defamation actions “The port and the test is “whether the defama are con alleged rule headlines to be tory conjunction damaging [plain accompany statement was more strued in their reputation, Trentonian, average tiffs] in the mind of the articles.” Molin v. (1997) listener, than a N.J.Super. truthful statement would 687 A.2d been.”). cases). However, (citing there some are (second horn, 426 283 alteration jurisdictions newspaper hold that N.Y.S.2d at which a See, e.g., original));12 in Reardon News-Jour- is libelous. Las Ve see headline alone (Del. Co., Franklin, 265 Sun, 74 nal 53 164 A.2d gas Nev. 329 Del. Inc. v. 1960) (“[T]he (Nev.1958) (Because may “pub sting of a libel sometimes the P.2d 870 headline,” only used in a lic the the be contained in a word or sentence frequently reads article, may apart body its headline to of the even be construed the headline article.). correctly forth minority jur though Some the are set in the accompanying facts body.”). adopted what is as isdictions known Burgess the rule. See v. Re “fair index” minority jurisdictions agree the We Publ’g Corp., 146 Vt. 508 A.2d

former rule for the rea- that follow the “fair index” (1986); Schermerhorn v. Rosen 1363 adopt ap- herein and sons mentioned 276, 426 berg, A.D.2d N.Y.S.2d determining a proach when whether headline (1980); Lacy, 228 Kan. Hein to be defamatory. is believe this We (1980); Bray v. Providence P.2d many respects, approach in a best because Co., R.I. Journal A.2d defamatory may inju- more headline be much (1966). the fair index Under rule: defamatory party rious to a than a article a fair accu- “If the headline is index of an may where the false statement be buried in article, not If it is not it is actionable. rate story by the go average unnoticed and fairly a index not [ fair indicate —does when an especially reader. This is true indi- the matter it re- substance of reads the headline and not the vidual then the headline be exam- ] must fers — Indiana, story. defamatory In a headline independently determine whether ined story following be even if the will actionable general under principles it is actionable accurate, is a it is unless the headline fair libel.” index article. determin- “[I]n accurate Burgess, (quoting 508 A.2d at 1363 Scherme fairly ing indicates whether a headline (alteration rhorn, at 283 in 426 N.Y.S.2d refers, substance of the matter to which original)). deciding to fair in follow the the headline and article must be considered rule, Burgess dex court remarked that it together.” Burgess, 508 A.2d at ignore ‘many people the fact that in “cannot busy society a are read: and headline read The headline in this case “Health hurried ers,’” and (quoting Guy Cross v. Board of Bandido’s” id. Gannett Shuts Doors Co., rats, Publ’g “Inspectors 151 Me. subheadline read: find A.2d (1956)), “[although eatery.”13 interpreta- One and that ‘the roaches local tion, may logical, of meaning dispelled by perhaps of the headline be the most ..., reading a the entire article that Bandido’s was shut [a] head subheadline is down rats by line often all that is read because the health board found the casual (or separately bugs) and therefore carries roaches at the restaurant. The reader potential injury to be great as other article which has been deemed accu- as states restaurant was publication,’” (quoting false id. Schermer- rate closed Burgess agreed jury regarding publication álso a court court with the follow- or as body comments made the court in Black v. libelous of the article is when Co., Publishing Tenn.App. Banner necessarily Nashville so." (1939): Black, 141 S.W.2d 908 Burgess, (quoting 508 A.2d at 1363 (omission original)). S.W.2d at 912 paragraph, of an article “The headline being conspicuous so as attract the attention 13. This is how the subheadline read first casually persons paper who look over contents, earlier, edition. As mentioned the subheadline carefully reading may all its without edition was deleted from the second and the very injury upon per- in itself inflict serious following son, may third edition contained subhead- only part both because it be the rats, read, bugs “Investigators line: finds north-side may article which is because it cast a eatery.” acknowledge graver imputation We do headline than all the other words type following published publica- is in bold face and oversized it. There is no doubt subheadline, libelous, while tions ... claimed to be and the smaller than the the headlines headline, directing publication may larger than the text of attention to the somewhat it, part justify considered as a even article. rats, mice, beavers, evi- including including squirrels, etc., health violations “because of rodents.” The by constantly dence of insects and article characterized growing incisors goes significant mention some adapted on to gnawing nibbling; esp., cited the health board. The popular usage, violations (emphasis rat mouse.” added). clearly impression creates subheadline Rat “any is defined as of numerous solely ..., that Bandido’s was closed because long-tailed resembling, larg- rodents (or discovery bugs) than, the of rats14 and roaches mouse; er very the ... rats are de- addition, conjures up depiction a and in pests structive and carriers of highly conta- not entirely the which is accu- restaurant disease, gious plague, as typhus, bubonic such, pressed to rate.15 As we are hard definition, etc.” by Id. As indicated the the was a in- conclude that subheadline fair every although is a every rat rodent rodent is story. Consequently, dex of the we examine necessarily a rat. Rodent a more is independently the subheadline determine generic term spe- whereas rat a denominates is and whether the subheadline type cific of rodent. principles.16 under libel actionable trial, During Bandido’s that if contended A-2 the headline the had used words “evidence droppings” “rats,” rodent the instead of there To determine whether subheadline dispute would be no and the defamatory, impact we must decide whether the sub- would (R. nearly the word was not have been the stitution of “rats” “rodents” same.17 at 1346.) (3d Dictionary During false. New World the direct examination of Webster’s ed.1988) “any very Remley, defines rodent as of a June author article and not (Rodentia) gnawing subheadline, large order mammals the Bandido’s had the witness discovery paragraph although 14. The reference to subheadline’s the article that the accurate, entirely relationship subheadline of rats in and of itself is not mischaracterized the plaintiff the developer, between and the it substantially was is at least true. See Part A-2 infra "not libelous as a of law matter in view the for a discussion this issue. accompanying Similarly, in clarification." Con- Mission, Times, Co., temporary Inc. v. New York Ashburn, Bandido’s, provid- 15. Jan a witness for (2d Cir.1988), 842 F.2d 624-25 a subhead- following testimony ed when her the asked what inaccurately priests’ line that stated certain ordi- the was: reaction to subheadline forged nations were when the that truth was the supporting was, uh, documentation the had Uh, ordinations really upset I I in shock and was forged. been The court determined even that thinking running about rats. I envisioned rats though the subheadline the mischaracterized through. sitting I at a envisioned restaurant controversy, by the the subheadline followed like, uh, say my deposition, much as I I’ve accurately article clarified the subheadline some, uh, quite traveling, done a bit of so I held thus that the statement was not defama- some, places envisioned some that we tory. some been in third world countries where uh, just, you there was couldn't eat meal pf depth 17.After an in cross-examination Mr. of, bugs filthy because and the condi- Schindler, restaurant, owner Bandido’s I, And so tions. that’s what when I looked at regarding all the health violations of restau- I the headline that’s what Was envisioned. years rant in recent and the other violations rats, completely just filthy conditions. With I September noted the Board of Health in the with, equate rats with filth. 13, 1988, inspection which the evi- discovered (R. 1991.) Zuber, Beverly at another witness for following droppings, dence rodent collo- Bandido's, testified that when she read sub- quy occurred: headline, appalled" "imagined she "was think, Sir, Alright. you Q: Don’t that those are jumping white rice [of] bowls and rats from bowl things might all that influence or not whether (R. 2014.) bowl.” people want to eat in a restaurant? impact A: I think don’t it would have near the 16. We note that in Woodcock Journal Publish- headline, question. as rat if that’s Co., (1994), 230 Conn. A.2d you you'd Q: think been a if So lot better off alleged plaintiff that a subheadline was libel- said, , inspec- headline wouldn’t would have sai— developer ous because it indicated who that droppings, tors find rodent roaches local eat- by plaintiff's proposal benefited was a business ery? develop- Uh, associate whereas the was that , truth it. It A: didn’t find would be it mis— relationship er had a business with other mem- wrong. report. still be On would Read plaintiff’s family. says They bers of court determined back it "evidence of”. never found inaccuracy first was clarified first one. dirtiness, false in no manner made tions “were “rat” connotes agree that the word infection, usage disease, substituting the word common filth, pestilence, (footnote omitted); Orr v. 1609.)19 (R. agree legalism”) would an exact We plague.18 (6th Co., Argus-Press ideas and F.2d such “rat” connotes the word Cir.1978) use of the supports (conceding rat such that while that the definition find However, agree that use of more serious imply do not we “word ‘swindle’ belief. ..., created the word wrongdoing than was involved “rat” is so distasteful word than so different colloquial speech that was impression frequently an used ”). the Journal- had been created for ‘defraud’ would have substitute “evidence of rodents” words Gazette used the had read “inves- Clearly, if the subheadline See Mas droppings.” of rodent or “evidence rodents,” the aver- tigators find evidence of Magazine, son v. New Yorker infer that there were ro- age reader would 115 L.Ed.2d 447 Ordinarily, in the restaurant.21 dents (1991) will a “false” statement (providing that as habi- types perceived of rodents are two mind). on the reader’s effect have a different Thus, and mice. tating in a restaurant —rats “evi- had used the words if the subheadline “rat” is say that the word might One average the reader dence of rodents” and proper term the more usage for common restaurant con- inferred from this that the used in collo “rat” is often “rodent” or that rodents, average reader then the tained See refer to “rodent.”20 quial speech to likely Int'l, Inc., just conclude that there must would Press 654 Simonson v. United Cir.1981) (determin the restaurant22 (7th either mice or rats in 478, 481, 482 F.2d “ “mice” in that the use of the word usage We doubt common ing ‘rape’ as defined that damag- been less the subheadline would have second-degree sexual as incorporated into “rats.”23 Addition- publica ing the than use of the word law” and sault under Wisconsin Morning Ledger 1346.) (quoting Herrmann v. Newark at os Co., (1958)). N.J.Super. A.2d 61 any- she could think of 18. When asked whether nice, thing by way from rat that is of connotation During deposition, wit- a one of Bandido’s sir, "Well, Remley responded, I’m aware June hears the term “ro- nesses stated that when she pets keep people dents,” (R. 2018.) do them as so that some at Another she thinks of rats. very acceptable they are considered during deposition some circles witness stated Bandido's 1609.) (R. pets.” at that when she sees which was at trial admitted mice; "rodents,” howev- the word she thinks er, the word "ro- even if the headline had used Remley’s deposition read into the 19. June dents,” gone back to the she still would not have reading respons- witness her record with another (R. 2024.) restaurant. at es. trial, evidence its 23. At Bandido's admitted into judicial that the words "rats” We take notice 18, 1988, letter to the Journal-Gazette October interchange- frequently used and "rodents” are expressing Journal-Ga- dissatisfaction with the Snowden, See, e.g., Lynn ably. Attack the letter, follow-up story. correction In the zette’s Rats, ("[C]on- July, George, at Giant alleged Bandido’s that if the Journal-Gazette had that a rat ditions for rodents were so favorable Health, inspectors at the Board of it interviewed Mayor Rudolph blithely up Giulia- wandered "as a matter of would have discovered that mayor $8 announced the million [T]he ni.... course, use of the term ‘rodents' means ‘mice’ Initiative, Comprehensive Control an all- Rodent " (R. ‘rats.’ and use of the term ‘rats' means rats.”). against war out trial, 1272.) At often used the words Bandido's (R. interchangeably, "rodent” and "mice” Zerangue Newspapers, TSP 21. See 1450), testimony suggest- and even tried to elicit (5th Cir.1987) ("In determining F.2d using "mice” a headline the word would true, story gist sting of a the 1227.) whether the (R. damaging. Ban- have been far less through eyes story court must view the inspector who called the health observed dido’s audience.”); average 4, 1988, reader or member on October the Bandido’s restaurant Trentonian, N.J.Super. gather Molin v. the revocation information for order (1997) (In determining whether inspector hearing A.2d testified at trial. The testified Bandido’s, defamatory, inspecting one "must evaluate a statement is she reviewed that before ‘according inspection report language question September to the fair health given by discovery "evidence of rodent meaning would be which noted the natural ”) inspectors intelligence.’ droppings” who persons ordinary and talked with reasonable ally, ‘sting1 we believe that had the publication Journal-Gazette must coincide—that subheadline, is, “rodents” in the used word alleged defamatory where ‘sting’ substantially the same facts, it would have created substantially arises plain- from true as was with use of effect on a reader created rely tiff on minor or irrelevant inac- way, Either readers the word “rats.”24 libel.”). curacies to a claim state In this as an unsani perceived would have Bandido’s respect, inaccuracy we believe the did not See, tary, dirty e.g., Woodcockv. restaurant. falsehood, create a but rather was substan- Co., 230 Publ’g Journal Conn. 646 A.2d tially true. (1994) (“[T]he absolute truth —that might Whatever distinction one draw be developer] was business associate of [the rodent, tween a rat and we believe the differ plaintiffs family, rath other members of easily ence breathing space “fits within the plaintiff er than of the herself —would have gives life the First Amendment.” on the had same effect reader as the Corp., Bose U.S. at 104 S.Ct. 1949. “[ejither inaccurate in that subheadlines” Even if we were assume that the inaccura way, the would perceived reader cy conceded Journal-Gazette creat interest.”); plaintiff had conflict of Ze- falsehood, ed a degree “[s]ome of abuse is (In rangue, citing at 1074 F.2d numer inseparable proper every use of publisher printed ous cases where had an thing; and in no instance is this more true article, substantially inaccurate but true Gertz, press.” than in that of the 418 U.S. at that the court determined “common thread” 340, 94 S.Ct. 2997. “The First Amendment running through cases was that while the requires protect that we some falsehood in reported newspaper the substance defendant protect speech order to that matters.” Id. at proceedings, defendant criminal “ 341, 94 S.Ct. ‘[T]o insure the ascer legal terminology erred the use of tainment publication of the truth about average likely person would characterize affairs, it is essential that the First a “technicality” the mistakes as and if the protect publica Amendment some erroneous error, story plaintiffs had been free of Rosenbloom, tions as true well as ones.’” exposed roughly have “would been 51-52, 403 U.S. at 91 (quoting S.Ct. 1811 St. community opprobrium.”). same amount of Amant, 732, 88 (altera 390 atU.S. S.Ct. 1323 admittedly conjures up the word While “rat” original)). tion in (or bad more connotations than “mice” does said, matter), being All that we do rest our sting “rodents” for that of this decision in this case on the inaccuracy sufficiently basis that gist was similar to the substantially subheadline true. was See St. of the truth —Bandido’s was and the closed Amant, 730-31, inspectors 390 U.S. at 88 S.Ct. 1323 did find evidence rodents (“ true, disregard,’ ‘Reckless droppings cannot be evidence rodent rest fully Chapin Knight-Ridder, encompassed See v. in one rooms. infallible definition. (4th Cir.1993) (“The 1087, Inevitably F.2d 1092 993 its outer limits will be marked out falsity defamatory through case-by-case adjudication, a statement and the as is true 710, (1964); Lando, report. did the The conversation revealed that 11 L.Ed.2d 686 Herbert v. 298, (2d Cir.1986); droppings the rodent were small and indicative 781 F.2d 308 Bartimo v. Ass'n, droppings droppings of mouse & instead of rat Horsemen's Benevolent Protective 771 894, (R. 1533.) (5th Cir.1985); larger. which F.2d v. are much Bandido’s 898 McDowell Paie 942, (3d Cir.1985); wonsky, spoken 951 contends that if the had 769 F.2d Smith Journal-Gazette Pocono, 1053, (M.D.Pa. F.Supp. inspectors, v. A. 686 1061 with these it would have uncovered 1987); Cohagan, Publ'g Live Co. v. 234 Cal. delving this truth. Oak Without into the merits of 1277, (1991); claim, App.3d Cal.Rptr. simply 286 205 Ta this we state courts that numerous Co., gawa Publ'g v. Maui Haw. 448 investigate 50 P.2d have determined that the failure to (1968); Sweeney Legal 340 v. Prisoners' verify facts is not sufficient of actual evidence Servs., 84 N.Y.2d 622 N.Y.S.2d 647 Newspapers, Indianapolis malice. See v. Chester 101, 104 (1995). N.E.2d 553 N.E.2d (Ind.Ct.App.1990); see also Thompson, St. Amant v. 390 U.S. (1968); acknowledge Beckley expert S.Ct. We that one of Bandido's L.Ed.2d 262 Hale, witnesses, Hanks,

