James P. Fenton
Cathleen M. Shrader
John D. Walda
Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Edward L. Murphy, Jr.
Diana C. Bauer
Fort Wayne, Indiana

Robert E. Connolly
Fort Wayne, Indiana

                            )
JOURNAL-GAZETTE COMPANY, INC.,    )
                            )
    Appellant (Defendant below),        )    Supreme Court
                            )    Cause No. 57S03-9709-CV-495
    v.                        )    
                            )    Court of Appeals
BANDIDO'S, INC.,                 )    Cause No. 57A03-9407-CV-248     Appellee (Plaintiff below).            )
                            )

with Justice Sullivan's opinion. However, I disagree with Justice Sullivan's analysis in some respects.
    The “Fair Index” Test
    First, I would conclude that the “fair index” test is met on the facts of the case. The fair index test requires a court to determine whether the headline fairly indicates the substance of the matter to which it refers. Maj. op. at 22 (quoting Burgess v. Reformer Publishing Corp., 508 A.2d 1359 (Vt. 1986)). The substance of the article was that the restaurant had been ordered to close because of health concerns including “evidence of insects and rodents.” The subheadline read: “Inspectors find rats, roachesSee footnote 1 at local eatery.” In my view, giving reasonable license to editorial choice of words, this subheadline fairly captured the topical sentence of the article and that is the end of the analysis.See footnote 2
    The Meaning of “Actual Malice” and “Reckless Disregard”
    Even if the headline were not a fair index of the article, I agree that Bandido's failed to demonstrate that the paper acted with actual malice. I reach that conclusion under state law alone, applying the clear and convincing evidence standard. For the reasons Justice Dickson explains in Part B.5. of his dissent, state law should adhere to the conventional

standard of appellate review of jury verdicts. Applying that standard, I nonetheless agree with Justice Sullivan's ultimate resolution of this case. The Journal Gazette may properly adopt an internal rule that headlines should be comprised of terms taken from the story, but failure to observe that guideline is not in itself evidence of malice or reckless disregard for the truth. To the contrary, in my view a headline writer's translation of “rodents” to “rats” does not by itself come close to supporting a finding of actual malice. I base that conclusion not on the testimony of the headline writer but on ordinary usage. As a matter of law some latitude in choice of language is required and substitution of rats for rodents in this context is within that permissible range.
    I also write separately to make clear my view that Indiana law need not parallel federal public figure law in all respects. The federal constitution may require a higher degree of malice for claims by a public official or public figure. However Gertz v. Welch, 418 U.S. 323, 347, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), explicitly gives the states latitude in formulating their defamation law as to claims by a private individual. As the Court of Appeals held in Aafco and this Court holds today , Indiana law requires a showing of actual malice for claims by private individuals based on publication of matters of public concern. In this case, there is no basis to conclude that any reckless disregard or serious doubt existed to support a finding of actual malice. The writer of the article inferred from the public report of rodent droppings that a rodent must be in the area. The headline writer assumed from this, at worst somewhat imprecisely, that the rodent was a rat and not some other rodent. Neither inference in my view approaches recklessness or ill will.

St. Amant v. Thompson, 390 U.S. 727, 732, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968). I believe these circumstances, if found by the trier of fact and not offset by other facts supporting veracity, should constitute reckless disregard for purposes of liability for injury to reputation of a private person as a matter of Indiana law, even on topics of public concern.     Identifying Matters of Public Concern
    I also wish to emphasize the point in the majority opinion that matters of public concern do not include every activity of a person who for other reasons is in the public eye. I recognize that drawing a line between matters of public and private concern may prove to

be problematic. Over time, however, guidelines will emerge and some are already available, assuming Indiana law will track federal constitutional doctrine on this point. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761-62, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985). Restricting the actual malice requirement to publications on subjects of public concern will leave the vast majority of the six million Hoosiers for whom Chief Justice Shepard expresses concern subject to a simple negligence standard for defamation. The drawing of these lines illuminated by the experience of concrete cases will afford the opportunity to rein in abuses that are perceived to flow if the press proves to be insufficiently checked by an actual malice standard. In order to strike this balance properly it is important that Indiana law, like f ederal constitutional law, treat the determination of public concern as a proposition of law, not a factual determination. Moreover, if the issue is left to the trier of fact, a very substantial risk of chilling speech would likely result from its often inconsistent and unclear resolution. Finally, we have a quarter of a century of experience under Aafco and so far the harm to the citizenry is not apparent. In any event, this case presents no significant question on this point. The health status of a restaurant open to the public is plainly a matter of public concern under the precedents and for the reasons cited by Justice Sullivan.
    Indiana Constitutional Provisions
    I agree with Justice Dickson that it is appropriate on occasion to look to constitutional provisions for direction in the development of our common law. See, e.g., Doe v. Methodist Hosp., 690 N.E.2d 681 (Ind. 1997). However, here we find somewhat specific provisions

pointing in opposite directions. In my view, a dopting an actual malice test for defamation actions on matters of public concern gives appropriate recognition to the balance necessary between the conflicting values evidenced in our state constitution: a remedy for injury to reputation and the important interest in the free interchange of thought and opinion. Article I, section 12, of the Indiana Constitution explicitly identifies injury to “reputation” as one proper subject of judicial remedy. Article I, section 9, is even more emphatic than the First Amendment in prohibiting any law “ restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever” and it provides for a person to be “responsible” only for “abuse” of those rights. “Abuse” seems to me to fortify the inference that actual malice is an appropriate test for any defamation claim on a matter of public concern. The standard we adopt today gives appropriate recognition to the interest in one's reputation and preserves the notion that one is responsible for abusing the free speech right, but it accomplishes this while still protecting the vital right to comment on, speak about and offer criticism of our government and other matters of public concern. It also leaves to a negligence standard all claims based on allegedly defamatory statements on matters of no public concern.
    

ATTORNEYS FOR APPELLANT            ATTORNEYS FOR APPELLEE

James E. Fenton                Edward L. Murphy
Cathleen M. Shrader                Diana C. Bauer
John D. Walda                    Fort Wayne, Indiana
Fort Wayne, Indiana                
                            Robert E. Connolly
                            Fort Wayne, Indiana

JOURNAL-GAZETTE COMPANY, INC.,    )
                            )
    Appellant (Defendant Below),    ) 57S03-9709-CV-495
                            ) in the Supreme Court
        v.                    )
                            ) 57A03-9407-CV-248
BANDIDO'S, INC.,                ) in the Court of Appeals
                            )
    Appellee (Plaintiff Below).    )

    Today's decision makes life more difficult for Indiana's citizens when they have been falsely and publicly maligned in front

of their neighbors.

    Constructing a regime that affords news organizations a respectable defenses for defamation claims might well include some of the walls erected today, but the cumulative effect of this series of barriers is to leave defamed citizens virtually without a remedy. The U.S. Supreme Court and thirty state supreme courts have concluded that a free society can flourish without making it so hard for the average person to defend his or her reputation as it will now be in Indiana. Just one or two state courts have thought otherwise.

the U.S. Supreme Court to declare that the First Amendment would be secure under a legal regime that makes redressing defamation easier, Gertz, 418 U.S. at 344-48, and finds that Indiana common law must make up for the protection the U.S. Supreme Court found unnecessary.

