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holding the actual malice standard applies when “the matter involved is of public or general concern”
Summary of this case from Spacecon Specialty Contractors, LLC v. BensingerOpinion
No. 26327
Decided March 17, 1975. Opinion modified and as modified rehearing denied June 2, 1975
Action in libel against newspaper, its editor and publisher and one of its reporters, arising from publication of material concerning operator's purchase of alleged stolen goods and efforts to have goods returned to claimed owner. From a judgment in favor of plaintiffs an appeal was taken.
Affirmed in Part, Reversed in Part.
1. LIBEL AND SLANDER — Public Official — Recovery — Defamatory Falsehood — Proof — Actual Malice. The United States Supreme Court decision of New York Times Co. v. Sullivan, held that the First and Fourteenth Amendments forbade a public official from recovering damages for a defamatory falsehood relating to his official conduct unless it was proved that the statement was made with "actual malice."
2. WORDS AND PHRASES — "Actual Malice" — Definition. "Actual malice," as distinct from the usual concept of malice has been defined as arising from the publication of a statement with knowledge that it was false or with reckless disregard for whether it was true or not.
3. LIBEL AND SLANDER — Publication — Newspaper — Stolen Goods — Antique Shop — Subject — Public Interest. With reference to subject of material published in newspaper concerning purchase of allegedly stolen goods by operators of antique shop and efforts to have goods returned to claimed owner, reviewing court is of the view — and the trial court so found — that the subject involved in instant libel action was a matter of public interest and concern, even though the plaintiffs admittedly were neither public officials nor public figures.
4. "Reckless Disregard." "Reckless disregard" of whether a published statement is true does not mean that there must be a finding that the person making the statement had serious doubts as to the truth thereof.
5. Defamatory Statement — Not Public Official — Public Concern — Publisher — Liable — False Statement — Reckless Disregard. When a defamatory statement has been published concerning one who is not a public official or a public figure, but the matter involved is of public or general concern, the publisher of the statement will be liable to the person defamed if, and only if, he knew the statement to be false or made the statement with reckless disregard of whether it was true or not.
6. CONSTITUTIONAL LAW — First Amendment — Freedom of Speech — Freedom of Press — Fourteenth Amendment — States. The First Amendment provides, "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . . "; and under the Fourteenth Amendment, this applies to the states.
7. LIBEL AND SLANDER — Reckless Disregard — Knowledge of Falsity — Newspaper Reporter — Defamatory Statements — Purchase — Stolen Goods — Evidence — Insufficient. Evidence was insufficient to support a finding of reckless disregard or knowledge of falsity on the part of newspaper reporter with regard to publication in newspaper of defamatory statements concerning purchase by antique shop operators of allegedly stolen goods and efforts to have goods returned to claimed owners.
8. Newspaper — Editor and Publisher — Defamatory Statements — Purchase — Stolen Goods — Reckless — Wanton. Evidence sufficiently supports a finding that newspaper and its editor and publisher published defamatory statements — concerning purchase by antique operators of allegedly stolen goods and efforts to have goods returned to claimed owner — with reckless disregard as to whether statements were true and with wanton or reckless disregard of rights and feeling of operators.
9. Publisher — Assume Truth — Reporters' Stories. A publisher can assume the truth of facts contained in his reporters' stories.
10. Letters to the Editor — Assume — Truth — Facts — Negative. The rule that a publisher can assume the truth of the facts contained in his reporters' stories is inapplicable to publication in newspaper of letters to the editor selected by the editor and publisher.
11. Public Interest and Concern — Determination — Question of Law. The determination of whether a matter involved in a libel action is of public interest and concern is a question of law for the trial court.
12. "Actual Malice" — Use — Not Good Practice — Instructions. Use of the term "actual malice" in instructions given in libel and slander cases is not good practice.
13. Demand for Retraction — Condition Precedent — Legislature. Whether a demand for retraction should become a condition precedent to the filing of a libel action is more properly within the legislative ambit than the subject of initial judicial purview.
Appeal from the District Court of El Paso County, Honorable Hunter D. Hardeman, Judge.