Newspapers Corp. v. Dennis who Professor teaches (1967); 19 L.Ed.2d Journalism testified that "the word ‘rats' is much New York Sullivan, damaging, threatening. Co. Times more much more printed found and the Journal-Gazette judging what many legal standards so malice. proof of actual cases, pro- in the subheadline as the standard is whether concrete Co., Publ’g Constitution, statutes, Hodges Journal or case See v. Oklahoma by the vided (“[W]here (Okla.1980) 191, 196 reason, there law.”). examine the P.2d we For intended publisher that the proves was no evidence contends evidence which Bandido’s potentially of a published the sub- or was aware that the Journal-Gazette article, meaning was meaning of an actual malice. headline with truth, admittedly the known at variance with Times ... required New York ‘malice’ as B inferred.”) (citing Tilton could not be compelling piece of evi- most Bandido’s Co., 459 P.2d Publ’g Cowles Wash.2d acted with Journal-Gazette dence that (1969)). suggested supra,' Bandido’s As use of is the Journal-Gazette’s actual malice was the Journal-Gazette must show of “rodents” in the “rats” instead the word publi inaccuracy at the time of aware of the that be- Bandido’s contends subheadline. as to its accura cation or had serious doubts appear does not the word “rats” cause regard. cy. has failed in this Bandido’s article, fact that the word “rats” the mere erroneously used in the subheadline was trial, Pinkley, the During Sheila departure from nor- than an extreme more headline, that she author of the testified n standards and in fact professional mal accurate.27 She thought the headline was disagree of actual malice.25 We indicative stated, “Well, thought the time I it was with Bandido’s.26 Um, if I A rat is a rodent. would accurate. rodent, assertion, just that would have been Contrary said to Bandido’s So, me, “[m)alice suggested rat. accurate. a rodent cannot be deduced from the mere ” it, why ‘rat.’ And that is I wrote word alone.” LaBruzzo v. Asso publication fact of (R. 2478.) (W.D.Mo. Press, There was no other evidence F.Supp. ciated 1973) reflecting of mind or wheth Hurley state (citing v. Northwest Publica Pinckle/s (D.Minn.1967)). Inc., as to the tions, er she “entertained serious doubts F.Supp. solely “high degree a rely truth of the headline” or had Consequently, Bandido’s cannot probable fal of awareness” of the headline’s that there is a variance between on the fact sity. several reported inspector the health Our research has revealed the article what uh, general, vague, equivalent of actual simply Careless error is not the is more word 'rodents' as, (R. 1964.) derogatory." potentially not as at malice. trial, attempted During show 25. Bandido’s to pub- 27.Testimony by a defendant that he or she general had a rule that that the Journal-Gazette good publication faith or believed the lished headline, appear word for a word to in a the dispel the notion true is not sufficient to that be According appear in article. to Bandi- must do’s, the malice. See St. the defendant acted with actual proof apply that failure to rule is the this 727, 732, Thompson, 88 S.Ct. v. 390 U.S. Amant profession departed from its the Journal-Gazette (1968) ("The defendant in 20 L.Ed.2d However, we find that even if the al standards. brought by public a official a defamation action cannot, (and did maintain such a rule Journal-Gazette however, automatically insure a favor- did), appears record to reflect that it by testifying published verdict that he with a able apply Journal-Gazette's failure to the rule this true.”). that the statements were belief departure case be evidence an extreme standards, professional but is not evidence from n In St. Amant, set forth several cir- Court Communications, malice. See Harte-Hanks of actual good profession of a faith in which cumstances Connaughton, 491 U.S. v. Inc. (1) persuasive; by the defendant would not (The (1989) 105 L.Ed.2d 562 109 S.Ct. defendant; (2) story where a is fabricated plainly standard New York Times actual malice story product is the of defendant’s where requires public figure plaintiff "prove more (3) stoiy wholly imagination; based where departure professional than an extreme standards.”); call; (4) anonymous telephone unverified on an Co. v. see also Travelers Indem. allegations are so inher- where the defendant’s (Ind. 1982). Armstrong, 442 N.E.2d person ently improbable a reckless that circulation; (5) Court, put would have them in its brief to this Bandido’s states that In to doubt the where there are obvious reasons that the Journal- the evidence at trial showed accuracy veracity of the the informant or the publication of the headline was an "ex- Gazette's Id., 5-6.) reports. tremely (Appellee's 88 S.Ct. 1323. Br. at informant’s careless error.” courts have that cases in which determined “We held that if ‘the freedoms of of a use of an inaccurate word as a result expression are to breathing space have the poor misconception interpretation survive,’ that need ... misstatements following actual malice. We find the cases of this kind must have protection of the particularly instructive. First and Fourteenth Amendments.” Id. at Times, 91 S.Ct. 633 (quoting New York Time, Pape, Inc. 710) (internal 271-72, 84 S.Ct. (1971), mag- S.Ct. 28 L.Ed.2d 45 a news omitted). quotation marks reported azine on the on Civil Commission Rights Report part entitled A “Justice.” Corp. In Bose v. Consumers Union of Report an al- Commission’s described States, Inc., engineer United an for a con- leged police brutality. incident of When testing product organization prepared sumer article, magazine published quoted an it report loudspeaker on a system suggesting summary complaint of the but left out the tendency that instruments had a to “wander “alleged.” impression This word created the about the room.” 466 U.S. at that the facts described the Commission’s trial, 1949. At became clear what the 282-83, true. Report were indeed Id. at really engineer perceived was the sound target S.Ct. 633. The detective who was the wall,” “along although wandered the en- brutality complaint police of the filed libel gineer refused to admit there suit. The author article testified that inaccuracy in description.29 his The trial meanings “alleged” he knew the of the words impossible court concluded that it was “to “complaint” and the researcher testified engineer] interprets [the believe that a com- that she was aware of the omission of the monplace word such any- as ‘about’ mean article, “alleged” word but believed the thing plain ordinary other than its meaning.” article to true Id. have been as written. Time, Id. Relying S.Ct. 1949. The Supreme 91 S.Ct. 633. Court deter- Pape, the Bose Court determined totality mined that circum- under engineer’s language, that the such “choice of stances, the failure mention that inci- though reflecting misconception, does not Report dent described Commission’s place speech beyond the outer limits of allegation was based on “falsifi- was not a an protective the First Amendment’s broad um- jury finding cation” sufficient to sustain a Id. at brella.” 1949. The “actual Id. at malice.”28 91 S.Ct. 633. additionally “rep- stated that case stating Court continued that “Time’s inaccuracy sort of resents the that is com- ‘alleged’ omission of the word amounted in the monplace forum of robust debate to adoption possible the one of a number of New applies.” which the York Times rule interpretations rational of a document that (A Id.; Chester, negli- ambiguities. bristled see 553 N.E.2d at with The deliberate gent interpretation interpretation, though choice of such an ar- records or mis- reflecting guably misconception, person a was of a a not construction statement jury enough to create a ‘malice’ falls short of issue of interviewed the constitutional malice.). requirement under New York Times.” Id. at actual suppose circumstances of this case do not fall within reason to the more that Commission charges of the scenarios mentioned in St. Amant. took the to true. Time, 401 U.S. at 91 S.Ct. 633. supported 28. The Court also its conclusion with following following the comments: 29. The Court made the comments with engineer’s testified, respect the refusal admit his the The author of Time article in substance, mistake: report the that context of the the brutality] [police engineer] capacity displayed incident him "[The indicated to that a ra- the Commission believed that the had a mistake incident tionalization. He had made it, occurred as described. He therefore denied with to admit it when confronted refused he steadfastly report attempted that he he had falsified the when omit- to maintain that no ’ researcher, "alleged.” ted the word The Time had been the inaccurate mistake made—that failed, newspaper attempt who had the but the read stories about was accurate. That fact reports reporter attempt incident made not and two from a Time that he the does establish Chicago, inaccuracy in at the [the as well as the accounts he realized the time of that career, police publication." detective's] earlier had even Co., Publishing v. Worrall In Schwartz Woodcock Journal The circumstances (1994), Publications, N.J.Super. 230 Conn. A.2d a (1992),30 are somewhat similar printed newspaper A.2d 425 an inaccurate subhead- hand. of the case at “Developer the circumstances The line. subheadline read: story Schwartz, on the reporter wrote a claims Woodcock aim to aid business associ- a school board association. investigation of the ate.” Id. at 95. The author of article reporter left story, the completing the After inaccurate, admitted that this was statement left town. then copy the editor and with that he did not the subheadline. write be con- article to copy editor found the He also testified that “the author the times, several reading it fusing and after could that were subheadlines conclude try- was writer] “knew what thought [the he in the accurate because the reference sto- editor revised say.” at 427. The ing to Id. ry to ... business connections with the the belief that in the mistaken the article family.” at 98. The court Woodcock Id. association was attorney school board of the that fails “[b]ecause concluded the record investigation. The editor target of the anything reveal that have caused the would following, provided explanation: of the ‘[entertain] author subheadlines to ser- assumption that because I under was ious doubts as to the truth of subhead- [the angle, that the reason there a local was lines]’; say cannot it has we been dem- that the local story being written was was clarity that convincing onstrated with story.... I gist person was were-prepared printed with subheadlines confusion, my I saw a So was confused. omitted) (citation (second malice.” Id. actual oh, and I person; local assumed original). and third alterations in Additional- focus of primary must be the person local ly, the court commented that the “most that it. story trying simplify I and was can be said inaccurate subheadlines is spoke writer never with the Id. The editor negligent the defendants were their “ process though there during editing even publication.” preparation Id. ‘[A] also did not opportunity to do so and merely negligent of fact misstatement about upon which access to the information pro- official retains the constitutional ” story. drafting relied writer expression.’ (quot- tection afforded free Id. that a of the record court determined review Casazza, Holbrook 204 Conn. anyone [the “no indication that revealed (1987)). A.2d being pub- newspaper] knew that the facts similarly We believe that while Jour- Additionally, false.” Id. at 429. lished were “irrespon- an nal-Gazette have exhibited while the record the court commented that uncaring meeting sible and attitude” in its justify finding irresponsible of an ‘“would accuracy, goal evidence did demon- uncaring newspaper’s] [the attitude on inaccuracy strate awareness of the reckless part,” this was not the same as id., (author Pinkley subheadline. of the head- there be clear and disregard, since must statements, line) spent testified that “ten she minutes convincing proof that were reading writing tops” prior article published “high degree of awareness falsity,” She I “[w]hen or with “serious headline. stated that wrote probable their headline, publication,” truth the I them to be doubts as to the considered accu- [the] 24-25.) omitted) (citations (alteration (R. at at the id. rate.” “I looked words at droppings up with original).31 rodent and I came rats.” readable, Corp., U.S. at text down to er's] Bose make it more with- realizing snap that conclusions out his had appeal was an from the denial of 30. Schwartz actually changed story's intended focus. judgment newspaper. summary for the defendant explanation That not excuse the unfortu- does result, provide but clear nate also does not following made the 31. The court also Schwartz disregard convincing reckless evidence of comments: truth. presented Schwartz, no to contradict Similarly, evidence [Plaintiff! A.2d at that, case, testimony any present [the editor’s] or throw doubt did Bandido’s evidence at that; managing disputing Pinkley truly while in his haste to edit article had trial fact pared misconception multiple responsibilities, [the writ- that a rodent is a rat. he c 25.) (R. nothing This evidence indicates at misconception. Bill Leonard more than Bandido’s contends that the Journal-Ga- Binkley’s supervisor responsible who was zette’s failure Judge to heed Sheldon’s warn- checking accuracy of her work testi- ing about dangers inherent in misinter- story, editing that he did not fied when preting the inspection reports suggests that line, by it line word for word. He relied read the Journal-Gazette acted with actual malice. editor, Pinkley, copy on the to do those kinds Our review of the record indicates that Ban- of edits. Leonard also testified “[t]here dido’s has misinterpreted Judge Sheldon’s story nothing on this that told me that I was findings of fact and conclusions of law. should, know, you doing any- that we were Prior to inspection reports prepared thing wrong accuracy in terms of the by the Board of Health were not accessible story anything. As far as I knew the by general public Wayne-Alien in Fort (R. the headline was accurate.” accurate and County. In order to obtain access to the 42-53.) Leonard also said that he did not Food Establishment Inspection Reports, the appear that the word “rats” did not observe against Journal-Gazette filed a lawsuit (R. 58.) evidence, story. in the This Board of Health arguing that the reports clearly indicating while that the Journal-Ga- were records to which the newspaper negligent, zette was careless and was not was entitled. Co. v. Journal-Gazette Fort Additionally, indicative of actual malice. the Wayne-Allen County Health, Bd. Pub. article and headline was read at least (Allen No. Sup.Ct. 02D01-CT-8802-302 filed employees being publish- three before other 1988). Feb. On March Judge suggesting ed and there is no evidence that Sheldon hearing conducted a in connection employees of these had serious doubts with the application Journal-Gazette’s for a accuracy about the of the subheadline or that Preliminary Injunction and Order of Man were aware the word “rats” did not requesting date the Board of Health to dis appear story. close While the chances of certain records. The court or Wayne County dered the Fort occurring after people this mistake five had Board —Allen of Public Health to disclose all records story deal suggests quality reviewed the serious inspection with the County of Allen concerns, res control alone is not sufficient to taurants and food establishments because support finding of actual malice.32 See such records were records within the (“ Chester, publisher 553 N.E.2d at 140 ‘The (R. meaning § seq. Ind.Code 5-14-3-1 et. designed who maintains a standard of care 17Ó2.) The court following made the rele knowing avoid or reckless falsehood must be findings vant interprets which Bandido’s as a sufficient accorded assurance that those fac- warning: tual errors which nonetheless occur will not ”) expose liability.’ him to indeterminate question There is no in the Court’s mind 591). Aafco, 321 (quoting Defendant, N.E.2d at Wayne Fort —Allen publishing 32. When accusing courts have found the defendant to an article an athletic di- malice, published statements with actual conspiring game, rector of to fix a football compelling the evidence has been far more than magazine recognized thorough the need for a See, presented e.g., evidence in this case. investigation charges of serious and realized that Co., (7th Carson v. Allied News 529 F.2d 206 story probation the source of the was on for bad 1976) (The completely Cir. defendant fabricated charges published story check without defamatory quotations printed defamatory notes, viewing the source’s without substantial allegations prior which were contradicted independent support, interviewing without article.); publication which was the source of the allegedly friend who was with the source when Littell, (2d Buckley 539 F.2d Cir. overheard, conversation was 1976) (The defendant admitted he did not believe reviewing game without to see if the source’s plaintiff engaged alleged that in the conduct accurate.); Viking information was Rinaldi v. book.); Ginzburg, his Goldwater 414 F.2d Penguin, 52 N.Y.2d 438 N.Y.S.2d (2d 1969) (The Cir. defendant wrote that (The (1981) 420 N.E.2d editor discover- presidential mentally ill with candidate was false.); allegations ed that in the hardback book knowledge were that the statement was Curtis Butts, prior publi- Publ'g false but failed correct the book to Co. v. to (1967) (In edition.). paperback the course of L.Ed.2d 1094 cation in a Health, denying warning, failure Journal-Gazette’s County Board Public disclosure, pursued accuracy thoroughly faith and of its good acted check more many adopted policy it had level of requisite an established headline did not rise to the concerns, Nearly years ago. all its actual malice. policy, its suggested were the basis is a example, there reasonable. For

were D of the in- that disclosure possibility job Bandido’s also evalua- contends improper reports might result in spection Pinkley and tions of Leonard indicate the seri- interpretations as to inferences or At newspaper acted actual malice. with However, noted. of the violations ousness trial, job Bandido’s introduced the evalua- clearly fall out- policy considerations such Pinkley job Leonard. A tions of both autho- exceptions to disclosure side the Pinkley following provided evaluation to Public 4 of the Access rized in Section relevant information: Records Act. feature you can an excellent While write 1702.) (R. original). view (emphasis in We headline, your weak news headlines remain warning nor findings to be neither