    The greater irony in this choice is that it is justified with a certain flourish to the effect that in Indiana "[t]he reputations of public figures and public officials merit the same quantum of protection as those of private citizens." Slip op. at 10 (quoting Aafco Heating and Air Conditioning Co. v. Northwest Publications, Inc., 321 N.E.2d 580, 587 (Ind. Ct. App. 1975). The opinion accomplishes this "same quantum" by constricting the rights of six million Hoosiers all the way down to the narrow remedy available to Hoosier public figures under New York Times Co. v. Sullivan, 376 U.S. 254 (1964). I doubt that our fellow citizens, when they have been defamed, will take this restriction as a matter of state pride.

    How difficult a task injured parties will confront in persuading appellate judges that they have proven their case is made apparent in the many pages, about sixty percent of the whole opinion, that Justice Sullivan takes to lay out his assessment of the evidence. He weighs the effect of using the word "rat" on the minds of newspaper readers, slip op. at 29, draws inferences about the state of mind possessed by the author of the headline, slip op.

at 36-43, and about the level of consciousness of others who worked on the Bandido's story, slip op. at 43.

    As for what evidence appellate judges think would warrant damages, today's decision is bleak news for the injured. Justice Sullivan gives us examples, such as cases in which the news organization actually fabricates a story or a reporter writes defaming material based solely on the reporter's imagination. Slip op. at 36 n. 32.See footnote 1 There are known instances in which this sort of thing has occurred, but if these are the models upon which successful cases must depend, the great majority of defamations will be immune.

inspection reports. Nevertheless, newspaper management had never given the copy editor any directions or cautions about dealing with health department reports on restaurants. Finally, when newspaper management did focus on what its editors had done, it decided not to publish a retraction conforming to Indiana's statute on retractions.See footnote 2

    A jury of people in Fort Wayne were satisfied that all this showed reckless indifference and that this small business was badly hurt. The appellate judges are not convinced. Judgment for the newspaper.See footnote 3

    Most injured plaintiffs will not have the smoking guns that Bandido's brought to this lawsuit. When the Court declares its dissatisfaction with the jury and the evidence in this case, it effectively says to other injured citizens, "You're toast."
    

    I respectfully dissent from the majority opinion as to its disapproval of Indiana's traditional common law standard, the failure to use reasonable care (often referred to as “negligence”), in private defamation cases against media defendants. The majority instead chooses the actual malice standard, which federal constitutional jurisprudence mandates only in certain other specified circumstances.

acted with “actual malice.” New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The U.S. Supreme Court in New York Times announced, “The constitutional guarantees require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'_that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80, 84 S.Ct. at 726, 11 L.Ed.2d at 706. The Court concluded that imposing a higher standard on public official plaintiffs would safeguard First Amendment values, would shield media defendants from threats that could cause self-censorship, and would minimize the “chilling effect” that potential liability could have on free speech. See id. at 267-83, 84 S.Ct. at 719-27, 11 L.Ed.2d at 698-708.
    The same standard that governs public officials also applies to a second category of plaintiffs, public figures. In defamation actions brought by public figure plaintiffs, the New York Times standard applies, and the plaintiffs must prove actual malice. Curtis Publ'g Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). “Public figures” are those who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” Id. at 164, 87 S.Ct. at 1996, 18 L.Ed.2d at 1116 (Warren, C.J., concurring in the result).
    In the category of public figure plaintiffs are three subcategories of public figures. The first subcategory is comprised of involuntary public figures. Gertz v. Robert Welch,

Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789, 808 (1974). Such individuals would become public figures “through no purposeful action of [their] own.” Id. However, in only the most “exceedingly rare” instances would such truly involuntary public figures be found. Id.
    The second and third subcategories include “those who . . . have assumed roles of especial prominence in the affairs of society.” Id. at 345, 94 S.Ct. at 3009, 41 L.Ed.2d at 808. In both of these cases, the individuals become public figures because “they invite attention and comment,” id., and “assume special prominence in the resolution of public questions,” id. at 351, 94 S.Ct. at 3013, 41 L.Ed.2d at 812. In the second subcategory are persons who “occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.” Id. at 345, 94 S.Ct. at 3009, 41 L.Ed.2d at 808. Thus, one becomes a public figure “for all purposes and in all contexts” when that “individual . . . achieve[s] . . . pervasive fame or notoriety [in the community].” Id. at 351, 94 S.Ct. at 3013, 41 L.Ed.2d at 812.
    The third subcategory of public figures is most common. These individuals are not public figures for all purposes, but rather only for limited or particular purposes. Limited purpose public figures are those who have “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Id. at 345, 94 S.Ct. at 3009, 41 L.Ed.2d at 808. These plaintiffs are those who have “voluntarily inject[ed] [them]sel[ves] or [are] drawn into [] particular public contovers[ies] and thereby become[] public figure[s] for a limited range of issues.” Id. at

351, 94 S.Ct. at 3013, 41 L.Ed.2d at 812. In such instances, private individuals become “public” with respect to particular controversies, and thus may be public figures for certain purposes, but not for others. In order to determine whether a plaintiff is a limited purpose public figure, one considers the plaintiff's specific “participation in the particular controversy giving rise to the defamation.” Id. at 352, 94 S.Ct. at 3013, 41 L.Ed.2d at 812. See also id. at 345, 94 S.Ct. at 3009-10, 41 L.Ed.2d at 808.
    In contrast to the standard of proof required for media defamation actions brought by public officials/figures, actions brought by private individuals are not governed by the same federal constitutional constraints. When private individuals, who are neither public officials nor public figures and who have not interjected themselves into particular public controversies, sue for injury caused by libelous statements, the more demanding New York Times standard does not apply. Id. at 343, 94 S.Ct. at 3008-09, 41 L.Ed.2d at 807 (noting that “the New York Times rule states an accommodation between th[e] concern [of providing the press and broadcast media with immunity from liability] and the limited state interest present in the context of libel actions brought by public persons” and concluding that “the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them”). In reaching this holding, the Supreme Court emphasized that the private figure plaintiff
    has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.

    Notwithstanding the important constitutional interests involving the freedom of speech and the press, the U.S. Supreme Court has acknowledged the high value of the interest that individual citizens have in protecting personal reputation:
        The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. See New York Times Co. v. Sullivan, supra, at 293 (Black, J., concurring); Garrison v. Louisiana, 379 U.S., at 80 (Douglas, J., concurring); Curtis Publishing Co. v. Butts, 388 U.S., at 170 (opinion of Black, J.). Such a rule would, indeed, obviate the fear that the prospect of civil liability for injurious falsehood might dissuade a timorous press from the effective exercise of First Amendment freedoms. Yet absolute protection for the communications media requires a total sacrifice of the competing value served by the law of defamation.

Gertz, 418 U.S. at 341, 94 S.Ct. at 3007-08, 41 L.Ed.2d at 806 (emphasis added).

    The Supreme Court has recognized that society also values the reputation of individuals. The Gertz Court stated that “[t]he legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose . . . .” Id. at 341, 94 S.Ct. at 3008, 41 L.Ed.2d at 806.
    Our accommodation of the competing values at stake in defamation suits by private individuals allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times. This conclusion is not based on a belief that the considerations which prompted the adoption of the New York Times privilege for defamation of public officials and its extension to public figures are wholly inapplicable to

the context of private individuals. Rather, we endorse this approach in recognition of the strong and legitimate state interest in compensating private individuals for injury to reputation.