Spurgeon, Aman Hanes, Gregory R. Piche, for plaintiffs-appellees.
Holme Roberts Owen, John L. Kane, Jr., Phillip C. Gans, for defendants-appellants The Colorado Springs Sun, Inc., William J. Woestendiek and Doyle Trent.
Yegge, Hall Evans, Richard D. Hall, Thomas B. Kelley, for amicus curiae, The Colorado Press Association.
This is an appeal from a judgment entered on a verdict awarding $29,200 compensatory damages and $9,900 in exemplary damages in a libel action against the Colorado Springs Sun; its editor and publisher, William J. Woestendiek; one of its reporters, Doyle Trent; and one Simco. Simco is not here on this appeal and by using the word "defendants" we refer only to the Sun, its publisher and its reporter. We affirm as to the Sun and its editor and publisher, Woestendiek, but reverse as the reporter, Trent.
Unless we indicate otherwise, our recitation of the facts is based upon undisputed testimony.
In late 1971, the vacant home of Mrs. Alter, an elderly widow who was living in a nursing home, was burglarized. In value, only one-third of Mrs. Alter's property was taken by the thieves. Items that were taken were sold to the plaintiffs Mr. and Mrs. Walker, who operated an antique shop under the name of "Cobweb Antiques" (called Cobweb) in Colorado Springs. The plaintiffs bought the goods in good faith, having no knowledge of the theft or of the fact that the items were stolen goods. They paid $112.50 for the property.
Simco, a friend of Mrs. Alter, identified some of the stolen items displayed for sale at Cobweb as belonging to Mrs. Alter. Simco returned to the shop with two police officers. Mr. Walker provided the police with cancelled checks identifying the persons from whom he had purchased the goods, and removed the items from the shelves. The property was crated and a hold order placed on it by the police. Simco was told by an assistant district attorney that recovery of the goods was a civil matter between the owner of the goods and the Walkers. Simco offered $60 to the Walkers if they would release the goods to him. The offer was refused. Simco told the Walkers that they could sell the goods for $2,000, to which neither of them responded.
Simco then visited the Colorado Springs Sun (referred to as the Sun) where he told the story to the reporter, Trent. Simco told Trent, among other things, the following: that the police suggested that Simco find the goods himself; that Simco searched through all the Colorado Springs antique shops before discovering the stolen goods at Cobweb; that the thieves helped themselves to everything of value from Mrs. Alter's home; that Mrs. Alter said, "I will not pay for things that are already mine"; that neither he nor Mrs. Alter could afford a lawyer; that the Cobweb had purchased the goods for $112.50; that he offered to buy the goods back; that Walker said he stood a chance to make a good profit if he could sell the items; and that Simco had hired a lawyer but wasn't sure that he was going to ask the lawyer to pursue the matter. Simco also told Trent either (a) that the stolen goods were worth $2,000; (b) that the value of the goods was $2,000; or (c) that the Walkers had them up for sale for $2,000. Simco told Trent that he had looked at some of the price tags. Nothing in the record supports a contemplated sale price approaching $2,000.
Several articles concerning the matter were published by the Sun. It also published some letters received from readers. These articles and letters are the bases for the libel action.
After Simco related the story to Trent, the reporter contacted Assistant District Attorney Elvin Gentry, who informed him that he was familiar with the case and that Simco had approached him and asked help in effecting the return of Mrs. Alter's goods. Gentry told Trent that he had informed Simco that, since there were no criminal charges against the Walkers, the district attorney's office could offer no help as the ownership of the goods was a civil matter; that the district attorney's office handled only criminal matters; and that it could not give advice in civil matters. A detective of the Colorado Springs Police Department confirmed that a burglary had occurred at Mrs. Alter's home and that some of the property had been identified at the Cobweb.