these cliches, prone are court, recita area. You to overuse instead a opinion but policy un- the Board of Public Health’s and the tone of some headlines comes tion of (“folks” inspection re-r disclosing for not its comfortably slang reason close should for the sake ports. instance). Even if were to assume rarely, Bill has be used warning that this argument you and re- points worked with on these Journal-Gazette, warning reveals noth such ports improvement, your head- some but state of ing respect newspaper’s to the with consistency. performance line There lacks In published. the headline was mind when you’ve produced have been instances when deed, partici Pinkley testified that she never something inaccurate heads —and this is any the Journal-Ga pated in discussions at instance, just can’t on a we have. For to be relating to the care zette standard story part Boeing jet about the that lost concerning dealing matters used when Pacific, you its roof over the referred to a Health in restaurants and Board of Public jet flight “crash.” That not crash. did reports. Craig Klugman, a news spection very responsive redoing a head You are editor, given Pinkley testified that was never asked, you you to work when are need precautions to be taken any directions accuracy and tone in the next review dealing Public Health with Board of when lovely period. your Please don’t lose touch reports of The rec inspection restaurants. heads, especially for feature however — also indicates that Leonard was never ord you give heads to newsmaker stories. cautions, any limitations, advised good superb examples Those heads are allegedly received from the Journal-Gazette writing. headline Judge also testified that Sheldon. Leonard give story he did not more careful consid 1625.) (R. performance A review of Leon- story not take eration than other and did ard was also introduced at trial because its precautions to that the special insure word Pinkley. following state- reference to appeared story. McDowell “rats” Cf. are relevant: ments (3d Paiewonsky, Cir. F.2d year good past have done You work in 1985) (Where among things, plaintiff other development of several of new malice “sever claimed actual existed because warned, copy editors. Now its time to concentrate people apparently defendant al [Pinkley], her one-on-one giving on Sheila making facts his broad check his before sessions three times a feedback at least casts,” “fail the court stated that defendant’s guid- potential She has and needs a week. verify negli his facts have been ure hand, particularly writing. in headline of actual gent, but does rise to level malice.”) added). all the in the headline Similarly, Despite successes (emphasis even area, there are that are if can be construed as still headlines the court’s statements off-target peached vague, inappropriate.[33] newspaper or employee depositions you those when appear dispositive Sometimes heads genuine that no issue facts slot; appear on in more often are existed that the article published was days your off.... knowledge falsity. actual Additionally, the court stated that 1632.) (R. at [pjroof inaccuracy, of isolated instances of that Bandido’s contends this circumstantial therefore, in 35-year a during career reflecting in Pinkley’s evidence difficulties has published [the author] over well writing suggests accurate headlines that the 10,000 columns, cannot be signifi- accorded newspaper acted with actual malice when it cance, since the relevant rule of con- law printed. Although the headline to be allowed that templates “erroneous in- brief, statement is in we assume not stated Bandido’s debate, free evitable in and ... it must upon the direct of Leon- based examination protected if freedoms of trial, expression are argument Bandido’s is that ard at breathing to space they have the need to by failing acted with actual Leonard malice survive.” Pinldey’s thoroughly to more work. check words, In since at least other Leonard was Garrison, (quoting Id. at 971-72 379 U.S. at Pinkley’s alleged problem aware with writ- (omission 74, 85 original)). Simi- headlines,34 con- inaccurate Bandido’s larly, Pinkley’s we find isolated instances that Leonard was on and tends notice should inaccuracy not to be indicative of whether work, more care in her reviewing have taken she of the inaccuracy was aware time at the just relying Pinkley job. do her rather she Additionally, wrote the subheadline. even if Pinkley’s sug- Leonard was aware of disagree with Bandido’s that cir-

We gested problem writing head- inaccurate cumstantial evidence rises to the level of lines, rely his decision to on her work malice. without Washington actual Post Co. v. carefully (D.C.Cir.1966), checking negli- it more is at most Keogh, 365 F.2d an gent. allegedly politician defamed an filed affidavit containing a excerpts series of from various E

magazine newspaper attempting articles “ ‘reputation argues to demonstrate that the author’s Bandido’s that the Journal-Ga- accuracy veracity1 such was ‘that zette’s to retract failure subheadline in upon grossly negli- § mere reliance his word is prescribed manner Ind.Code 34-4- ” 15-1(1988)35 gent suggests and reckless.’ Id. at 969. news- the Journal-Gazette employees paper indicating filed Ap- affidavits acted with actual malice. The Court of causing there no evidence peals appropriately was them sus- noted that re- Indiana’s pect upon the information contained in the article does not place duty traction statute a retraction, publish to be false. Id. The court the unim- found Journal-Gazette (1) interpreted testified 33. Leonard that he the state- full and fair retraction of factual Pinkley’s alleged to mean ments headlines were statement be false and off-target vague, inappropriate opposed or published regular as was issue of (R. 1634.) his own. newspaper or transmitted to its members by the news subscribers service: testimony suggests service; (3) he (A) Leonard's does not days by within three a news seeing job (5) ever (B) recall of Sheila evaluation days, newspaper five if is a within (R. 1627.) Pinkley. There also some was daily publication; or job really debate to whether this was evalua- (C) (10) days, newspaper ten within if the tion. publication; weekly misapprehension after mistake or (1988) Ind.Code§ provides 34-4-15-1 in rele- brought knowledge publisher to the part: vant chief; bureau (2) (b) published con- appears If the retraction was in as at the action trial of the place original spicuous type published as the article was or transmitted in faith, good appeared newspaper falsity item or was and that its was due to facts, misapprehension a news mistake service to all members transmitted plaintiff original item the case is entitled to recover or subscribers whom the damages actual if: was transmitted. very beginning if damages without hesitation from mitigation only permits but print printed it opted to that it made a mistake and because had the Journal-Gazette story specifica- day along with an accordance with a correction the next retraction in § 34-4-15-1. not required apology, compliance Ind.Code albeit with the tion statute, article publish print an to did fact find the refusal Journal-Gazette retraction we apolo- headline and correcting its inaccurate a headline retraction not to be sufficient Although the correc- gized its for mistake. proof of actual malice.36 standards not meet tion did statute, not find we do Indiana retraction F of actual the issue dispositive such failure Lastly, argues Bandido’s that the fact that malice. appeared in the inaccurate subheadline Times, at New York In edition, was from the first removed second to stating the failure after edition, back and then revised and added into of malice adequate evidence retract is “not proof edition is of actual the third malice. Court left purposes,” the

for constitutional significance attach no to the deletion of We or not a question “[w]hether open in the second edition. Pub- the subheadline may such constitute failure to retract ever lishing in all editions the subheadline would Times, some New York evidence.” Since event, any probative be more of malice. the failure have determined that courts Leonard testified that he was unaware of malice proof sufficient of actual retract is not made the decision to delete the subhead- who that a re other courts have found whereas the second line from edition.37 malice. See negates proof of actual traction (“[R]eadiness Zerangue, 814 F.2d requested Leonard also testified that he malice.’”); negate tends to ‘actual retract change made the first to the be third Co., Washington Post eatery” Leonard asked that “local edition. Hoffman (D.D.C.1977) (Publication F.Supp. eatery” changed to because “north-side he indisputably inaccurate a retraction of make a he wanted to distinction since “was negate “significant and tends to statement is that Bandido’s had three restaurants” aware malice.”), aff'd, 578 of actual inference wanted the “readers to know that was (D.C.Cir.1978); Ac Trans World F.2d 442 Although entire not the chain.” Leonard Press, counts, F.Supp. Inc. v. Associated change, requested the he did not re-write the (N.D.Cal.1977) (Publication of a 823 n.6 third headline. The subheadline in the edi- “may large create a obstacle retraction also altered from the first edition in tion was malice.”); prove efforts to actual plaintiffs “inspector” substituted word was 275, 277 Corp. v. Hearst 930 S.W.2d Gonzales “investigator” “bugs” and the was word sub- (“Refusal print a retrac (Tex.Ct.App.1996) provided stituted for “roaches.” Leonard no publica of an action tion is evidence after Pinkley explanation changes. these testi- tion, support lend to a claim that it can but “Well, fied, you I believe if look at second disregard knowledge existed reckless line,'north up side more room takes than origi publication”) (emphasis the time (R. local, bugs.” roaches was so shortened to nal). 2508.) why “inspec- explain She did not case, changed “investigators,” be- the circumstances of this tors” was Under enough has admitted if there room the Journal-Gazette when asked wasn’t cause trial, During plaintiff claimed that had not been Journal-Gazette believed de- famed.). print pursuant to not to a retraction its decision understanding that was based on its the statute attorney Bandido’s was satisfied at least first Appeals "plausible 37. The Court noted that a story. follow-up We no comment with the make explanation is that was not as the item newswor- justification provid- on the reasonableness of the thy in areas serviced the second edition.” Connelly Bandido's, ed the Journal-Gazette. See 672 N.E.2d at 974. We find that Publications, plausible Northwest 448 N.W.2d explanation be that another there (A (Minn.Ct.App.1989) publish space to retract is failure less the article in the sec- probative evidence of malice but in- edition thus the subheadline was actual ond re- reasonably to make the fit. publisher is evidence that moved article stead subheadline, ity involved, of of on the first line cases prac- rodents it make little “No, Sir, is, my tical responded, testimony higher I difference this whether she standard activity based on at the “rodent” ... “rodent rather than per- looked word (R. sons because a of droppings” public I the word “rats.” matter and wrote concern 2508.) generate seems to finding changes public these of We do not find “quasi public” Nevertheless, figure. any way Nothing in con- indicative of malice. about sidering the which we Pinkley tip extent to should suggests that either or Leon- them scales in expression, favor of free I be- were aware or become aware of the ard had lieve it helpful think in to terms of inaccuracy in the subheadline. Neither activity persons rather than the change involved. required that the article be re-read Finally, I agree with Justice Sullivan that the Pinkley and neither nor Leonard testified test, fair construed, index generously is the revising that re-read the article before proper evaluating standard for a headline. the subheadline.

I reach all of purely these conclusions as a Conclusion matter of Indiana defamation law. I agree with Justice that this Sullivan case can be transfer, Having previously granted we resolved existing under federal constitutional adopt and hold that both indi- Aafco precedent analysis produces that this public figures prove must viduals actual same result as I reach under state law and malice to recover in a defamation suit involv- the Court Appeals reached under Aafco public general matters of concern. Heating Conditioning & Air v. Northwest We also hold that has failed Bandido’s Ind.App. Publications prove that Journal-Gazette acted with actual (1974). N.E.2d 580 I do agree not hereby judgment malice reverse Justice availability Dickson that the of a fed- trial court. eral constitutional resolution renders inap- propriate express opinion an on these SELBY, J., concurs. state contrary, law issues. To the I believe BOEHM, J., separate opin- concurs with this Court should first address the state law ion. my issues. In disposes view their resolution of this case consistent with Justice Sullivan’s SHEPARD, C.J., separate dissents with opinion. However, disagree I with Justice DICKSON, J., opinion in which concurs. analysis respects. Sullivan’s in some The “Fair Index” Test DICKSON, J., separate dissents with First, SHEPARD, C.J., opinion I in which would conclude the “fair in concurs. dex” test is met on facts of the case. The BOEHM, Justice, concurring. fair index requires test a court to determine For the fairly reasons set forth in Justice whether Sulli- the headline indicates the sub opinion, agree I van’s that the free stance of Maj. flow the matter which it refers. requires op. ideas and giving Burgess information at 458 (quoting Pub Reformer press reporting lishing considerable latitude in Corp., on 508 A.2d Vt. (Vt.1986)). public Specifically, matters concern. I of the substance article was agree that the “actual malice” standard been restaurant had ordered to close applied reports on should matters because of including health concerns “evi concern, public and that clear and convincing dence of insects and rodents.” The subhead- required rats, evidence should be for a defamation line read: “Inspectors find roaches1 at recovery view, on eatery.” a matter of concern. I local my giving reasonable agree words, apply that this standard should license dis- to editorial choice this sub- irrespec- fairly course matters of concern headline captured topical sentence plaintiff tive characterization the article is the and that end of the analysis.2 private figure. major- In the vast "bugs” 1. Another instead of 2. The edition used "roach- conclusion headline meets that this the fair supported application es.” index test is of the test droppings Meaning “Actual that a rodent must be the area. Malice” this, The headline writer assumed from Disregard” “Reckless imprecisely, worst somewhat the rodent headline were a fair index Even if the a rat and not some other rodent. Nei- article, agree that Bandido’s failed I my approaches ther inference in view reck- paper acted with actual demonstrate that lessness or ill will. conclusion state malice. reach that under I case, alone, convincing Apart specific facts in the clear and from the applying law disregard” prong For the Justice the “reckless of “actual evidence standard. reasons dissent, of malice” under in Part B.5. his should be satisfied Indiana law explains Dickson publishes report to the if one a no state adhere conventional with idea wheth- law should Accordingly, although er it is jury review of verdicts. true or not. appellate standard of Sullivan, standard, agree I nonetheless New York Times Co. v. U.S. Applying that (1964), ultimate resolution of 84 S.Ct. 11 L.Ed.2d 686 and with Justice Sullivan’s Aafco, may properly disregard,” Gazette utilize the term “reckless I case. The Journal think for adopt rule that headlines should “reckless indifference” the truth an internal story, may activity be a comprised be of terms taken from the better term for the that is Thus, guideline liability. my that impose to observe is not in sufficient to failure view, disregard recognize or itself of malice reckless Indiana law should the five evidence contrary, my by for the a scenarios Justice truth. To view described White and by of translation “rodents” to discussed Justice Sullivan in headline writer’s footnote 27 by come sup- meeting legal “rats” itself close to standard of reckless does disregard. porting finding of actual malice. I base Justice identified a White these as testimony examples that not on the of a trier conclusion situations where of fact ordinary may usage. good on a find faith unpersua- headline writer but As assertions of sive, matter latitude and of law some in choice of described them as: language required is substitution of rats good unlikely be Professions of faith will to context is for in this that rodents within prove persuasive, example, for a where permissible range. defendant, story by is fabricated product imagination, of his is based separately my I to make clear also write wholly anonymous on an unverified tele- parallel need not view that Indiana law feder- phone they likely prevail call. Nor will public in all figure respects. al law allegations publisher’s when the are in- so may require higher a federal constitution herently only a improbable reckless by degree for claims public of malice a offi- [person] put would have them in circula- public figure. cial or However Gertz Likewise, may tion. recklessness be found Welch, 323, 347, U.S. where are reasons there obvious to doubt (1974), gives explicitly the states L.Ed.2d veracity informant or the accu- their formulating latitude in defamation law racy of reports. the [informant’s] by private as to a As the claims individual. Appeals Thompson, Court of held and this Amant v. St. Aafco (1968). today, Indiana law requires holds a 88 S.Ct. 20 L.Ed.2d 262 I circumstances, showing by private of actual malice for claims believe these if found publication individuals based on of matters of trier of fact offset and not other facts case, In this supporting veracity, concern. there is no should reck- constitute any disregard basis disregard purposes liability to conclude reckless less of support finding injury reputation private person or serious doubt existed of a as a law, The writer of topics actual malice. of the article matter Indiana even on public report inferred from the of rodent public concern. (headline Compare Lacy, Burgess, Jury in 249, Hein v. other cases. 228 Kan. 508 A.2d at 1359 "Grand 1980) (headline (Kan. Burgess getting 616 P.2d that Sen- Probes Embezzlement: denies "legalize homosexuality" ator Hein voted to ac- funds” index test failed the fair because it con- Burgess curately veyed impression content of reflected the the text where was be- false “legal grand jury prohibition investigated by Hein to remove the had voted when in fact he witness). relationships") homosexual consensual Identifying Public Concern ance necessary Matters between the val- conflicting ues evidenced in our state constitution: emphasize point I also wish to in the remedy injury reputation im- and the opinion majority that matters of con portant interest in the free interchange every activity person do not cern include of a thought I, opinion. Article section public eye. for other