Id. at 348-49, 94 S.Ct. at 3011, 41 L.Ed.2d at 810. The Gertz Court then went on to quote approvingly from the following portion of Justice Stewart's concurring opinion in Rosenblatt v. Baer:
        The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being--a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.
        We use misleading euphemisms when we speak of the New York Times rule as involving “uninhibited, robust, and wide-open” debate, or “vehement, caustic and sometimes unpleasantly sharp” criticism. What the New York Times rule ultimately protects is defamatory falsehood. No matter how gross the untruth, the New York Times rule deprives a defamed public official of any hope for legal redress without proof that the lie was a knowing one, or uttered in reckless disregard of the truth.
        That rule should not be applied except where a State's law of defamation has been unconstitutionally converted into a law of seditious libel. The First and Fourteenth Amendments have not stripped private citizens of all means of redress for injuries inflicted upon them by careless liars. The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.
        Moreover, the preventive effect of liability for defamation serves an important public purpose. For the rights and values of private personality far transcend mere personal interests. Surely if the 1950's taught us anything, they taught us that the poisonous atmosphere of the easy lie can infect and degrade a whole society.

Rosenblatt v. Baer, 383 U.S. 75, 92-94, 86 S.Ct. 669, 679-80, 15 L.Ed.2d 597, 609-10 (1966)

(Stewart, J., concurring) (footnotes omitted) (quoted in part in Gertz, 418 U.S. at 341, 94 S.Ct. at 3008, 41 L.Ed.2d at 806). See also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 757-58, 105 S.Ct. 2939, 2944, 86 L.Ed.2d 593, 601-02 (1985) (quoting Justice Stewart).

3. Subject Matter as a Factor

    Following New York Times in 1964, the U.S. Supreme Court initially focused primarily on the plaintiff's status (i.e., whether the plaintiff is a public official, public figure, or private figure). However, in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., the Court shifted its focus to the subject matter of the defamatory statement in reaching its holding. 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). In Dun & Bradstreet, a private figure plaintiff sued a non-media defendant, a credit reporting agency, for sending an incorrect credit report to five subscribers.
    The Dun & Bradstreet plurality opinion, authored by Justice Powell and joined by Chief Justice Rehnquist and Justice O'Connor, characterized its cases after New York Times as “all involving public issues.” Id. at 755, 105 S.Ct. at 2943, 86 L.Ed.2d at 600. See also id. at 756, 105 S.Ct. at 2943, 86 L.Ed.2d at 600 (“Like every other case in which this Court has found constitutional limits to state defamation laws, Gertz involved expression on a matter of undoubted public concern.”). This Dun & Bradstreet opinion suggested that the media protections first recognized in New York Times and developed in subsequent cases extend, as the Rosenbloom plurality had stated, only to “defamatory statements involv[ing] a 'matter of

public or general interest.'” Id. at 755, 105 S.Ct. at 2943, 86 L.Ed.2d at 600 (quoting Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 44, 91 S.Ct. 1811, 1820, 29 L.Ed.2d 296, 312 (1971) (plurality opinion of Brennan, J.)).See footnote 3 In Dun & Bradstreet, Justice Powell noted that the Court had “never considered whether the Gertz balance obtains when the defamatory statements involve no issue of public concern.” 472 U.S. at 757, 105 S.Ct. at 2944, 86 L.Ed.2d at 601. In determining the appropriate standard, the plurality opinion stated that it would “balance the State's interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression.” Id. at 757, 105 S.Ct. at 2944, 86 L.Ed.2d at 601. The Dun & Bradstreet plurality noted that the state interest in allowing compensation for damaged reputations was “identical to the one weighed in Gertz[] . . . [_which was] 'strong and legitimate.'” Id. at 757, 105 S.Ct. at 2944, 86 L.Ed.2d at 601 (quoting Gertz, 418 U.S. at 348, 94 S.Ct. at 3011, 41 L.Ed.2d at 810). However, the plurality concluded that “[t]he First Amendment interest[_in speech on matters of purely private concern_] . . . is less important than the one weighed in Gertz [which was a matter of public concern].” Dun & Bradstreet, 472 U.S. at 758, 105 S.Ct. at 2944, 86 L.Ed.2d at 602. See also id. at 759, 105 S.Ct. at 2945, 86 L.Ed.2d at 603.

New York Times, 376 U.S. at 279-80, 84 S.Ct. at 726, 11 L.Ed.2d at 706 (emphasis added). The Rosenbloom plurality noted that defamatory speech may enter into “aspects of the lives of 'public figures' that are not in the area of public or general concern.” Rosenbloom, 403 U.S. at 48, 91 S.Ct. at 1822, 29 L.Ed.2d at 314, quoted in Gertz, 418 U.S. at 364, 94 S.Ct. at 3019, 41 L.Ed.2d at 819 (Brennan, J., dissenting).See footnote 5
    Regarding the implications of Dun & Bradstreet for this issue, Professors Nowak and Rotunda have explained:
        There is nothing in the Powell plurality [in Dun & Bradstreet] that would limit its application to cases where the plaintiff is a private person. That is, for the three Justices who make up the Powell plurality, it may well be the case that a public official or public figure could also collect presumed or punitive damages without even showing any negligence on the part of the defendant if the alleged defamation does not involve a matter of “public concern.”

John E. Nowak & Ronald D. Rotunda, Constitutional Law § 16.35, at 1102 (5th ed. 1995). Professor Tribe has also noted:
    In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., the Court took the bifurcated analysis of public figure-private figure and bifurcated it once more, stating that the first amendment would protect only “speech on matters of public concern.” Accordingly, when the plaintiff is not a public figure and the contested statement is not about a matter of public concern, the “actual malice” standard does not apply.

Laurence H. Tribe, American Constitutional Law § 12-13, at 873 (2d ed. 1988). Professor

Tribe further explained that, “as Dun & Bradstreet made clear, the Court is especially reluctant to limit the common law of defamation when the subject matter of the speech is 'purely private.'” Id. § 12-13, at 878.See footnote 6

4. State Authority in Private Defamation Actions

    As discussed in the preceding sections, the U.S. Supreme Court recognizes that individual states have the option to select the standard of proof applicable when private individual plaintiffs assert defamation actions against media defendants regarding matters of public concern. While the states may choose the New York Times actual malice standard, which the Supreme Court applies to require public official/figure plaintiffs to prove actual malice when their public conduct is at issue, this standard is not obligatory upon the states in private defamation cases. The U.S. Supreme Court has expressly recognized that the states have the authority to define the appropriate standard of liability in cases in which media defendants are alleged to have defamed private figure plaintiffs. Gertz, 418 U.S. at 345-46, 94 S.Ct. at 3010, 41 L.Ed.2d at 809 (stating that “the States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual”). The Gertz Court

explained that, under its accommodation of the competing values, the Constitution “allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times.” Id. at 348, 94 S.Ct. at 3011, 41 L.Ed.2d at 810. The Gertz Court also stated, “[S]o long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Id. at 347, 94 S.Ct. at 3010, 41 L.Ed.2d at 809. See also Rosenbloom, 403 U.S. at 68-72, 91 S.Ct. at 1832-34, 29 L.Ed.2d at 326-28 (Harlan, J., dissenting) (arguing that the states could constitutionally allow private individuals to recover damages for defamation on the basis of a reasonable care standard); id. at 86-87, 91 S.Ct. at 1841, 29 L.Ed.2d at 336 (Marshall, J., dissenting) (arguing that the states should be “essentially free to continue the evolution of the common law of defamation and to articulate whatever fault standard best suits the State's need,” as long as liability is not imposed without fault).
    The Gertz Court refused to follow the Rosenbloom plurality opinion which would have extended the New York Times test to those defamation cases brought by private figure plaintiffs and involving issues of public concern. Gertz, 418 U.S. at 346, 94 S.Ct. at 3010, 41 L.Ed.2d at 809. The Court disapproved of such an extension on two grounds: (1) “[t]he extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable,” and (2) “it would occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of 'general or public interest' and which do not--to determine, in the words of Mr.