Trent next contacted Mrs. Walker. Mrs. Walker testified that Trent identified himself as a reporter for the Sun, told her he was calling in regard to some things taken from Mrs. Alter and asked if she knew what he was talking about. When she said "yes," he asked her if she still had the items and she again said "yes," and told him that he would have to talk with their attorney. Trent's version of the conversation varied. He testified that he told her of Simco's story and asked her if it were true; that she neither confirmed nor denied the truth of the statements, but responded by telling him to talk to their lawyer; and that he did not ask for, nor did Mrs. Walker tell him, the name of their attorney.
Trent subsequently wrote the first article which was published by the Sun on February 28, 1972 which quoted Mrs. Alter as saying "I will not pay for things that are already mine." The article said further that the Walkers refused to return the property "even though everyone — including the police — know it was hers," that the goods represented "everything of value" in her home and that "Simco said the shop owners told him they paid $112.50 for the items, and have priced it [sic] for resale at about $2,000."
On March 2, 1972, the Sun published an article, whose authorship is not of record, which related and compared laws of several different states relating to stolen property in the hands of a third party. It spoke of "someone like Mrs. Anna Alter, currently facing such a problem." It neither mentioned the Walkers nor named their shop.
After a settlement was negotiated by attorneys representing Simco and the Walkers, Trent published an article entitled "Dealer 'Sells Back' Burglarized Goods" and stating that Mrs. Alter would recover some of the property — "but only after a second hand dealer makes a profit." It related again the difficulties encountered by Simco in trying to recover stolen property. Before this article was published, Trent contacted Mr. Walker, who told him that the $2,000 figure used in the previous article written by Trent was incorrect. Walker stated to Trent that he had purchased the goods for $112.50 and that a final settlement had been reached for $150. Walker did not tell Trent of any other possible errors, nor did he tell him that he (as Walker later testified) had increased the value of the goods to the extent of $112 by repairing and refinishing them.
In addition to the three articles mentioned, the Sun published and editorial written by defendant Woestendiek in a regularly appearing column called "Thinking Out Loud" wherein he expressed "outrage" at "what seemed to be unjust treatment given 93 year old Mrs. Anna Alter." The article repeated the story of the burglary and that the Cobweb put the goods up for sale for $2,000. Woestendiek had received all his information from his reporters and staff, making little or no independent investigation.
Woestendiek also selected a number of letters concerning the subject and published them under a heading called "Sound Off" in which letters to the editor are printed. Woestendiek testified that he considered the opinions expressed by the writers of the letters to be of public interest; and that the focus-issue underlying all the publications, including the letters involved, was the return of stolen goods to the rightful owner.
Among the letters which were published was one printed under the heading, "Black eye for all dealers," in which the author stated that he had read of Cobweb's "preferring to resell the merchandise rather than return it to their rightful owner." Another writer expressed anger at "law used to protect the guilty and not the innocent." "A Concerned Citizen" expressed an unwillingness to do business with "a shop owner who knowingly sells stolen goods." Another letter stated that although Mr. Walker
"undoubtedly bought these goods 'in good faith;' that is not the point. If any one can buy stolen goods and resell them, knowing they are stolen — as Mr. Walker did — then any 'fence' can do the same . . . . "
The headline above another letter read "State 'fence' paradise."
A thorough exegetic treatment of this case would involve a lengthy discussion of the law as it existed, both generally and particularly in Colorado, prior to the announcement of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 in 1964. Such an opinion would include a discussion of the extent to which we may be changing the rule of prior decisions of this court and extended reasons therefor, even though the determination here made has not been required to date by First Amendment decisions of the United States Supreme Court. We do not do so because here our principal effort is to adopt the rule of the plurality in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed. 296 (1971), and rule on sufficiency of the evidence in this case under that rule. Perhaps, at a later time, when we are deciding more of the current legal questions in libel we may undertake to set forth an historical background.
[1,2] New York Times Co., supra, held that the First and Fourteenth Amendments forbade a public official from recovering damages for a defamatory falsehood relating to his official conduct unless it was proved that the statement was made with "actual malice." "Actual malice," as distinct from the usual legal concept of malice, was defined as arising from the publication of a statement with knowledge that it was false or with reckless disregard for whether it was true or not. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), applied the same rule to "public figures." In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), a plurality, but not a majority, of the Supreme Court applied the New York Times Co. and Butts rule to a defamatory statement made about a private individual when an "event of public or general concern" is involved. In dissenting in Rosenbloom, Mr. Justice Harlan would have applied a standard of simple negligence.