who reasons is I the Indiana Constitution explicitly identifies recognize that a line drawing between mat injury to “reputation” subject as one proper prove ters concern judicial I, remedy. Article section time, however, problematic. be Over even more emphatic than the First Amend- guidelines emerge already will and some are any ment in prohibiting law “restraining available, assuming Indiana law will track free interchange thought opinion, point. on this federal constitutional doctrine restricting write, speak, print, See, Bradstreet, e.g., Dun & Inc. v. Green freely, subject pro- whatever” and it Builders, 761-62, moss vides for a person “responsible” only (1985). 86 L.Ed.2d Re for rights. “abuse” of those “Abuse” seems stricting requirement the actual malice to fortify me to the inference that actual subjects public on publications concern will malice appropriate is an test any for defama- majority the vast leave the six million tion claim public on a matter of concern. Shepard for whom Justice Hoosiers Chief The adopt today gives standard we appropri- expresses subject simple negli concern to a ate recognition repu- to the interest in one’s gence drawing standard for defamation. The tation preserves and the notion that is one by experience of these lines illuminated the responsible abusing for the speech right, free opportunity of concrete cases the will afford but it accomplishes this protecting while still perceived to rein abuses that if are flow on, the vital speak comment about press proves insufficiently to be checked and offer government criticism of our and by an actual In malice standard. order to other public matters of concern. It also properly important strike this balance it is negligence leaves to a standard all claims law, Indiana that like federal constitutional defamatory based on allegedly on statements law, treat public the determination of concern matters public of no concern. law, proposition a as a factual determi Moreover, if issue is left nation. to the SHEPARD, Justice, Chief dissenting. fact, very a risk of chilling trier substantial Today’s decision makes life more difficult speech likely would from its result often in for they Indiana’s citizens when have been Finally, and consistent unclear resolution. falsely maligned publicly in front of then- quarter century have a experience we of a neighbors. the harm under so far to the Aafco citizenry event, apparent. is not In this regime Constructing a that affords news presents significant question case no on organizations respectable a defense for defa- point. health status of a restaurant might mation claims well include some of to the open plainly is a matter of walls today, erected the cumulative effect precedents concern under the and for of this series of barriers to leave defamed by reasons cited Justice Sullivan. virtually remedy. citizens without Supreme U.S. thirty Court and su- state Indiana Constitutional Provisions preme courts have concluded that a free agree I Dickson Justice that it is society making can flourish without so hard appropriate on to look to occasion constitu- average person to defend his or her provisions develop- tional for direction reputation as it will now be in Indiana. Just See, e.g., of our ment common law. Doe v. one thought or two state courts other- (Ind.1997). Hosp., Methodist N.E.2d wise. However, specific here we find somewhat Cramped Rights I. for Private Citizens provisions pointing in opposite directions. In view, my adopting malice somebody posts an actual test for If scandalous and defama- of public tory defamation actions on matters con- material about Hoosier on the inter- net, world, gives appropriate recognition sending cern to the bal- it all over the victim using the showing weighs the effect of “rat” on may gain simply by that word redress readers, (and, slip likely, newspaper op. the minds of most defamation occurred 460-61, inferences about the state of effectively to the draws responding defense truth). possessed mind the author of the head- exactly the newspaper spreads If a line, 464-65, material, slip op. at the level of about same we know who consciousness others worked that the victim will have Gertz Welch story, slip that, today’s op. Bandido’s at 466-67. negligence. opinion show Even deploying finds to victims. too favorable appellate judges evidence As what toughest tests civil one of the known damages, today’s think would warrant deci- law, malice, lays out Justice Sullivan actual injured. news for the Justice sion bleak why organizations reasons news need various examples, gives Sullivan us such as cases in protection more than the serve. actually organization fabri- which the news less, More or he examines all consider- story defaming a reporter cates writes Supreme ations that led the U.S. Court solely imagi- reporter’s material based on the First Amendment declare would Slip op. nation. at 465 n. 32.1 There are legal regime re- secure under makes thing sort of known instances which this Gertz, easier, U.S. dressing defamation occurred, but if these are the has models 344-48, finds depend, upon which successful cases must up common must make Indiana law majority great of defamations will be protection Supreme found immune. unnecessary. Short, Pretty II. Much greater irony The it is this choice that Every Citizen Loses justified with a certain flourish to the effect day, a At end of the we have case reputations public that in Indiana “[t]he copy a a figures public before us which editor wrote officials merit the same defaming justified headline that could not be quantum protection private as those of reporter’s story Slip on basis about op. (quoting citizens.” at 452 Aafco reports The copy board health. Heating Conditioning and Air Co. v. North- employee job Publications, editor was an whose evalua- Ind.App. west newspaper tions reveal that knew (Ind.Ct.App.1975)). The she 321 N.E.2d produced judge inaccurate headlines. A local opinion accomplishes quantum” this “same newspaper special constricting rights had warned the about six million Hoosiers interpreta- way remedy improper risks of inferences or all to the narrow down department inspection tions of health re- public figures available to Hoosier under Nevertheless, Sullivan, ports. newspaper manage- New York Times Co. 376 U.S. (1964). given the copy ment had never editor 84 S.Ct. 11 L.Ed.2d 686 I citizens, dealing about they doubt that our fellow directions cautions when defamed, department reports health on have been take this restaurants. will restriction Finally, newspaper management pride. as a of state when did matter done, on its had it focus what editors decided injured parties How difficult a task will publish conforming retraction persuading appellate judges confront in that on Indiana’s statute retractions.2 proven their case is made apparent many pages, jury sixty percent people about of the A in Albion were satisfied opinion, whole that Justice Sullivan that all this showed reckless indifference and takes lay badly his He this hurt. out assessment evidence. small business was apparent para- suggestion 1. Justice Boehm describes the the seriousness of earlier that a digm equally way cases which in an narrow as remedy to solid defamation citizens would be "publishes report one with no idea whether it creating "passage of state laws a limited Boehm, concurring, slip op. at true or not.” Slip respond defamatory op. falsehoods.” at 587). Aafco, (quoting 321 N.E.2d part of this The dismissive assessment evidence, 469-470, slip op. plaintiff's reflects judges appellate Judg- are not convinced. 1. The Plaintiffs Status as a Factor newspaper.3 ment for the highest standard —the one pro most injured plaintiffs Most will not have the tective of media publication applies when — smoking guns brought that Bandido’s to this public bring officials2 defamation actions for lawsuit. When the Court declares its dissat- relating statements to their public official or jury isfaction with the and the evidence in conduct. Such officials not recov ease, effectively says injured to other damages er defamatory falsehoods unless citizens, “You’re toast.” they prove both that the statement was false and that the defendant acted with “actual DICKSON, J., concurs. malice.” Sullivan, New York Times Co. v. DICKSON, Justice, dissenting. 11 L.Ed.2d 686 (1964). The Supreme in New respectfully majority I dissent from the announced, York Times “The opinion disapproval as to its constitutional Indiana’s standard, guarantees require traditional common law ... a failure federal rule that (often to use prohibits reasonable care referred to official from recovering “negligence”), defamation cases damages for a relating falsehood against majority media defendants. The in- to his official proves conduct unless he standard, stead chooses the actual malice the statement was made with ‘actual mal jurisprudence federal constitutional is, ice’—that with knowledge that it was false specified mandates in certain other cir- disregard or with reckless of whether it was cumstances. 279-80, false or not.” Id. at 84 S.Ct. at Imposed A. Limitations L.Ed.2d 706. The Court concluded n Jurisprudence Federal imposing higher standard on plaintiffs official would safeguard First actions, Defamation brought against when values, Amendment would shield media de defendants, subject media are to limitations fendants from that could cause threats self- imposed by the First Amendment1 to the censorship, States, and would minimize “chilling the Constitution of the United and thus effect” analyzed potential liability are under the United could have on States Su- preme speech 267-83, Court’s press speech. freedom free See id. at 84 S.Ct. at jurisprudence. 719-27, 11 Under federal constitutional L.Ed.2d at 698-708. (whether jurisprudence, plaintiffs the status The same governs public standard that official, public public figure, private or a applies officials also to category a second figure) subject matter of the defama- plaintiffs, public figures. In defamation ac (whether tory statement public a matter of brought by public figure tions plaintiffs, the concern) private determine the standard that applies, New York Times standard and the plaintiff prove, must the extent to which plaintiffs prove must actual malice. Curtis may protect a state reputations of its Publ’g v. Butts, 130, Co. remedy citizens 388 U.S. 87 S.Ct. injury repu- and allow 1975, (1967). tation, available, the damages and the 18 L.Ed.2d 1094 fig stan- “Public appellate dard of review. “intimately ures” are those who are involved likely injured designation 3. This is "public future result for other "applies 2. The official” at study suggests appel- Hoosiers. A national very among hierarchy least to those class, (who, judges spend late thinking as a more time have, government employees appear who press portray about how the will their have, public responsibility substantial do) jurors press actions than tend to rule for the governmental or control over the conduct of af- jurors injured parties. and that tend to rule for Baer, 75, 85, fairs.” Rosenblatt v. 383 U.S. 86 Goodchild, Note, Seth Media Counteractions: Re- 669, 676, 597, (1966). S.Ct. 15 L.Ed.2d 605 See Law, storing the Balance Modem Libel Welch, Inc., 323, also v. Robert 418 U.S. Gertz 315, (1986). Geo.L.J. 323-24 342, 2997, 3008, 789, 94 S.Ct. 41 L.Ed.2d (1974) (identifying public part: 1. provides officials as "those who First Amendment "Con- gress office”). abridging governmental shall ... make no law free- hold speech, press_” dom of amend. I. Const. important public ques- “public” respect particular in the become resolution with fame, or, controversies, by shape reason of their public figures tions and thus society events in areas of concern to at purposes, for certain but not for In others. large.” Id. at 87 S.Ct. at plaintiff order to determine is a whether (Warren, C.J., concurring in L.Ed.2d at 1116 figure, purpose public limited one considers result). plaintiffs specific “participation particular controversy giving rise to the defa- category public figure plaintiffs In the mation.” Id. at 94 S.Ct. at subcategories public figures. are three L.Ed.2d at 812. id. at See also subcategory comprised of invol- first 3009-10, at at 41 L.Ed.2d untary public figures. v. Robert Gertz Welch, Inc., proof In contrast to the standard of re- (1974). 3009, 41 Such indi- L.Ed.2d quired brought actions media defamation figures public “through viduals would become by by public officials/figures, brought actions purposeful no action of own.” Id. [their] private governed are not individuals However, “exceedingly rare” most same federal constitutional constraints. truly involuntary public instances would such individuals, When who are neither figures be found. Id. public figures officials nor and who subcategories The second and third include interjected particu- have not into themselves espe “those ... have assumed roles of who controversies, injury lar sue for caused prominence society.” cial affairs Id. statements, demanding libelous the more at S.Ct. at 41 L.Ed.2d at 808. New apply. York Times standard does not cases, In both of these the individuals be 3008-09, Id. at 94 S.Ct. at L.Ed.2d public figures “they come at because invite (noting that “the New York Times rule comment,” id., spe tention and and “assume an states accommodation between con- th[e] prominence cial in the resolution of providing press [of cern and broadcast questions,” id. at 94 S.Ct. at immunity liability] media with and the subcategory L.Ed.2d at 812. In the second present limited state interest in the context persons “occupy are positions who of such brought by public persons” libel actions persuasive power and influence that are concluding that “the state interest public figures purposes.” deemed for all Id. compensating injury reputation pri- to the 94 S.Ct. at L.Ed.2d requires vate individuals that a different rule Thus, public figure one becomes a “for all them”). respect should obtain purposes and in all contexts” when that “indi reaching holding, Supreme ... pervasive vidual ... fame or achieve[s] emphasized private figure that the plaintiff notoriety community].” [in Id. at relinquished part has no of his interest in 3013, 41 S.Ct. at L.Ed.2d at 812. name, protection good of his own subcategory public figures The third consequently compelling he has a more call most common. These individuals are not injury on the courts for redress of inflicted public figures purposes, for all but rather Thus, by defamatory private falsehood. only particular purposes. for limited or Lim- only individuals are not more vulnerable to purpose public figures ited are those who injury than public fig- officials and have “thrust themselves to the forefront of ures; deserving are also more of re- particular public controversies order to covery. influence the resolution of the issues in- Id. at 94 S.Ct. at 41 L.Ed.2d at volved.” Id. at 94 S.Ct. at 808. at plaintiffs L.Ed.2d 808. These are those “voluntarily injeet[ed] who have [them- Reputation 2. Individual as a Factor particular ]sel[ves] drawn into [are] [] thereby Notwithstanding important contovers[ies] become[] constitu- public figure[s] range involving for a limited of issues.” tional interests freedom Id. at speech Supreme S.Ct. at L.Ed.2d at the U.S. press, and the instances, In such acknowledged high individuals Court has value of Id, 348-49, the interest that individual have in citizens at 94 S.Ct. at 41 L.Ed.2d at protecting personal reputation: 810. The Gertz Court then quote went on to approvingly from the following portion of self-censorship by The need to avoid Justice Stewart’s concurring opinion in Ro- is, however,

news media not the socie- senblatt v. Baer: were, tal value at issue. If it this Court would have long ago embraced the view right The protection of a man to the publishers enjoy and broadcasters an reputation his own unjustified from inva- immunity unconditional and indefeasible wrongful sion and hurt reflects no more liability for defamation. See New than our concept basic of the essential Sullivan, supra, York Times Co. v. at dignity every and worth of being— human (Black, J., concurring); 84 S.Ct. 710 Garri- concept any at the root of system decent Louisiana, U.S., son v. liberty. protection ordered pri- J., (Douglas, concurring); Curtis Pub- vate personality, like protection of life Butts, U.S., lishing v.Co. itself, primarily is left to the individual J.). Black, (opinion S.Ct. 1975 Such a States under the Ninth and Tenth Amend- would, indeed, rule obviate the fear that ments. But this does not mean that the prospect liability injurious of civil is entitled to recognition by less might press falsehood dissuade a timorous this Court as a basic of our constitutional from the effective exercise of First Amend- system. ment freedoms. protection Yet absolute misleading euphemisms We use when we requires the communications media speak of the New York Times rule as total competing value sacrifice of “uninhibited, robust, involving and wide- served the law of defamation. debate, open” “vehement, caustic and

Gertz, 3007-08, 41 418 U.S. at 94 S.Ct. at unpleasantly sometimes sharp” criticism. added). (emphasis L.Ed.2d What New York Times rule ultimately protects defamatory falsehood. No mat- Supreme recognized Court has untruth, gross ter how the New York society reputation also values the of individu- deprives Times rule a defamed offi- als. legit- The Gertz Court stated that “[t]he any hope cial of legal redress without imate state underlying interest the law of proof one, that the lie knowing was a compensation libel is the of individuals for uttered in disregard reckless of the truth. by defamatory harm inflicted on them That rule lightly require applied falsehood. would not should not except We be ” purpose.... State to abandon where a State’s Id. at law of defamation has been unconstitutionally 94 S.Ct. at 41 L.Ed.2d at converted into a law of seditious libel. The First and Fourteenth competing Our accommodation of the val- stripped private Amendments have not cit- ues at stake in by private defamation suits izens of all means of injuries redress for individuals impose allows States to lia- upon inflicted them careless liars. The bility publisher on the or broadcaster of destruction defamatory falsehood can demanding falsehood on a less is, sure, bring beyond often ca- showing than required by New York Yet, pacity of the imper- law to redeem. Times. This conclusion is not based on a is, though fect damages an action for belief considerations which only hope for vindication or redress the prompted adoption New York gives law to a reputation man whose has privilege Times public for defamation of falsely been dishonored. officials public figures and its extension to wholly Moreover, are inapplicable to the context of preventive, effect of liabili- private Rather, ty individuals. we endorse important pub- defamation serves an approach this recognition strong in purpose. of the lic rights For the and values of legitimate compensat- private personality state interest in far transcend mere ing private injury reputa- personal Surely individuals for interests. if the 1950’s tion. taught anything, they us taught us that the 476 Metromedia, U.S. atmosphere easy lie can Rosenbloom v. 403