Justice Marshall, 'what information is relevant to self-government.'” Id. at 346, 94 S.Ct. at 3010, 41 L.Ed.2d at 809 (quoting Rosenbloom, 403 U.S. at 79, 91 S.Ct. at 1837, 29 L.Ed.2d at 332). The Court concluded that the “general or public interest” test was entirely unsuitable in private defamation actions:
    The “public or general interest” test for determining the applicability of the New York Times standard to private defamation actions inadequately serves both of the competing values at stake. On the one hand, a private individual whose reputation is injured by defamatory falsehood that does concern an issue of public or general interest has no recourse unless he can meet the rigorous requirements of New York Times. This is true despite the factors that distinguish the state interest in compensating private individuals from the analogous interest involved in the context of public persons. On the other hand, a publisher or broadcaster of a defamatory error which a court deems unrelated to an issue of public or general interest may be held liable in damages even if it took every reasonable precaution to ensure the accuracy of its assertions. . . .

Gertz, 418 U.S. at 346, 94 S.Ct. at 3010, 41 L.Ed.2d at 809. See also Rosenbloom, 403 U.S. at 62-72, 91 S.Ct. at 1829-34, 29 L.Ed.2d at 322-28 (Harlan, J., dissenting) (urging that a “reasonable man” or simple negligence standard should apply to media defendants in defamation actions brought by private individuals); id. at 79, 91 S.Ct. at 1837, 29 L.Ed.2d at 332 (Marshall, J., dissenting) (arguing that the approach taken by Justice Brennan in the plurality opinion would inadequately serve and, in fact, “threatens society's interest in protecting private individuals from being thrust into the public eye by the distorting light of defamation”).
    The Gertz Court provided two rationales for its creation of two different standards for defamation plaintiffs: (1) private figures are more vulnerable to injury because they typically have less media access than public officials/figures to counteract defamatory speech, and (2) private figures are more deserving of recovery because they have not voluntarily become

involved in public controversies in order to influence their outcome. Gertz, 418 U.S. at 344-45, 94 S.Ct. at 3009-10, 41 L.Ed.2d at 807-08. The Court noted that its approach served two important purposes: (1) it “provides a more equitable boundary between the competing concerns involved,” and (2) it “recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation.” Id. at 347-48, 94 S.Ct at 3010-11, 41 L.Ed.2d at 809-10.
    Therefore, private figure plaintiffs must at least prove negligence to recover in defamation actions against media defendants for injury to their reputations. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 768, 106 S.Ct. 1558, 1559, 89 L.Ed.2d 783, 787 (1986) (“In Gertz, the Court held that a private figure who brings a suit for defamation cannot recover without some showing that the media defendant was at fault in publishing the statements at issue.”) (citing Gertz, 418 U.S. at 347, 94 S.Ct. at 3010, 41 L.Ed.2d at 809); Dun & Bradstreet, 472 U.S. at 763, 105 S.Ct. at 2947, 86 L.Ed.2d at 605 (Burger, C.J., concurring in the judgment) (“In Gertz . . . , contrary to well-established common law prevailing in the states, a divided Court held that a private plaintiff in a defamation action cannot recover for a published falsehood unless he proves that the defendant was at least negligent in publishing the falsehood.”); id. at 766, 105 S.Ct. at 2949, 86 L.Ed.2d at 607 (White, J., concurring in the judgment) (“[I]n Gertz . . . , the court again dealt with defamation actions by private individuals, for the first time holding that such plaintiffs could no longer recover by proving a false statement, no matter how damaging it might be to reputation. They must, in addition, prove some 'fault,' at least

negligence.”) (citing Gertz, 418 U.S. at 347, 350, 94 S.Ct. at 3012, 41 L.Ed.2d at 811). In 1986, with Philadelphia Newspapers, the Court provided the following summary of its case law:
        One can discern in these decisions two forces that may reshape the common-law landscape to conform to the First Amendment. The first is whether the plaintiff is a public official or figure, or is instead a private figure. The second is whether the speech at issue is of public concern. When the speech is of public concern and the plaintiff is a public official or public figure, the Constitution clearly requires the plaintiff to surmount a much higher barrier before recovering damages from a media defendant than is raised by the common law. When the speech is of public concern but the plaintiff is a private figure, as in Gertz, the Constitution still supplants the standards of the common law, but the constitutional requirements are, in at least some of their range, less forbidding than when the plaintiff is a public figure and the speech is of public concern. When the speech is of exclusively private concern and the plaintiff is a private figure, as in Dun & Bradstreet, the constitutional requirements do not necessarily force any change in at least some of the features of the common-law landscape.

Philadelphia Newspapers, 475 U.S. at 775, 106 S.Ct. at 1563, 89 L.Ed.2d at 791-92.
    Thus, in defamation actions brought by private figure plaintiffs against media defendants, and presumably in those by public officials/figures involving private matters, states may apply their own common law or statutory standards. The Gertz Court seemed to contemplate at least two alternative standards of liability that the states could adopt: (1) the actual malice standard suggested by the Rosenbloom plurality when defamatory statements involve issues of “general or public interest,” or (2) some negligence standard short of strict liability as suggested by the Gertz majority.

5. Standard of Appellate Review

    The U.S. Supreme Court has imposed a special standard of appellate review when federal First Amendment implications require application of the New York Times actual malice

standard. In such cases, appellate courts must independently review trial court determinations of actual malice to ensure that the correct standard was applied--that plaintiffs proved by clear and convincing evidence that the defendants acted with actual malice in publishing falsehood with knowledge of the falsity or reckless disregard for whether it was false. Bose Corp. v. Consumers Union of United States, Inc. 466 U.S. 485, 514, 104 S.Ct. 1949, 1967, 80 L.Ed.2d 502, 526 (1984) (“Appellate judges in such a case must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity.”). That Court also stated, “Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars entry of any judgment that is not supported by clear and convincing proof of 'actual malice.'” Id., 466 U.S. at 511, 104 S.Ct. at 1965, 80 L.Ed.2d at 523.
    However, the U.S. Supreme Court has not imposed this special standard of independent appellate scrutiny upon the states when reviewing verdicts in defamation cases involving private figure plaintiffs, even in matters of public concern, or in those involving public officials/figures and private concerns. The states remain free to determine the applicable standard of appellate review in such cases.

Supreme Court must select the appropriate common law standards of proof for our state, considering both freedom of the press and media accountability for defamatory falsehoods about private individuals.
    Neither this challenge nor its resolution is of recent vintage. Two hundred and one years ago, three years before he became Chief Justice of the United States, John Marshall wrote:
    Among those principles deemed sacred in America, among those precious rights considered as forming the bulwark of their liberties, which the Government contemplates with awful reverence; . . . there is no one . . . more deeply impressed on the public mind, than the liberty of the press. That this liberty is often carried to excess, that it has sometimes degenerated into licentiousness, is seen and lamented; but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good to which it is allied, perhaps it is a shoot which cannot be stripped from the stalk, without wounding vitally the plant from which it is torn. However desirable those measures may be, which might correct without enslaving the press, they have never yet been devised in America. No regulations exist which enable the government to suppress whatever calumnies or invectives any individual may ch[oo]se to offer to the public eye, or to punish such calumnies and invectives otherwise, than by a legal prosecution in courts, which are alike open to all who consider themselves as injured.