poisonous 296, society. 29, 44, 1811, 1820, degrade a whole infect and 91 29 L.Ed.2d S.Ct. J.)).3 (1971) Brennan, (plurality opinion 312 75, 92-94, Baer, 383 U.S. Rosenblatt v. Bradstreet, In Dun & Justice Powell noted 597, 669, 679-80, 609-10 S.Ct. 15 L.Ed.2d that the Court had “never considered wheth (footnotes (1966) J., (Stewart, concurring) er the balance obtains when the defam Gertz omitted) Gertz, in U.S. at (quoted part in 806). atory public no issue of statements involve 3008, 341, 41 L.Ed.2d at 94 S.Ct. at 757, 2944, at 105 S.Ct. at Bradstreet, concern.” 472 U.S. Inc. v. See also Dun & Green 749, 757-58, determining ap 601. In Builders, Inc., 86 L.Ed.2d at moss 472 U.S. standard, 593, plurality opinion stat propriate 86 L.Ed.2d 601-02 Stewart). (1985) interest (quoting Justice ed that it would “balance the State’s injury compensating private in individuals for Subject Factor Matter as a against reputation to their the First Amend 1964, Following York Times in New protecting type ment interest in of ex initially primari- Supreme U.S. Court focused 757, 2944, pression.” Id. at at S.Ct. (i.e., ly whether the plaintiffs on the status plu L.Ed.2d at 601. The Dun & Bradstreet official, plaintiff public public figure, rality allowing noted that the state interest in However, figure). in private Dun & Brad- compensation damaged reputations was street, Builders, Inc., Inc. v. Greenmoss weighed to the one ... [ ] “identical Gertz subject Court shifted its focus to the matter ” ‘strong legitimate.’ Id. [ was] —which reaching statemént its 757, 2944, at 105 S.Ct. at 86 L.Ed.2d at 601 749, 2939, holding. S.Ct. Gertz, 348, (quoting 94 S.Ct. at at (1985). Bradstreet, In Dun & L.Ed.2d 593 810). However, plu 41 L.Ed.2d at private figure plaintiff sued a non-media de- rality concluded that First Amendment “[t]he fendant, reporting agency, a credit for send- speech purely on matters of interest[ —in report an incorrect credit to five sub- important ... ] is less than concern — scribers. weighed the one was a mat [which Gertz plurality opinion, The Dun & Bradstreet Bradstreet, public ter of Dun concern].” & joined by authored Justice Powell and 758, 105 472 U.S. at S.Ct. at 86 L.Ed.2d Rehnquist Chief Justice and Justice O’Con- at 602. See id. at 105 S.Ct. at also nor, characterized its cases after New York 86 L.Ed.2d at 603. involving public Times as “all issues.” Id. at continued, light The Court “In of the re- 105 S.Ct. at 86 L.Ed.2d at 600. speech involving constitutional duced value of id. at See also S.Ct. at concern, no matters of we hold that (“Like every L.Ed.2d at 600 other case in adequately supports state interest lim which this Court has found constitutional presumed punitive damages— awards of laws, to state involved its defamation Gertz ” showing even absent a of ‘actual malice.’ expression on a matter of undoubted concern.”). at at Id. S.Ct. 86 L.Ed.2d at opinion This Dun & Bradstreet (footnote omitted). plurality 603-04 suggested protections the media first issue, speech then asserted that an recognized in New York Times and devel extend, report, incorrect credit was not a matter of oped subsequent cases as the Ro- and, stated, public concern like plurality advertising, had to “de senbloom famatory involving] “hardy unlikely to be statements a ‘matter of deterred inci- ” general regulation.” interest.’ Id. 105 dental state Id. at (quoting S.Ct. at 86 L.Ed.2d at 600 plural- 86 L.Ed.2d at 605. The Bradstreet, 755-63, rejected emphatically 3. The the Ro- & U.S. at 105 S.Ct. at Gertz Gertz, 2943-47, plurality opinion. senbloom 418 U.S. at 86 L.Ed.2d at 600-05. See also id. at 346, 11, 11, 3010, at 809. How- 41 L.Ed.2d 785 n. 105 S.Ct. at 2959 n. 86 L.Ed.2d at ever, (Brennan, ("Distrust J., plurality dissenting) the Dun & seemed to 620 n. 11 Bradstreet aspects placing power breathe new life some of the Rosen- in the courts the to decide what into plurality quoted speech precisely public bloom the Rosenbloom when it was of concern was plurality opinion plurality’s rejecting rationale offered for the Rosen- embraced Gertz ruling subject speech. plurality approach.”). on the Dun bloom matter of the ity “permitting recovery concluded that There nothing plurality the Powell presumed punitive damages in defama- [in Dun & ] Bradstreet limit would its showing tion cases absent a of ‘actual malice’ application to plaintiff cases where the is a does violate the First not Amendment when private person. is, That for the three Jus- defamatory statements do not involve tices tip who make plurality, Powell 763, public matters of concern.” Id. at may well be the ease public that a official 2947, S.Ct. at 86 L.Ed.2d at 605. public figure presumed could also collect or punitive damages without showing even date, Supreme opinions To any negligence on part of the defen- directly have not confronted the First dant if alleged defamation requirements does plain Amendment’s when the “public involve matter of concern.” public tiffs are officials or all purpose public figures subject merely and the matter is John E. Nowák & Ronald D. Rotunda, Con- Times, private concern.4 In New York when 16.35, (5th § at 1102 stitutional Law standard, the Court first articulated its new ed.1995). Professor Tribe has also noted: it stated that guarantees “[t]he constitutional Bradstreet, In Dun & Inc. v. Greenmoss require ... prohibits a federal rule that Builders, Inc., the Court took the bifurcat- public recovering damages official from for a analysis ed public figure-private figure relating falsehood to his official more, and bifurcated it stating once proves conduct unless he that the statement the first amendment protect only would was made with ‘actual malice’....” New “speech on public matters of concern.” Times, 279-80, York 376 U.S. at 84 S.Ct. at Accordingly, plaintiff when the is not a added). 726, 11 (emphasis L.Ed.2d at 706 public figure and the contested statement plurality The Rosenbloom noted that defama concern, public is not about a matter of tory speech may “aspects enter into “actual malice” standard apply. does not ‘public figures’ lives of that are not in the public general area of concern.” Rosen Tribe, Laurence H. American Constitution- bloom, 48, 1822, 403 U.S. at 91 S.Ct. at (2d ed.1988). 12-13, § at 873 Profes- al Law 314, Gertz, quoted L.Ed.2d at 418 U.S. at that, sor explained Tribe further “as Dun & 94 S.Ct. at 41 L.Ed.2d at 819 clear, especial- Bradstreet made the Court is (Brennan, J., dissenting).5 ly reluctant to limit the common law of defa- * Regarding implications subject of Dun & mation when the matter of the ” issue, speech 12-13, Bradstreet for this ‘purely private.’ § Professors Nowak Id. , explained: and Rotunda have 878.6 4. This issue would special prominence arise a small number and who “assume involving public purpose of cases officials and all public questions," resolution of id. at public figures. involuntary public figures public S.Ct. at 41 L.Ed.2d at and as rare, class is small and and such individuals figures purposes "for all and in all contexts” public figures through purposeful become tion of their own. no ac- per- because those ... ... "individual[s] achieve Gertz, 418 U.S. at notoriety community],” vasive fame or [in id. pur- S.Ct. at 41 L.Ed.2d at 808. Limited pose public figures only public figures become 6.Similarly, provided' Professor Smolla has also they particular public because troversies, are linked to con- following commentary regarding implica- they public figures only and thus are plaintiffs tions of Dun & Bradstreet when the are range for a limited of issues. Id. at 94 S.Ct. public officials/figures subject and the matter is at qualify 41 L.Ed.2d at 812. When do not purely private: speech "Because the is outside of public figures, these individuals retain scope pub- of comment on officials private figure plaintiffs. their status as figures applies, lic to whom the actual malice test persons may essentially those ’revert’ to However, Court indicated that the Gertz status, figure speech and since the is not about a public’s speech interest in about officials " concern, liability may ap- matter of strict might ‘anything might extend to touch Rodney ply.” § Gertz, A. 3.04 on an official's fitness for office.’" Smolla, Law of Defamation (1989 344-45, Supp.1998). ed. & Professor Smolla con- U.S. at 94 S.Ct. at 41 L.Ed.2d at "Nevertheless, Garrison, 64, 77, implications (quoting tinued: of Dun & out, (1964)). yet are to be Bradstreet worked and it seems L.Ed.2d possible purpose public purely private Court also at least matters, that for certain Gertz described all figures ment,’’ defamatory speech involving public as those who "invite attention and com offi- figures id. at purpose public 94 S.Ct. at 41 L.Ed.2d at cials all could revert Authority need,” liability long in Private Defamation the State’s as as is not 4. State fault). imposed without Actions sections, preceding The Court refused to follow the Ro- in the Gertz As discussed recognizes plurality opinion that individu- senbloom which would have Supreme Court to select the stan- extended the New York test to those option al have the Times states brought by private figure proof applicable private when individ- defamation cases dard of plaintiffs involving public issues of con- assert defamation actions plaintiffs ual Gertz, at at regarding cern. against media defendants matters disap- 41 L.Ed.2d at 809. The Court may the states public concern. While proved grounds: an extension on such two York actual malice choose the New Times (1) extension of the New York Times standard, “[t]he Supreme applies Court proposed plurality test the Rosenbloom official/figure require public plaintiffs to abridge legitimate state interest would public their prove actual malice when con- degree unacceptable,” to a that we find issue, obligato- this standard is not duct is at (2) difficulty “it would occasion the additional ry private defamation upon the states forcing judges state and federal to decide Supreme Court ex- cases. The U.S. has publications on an ad hoc basis which ad- recognized that the states have the pressly ‘general public dress issues of or interest’ authority appropriate to define standard determine, and which do not —to liability in cases which media defen- Marshall, words Mr. Justice ‘what infor- alleged private to have dants are defamed ” self-government.’ mation is relevant to Id. Gertz, 345-46, figure plaintiffs. 418 U.S. at at 94 S.Ct. at 41 L.Ed.2d at 809 (stating 94 S.Ct. at L.Ed.2d at 809 Rosenbloom, (quoting 403 U.S. at 91 S.Ct. “the should retain States substantial 332). at 29 L.Ed.2d at The Court legal latitude in their efforts to enforce a “general that the concluded or inter- defamatory remedy injurious falsehood entirely private est” test was unsuitable individual”). reputation private defamation actions: that, explained under its accom- Gertz “public general or interest” test for values, competing modation of the the Con- determining applicability of the New liability impose stitution “allows the States to private York Times standard to defamation publisher on the or broadcaster of defamato- inadequately actions serves both of the ry demanding showing on a less falsehood competing values at stake. On the one required by than that New York Times.” Id. hand, private reputation individual whose 94 S.Ct. L.Ed.2d at 810. injured by defamatory falsehood that stated, long Court also “[S]o The Gertz general does concern an issue of fault, liability impose without do interest has no recourse unless he can may appro- States define for themselves the rigorous requirements meet the of New liability priate publisher standard of for a despite York Times. This is true the fac- defamatory injuri- broadcaster falsehood distinguish tors the state interest private ous to a individual.” Id. at compensating private individuals from the 5.Ct. at 41 L.Ed.2d at 809. See also analogous interest involved in the context Rosenbloom, 68-72, 403 U.S. at 91 S.Ct. at hand, public persons. On the other 1832-34, (Harlan, J., 29 L.Ed.2d at 326-28 publisher or broadcaster of a dissenting) (arguing that the states could error which court deems unrelated to an constitutionally allow individuals to general issue of interest be damages for defamation on recover the basis damages every held liable in if it took even standard); 86-87, of a reasonable care id. at precaution reasonable ensure accu- (Marshall, 91 S.Ct. at 29 L.Ed.2d at 336 racy of its assertions.... J., dissenting) (arguing that states should Gertz, “essentially free to continue the evolution 418 U.S. at 94 S.Ct. at Rosenbloom, of the common law of defamation and to L.Ed.2d at 809. also See 1829-34, articulate 62-72, whatever fault standard best suits U.S. at negligence way liability.” below the all the standard to strict Gertz Id. (Harlan, J., dissenting) published 322-28 cannot recover for a un

L.Ed.2d at falsehood simple “reasonable man” or (urging proves that a less he that the defendant was at apply to negligence falsehood.”); standard should media negligent publishing least in the brought by in defamation defendants actions id. at 105 S.Ct. at 86 L.Ed.2d at individuals); at 91 S.Ct. at private (White, J., id. concurring judgment) in the J., (Marshall, dis- 29 L.Ed.2d at 332 (“[I]n ..., again the court dealt Gertz with by senting) (arguing approach that the taken individuals, by private defamation actions plurality opinion Brennan in the Justice holding the first time plaintiffs such and, fact, serve inadequately would longer could no proving recover a false society’s protecting interest “threatens statement, damaging no matter might how it private being thrust into the individuals must, addition, reputation. They be to light eye by distorting of defama- public (cit ‘fault,’ prove negligence.”) at least some tion”). Gertz, 347, 350, ing 418 U.S. at 94 S.Ct. at d provided 811). two rationales Court Gertz 41 L.Ed.2 at standards for for its creation of two different Philadelphia Newspapers, provid the Court (1) plaintiffs: private figures are defamation following summary ed the of its case law: they injury typi because more vulnerable One can discern in these decisions two cally public access than offi have less media may reshape forces that the common-law cials/figures counteract landscape to conform to the First Amend- (2) private figures are more speech, and de ment. The first is whether plaintiff serving recovery because have not public figure, official or or is instead a voluntarily public become involved in contro private figure. The second is whether the' in order to influence their outcome. versies speech public at issue is of concern. When Gertz, 344-45, 418 U.S. at 3009- speech public is of concern and the 10, 41 L.Ed.2d at 807-08. The Court noted plaintiff public public figure, is a official or important approach pur that its served two clearly requires plain- Constitution (1) “provides equitable a more poses: it higher tiff to surmount a much barrier boundary competing between concerns recovering damages before from a media (2) involved,” “recognizes strength and defendant than is raised the common legitimate compensat state interest in speech law. is of concern When ing wrongful injury private individuals for plaintiff private figure, but the is a as in reputation, yet press shields broad Gertz, supplants the Constitution still rigors liability cast of strict media from law, standards of the common but the con- 347-48, for defamation.” Id. at 94 S.Ct at are, requirements stitutional in at least 3010-11, 41 L.Ed.2d at 809-10. range, of their forbidding some less than Therefore, figure plaintiffs private must at plaintiff public figure when the is a prove negligence least to recover in defama speech is of concern. When against tion actions media defendants for speech exclusively private is of concern injury reputations. Philadelphia to their See plaintiff private figure, and the is a inas Newspapers, Hepps, Inc. v. Bradstreet, Dun & the constitutional re- 768, 106 S.Ct. 89 L.Ed.2d quirements necessarily do not force (1986) (“In Gertz, pri the Court held that a change in at some of the least features figure brings vate a suit for defamation who landscape. the common-law showing cannot recover without some Philadelphia Newspaper's, 475 U.S. at publish the media at fault in defendant was 106 S.Ct. at 89 L.Ed.2d at 791-92. issue.”) Gertz, (citing the statements at Thus, brought by in defamation actions 418 U.S. at 94 S.Ct. at L.Ed.2d 809); Bradstreet, private figure plaintiffs against media defen- Dun & 472 U.S. at dants, presumably by public in those (Burger, 86 L.Ed.2d at 605 (“In C.J., matters, officials/figures concurring judgment) involving private in the Gertz ..., contrary may apply states their to well-established common own common law or law states, prevailing statutory a divided Court held standards. Gertz private plaintiff that a in a defamation contemplate action seemed to. at least two alterna- liability against the states cases media tive standards defendants matters of (1) actual malice adopt: standard could concern. In the absence plurality statute, suggested the Rosenbloom when Supreme of the Indiana Court must defamatory involve issues of statements select the appropriate common law standards (2) interest,” neg- “general public some state, proof considering of for our both free- liability of strict as ligence standard short press accountability dom of the and media majority. suggested by the Gertz private falsehoods about indi- viduals. Appellate of Review Standard challenge Neither this nor its resolution imposed has Supreme The U.S. vintage. of recent one Two hundred and special appellate standard of review when years ago, years three before he became implications federal First Amendment re- States, Chief Justice of the United John quire application of the New York Times Marshall wrote: cases, appel- actual malice standard. In such Among principles those in deemed sacred independently review trial late courts must America, among precious rights those con- actual malice to en- court determinations of forming sidered as the bulwark of their applied— sure that the correct standard was liberties, which the Government contem- convincing clear plaintiffs proved reverence; plates with awful ... there is acted with evidence that defendants actu- no one ... more deeply impressed on the publishing al falsehood with malice in knowl- mind, liberty than the press. of the edge falsity disregard or reckless liberty excess, That this is often carried to Corp. whether it was false. Bose v. Consum- degenerated it has sometimes into States, Inc., ers Union United licentiousness, lamented; is seen and 1949, 1967, 80 L.Ed.2d remedy yet has not been discovered. (1984) (“Appellate judges in such Perhaps inseparable it is an evil from the independent judgment case must exercise allied, good perhaps to which it is it is a whether the record determine estab- stripped shoot which cannot be from the convincing clarity.”). lishes actual malice with stalk, wounding vitally without plant stated, “Judges, exposi- That Court also as which it is torn. However desirable Constitution, independently tors of the must be, may might those measures which cor- decide whether evidence record is enslaving rect press, they without sufficient to cross the constitutional threshold yet never been devised in America. No entry any judgment that bars that is not regulations govern- exist which enable the supported by convincing proof clear and suppress ment to whatever calumnies or ” Id., ‘actual malice.’ 466 U.S. at invectives individual ch[oo]se S.Ct. at at 523. 80 L.Ed.2d public eye, offer to the punish or to such However, Supreme the U.S. Court has not otherwise, calumnies and invectives than imposed special independent standard of courts, by legal prosecution which are appellate scrutiny upon the states when re- open alike all who consider themselves viewing verdicts in defamation cases involv- injured. ing private figure plaintiffs, even in matters Talleyrand Letter from John Marshall concern, involving or in those Papers 3, 1798), (Apr. in 3 The of John officials/figures private concerns. The (1984) added). (emphasis La Marshall applica- states remain free to determine ter, Justice, as Chief Marshall declared for appellate ble standard of review in such very the unanimous Court: “The essence cases. liberty certainly civil consists in the Determining B. the Rules for every protection individual to claim the Indiana Defamation Law laws, injury. whenever he an receives One above, As noted the decisions of the government U.S. of the first duties of is to afford Supreme Madison, recognized Marbury Court have the substan- protection.” (1 Cranch) 137, authority tial of the states to determine state L.Ed. (1803). regarding private figure law defamation Perspective Viewing Constitution?, Aafco dent in the Indiana Life (cid:127) (1987). years L.J. Fifteen Ind. Shortly Supreme after the U.S. Court in elapse would between and the publica- Aafco expressly permitted individual states Gertz tion of Shepard’s Chief Justice seminal arti- proof applicable determine the standard cle, Second Wind the Indiana Bill cases, figure a divided defamation (1989), Rights, 22 Ind. L.Re'v. 575 trig- panel Appeals of the Indiana Court of issued gered judicial refocusing legal atten- Heating & Air opinion its Condi Aafco provisions tion on the of the Indiana Consti- Publications, Inc., tioning v.Co. Northwest tution. 671, (1974), Ind.App. 162 321 N.E.2d 580 displace negligence stan