Letter from John Marshall to Talleyrand (Apr. 3, 1798), in 3 The Papers of John Marshall 447 (1984) (emphasis added). Later, as Chief Justice, Marshall declared for the unanimous Court: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60, 69 (1803).

1. Viewing Aafco in Perspective

    Shortly after the U.S. Supreme Court in Gertz expressly permitted individual states to

determine the applicable standard of proof in private figure defamation cases, a divided panel of the Indiana Court of Appeals issued its opinion in Aafco Heating & Air Conditioning Co. v. Northwest Publications, Inc., 162 Ind. App. 671, 321 N.E.2d 580 (1974), preferring to displace the negligence standard with the actual malice test. The Indiana Supreme Court did not grant transfer,See footnote 7 nor have we until now ever addressed the Gertz option issue. Transfer was sought in Aafco during an era prior to this Court's recognition of the renewed vitality of Indiana's own constitution. Reflecting on this era, Professor Baude observed twelve years later: “Nobody expects, therefore, the Indiana Supreme Court to find [state] constitutional rights the federal courts do not force upon it.” Patrick Baude, Is There Independent Life in the Indiana Constitution?, 62 Ind. L.J. 263, 268 (1987). Fifteen years would elapse between Aafco and the publication of Chief Justice Shepard's seminal article, Second Wind for the Indiana Bill of Rights, 22 Ind. L. Rev. 575 (1989), which triggered a refocusing of judicial and legal attention on the provisions of the Indiana Constitution.
    The precedental value of Aafco is dubious for several other reasons. Aafco was handed- down just six months after the U.S. Supreme Court decided Gertz,See footnote 8 but over ten years before

Dun & Bradstreet.See footnote 9 Thus, the Aafco court was unable to benefit from extensive federal and state case law and scholarly discussion that have appeared in the ensuing twenty-five years. During this time, some Indiana judges have questioned the wisdom of the Aafco standard,See footnote 10 and federal judges have hesitantly applied it as Indiana law.See footnote 11 Furthermore, it places Indiana among a very

small minority of jurisdictions that extend to the media considerably more protection than the U.S. Supreme Court requires. See Chang v. Michiana Telecasting Corp., 900 F.2d 1085, 1087 (7th Cir. 1990) (citing Rodney A. Smolla, Law of Defamation § 3.11 (1989)).See footnote 12 The vast majority of the states, either through their courts or legislatures, have chosen some form of

negligence standard in defamation actions brought by private figure plaintiffs.See footnote 13 See Smolla,

supra, § 3.10.

2. The Right to Remedy for Reputation Injury

    Article I, Section 12 of the Indiana Constitution provides: “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase, completely, and without denial; speedily, and without delay.” Ind. Const. art. I, § 12 (emphasis added). When confronted with a choice between alternative common law policies, this Court will find guidance in the values embodied in our state constitution, particularly this provision assuring remedy for injury to reputation. Bals v. Verduzco, 600 N.E.2d 1353, 1355 (Ind. 1992).See footnote 14 Neither the Court of Appeals in Aafco nor the majority in the present case considers or discusses the import of

Indiana's express constitutional protection for the right to remedy for harm to reputation. However, the majority does acknowledge that the law of defamation was created because of society's strong interest in protecting against attacks upon individual reputation.See footnote 15
    The reputation remedy provision of our present state constitution, adopted in 1851, parallels its 1816 predecessor, which stated, “That all Courts shall be open, and every person, for injury done him, in his lands, goods, person, or reputation, shall have remedy by the due course of law; and right and justice administered without denial or delay.” Ind. Const. art. I, § 12 (1816) (emphasis added). We find no record of the intentions of Indiana's framers in either 1816 or 1851 with respect to this provision.
    But the principles embraced in Section 12 have a long and distinguished history. For

millennia, many of the world's major cultures and religions have placed immense value on the preservation of an individual's good name or reputation. The ancient Wisdom Literature of the Jewish and Christian religions declares that “[a] good name is to be chosen rather than great riches.” Proverbs 22:1 (Revised Standard). See 1 Raymond E. Brown, The Law of Defamation in Canada 4 (1987) (“Some form of legal or social constraints on defamatory publications 'are to be found in all stages of civilization, however imperfect, remote, and proximate to barbarism.'”) (quoting Henry C. Folkard, The Law of Slander and Libel 7 (5th ed. 1891)); Martin L. Newell, The Law of Slander and Libel in Civil and Criminal Cases 1-28 (Mason H. Newell ed., 3d ed. 1914). In fact, many of the earliest law codes subjected defamatory speech to severe criminal and civil sanction. See Newell, supra, at 1-18.
    These principles were embodied in the 1215 Magna Charta. Its provisions were transmitted to America largely through Lord Edward Coke's highly influential commentary on the Magna Charta, which was among the most frequently read legal texts in colonial America. See David Schuman, The Right to a Remedy, 65 Temp. L. Rev. 1197, 1199 (1992). The historical antecedent of Article I, Section 12 of the Indiana Constitution is vividly seen in Article 40 of the Magna Charta, which Coke restated as providing:

    [E]very Subject of this Realm, for injury done to him in [goods, land, or person], . . . may take his remedy by the course of the Law, and have justice and right for the injury done him, freely without sale, fully without any denial, and speedily without delay.
        Hereby it appeareth, that Justice must have three qualities, it must be [Free, for nothing is more iniquitous than justice for sale; Complete, for justice should not do things by halves; and Swift, for justice delayed is justice denied]; and then it is both Justice and Right.

Faith Thompson, Magna Carta: Its Role in Making of the English Constitution, 1300-

1629, at 365 (1948) (quoting Sir Edward Coke, Second Institute 55-56 (4th ed. 1671)). Although neither the original federal Constitution nor its Bill of Rights contains a remedies clause, the drafters of many of the original state constitutions did include a remedies clause, and, as other states were added to the Union, many adopted similar provisions. See John H. Bauman, Remedies Provisions in State Constitutions and the Proper Role of the State Courts, 26 Wake Forest L. Rev. 237, 243-44 (1991). English common law and American colonial governments protected reputation as a property interest. See Ronald J. Krotoszynski, Jr., Fundamental Property Rights, 85 Georgetown L.J. 555, 592 (1997).
    Presently, thirty-nine state constitutions contain,See footnote 16 or have been construed to contain,See footnote 17 remedies clauses, providing that state courts should be open to all and provide remedies for injury. See Bauman, supra, at 237 & Appendix (compiling state constitution remedies provisions); Schuman, The Right to a Remedy, supra, at 1201 & n.25. These clauses, however,