preferring precedential value of is dubious Aafco dard the actual malice test. The several other reasons. was hand- Aafco grant not Supreme just Indiana Court did transf ed-down six months after the U.S. Su- er,7 Gertz,8 preme nor we until now ever addressed have Court decided but over ten sought years Thus, was Bradstreet.9 option issue. Transfer before Dun & Gertz during prior in an era to this Court’s court was unable to benefit from ex- Aafco Aafco recognition vitality renewed tensive federal and state case law and schol- Reflecting arly Indiana’s own constitution. discussion that appeared have in the era, ensuing twenty-five years. time, Professor Baude observed twelve During this therefore, years “Nobody expects, later: judges some Indiana questioned have standard,10 Supreme [state] Indiana Court to find consti wisdom of the and federal Aafco rights judges hesitantly tutional the federal courts do not force applied have it as Indiana Baude, Furthermore, upon Indepen- it.” Patrick Is There places among law.11 Indiana including Judge Because 7. of various factors the bur- Hoffman. See Co. v. Ban Journal-Gazette cases, Inc., dido’s, 969, (Ind.Ct. pending particularly den of other criminal 672 N.E.2d n. 3 973 cases for which this Court has exclusive constitu- App.1996) (expressing disagreement with the responsibility, standard); Smith, tional the denial transfer does Ind.App. Patten v. 172 Aafco necessarily Supreme approval Court 307, reflect 300, 233, (1977) (Garrard, 360 N.E.2d 238 Appeals of decisions of the Court of in which J., concurring opinion in result with in which sought. petition transfer is "The denial of a Hoffman, J., concurred) ("I my adhere to dissent legal shall have effect other than transfer no damages in ... and reiterate that actual Aafco litigation parties terminate the between the negligent publication should be allowed for the 11(B)(4). Supreme Appellate Rule Court.” Ind. involving private a falsehood a indi who is neither vidual a official nor a 8. The decision was handed down on De- Aafco 591, Aafco, public figure.”); 321 N.E.2d at 593- 30, 1974, cember decision was Gertz J., (Garrard, dissenting) (disagreeing 94 with the 25, handed down on 1974. In his June dissent majority’s interpretation of and Arti Gertz Aafco Aafco, Judge in Garrard noted that "at time 1, cle Section 9 of Indiana Constitution and decision, guid- the trial it was court rendered its standard). objecting to the court’s new only by plurality opinion ed of Rosenbloom v. Metromedia, 29, (1971), 403 U.S. Inc. 91 S.Ct. 255, (7th Dugan, 11.See Jean v. 20 F.3d 262 ap- 29 L.Ed.2d which indicated that Cir.1994); Chang Telecasting Corp., v. Michiana plication of the New York Times standard would (7th Cir.1990); 900 F.2d 1087 proper.” Aafco, Ind.App. be 162 321 Schaefer Newton, (S.D.Ind.1994). F.Supp. 252 Judge N.E.2d at 591-92. Garrard continued: opinion. Judge In Circuit a Seventh Easterbrook "However, Supreme on June Court spoke critically of the standard: (1974), issued its decision in v. Welch Aafco Gertz U.S. 41 L.Ed.2d ..., panel of the state’s court of a Aafco majority applicabili- redefined the Court appeals private fig- held that in Indiana even ty privilege of First Amendment as a defense in malice, ures must establish actual if the state- certain libel actions. sary It therefore becomes neces- ments relate to an issue of concern. presented to determine whether Aafco has puts among minority Indiana a small Aafco presented viable claim on the facts under the Smolla, According Rodney of states. modification Id. announced Gertz.” (1989 ed.), § only Law 3.11 four of Defamation 321 N.E.2d at 592. (Alaska, Colorado, Indiana, Jersey) and New private-figure require plaintiff prove actual 9. The Dun & Bradstreet decision was handed Michigan recently negli- malice. switched to a down on June standard, News, Enquirer gence Rouch v. & (1986), Appeals Judge Indiana 427 Mich. 398 N.W.2d 245 and a Court Garrard has consistently disagreement predicted stated his with the federal court has that Alaska will ma- chance, jority opinion Aafco, joinéd by he suit when it has the follow Sisemore v. (1989)).12 minority jurisdictions majority § very 3.11 The vast tion small states, considerably pro- through media more either to the their courts extend Supreme legislatures, negli- re- chosen tection than the U.S. some form Telecasting gence Chang v. Michiana standard defamation actions quires. See Cir.1990) (7th brought by private figure plaintiffs.13 F.2d See Corp., 900 Rodney Smolla, Smolla, § supra, A. 3.10. (citing Law of Defama- Dist.Ct.1984)), (Sisler Report, F.Supp. Jersey News & World and New v. Gannett Brown, Co., (D.Alaska 1987). N.J.256, (N.J. 516 A.2d Moffatt (Alaska 1988), 1986)), rejects requiring private P.2d 939 as the four states convincing proof’’ requirement figures subject prove “clear and actual malice when the cases, figure suggests private speech Sisemore matter of the is an issue con- product prescient. § itself was the cern. 3.11. Aafco Smolla, The Law of Defamation case, panel, and in a later Patten v. of a divided Smith, (3d Ind.App. N.E.2d following jur- 13. Professor Smolla identified 1977), Garrard, Judge the author of the Dist. having negli- adopted isdictions as some form of Aafco, picked up support dissent in of a gence standard in defamation actions newly appointed colleague, Judge Hoffman. (Mead against Corp. media defendants: Alabama .... Patten did not overrule Aafco Hicks, 308, (Ala.1983); v. 448 So.2d 313 Brown- nothing ... If we had and Patten Aafco News, (Ala. ing Birmingham v. 348 So.2d 455 on, go we would think the law of to muddy. Indiana 1977)); (Peagler Newspapers, Arizona v. Phoenix subsequent have Two cases followed Inc., 309, 1216, (Ariz. 114 Ariz. 560 P.2d 1222 Aafco, deeming it authoritative. v. Cochran 1977)); (Little Newspapers, Arkansas Rock Inc. v. Inc., Indianapolis Newspapers, Ind.App. 175 Dodrill, 25, 933, 281 Ark. 660 S.W.2d 937-38 548, 1211, (2d 372 N.E.2d 1218 & n. 3 Dist. (Ark.1983); 228, Simon, KARK-TVv. 280 Ark. 1978); Roach, 661, Elliott v. 409 N.E.2d 685- 702, (Ark.1983); 656 S.W.2d 704 v. Dodrill Ar- 1980). (Ind.App. 86 4th Dist. No Indiana court Co., 628, kansas Democrat 265 Ark. 590 S.W.2d disagreed Aafco, years ago has and four 840, (Ark.1979)); (Widener 844 California v. Pa- be we took the established law of Aafco Co., 415, 433, Cal.App.3d Gas & Elec. 75 cific Co., Woods v. Evansville Indiana. Press 791 304, (1977)); Cal.Rptr. 142 313 Connecticut 480, (7th Cir.1986). F.2d 483 See also Gintert (Corbett Co., 4, Register Publ’g Conn.Supp. v. 33 Publications, Inc., 829, F.Supp. v. Howard 565 472, (Conn.Super.Ct.1975)); 356 A.2d 476-77 (N.D.Ind.1983).... 838-39 (Re Co., 662, Delaware v. Gannett 480 A.2d 666 has drawn adverse comment from Aafco 1984), 'd, 553, (Del.Super. Ct. 496 A.2d 557 aff judges only Judges several Indiana —not (Del.1985)); (Phillips District of Columbia v. Eve panel Garrard and Hoffman but also the Cochran, Co., 78, (D.C. ning Newspaper Star 424 A.2d 90 expressed doubts but followed 1980)); (Miami Ane, Publ’g Florida Herald Co. v. uniformity. to maintain Yet it does not Aafco 239, (Fla.1984); 458 So.2d 241-42 Tribune Co. v. alone, although stand the trend in other Levin, 243, (Fla.1984)); Georgia 458 So.2d 244 it, against Jersey adopted states is New Publications, (Triangle Chumley, Inc. v. 253 Ga. Michigan actual malice standard even as 179, 534, (Ga.1984); 317 S.E.2d 536-37 Savan Co., it. v. abandoned Sisler Gannett 104 N.J. News-Press, Newspapers nah Div. Southeastern 256, (1986). 516 A.2d 1083 New York uses an Whetsell, 233, Corp. Ga.App. v. 149 254 S.E.2d approach, Chapadeau intermediate v. Utica 151, 1979); (Ga.Ct.App. 152 Williams v. Trust Co. Inc., 196, Observer-Dispatch, 38 N.Y.2d 379 Ga., 49, 45, Ga.App. 140 230 S.E.2d 47-51 61, (1975), 341 N.Y.S.2d N.E.2d 569 and deci- (Cahill (Ga.Ct.App.1976)); Hawaii v. Hawaiian appellate go sions of ways, courts in California both 522, 1356, Corp., Paradise Park 56 Haw. 543 P.2d cases). (collecting Skepti- see Smolla (Haw.1975)); Code § 1362-67 Idaho 6- (Idaho among judges cism Indiana’s is not the same 708); (Troman Wood, 184, Illinois v. 62 Ill.2d straightfor- conflict in decision. Aafco 292, (Ill.1975)); (Gobin 340 N.E.2d 299 Kansas and, moment, reigning for the ward ex- Co., 223, 76, Publ'g v. Globe 216 Kan. 531 P.2d pression Supreme of state law. The Court of (Kan.1975); 84 Sellars v. Communica Stauffer ample opportunity express Indiana has had tions, Inc., 573, 450, Kan.App.2d 9 684 P.2d 453- a different view and has so far elected not to (McCall (Kan.Ct.App.1984)); Kentucky 56 v. do so.... Co., Courier-Journal & Louisville Times 623 Chang, 900 F.2d at 1087. 882, (Wilson (Ky.1981)); S.W.2d 886 Louisiana Press, 393, Capital City 12. Professor Smolla listed v. Indiana with Alaska 315 So.2d 397-98 Williams, 12, (D.Alas (Gay F.Supp. (La.Ct.App.1975), specifically approv v. 486 14-16 cert. denied 1979) law)), (Diver decision, (applying (La.1975); ka Alaska Colorado 320 So.2d 203 Melon v. Post, Inc., Press, 85, Management, Capital City (La.Ct.App. Inc. v. Denver 653 407 So.2d 86 sified (Colo.1982); 1981); Picayune Publ'g P.2d 1109-10 Corp., Walkerv. v. Times LeBoeuf Sun, Inc., 86, 430, 1976)); Springs (La.Ct.App. Maryland Colorado 188 Colo. 538 327 So.2d (General 431 450, (Colo.1975); Piskor, 165, Corp. P.2d 457-59 v. Haan Board v. Md. Motors 277 352 Church, 810, (Md.1976); Publications Inc., the Christian A.2d Sindorf, 814-15 Jacron Sales Co. v. Reformed (BNA) 1671, (Colo. 580, 688, Med.L.Rep. 10 1672 Md. 350 A.2d 276 698-700 Remedy Reputation Right guidance in the values embodied in our state 2. The constitution, Injury provision assur- particularly this v. Bals injury reputation. ing remedy for I, Consti- 12 of the Indiana Section Article (Ind.1992).14 Verdmco, 1363,1365 600 N.E.2d open; “All courts shall provides: tution Appeals Neither the Court' of nor Aafco injury done to him in every person, majority present case considers reputation, shall his property, person, express import discusses the of Indiana’s Justice remedy course of law. due to rem- protection constitutional freely, and without shall be administered However, edy denial; reputation. for harm to and without completely, purchase, majority acknowledge does the law of delay.” Ind. Const. speedily, and without added). society’s defamation was created because of con- I, (emphasis § When art. against attacks strong protecting interest between alternative a choice fronted with upon reputation.15 Court will find individual policies, common law Inc., (Colombo Ass’n, (Stone Times-Argus (Md.1976)); Coun mont v. v. Essex Massachusetts 849, 80, Inc., 454, (Vt.1977)); Virginia 330 N.E.2d ty Newspapers, 367 Mass. Vt. 380 A.2d 82-83 (Rouch 1975)); 713, 161, (Mass. Harris, 1, Michigan (Gazette v. En v. 229 Va. 325 S.E.2d Creek, 157, quirer 427 Mich. (Va.1985)); (Caruso & News Battle Washington v. Local 724-26 (Mich.1986); v. Wom 263-65 N.W.2d Deitz P.2d Union 100 Wash.2d No. TV, Mich.App. Michigan etco West Seattle, (Wash.1983); Bender v. 244-45 (Mich.Ct.App.1987)); Minneso N.W.2d (Wash. Wash.2d 664 P.2d 503-05 Co., (Jadwin Minneapolis Star & Tribune ta v. Co., 1983); 86 Wash.2d Taskett v. KING Broad. (Minn.1985)); Mississippi 491-92 N.W.2d (Wash.1976)); 546 P.2d 84-86 West Co., (Brewer Publ’g Memphis 626 F.2d Virginia (Crump BeckleyNewspapers, (5th Cir.1980) Mississippi (applying 1246-47 (W.Va.1984)); Wis W.Va. 320 S.E.2d 77 (McCusker law)); Valley Hampshire v. New Mertz, 636, (Denny v. 106 Wis.2d 318 consin 493, (N.H. 258, News, 428 A.2d 494-95 121 N.H. 141, (Wis.1982)); Wyoming and N.W.2d 150-52 Brown, (Marchiondo 1981)); v. 98 Mexico New Co., 556, (Adams P.2d v. Frontier Broad. 555 462, (N.M.1982)); 394, 470 North N.M. 649 P.2d (Wyo.1976)). supra, § 3.10. New 560-62 Smolla, Herald, Inc., (Walters 31 Carolina v. Sanford Appeals Chapadeau in v. Utica York Court 766, 233, (N.C.Ct.App. N.C.App. 228 S.E.2d 767 Inc., 196, Observer-Dispatch, 38 N.Y.2d 379 (Lansdowne 1976)); v. Beacon Journal Ohio 61, 569, (N.Y.1975), 341 N.E.2d 570-71 N.Y.S.2d 176, 979, Co., Publ’g N.E.2d 32 Ohio St.3d 512 "gross adopted irre an intermediate standard of Club, (Ohio 1987); Supper v. Inc. 983-84 Embers sponsibility.” supra, § 3.12. 22, Co., Scripps-Howard Smolla, 9 Ohio St.3d 457 Broad. 1164, (Ohio 1984); H. Ma Thomas N.E.2d 1167 Co., Sons, Scripps loney Hosp., 43 Ohio & Inc. v. E.W. N.E.2d also Doe v. Methodist 690 See 494, (Ohio 105, Ct.App. 681, (Ind. 1997) J., App.2d (Dickson, 498 concurring 334 N.E.2d in 695 Television, (Martin 1974)); Sullivan, v. Oklahoma separate opinion, in which result with J., Griffin (Bank Inc., 85, (Okla.1976)); Oregon 549 P.2d 92 concurred) ("The pro- Indiana Constitution Inc., News, Or.App. Oregon Independent 65 v. express recognition inter- of an individual’s vides 616, 29, aff'd, (Or.Ct.App.1983), 670 P.2d 623-29 specific protec- reputation it est in tion."). and accords 434, 35, (Or.1985); P.2d 43-44 298 Or. 693 777, Green, 99, P.2d 788- 286 Or. 593 Wheelerv. 1979)); (Marcone (Or. Pennsylvania v. Pent 89 Anglo- well-supported in 15. This statement 353, Int'l, Ltd., F.Supp. 360-61 house 533 plurality opin The American and Indiana law. (E.D.Pa.1982), grounds, 754 F.2d rev'd on other recognized Hosp. ion in Doe v. Methodist law); (3d Cir.1985) (applying Pennsylvania 1072 “[djefamation traditionally law has addressed Time, Inc., F.Supp. 277 n. 7 Medico v. 509 injuries reputation.” N.E.2d 690 similar (E.D.Pa.1980), grounds, 643 on other F.2d aff'd continued, (Ind. 1997). plurality “This The 686 law); (3d Cir.1981) Pennsylvania (applying 134 recognized years ago that libelous 150 Inc., Newspapers, Philadelphia 455 Mathis v. injured reputation person's and defamation (E.D.Pa.1978) (applying F.Supp. 410-12 hatred, contempt, thereby exposed him ‘to (Torres-Silva law)); Pennsylvania Puerto Rico v. ” (quoting v. Moran or Id. Armentrout ridicule.’ (BNA) Mundo, 15, Med.L.Rep. El 106 P.R.Dec. 3 da, (Ind.1847)). See also 50 8 Blackf. 427 (P.R.1977)); WL Rhode Island (1995) (“The gra § 2 Libel and Slander daSilva, (DeCarvalho 812-13 414 A.2d Am.Jur.2d gist defamation is or of an action for vamen (Jones (R.I.1980)); Publ’g v. Sun South Carolina reputation. reputa damage plaintiff’s It is to the (S.C. Co., S.E.2d 24-25 278 S.C. defamed, reputation which is in which is tion 1982)); Publ’g (Memphis Co. v. Tennessee Nich protected 1978)); jured, reputation which is (Tenn. and ols, Texas 569 S.W.2d 417-18 impair Inc., (Foster Defamation is an interest; law of defamation. Newspapers, 541 S.W.2d v. Laredo KSL, denigrates (Tex.1976)); relational it (Seegmiller ment of a Utah 1981)); (Utah community opinion in have of which others Ver- 626 P.2d 972-76 remedy provision Schuman, reputation The of our nial America. See David Temp. constitution, adopted in present Right Remedy, state ato L.Rev. stated, parallels predecessor, (1992). its The historical antecedent of open, every “That all Courts shall be and Article I, Section 12 of the Indiana Constitu- him, lands, person, injury done vividly his tion is seen in Magna Article 40 of the for Charta, goods, person, reputation, shall have rem- which Coke providing: restated as law; edy by right the due course of and and [Ejvery Subject Realm, injury of this for justice delay.” administered without denial or land, [goods, done to him person], ... Const, (1816) I, § (emphasis art. Ind. remedy by take his the course of the added). find no record of the intentions We Law, justice and have and for the of Indiana’s framers in either 1816 or 1851 him, sale, injury freely done fully without respect provision. to this denial, speedily without and without delay. principles But the embraced in Section 12 Hereby appeareth, that Justice must long distinguished history.