vary from constitution to constitution, protecting different combinations of the following interests: person, personal and real property, character and reputation, privacy, immunities, and other rights. See David Schuman, Oregon's Remedy Guarantee: Article I, Section 10 of the Oregon Constitution, 65 Or. L. Rev. 35, 40 (1986) (citing 9 William F. Swindler, Sources and Documents of the United States Constitutions 508 (1973)); Bauman, supra, at 284- 88 (compiling state constitutional provisions). At least thirty-four states, including Indiana, specifically identify reputationSee footnote 18 or characterSee footnote 19 as a protected interest.
    Of the thirty-nine states with a remedies provision, thirty-oneSee footnote 20 have adopted a negligence standard. Of particular significance is the fact that, of the thirty-four states that specifically protect reputation or character, twenty-fourSee footnote 21 have exercised the Gertz option to follow a

negligence standard, and only oneSee footnote 22 (other than our Court of Appeals in Aafco) has opted for the actual malice standard. Oregon and Illinois, for example, have expressly identified the remedies provision in support of retaining the negligence standard. The Oregon Court of Appeals stated: “We also conclude that a higher standard of media liability than the First Amendment requires . . . would unduly restrict the right assured by Article I, section 10.”See footnote 23 Bank of Oregon v. Independent News, Inc., 670 P.2d 616, 627 (Or. Ct. App. 1983), aff'd, 693 P.2d 35 (Or. 1985). The Illinois Supreme Court observed:
        The adoption of a requirement of actual malice cannot, of course, be justified on the theory that such a requirement furthers some overriding public policy of this State, for prior to New York Times it was not considered that liability for defamation required any showing of fault at all, let alone proof of actual malice. Moreover, the constitutions of this State have from the outset recognized as fundamental the rights of “enjoying and defending life and liberty, and acquiring, possessing and protecting property and reputation.” (Const. of 1818, art. VIII, sec. 1.) From the outset it has been recognized that an individual is entitled to a remedy “for all injuries and wrongs that he may receive in his person, property or character.” (Const. of 1818, art. VIII, sec. 12; Const. of 1848, art. XIII, sec. 12.) (In the most recent constitutions the word “reputation” is substituted for “character.” Const. of 1870, art. II, sec. 19; Const. of 1970, art. I, sec. 12.) The freedom of speech provisions of both our former and present constitutions (Const. of 1870, art. II, sec. 4; Const. of 1970, art. I, sec. 4) recognize the interest of the individual in the protection of his reputation, for they provide that the exercise of the right to speak freely shall not relieve the speaker from responsibility for his abuse of that right.

Troman v. Wood, 340 N.E.2d 292, 297 (Ill. 1975). The court went on to adopt the negligence

standard. Id. at 299.
    Defamation law is concerned primarily with protecting reputation.See footnote 24 Judicial concern for injury to reputation can be seen throughout Indiana case law. In 1847, four years before the adoption of Indiana's present constitution, this Court explained that “[a] libel is said to be a malicious defamation expressed in printing or writing, or by signs, pictures, &c., tending to injure the reputation of another, and thereby exposing such person to public hatred, contempt, or ridicule.” Armentrout v. Moranda, 8 Blackf. 426, 427 (Ind. 1847) (citing 2 Selw. N. P., 1061). In 1854, this Court stated that “[a]ny publication that tends to degrade, disgrace, or injure the character of a person, or bring him into contempt, hatred, or ridicule, is as much a libel as though it contained charges of infamy or crime.” Johnson v. Stebbins, 5 Ind. 364, 366-67 (1854). In State ex rel. Lopez v. Killigrew, 202 Ind. 397, 401, 174 N.E. 808, 810 (1931), we observed that the “right of reputation was early recognized in Anglo-American law, and the machinery of legal redress is at the disposal of any person to vindicate his good name.”
    Clearly, legal recognition and protection of a person's reputational interest is deeply entrenched in our history and practice. The Indiana Constitution expressly protects an individual's right to remedy for harm to reputation. This fact is particularly significant in determining how Indiana should exercise the Gertz option. Strongly favoring reasonable

recourse to remedy for defamation injuries, our express constitutional provision supports a common law rule of accountability upon proof of failure to use reasonable care, rather than one imposing responsibility only upon proof of actual malice. This is consistent with the jurisprudence of an overwhelming majority of other states.

3. Responsibility for Abuse of Free Speech
    In protecting the freedom of speech and the press, the Indiana Constitution does not merely reiterate the language of the First Amendment. Rather, it both emphasizes the broad scope of the freedom and requires responsibility for its abuse. Indiana's provision states: “No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever, but for the abuse of that right, every person shall be responsible.” Ind. Const. art. I, § 9 (emphasis added). Tortious defamation constitutes such abuse of the right to speak and print freely. As this Court recently explained:
    Section 9 was certainly not intended to create a private warrant by which an individual might impair the fundamental rights of private persons. Our common law of torts, the mechanism by which we vindicate such private encroachments, makes this clear.See footnote 25 When the expressions of one person cause harm to another in a way consistent with common

law tort, an abuse under § 9 has occurred.
Price v. State, 622 N.E.2d 954, 963-64 (Ind. 1993). See also id. at 959 (citing Gibson v. Kincaid, 140 Ind. App. 186, 221 N.E.2d 834 (1966), for the proposition that “expression will be curtailed only when it infringes another's rights.”). The Price Court concluded, on the one hand, that “treating as abuse political speech which does not harm any particular individual ('public nuisance') does amount to a material burden” but, on the other hand, “sanctioning expression which inflicts upon determinable parties harm of a gravity analogous to that required under tort law does not.” Price, 622 N.E.2d at 964.
    Indiana citizens have long understood that the clause “every person shall be responsible” means accountability by liability for damages in our courts of law. Contemporaneous with the constitutional convention that resulted in the adoption of the Indiana Constitution, this Court affirmed a judgment awarding damages in a defamation action against a newspaper, stating:
        It is plain, from the general context of the decisions in cases of this kind, that booksellers and publishers of newspapers are considered as standing in situations of peculiar responsibility, and far from relaxing in their favor the general rule that all persons are bound so to carry on their trade or business as not to injure others, the Courts of law have felt the necessity of applying it in their cases with the utmost stringency. The press is a most potent engine for the diffusion of both good and evil, and, while on the one hand we can scarcely estimate too highly the advantages of its perfect freedom, for all useful purposes, on the other, we cannot but be sensible of the necessity of a strong curb to prevent such freedom from degenerating into licentiousness. The law, however, in holding publishers of books and newspapers responsible for slanderous attacks upon private character, only carries out, with respect to them, the same principles which are applicable to injuries resulting from the transaction of other kinds of business.

under Gertz to adopt a standard of fault, Kentucky Const., Sec. 8,See footnote 27 mandates that we adopt a standard which adequately protects the private individual from defamation. We choose simple negligence.” McCall v. Courier-Journal & Louisville Times, 623 S.W.2d 882, 886 (Ky. 1981). The Oklahoma Supreme Court concluded that the state constitutionSee footnote 28 expressly “weighted the right [to liberty of speech and press] with the responsibility for an abuse of that right” and required a “balanc[ing of] the news media rights with that of a private individual” and determined that the negligence test expressed in Gertz was “more parallel” to the state constitution. Martin v. Griffin Television, Inc., 549 P.2d 85, 92 (Okla. 1976). See also Troman, 340 N.E.2d at 297, 299 (noting that “[t]he freedom of speech provision[] of . . . our . . . present [Illinois] constitution[] ( . . . art. I, sec. 12)See footnote 29 recognize[s] the interest of the individual in the protection of his reputation, for [it] provide[s] that the exercise of the right to speak freely shall not relieve the speaker from responsibility for his abuse of that right” and adopting the negligence standard rather than the actual malice standard in private defamation actions against media defendants); Jones v. Palmer Communications, Inc., 440 N.W.2d 884, 898 (Iowa 1989)

(construing Article I, Section 7 of the Iowa ConstitutionSee footnote 30 to require the adoption of a negligence standard for private plaintiffs in defamation actions); Gazette, Inc. v. Harris, 325 S.E.2d 713, 725 (Va. 1985) (holding that Article I, Section 12 of the Virginia ConstitutionSee footnote 31 “recognizes the balance to be struck between the right of free expression enjoyed by the individual and the press on the one hand and the right of defamed individuals to hold the speakers 'responsible' for damage to reputation on the other” and determining that “a negligence test strikes a proper balance”); Denny v. Mertz, 318 N.W.2d 141, 150-51 (Wis. 1982) (holding that “a private individual need only prove that a media defendant was negligent in broadcasting or publishing a defamatory statement,” stating that “freedom of the press is not an absolute, but may be limited to protect the valid reputation interest of members of society,” and concluding that “a negligence standard complies with the guarantee of freedom of the press contained in the Wisconsin Constitution”See footnote 32 ).
    To the extent that the U.S. Supreme Court allows, we should apply the “responsibility for abuse” language of Article I, Section 9 of our Indiana Constitution to favor the common law rule that would require publishers of defamatory statements to be responsible in damages when they

negligently injure private figure plaintiffs or plaintiffs involved in issues of private concern.

4. What's Best for Indiana: “Negligence” or “Actual Malice”?
    The “responsibility for abuse” clause of Section 9 and the “remedy for harm to reputation” clause of Section 12, separately and collectively, counsel this Court to conclude that, in private defamation actions, media defendants should be held accountable upon proof of failure to use reasonable care, rather than only upon proof of actual malice.
    The U.S. Supreme Court has reserved to the states the power to fashion their statutory or common law of defamation as it applies to private individuals because that Court recognized the important, legitimate state interest in protecting the reputations of its citizens. This important value has been memorialized in our constitution and the decisions of our courts, until Aafco. The Indiana Constitution calls us to respect both of the constitutional interests that are in issue here--the free speech interest and the reputational interest. While vigorously preserving the crucial right of Indiana citizens to speak, write, and print freely, we should also preserve the rule of accountability for failure to exercise reasonable care when a private individual suffers harm from the publication of a defamatory falsehood. The applicable standard for private figure plaintiffs should be that of negligence, whether the subject matter is one of public or private concern.See footnote 33

5. Preserving Indiana's Standards of Proof and Appellate Review
    In his separate opinion, Justice Boehm asserts not only that Indiana common law should follow the Aafco actual malice requirement, but further that such actual malice must be proven

by clear and convincing evidence. I disagree. For the same reasons that I favor the negligence standard rather than actual malice, I am convinced that we should retain our preponderance of the evidence standardSee footnote 35 rather than impose upon private defamation plaintiffs the additional burden of proving their case by clear and convincing evidence. Even if we choose the optional actual malice test for private figure defamation cases, the present Indiana standard of proof at trial should be retained. Moreover, the present standard is all the more important if the actual malice requirement is adopted.     I concur with Justice Boehm, however, in his recognition that Indiana's conventional standard of appellate review applies to private figure defamation cases subject to the actual malice requirement. In reviewing claims of insufficient evidence in private figure defamation cases, our standard of appellate review now requires that we neither reweigh the evidence nor judge the credibility of witnesses but consider only the evidence most favorable to the judgment along with all reasonable inferences, and reverse only if there is a lack of proof on an essential element of the plaintiff's claim. Martin v. Roberts, 464 N.E.2d 896, 904 (Ind. 1984). Even in those rare instances, such as punitive damages, in which our preponderance standard is replaced by the clear and convincing standard of proof, Indiana appellate courts will affirm the judgment if, “considering only the probative evidence and the reasonable inferences supporting it, without weighing evidence or assessing witness credibility, a reasonable trier of fact could find such damages proven by clear and convincing evidence.” Bud Wolf Chevrolet,

Inc. v. Robertson, 519 N.E.2d 135, 137 (Ind. 1988). Indiana courts should not heighten appellate scrutiny of jury verdicts by using the federal standard of independent appellate evaluation of the full record to determine whether the evidence of actual malice is also clear and convincing to the appellate tribunal.
    Using the federal independent appellate evaluation of the record standard results in a significant number of jury verdicts being reversed on appeal. This point is graphically illustrated by reports that less than a third of libel verdicts against media defendants survive after independent review. See Nowak & Rotunda, supra, § 16.33, at 1093 (citing Milo Geylelin, Libel Defendants Fare Well on Appeal, Research Finds, Wall Street J., May 31, 1994, at B10, col. 1 (midwest ed.)); Seth Goodchild, Note, Media Counteractions: Restoring the Balance to Modern Libel Law, 75 Geo. L.J. 315, 323-24 (1986). Adoption of the federal standard of appellate review and application of the New York Times proof standard (i.e., actual malice by clear and convincing evidence) would mean likely reversal to most jury verdicts awarding damages to defamation litigants in actions against media defendants.
    Justice Boehm is also correct in retaining our standard of appellate review because adoption of the federal independent review standard would also detract from the right to jury trial in civil cases which is expressly ensured by Article I, Section 20 of the Indiana Constitution.See footnote 36 The existing standard of appellate review reflects our keen awareness of a jury's unique capacity to weigh conflicting evidence, to judge witness credibility, and to consolidate

the diverse perspectives and experiences of individual jurors into one verdict. Rather than adopting a standard of appellate review that imposes elevated scrutiny and casts suspicion upon jury decisions, we should preserve our existing standard that presumes the correctness of their verdicts and honors them with respectful deference and consideration.

plaintiff, First Amendment jurisprudence as to the actual malice standard necessarily governed this case. This case does not involve the application of a state standard of proof permitted under the Gertz option. It is therefore unnecessary to the resolution of this appeal to discuss the elements of proof for private figure defamation plaintiffs. Because the opinions of my colleagues undertake discussion of an issue not presented by the facts of this case, however, I respond with the foregoing considerations.
    The majority's preference to repudiate the negligence standard of proof in favor of the actual malice standard for private figure defamation cases presents an unnecessary and substantial impairment to the right of injured citizens to seek legal recourse and remedy in Indiana courts. This limitation is opposite to the words, spirit, and history of the Indiana Constitution, contrary to the overwhelming authority from other state jurisdictions, and detrimental to sound public policy. I believe that the majority approach endangers personal privacy, encourages irresponsible journalism, and unnecessarily deprives injured persons of reasonable recourse for harm suffered from defamatory distortions and falsehoods published by entertainment and news media. For these reasons, I dissent.
    SHEPARD, C.J., concurs.

a revised subheadline: “Investigators find rats, bugs at north-side eatery.”

    Because of an editing error, a headline _ not the story _ in some editions of Thursday's Journal Gazette said inspectors had found rats and bugs at the restaurant.

    No evidence of rats was found at the restaurant. Journal-Gazette apologizes for the inaccuracy of the headline.

(R. at 1203.)

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

        “The headline of an article or paragraph, being so conspicuous as to attract the attention of persons who look casually over a paper without carefully reading all its contents, may in itself inflict very serious injury upon a person, both because it may be the only part of the article which is read, and because it may cast a graver imputation than all the other words following it. There is no doubt that in publications . . . claimed to be libelous, the headlines directing attention to the publication may be considered as a part of it, and may even justify a court or jury in regarding the publication as libelous when the body of the article is not necessarily so.”