have For [Free, qualities, have three millennia, it must be for many major of the world’s cultures nothing iniquitous justice is more than religions placed immense value on sale; Complete, justice should not do preservation good of an individual’s name halves; Swift, things justice reputation. The ancient Litera- Wisdom delayed denied]; justice and then it is religions ture of the Jewish and Christian Right. both Justice and good name “[a] declares that is to be chosen great rather than riches.” Proverbs 22:1 Magna Thompson, Faith Carta Its Role Raymond (Revised Standard). See E. MaKing English 1300- Constitution, Brown, The Law of Defamation in Canada (1948) at 365 (quoting Sir Edward (“Some (1987) legal form of or social con- Coke, (4th 55-56 ed. Seoond Institute defamatory publications straints on ‘are to be 1671)). Although original neither the federal civilization, stages found all however Constitution nor Rights its Bill of contains a remote, imperfect, proximate to barba- clause, many remedies the drafters of Henry rism.’”) (quoting Folkard, C. original state constitutions did include a rem- (5th 1891)); and Libel ed. Law of Slander clause, and, edies as other states were added Newell, Martin L. The Law of Slander Union, many adopted provi- similar in Civil and Criminal Cases 1-28 and Libel Bauman, sions. See John H. Remedies Pro- (Mason ed., ed.1914). fact, H. Newell 3d visions in State Prop- Constitutions and the many subjected of the earliest law codes Courts, er Role the State 26 Wake Forest of defamatory speech to severe criminal and (1991). 243-44 English common L.Rev. civil sanction. supra, See at 1-18. Newell, law and governments American colonial pro- reputation tected property as a interest. See principles These were embodied in the Jr., Krotoszynski, Ronald J. Fundamental Magna provisions Charta. Its were Georgetown Property Rights, L.J. transmitted to largely through America Lord (1997). highly Edward Coke’s influential commen- tary Charta, Magna on the among which was Presently, thirty-nine state constitutions frequently contain,16 the most legal read texts in colo- or have been construed to con- plaintiff plaintiff’s Thus, proof and invades the pecuniary interest in injury. of actual it is name.”) (footnotes reputation good his and omit- recognizes protects clear that the law and ted). Previously, this Court has noted: reputation individual's interest his from def- misconduct, imputes amation that criminal re- right reputation early recognized The of gardless law, pecuniary damage.... Anglo-American machinery and the Lopez Killigrew, legal State ex rel. disposal 202 Ind. 401- person redress is at the (1931). good Many 174 N.E. vindicate his name. utterances and, per nature are actionable se I, defamation, II, very beginning § 16. Ala. of the law of Const, Const, 13; art. Ark. art. II, I, language § the rule was established that Const, § 13; 6; Colo. Const art. Conn. art. imputed species I, I, § misconduct to which the Const, Const, § 10; 9; Del. art. Fla. art. 21; 18; I, punishment I, § law attached a criminal § was ac- art. Const, Const, art. Idaho III. se, per I, any allegations tionable § without Const, Const, § 12; Ind. 12; art. bill Kan. specifically identify reputation18 clauses, or charac- tain,17 providing state remedies protected ter as a interest. provide to all and open courts should supra, Bauman, See injury. thirty-nine Of the remedies states with a remedies provision, thirty-one20 adopted have negli- constitution (compiling state Appendix 237 & gence particular Right significance standard. Of Schuman, provisions); remedies that, thirty-four the fact states that Remedy, supra, at 1201 & n. 25. These specifically protect character, reputation or clauses, however, vary constitution twenty-four21 have exercised the op- Gertz constitution, different combina- protecting standard, negligence tion to follow a and following person, per- interests: tions of the (other one22 than Appeals our Court of repu- character property, sonal and real Aafco) opted has for the actual malice stan- immunities, tation, rights. and other privacy, Illinois, Oregon example, dard. Schuman, Oregon’s Remedy Guar- See David expressly identified the provision remedies I, Oregon antee: Article Section support retaining negligence standard. Constitution, (1986) (cit- 65 Or.L.Rev. Oregon Appeals Court of stated: “We SwindleR, F. Sources 9 William higher also conclude that a standard of media THE UNITED STATES CONSTITU- DOCUMENTSOF liability requires than First Amendment supra, at 284-88 Bauman, (1973)); TIONS 508 unduly the, ... would restrict assured I, by Article provisions). Oregon (compiling section 10.”23 Bank of state constitutional News, Inc., Independent 65 Or.App. states, Indiana, thirty-four including At least 14; 18; 10; 11; I, VI, rights, rights, § § § § Kv. bill S.D. Const, Const, Const, La. Pa. art. art. 22; I, 19; I, 20; 17; I, § I, § § art. art. § Const, Const, Const, Const, Me. Md. Tenn. art. Tex. art. 19; rights, 13; 11; I, declaration of art. § § Const, Const. Const, W. Va. Mass. Const, Utah art. art. I, 8; pt. Ill, 17; 1, art. art. Miss. I, Const, Const. § Wyo. § 11; Minn. Const, 8. § art. 24; I, 14; Ill, § art. Mo. art. Const, Mont. § 16; I, 13; II, § art. art. N.H. Const, Const, Neb. § specifically identify 19. Eleven state constitutions 14; I, 18; I, § pt. art. art. N.C. Const, Const, Arkansas, Colorado, Idaho, a character interest: 9; 16; I, I, § N.D. art. art. Const, Ohio Const, § Massachusetts, Minnesota, Missouri, Montana, 6; II, I, art. art. Okla. Const, Or. Const, 10; § § Island, Vermont, Hampshire, New Rhode 5; I, I, art. R.I. art. S.C. Const, Const, 11; Pa. § § II, Wisconsin. See Ark. art. Const, Colo. 13; I, 9; VI, 20; § § art. art. S.D. Const, Const, Tenn. § 6; II, I, 18; § § art. art. Const, Const Idaho I, 13; Mass. I, 17; § § art. art. Const, Const, Tex. Utah XI; I, § 8; art. art. Mo. Const, Const, Const. 4; I, 11; I, Minn. § ch. art. W. art. Const, Const, Vt. Va. 14; I, II, 16; § § art. art. N.H. Const, 17; I, 9; Ill, Mont. § Wyo. art. art. Wis. Const, Const, § I, 14; I, 5; pt. § art. R.I. art. Const, Const, I, Vt. Const, art. 8. § I, 4; I, § ch. art. Wis art. Const, Const, Newspapers, 17. Boswell v. Phoenix 152 Ariz. (Ariz.1986) (holding P.2d 190-95 Ariz. Compare supra states identified notes 16 & remedy guarantee, § 6 to be a art. Const, supra with states identified note 13. injury reputation); including remedy Rich Restaurant, Inc., Library Carnegie ardson v. identified, 19, Compare supla 21. states notes 18 & 688, 1153, (N.M.1988) (con P.2d N.M. supra with states identified note 13. cluding right remedy implicit is that a to a constitution), grounds, state overruled on other 721, Trujillo City Albuquerque, 125 N.M. Appeals 22. Other than the Indiana of of (N.M.1998). Aafco, P.2d 305 appears Colorado to be the state that applies the actual malice standard in Twenty-three specifically 18. state constitutions notwithstanding defamation actions state con- Alabama, reputation interest: Connect- include icut, Delaware, Illinois, specifically remedy stitution that ensures a for Indiana, Kansas, Ken- II, injury Compare to character. art. Colo. Const, Maine, Louisiana, Nebraska, Mississippi, tucky, 6, § Management, with 653 P.2d Diversified Dakota, Ohio, Carolina, Oklahoma, North North (establishing at 1106-09 malice standard actual Dakota, Tennessee, Oregon, Pennsylvania, South discussing provi- but not state constitutional Utah, Texas, Virginia, Wyoming. West and See character). regarding remedy injury sion for I, 13; I, 10; § § art. art. Const, Const, Conn. Ala. 9; I, 12; I, § § art. art. III. Const, Const, Ind. Del. I, Oregon Article Section 18; 10 of the Constitu- I, 12; rights, § § art. bill of Const, Const, Kan. tion, provides 14; part "every I, in relevant rights, Ky. § bill of art. Const, Const, La. 19; 22; I, Ill, remedy by man shall have due course law for § § of art. Miss. art. Const, Const, Me .13; 24; I, I, injury person, property, repu- § done him in his or § art. N.C. art. Const, Const, Neb. 18; I, 9; I, tation,” I, nearly § § N.D. art. art. Article Section 12 Ohio Const, Const, identical.to (cid:127) II, 6; 16; I, § § art. art. of the Indiana Constitution. Const, . Okla. Const, Or . 616, (Or.Ct.App.1983), aff'd, hatred, person P.2d contempt, or ridi (Or.1985). Or. 693 P.2d 35 The Illinois Morando, cule.” Armentrout v. 8 Blackf. Supreme (Ind.1847) Court observed: P., (citing 2 Selw. N. 1061). adoption The requirement of a of actual In “[a]ny Court stated that course, cannot, justified malice publication of on the degrade, tends to disgrace, theory requirement that such a injure furthers person, the character of a bring State, overriding public some policy hatred, of this contempt, ridicule, him into is as prior for to New York Times it was though much a libel as charges it contained liability considered that re- defamation infamy Stebbins, of or crime.” Johnson v. all, quired any showing (1854). of fault at let alone Ind. 366-67 In State ex rel. Moreover, proof of actual malice. the con- Lopez Killigrew, 202 Ind. of stitutions this State have from the out- (1931), N.E. we observed that the recognized rights set as fundamental the of “right reputation of early recognized “enjoying defending liberty, and life and law, Anglo-American machinery and the of acquiring, possessing protecting and and legal disposal redress is at the person of (Const, property reputation.” and of good to vindicate his name.” 1.) VIII, art. sec. From the outset it has Clearly, legal recognition protection and recognized been that an individual is enti- person’s reputational deeply interest is en- remedy injuries tled to a “for all history trenched in practice. our wrongs that he person, receive in his expressly Indiana Constitution protects an (Const, property or character.” right individual’s remedy rep- harm to Const, VIII, 12; 1848, XIII, art. sec. art. utation. This fact particularly significant 12.) (In sec. the most recent constitutions in determining how Indiana should exercise “reputation” word is substituted for option. Strongly Gertz favoring reason- Const, II, “character.” art. sec. remedy able recourse to inju- for defamation Const, 19; 12.) I, art. sec. ries, express our provision sup- constitutional speech freedom provisions of both our ports a common law rule of accountability (Const, present former and constitutions upon proof care, of failure to use reasonable Const, II, 4; I, art. sec. art. imposing rather than one responsibility only 4) recognize sec. the interest of the individ- upon proof of actual malice. This is consis- protection ual in the reputation, of his jurisprudence tent with the of an overwhelm- they provide that the exercise of the ing majority of other states. speak freely speak- shall not relieve responsibility er from for his abuse of that Responsibility for Abuse of Free right. Speech Wood, Troman v. 62 Ill.2d 340 N.E.2d (Ill.1975). The court went on to protecting In speech the freedom of adopt negligence standard. Id. at 299. press, the Indiana Constitution does not merely language Defamation reiterate the primarily law is concerned First Rather, protecting Amendment. it both reputation.24 emphasizes Judicial con- injury scope cern for broad reputation of the freedom requires can be seen throughout responsibility Indiana case law. for its abuse. provi- four Indiana’s years before adoption sion states: pres- passed, Indiana’s “No law shall be re- constitution, ent this explained straining Court the free interchange thought that of and libel is said opinion, “[a] to be a malicious defamation or restricting speak, to expressed write, printing writing, by in or signs, print, freely, any subject whatev- pictures, c., tending er, & injure the reputa- right, every abuse that for of another, tion of thereby and exposing person such responsible." shall be Ind. Const. correctly recognized 24. The court reputations that def- standing and in their Aafco communities. protects amation law at least two distinct Aafco, inter- (citing N.E.2d at 588 n. 7 as an (1) ests of preserve individuals: the desire to Rosenblatt, example 679, 383 U.S. at 86 S.Ct. at aspects certain of their lives from unwarranted (Stewart, J., concurring)). 15 L.Ed.2d at 609 intrusion, (2) and preserve the desire to their added). plain, general I, Tortious defa- It is context of (emphasis § 9 art. kind, in of the decisions cases this that right to abuse of the such mation constitutes publishers newspapers booksellers and freely. As this Court re- print and speak standing are considered as in situations of cently explained: peculiar responsibility, far from relax and certainly not intended Section 9 was general in their favor the rule that all by which an indi- private a warrant create persons carry are bound so to on their rights might impair the fundamental vidual others, injure trade business as not to Our common law private persons. necessity the Courts law have felt the torts, we vindi- mechanism which applying it their cases with the utmost encroachments, makes private cate such stringency. press potent is a most expressions of one clear.25 When this engine good for the diffusion of both and way a harm to another in person cause evil, and, while on the one hand we can tort, an common law abuse consistent with scarcely highly too the advan estimate § has occurred. under tages perfect freedom, its for all useful other, purposes, on the cannot but be we (Ind. State, 963-64 Price v. 622 N.E.2d necessity strong sensible of the of a curb 1993). (citing id. at 959 Gibson v. See also degenerat prevent such freedom from Kincaid, Ind.App. 221 N.E.2d 834 law, however, ing into licentiousness. The (1966), “expression that proposition for the holding publishers in- books and news only infringes it anoth- will be curtailed when papers responsible slanderous attacks for concluded, on rights.”). The Price Court er’s character, out, upon carries hand, “treating political as abuse the one that them, respect principles the same any particular not harm speech which does applicable injuries resulting are nuisance’) (‘public does amount individual from the transaction of other kinds of bush but, hand, on the other a material burden” ness. upon expression which inflicts “sanctioning Hall, 1 Dunn & Another v. Ind. gravity parties harm of analo- determinable (1849) added).26 (emphasis See also Sourbier tort gous required to that under law does Brown, 554, 559-60, 123 188 Ind. N.E. Price, N.E.2d at 964. not.” several, (1919) (discussing joint liabil long Indiana citizens have understood secondary ity primary publica “every person responsi- shall be the clause using tions of libelous statements accountability by liability for,” “responsible responsible ble” means phrases “held Contempora- for,” damages consequences’ in our courts law. which he is and “the the constitutional convention that context with “is responsible” neous with the same adoption consequences” of the Indiana Con- and “be held for resulted in the liable for the stitution, judgment Wayne Body damages”); Court affirmed a Works v. Hicks 10, 19-27, Co., 55 N.E.2d awarding damages Ind.App. in a defamation action banc) (1944) (en (using, in a libel stating: against newspaper, 386-89 Dunn, majority toiy statements. 1 Ind. at 354-55. The footnote the Price stated: In publishers now, expressed also concern about recognized, our law does avoiding might responsibility statements. expression constitute a tort action for libelous State, 355-56.("[I]f private party, newspaper McJunkins v. [the able he defendant Id. (1858), political even if it was 10.Ind. management’of publisher] chose to leave the his (1889), v. Callis 117 Ind. foreman, nature. Prosser he must be business in hands of (libel against action would lie 19 N.E. 735 equally responsible neglect or incom- held for the charge county newspaper auditor latter, obeying petency of the in not his.instruc- books); county Heilman v. Shank "botchfed]” tions, thing suffering to be done. such a (1878), (libel Ind. 424 action would lie lin by telling responsibility publishers If could avoid charge buying). against newspaper for of vote anything personal, their foremen not to admit State, (Ind. n. 622 N.E.2d Price v. absenting while a libel was and then inserted, themselves 1993). very easily newspa- could make most pers vehicles for the circulation of the atro- repeatedly "respon- used the words 26. The Court perfect impunity.”) (empha- referring cious slanders with "responsibility” when to de- sible” and added). being or liable for defama- sis fendants accountable 488 (... 12)29 I, action, “re- art. concepts [Illinois] ] the “liable for” and sec. constitution n recognize[s] the interest of the

sponsible interchangeably). individual in for” the protection reputation, pro- of his for [it] of the Consti- Neither the framers Indiana right the the speak that exercise of vide[s] Court, past present, tution nor this freely speaker shall relieve from immunity intended to defamation with cloak responsibility right” for his of that abuse and speech The ex- under Indiana’s free clause. adopting negligence standard rather than press “responsibility inclusion of the for private malice actual standard defama- abuse” limitation in Section 9 is clear instruc- defendants); against tion actions media tion contrary. to the Communications, Inc., Palmer Jones v. re- expressly Numerous other states have (Iowa 1989) 884, 898 (construing N.W.2d Ar- upon “responsi- lied their state constitution’s I, ticle Section of the Iowa Constitution30 bility provision, finding for that abuse” require adoption negligence aof stan- negli- their guided mandated or choice of the private plaintiffs in dard for defamation ac- gence option. The standard under Gertz Gazette, Harris, tions); Inc. v. Va. that, Kentucky Supreme Court determined (Va.1985) (holding S.E.2d that Arti- adopt “while it a option is our under Gertz I, Virginia cle Section of the Constitu- fault, Const., 8,27 Kentucky standard of Sec. “recognizes tion31 to be balance struck adopt mandates that we standard right expression enjoyed between of free adequately protects private individual by press the individual and the on the one negli- simple defamation. We choose right hand and of defamed individuals to ' gence.” McCall v. Courier-Journal & speakers ‘responsible’ damage hold the Times, (Ky. Louisville S.W.2d reputation on the and determining other” 1981). Supreme The con- Oklahoma negligence proper that “a test strikes bal- expressly cluded that the constitution28 state ance”); Mertz, Denny v. Wis.2d “weighted liberty right speech [to and (Wis.1982) 141, 150-51 (holding N.W.2d that press] responsibility with the for an abuse of private “a prove individual need that a right” required “balancing of] that negligent media defendant was in broadcast- rights news media with that of a statement,” publishing negli- individual” and that determined stating press that “freedom of the is not an gence expressed test “more absolute, Gertz was protect be limited to parallel” to the state constitution. Martin v. reputation valid interest of members of soci- Television, 92 ety,” P.2d concluding negligence that “a stan- Griffin (Okla.1976). Troman, complies See also 340 N.E.2d guarantee dard with the of freedom (noting that press “[t]he freedom contained in the Wisconsin Con- 32). speech provision! of present ... our ... stitution” ] Kentucky provides: provides 27. Iowa part Constitution 30. The Constitution that write, "[ejvery person may speak, publish speech press Printing Freedom of and of the — presses every person subjects, being responsible shall be free to who un- his sentiments on all proceedings dertakes to examine right_” for I,§ abuse of that art. Const, Iowa any govern- Assembly or General branch of 7. ment, shall and no law ever be made to re- Every person may strain the thereof. Virginia provides part 31. The Constitution that freely speak, print subject, write and write, "any may freely speak, publish citizen being liberty. responsible for the abuse of that subjects, being responsible his sentiments on all Ky. § Const. 8. I, right....” for the abuse of that art. Const, Va. “[ejv- 28. Oklahoma Constitution states that 12. § write, ery freely speak, person may publish his subjects, being responsible sentiments on all provides 32. The Wisconsin Constitution in rele- II, Const, right_Okla the abuse of that art. part may freely "[ejvery person speak, that vant 22. § publish subjects, write and his on all sentiments being responsible right....” the abuse provides 29. The Illinois Constitution in relevant I, § art. Wis. Const, "[ajll part persons may speak, write and publish freely, being responsible for the abuse I, liberty.” § III. art. Const, negligence, subject mat- Supreme that the Court that of whether the extent U.S. To the public private ter is one of concern.33 allows, “responsibility apply should we I, of 9 of language Article Section for abuse” negligence like- The same standard should com- favor the Constitution to our Indiana apply public wise in defamation cases where require publishers that would mon law rule defendants, official/figure plaintiffs sue media responsible defamatory to be of statements public no matter concern is but where of injure pri- damages negligently in when prerogative involved. Just like the to state plaintiffs involved figure plaintiffs vate negligence private choose the standard private of concern. concern, issues figure plaintiffs public in matters of Supreme opinions appear per- Court to to adopt mit each state its own standard “Negligence” 4. Best Indiana: What’s defamatory are matters when statements Malice”? or “Actual concern, regardless private of the status of cases, defamatory In these plaintiff. “responsibility for abuse” clause public are not to the statements directed “remedy repu- to 9 and the for harm Section public officials/figures conduct of and would and separately clause of Section tation” beyond scope be of the federal thus collectively, this Court to conclude counsel Thus, protections. constitutional I would actions, that, media private defamation that, to the the U.S. hold extent allowed upon should be held accountable defendants Court, officials/figures Supreme public when care, rather proof failure to use reasonable bring against defamation actions media de- only upon proof actual malice. than defamatory speech and the not fendants does Supreme Court has reserved The U.S. his official or conduct or mat- involve concern, power fashion their statuto- negligence the states ters of the same ry applies apply.34 differently, law of as it or common defamation standard would Stated negligence apply private individuals because that this standard would important, legitimate state in- those defamation actions that lie outside recognized the special protection scope of the afforded its cit- protecting reputations terest speech free under the U.S. Constitution. memo- important This value has been izens. rialized in our constitution and decisions Preserving Indiana’s Standards courts, Con- until The Indiana our Aafco. Appellate Proof Review respect us to of the con- stitution calls both opinion, Boehm separate interests that in issue here— In his Justice stitutional are reputational interest not that Indiana common law speech the free asserts vigorously malice re- preserving should follow actual interest. While Aafco speak, but further actual mal- quirement, of Indiana citizens to that such crucial write, convincing freely, pre- proven be clear and print we should also ice must accountability disagree. I For the same rea- the rule of for failure evidence. serve negligence I favor the standard private care indi- sons that exercise reasonable when malice, publication harm from of a than actual I am convinced vidual suffers rather preponderance stan- should retain applicable falsehood. The that we our impose figure standard35 rather than plaintiffs should the evidence dard majority. opinion concurring is Boehm's under- with the 34. This consistent with Justice 33.In his opines, quarter of a majority "[W]e Boehm have a standing implied approval Justice century experience far the under and so holding negligence opinion standard Aafco apparent.” citizenry Slip op. harm to the applicable to on mat- defamation claims based With the actual malice rule of at 471. Aafco of no concern. ters during period, place the unlikelihood of suc- appeal or on would counsel media- cess at trial Compare Jury Ind. Civil Instruction Pattern against legal pursuing any citizens ac- defamed (1989) (pattern for stan- 35.13 instruction No. taking appeal. the extent that tion or an To cases), Ind. Civil Pattern dard defamation citizenry, may have been our there harm to (1989) (pattern Jury in- Instruction No. 35.33 This would not have reached our thus attention. public official/figure defamation struction for appeal of cases on does not establish lack cases). of actual harm to citizens. absence Indiana Finds, J., plaintiffs upon peal, May defamation the addi Research private Wall STREET (midwest by clear proving BIO, ed.)); of their case tional burden col. Seth Goodchild, choose convincing Note, evidence. Even if we Media Re- Counteractions: private the actual malice test for optional Law, storing the Balance to Modem Libel cases, present the Indiana figure (1986). defamation L.J. Adoption 323-24 of the Geo. of should retained. proof at trial standard appellate ap- federal standard of review Moreover, all the present the standard is plication proof York New Times stan- require important if actual malice more (i.e., by dard actual malice clear and convinc- Justice adopted. ment I concur with is evidence) ing likely would mean reversal to however, Boehm, recognition his jury awarding damages to most verdicts def- appellate conventional standard of Indiana’s litigants against amation in actions media figure applies private to defamation review defendants. subject require to the actual malice cases Justice Boehm also retaining is correct in reviewing claims of insufficient ment. appellate our standard of review because cases, private figure defamation evidence adoption independent of the federal review appellate our of review now re standard right standard would detract also to reweigh quires we neither the evidence jury expressly trial in cases civil which is credibility of judge nor witnesses but I, by ensured Article 20 of Section only most consider the evidence favorable existing Indiana Constitution.36 The stan- in judgment along all reasonable with appellate dard review reflects our keen ferences, only if there a lack reverse is jury’s capacity of a plain unique awareness proof on an element of essential evidence, Roberts, weigh conflicting judge tiffs N.E.2d witness claim. Martin v. (Ind.1984). credibility, in Even those rare and to consolidate the diverse stances, punitive damages, experiences such as in which perspectives ju- of individual replaced by our preponderance standard into rors one verdict. Rather adopting than convincing proof, the clear and standard of appellate a standard of imposes review that appellate Indiana will affirm the courts scrutiny elevated suspicion upon and casts if, judgment “considering probative decisions, jury preserve we should our exist- sup evidence and the reasonable inferences presumes standard that the correctness it, porting weighing without evidence as of their verdicts and honors them re- credibility, sessing tri witness reasonable spectful deference and consideration. damages proven er of fact could find such C. Conclusion by convincing clear and Bud evidence.” Chevrolet, Robertson, Inc. majority opinion issued its to elabo- Wolf , (Ind.1988). N.E.2d Indiana courts rate on the proof required 135 state standard of appellate scrutiny heighten should not brought by in defamation private cases indi- jury by using the verdicts federal standard candidly It acknowledges viduals. that this independent appellate evaluation issue- not be relevant case full record determine whether the evi Court, properly before explains its dence of actual is also con malice clear and discussion as appropriate “as it relates to the vincing appellate tribunal. Slip future defamation law in Indiana.” op. at 452 n. 7. The facts of the case before Using independent appellate federal present us do the issue of interest to evaluation standard record results majority. significant jury being jury This case was not to the number of verdicts re- tried plaintiff on the basis of appeal. point being versed on graphically This individual and reports subject illustrated that less than thus was not to the a third against optional libel permitted verdicts media defendants sur- state standards under Rather, independent vive after review. See & Gertz. the trial court had here de- Nowak 16.33, supra, (citing § at 1093 Milo Rotunda, jury termined and instructed the Geylelin, Ap- Libel Fare Well on plaintiff, Bandido’s was a “limited Defendants cases, I, by jury "In civil § all of trial remain shall Ind. art. Const, inviolate.” action a defamation figure.”37 As purpose DUSEN, M.D., proof David M. figure plaintiff, Delbert VAN

brought O’Brien, M.D., Regional matter and Columbus required as a malice was actual (Defendants Appellants Curtis Hospital, law. Be- Amendment federal First low), Publ’g,

L.Ed.2d 1094. v Stotts, H. that William STOTTS Sharon trial court determined Because the (Plaintiffs Below). Appellees figure purpose limited was a Bandido’s jurisprudence as plaintiff, First Amendment No. 03S00-9711-CV-631. necessarily gov- malice standard to the actual of Indiana. Supreme Court involve case does not this case. This erned proof July standard application state 1999. option. It under Gertz permitted unnecessary to the resolution

therefore proof the elements appeal to discuss

this plaintiffs. Be- figure private defamation my colleagues under- opinions

cause the presented issue not discussion of an

take however, case, respond I

the facts of foregoing considerations.

with the repudiate majority’s preference proof in favor of the

negligence standard figure def-

actual malice standard unnecessary and presents an

amation cases injured impairment to

substantial remedy in legal recourse and to seek

citizens opposite to limitation is

Indiana courts. This words, history Indiana spirit,

Constitution, overwhelming contrary to the jurisdictions, and

authority other state I believe public policy. to sound

detrimental endangers per- majority approach jour- encourages irresponsible privacy,

sonal

nalism, unnecessarily injured deprives suf- recourse for harm

persons of reasonable and false- distortions

fered from and news published entertainment

hoods reasons, I dissent.

media. For these

SHEPARD, C.J., concurs. Final purpose at issue.” jury: of the statements "In this The trial court instructed plaintiff case, Record at 850. Instruction No. on which suit has been the statements object See Record figure to this instruction. public purpose did not brought limited relate to a public interest at least for as well as a matter

Case Details

Case Name: Journal-Gazette Co. v. Bandido's, Inc.

Court Name: Indiana Supreme Court

Date Published: Jun 23, 1999

Citation: 712 N.E.2d 446

Docket Number: 57S03-9709-CV-495

Court Abbreviation: Ind.