Burgess, 508 A.2d at 1363 (quoting Black, 141 S.W.2d at 912 (omission in original)).

    Uh, I was, uh, in shock and I was really upset thinking about rats. I envisioned rats running through. I envisioned sitting at a restaurant much like, uh, as I say in my deposition, I've done some, uh, quite a bit of traveling, so I envisioned some, some places that we have been in some third world countries where there was just, uh, you couldn't eat a meal because of, of the bugs and the filthy conditions. And so that's what I, when I looked at the headline that's what I envisioned. Was just completely filthy conditions. With rats, I equate rats with, with filth.

(R. at 1991.) Beverly Zuber, another witness for Bandido's, testified that when she read the subheadline, she “was appalled” and “imagined bowls [of] white rice and rats jumping from bowl to bowl.” (R. at 2014.)

Bandido's, she reviewed the September 13, 1988, health inspection report which noted the discovery of “evidence of rodent droppings” and talked with the inspectors who did the report. The conversation revealed that the rodent droppings were small and indicative of mouse droppings instead of rat droppings which are much larger. (R. at 1533.) Bandido's contends that if the Journal-Gazette had spoken with these inspectors, it would have uncovered this truth. Without delving into the merits of this claim, we simply state that numerous courts have determined that the failure to investigate or verify facts is not sufficient evidence of actual malice. See Chester v. Indianapolis Newspapers, 553 N.E.2d 137, 140 (Ind. Ct. App. 1990); see also St. Amant v. Thompson, 390 U.S. 727, 733 (1968); Beckley Newspaper Corp. v. Hanks, 389 U.S. 81, 84 (1967); New York Times Co. v. Sullivan, 376 U.S. 254, 287 (1964); Herbert v. Lando, 781 F.2d 298, 308 (2d Cir. 1986); Bartimo v. Horsemen's Benevolent & Protective Ass'n, 771 F.2d 894, 898 (5th Cir. 1985); McDowel v. Paiewonsky, 769 F.2d 942, 951 (3d Cir. 1985); Smith v. A. Pocono, 686 F. Supp. 1053, 1061 (M.D. Pa. 1987); Live Oak Publ'g Co. v. Cohagan, 286 Cal. Rptr. 198, 205 (Cal. Ct. App. 1991); Tagawa v. Maui Publ'g Co., 448 P.2d 337, 340 (Haw. 1968); Sweeney v. Prisoners' Legal Servs., 647 N.E.2d 101, 104 (N.Y. 1995).

Careless error is not the equivalent of actual malice.

Id. at 732. The circumstances of this case do not fall within any of the scenarios mentioned in St. Amant.

inaccuracy at the time of publication.”

Bose Corp., 466 U.S. at 512.

    [Plaintiff] presented no evidence to contradict or throw doubt on [the editor's] testimony that, in his haste to edit the article while managing multiple responsibilities, he pared [the writer's] text down to make it more readable, without realizing that his snap conclusions had actually changed the story's intended focus. That explanation does not excuse the unfortunate result, but also does not provide clear and convincing evidence of reckless disregard for the truth.

Schwartz, 610 A.2d at 430. Similarly, in this case, Bandido's did not present any evidence at trial disputing the fact that Pinkley truly had the misconception that a rodent is a rat.

N.E.2d at 591-92. Judge Garrard continued: “However, on June 25, 1974, the Supreme Court issued its decision in Gertz v. Welch (1974), 418 U.S. 323, 94 S.Ct. 2997, and by a majority of the Court redefined the applicability of First Amendment privilege as a defense in certain libel actions. It therefore becomes necessary to determine whether Aafco has presented a viable claim on the facts presented under the modification announced in Gertz.” Id. at 689, 321 N.E.2d at 592.

. . . .
        . . . If we had nothing but Aafco and Patten to go on, we would think the law of Indiana muddy. Two subsequent cases have followed Aafco, deeming it authoritative. Cochran v. Indianapolis Newspapers, Inc., 175 Ind.App. 548, 372 N.E.2d 1211, 1218 & n. 3 (2d Dist.1978); Elliott v. Roach, 409 N.E.2d 661, 685-86 (Ind.App. 4th Dist.1980). No Indiana court has disagreed with Aafco, and four years ago we took Aafco to be the established law of Indiana. Woods v. Evansville Press Co., 791 F.2d 480, 483 (7th Cir.1986). See also Gintert v. Howard Publications, Inc., 565 F.Supp. 829, 838-39 (N.D.Ind.1983). . . .
        Aafco has drawn adverse comment from several judges of Indiana--not only Judges Garrard and Hoffman but also the panel in Cochran, which expressed doubts but followed Aafco to maintain uniformity. Yet it does not stand alone, and although the trend in other states is against it, New Jersey adopted the actual malice standard even as Michigan abandoned it. Sisler v. Gannett Co., 104 N.J. 256, 516 A.2d 1083 (1986). New York uses an intermediate approach, Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569 (1975), and decisions of appellate courts in California go both ways, see Smolla (collecting cases). Skepticism among Indiana's judges is not the same as conflict in decision. Aafco is straightforward and, for the moment, the reigning expression of state law. The Supreme Court of Indiana has had ample opportunity to express a different view and has so far elected not to do so. . . .
Chang, 900 F.2d at 1087.

Pennsylvania law)); Puerto Rico (Torres-Silva v. El Mundo, 106 P.R. Dec. 15, 3 Med. L. Rep. (BNA) 1508 (P.R. 1977)); Rhode Island (DeCarvalho v. Da Silva, 414 A.2d 806, 812-13 (R.I. 1980)); South Carolina (Jones v. Sun Publ'g Co., 292 S.E.2d 23, 24-25 (S.C. 1982)); Tennessee (Memphis Publ'g Co. v. Nichols, 569 S.W.2d 412, 417-18 (Tenn. 1978)); Texas (Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 819 (Tex. 1976)); Utah (Seegmiller v. KSL, Inc., 626 P.2d 968, 972-76 (Utah 1981)); Vermont (Colombo v. Times-Argus Ass'n, Inc., 380 A.2d 80, 82-83 (Vt. 1977)); Virginia (Gazette v. Harris, 325 S.E.2d 713, 724-26 (Va. 1985)); Washington (Caruso v. Local Union No. 690, 670 P.2d 240, 244-45 (Wash. 1983); Bender v. Seattle, 664 P.2d 492, 503-05 (Wash. 1983); Taskett v. KING Broad. Co., 546 P.2d 81, 84-86 (Wash. 1976)); West Virginia (Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 77 (W. Va. 1984)); Wisconsin (Denny v. Mertz, 318 N.W.2d 141, 150-52 (Wis. 1982)); and Wyoming (Adams v. Frontier Broad. Co., 555 P.2d 556, 560-62 (Wyo. 1976)). Smolla, supra, § 3.10. New York Court of Appeals in Chapadeau v. Utica Observer-Dispatch, Inc., 341 N.E.2d 569, 570-71 (N.Y. 1975), adopted an intermediate standard of “gross irresponsibility.” Smolla, supra, § 3.12.

an appeal. To the extent that there may have been harm to our citizenry, it thus would not have reached our attention. This lack of cases on appeal does not establish the absence of actual harm to Indiana citizens.

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