Mr. Justice Harlan, writing for the majority, indicated that "public figures" are those who "commanded a substantial amount of independent public interest at the time of the publications." 388 U.S. at 154.
This case was at issue here and on April 15, 1974 we heard oral arguments. Before we had announced any opinion, the United States Supreme Court on June 24, 1974 decided Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d, 789, reversing a district court judgment and a circuit court affirmation thereof, and ordering a new trial in the light of the views expressed by the majority.
Gertz had brought a libel action in the United States District Court. Prior to and during the trial the judge did not apply the New York Times rule. The jury awarded $50,000 to Gertz. Thereafter, just six months prior to the announcement of Rosenbloom, the trial court entered judgment for the defendant n.o.v. Gertz v. Robert Welch, Inc., 322 F. Supp. 997 (N.D. Ill. 1970).
We quote the facts from Gertz from Mr. Justice Powell's majority opinion:
"In 1968 a Chicago policeman named Nuccio shot and killed a youth named Nelson. The state authorities prosecuted Nuccio for the homicide and ultimately obtained a conviction for murder in the second degree. The Nelson family retained petitioner Elmer Gertz, a reputable attorney, to represent them in civil litigation against Nuccio.
"Respondent publishes American Opinion, a monthly outlet for the views of the John Birch Society. Early in the 1960's the magazine began to warn of a nationwide conspiracy to discredit local law enforcement agencies and create in their stead a national police force capable of supporting a communist dictatorship. As part of the continuing effort to alert the public to this assumed danger, the managing editor of American Opinion commissioned an article on the murder trial of officer Nuccio. For this purpose he engaged a regular contributor to the magazine. In March of 1969 respondent published the resulting article under the title `FRAME-UP: Richard Nuccio And The War On Police.' The article purports to demonstrate that the testimony against Nuccio at his criminal trial was false and that his prosecution was part of the communist campaign against the police.
"In his capacity as counsel for the Nelson family in the civil litigation, petitioner attended the coroner's inquest into the boy's death and initiated actions for damages, but he neither discussed officer Nuccio with the press or played any part in the criminal proceeding. Notwithstanding petitioner's remote connection with the prosecution of Nuccio, respondent's magazine portrayed him as an architect of the `frame-up.' According to the article, the police file on petitioner took `a big, Irish cop to lift.' The article stated that petitioner had been an official of the `Marxist League for Industrial Democracy, originally known as the Intercollegiate Socialist Society, which has advocated the violent seizure of our government.' It labelled Gertz a `Leninist' and `Communist-fronter.' It also stated that Gertz had been an officer of the National Lawyers Guild, described as a communist organization that `probably did more than any other outfit to plan the Communist attack on the Chicago police during the 1968 Democratic convention.'
"These statements contained serious inaccuracies. The implication that petitioner had a criminal record was false. Petitioner had been a member and officer of the National Lawyers Guild some 15 years earlier, but there was no evidence that he or that organization had taken any part in planning the 1968 demonstrations in Chicago. There was also no basis for the charge that petitioner was a `Leninist' or a `Communist-fronter.' And he had never been a member of the `Marxist League for Industrial Democracy' or the 'Intercollegiate Socialist Society.'
"The managing editor of American Opinion made no effort to verify or substantiate the charges against petitioner. Instead, he appended an editorial introduction stating that the author had `concluded extensive research into the Richard Nuccio case.' And he included in the article a photograph of petitioner and wrote the caption that appeared under it: 'Elmer Gertz of the Red Guild harasses Nuccio.' Respondent placed the issue of American Opinion containing the article on sale at newsstands throughout the country and distributed reprints of the article on the streets of Chicago."
Further quoting from Gertz:
"Following the jury verdict and on further reflection, the District Court concluded that the New York Times standards should govern this case even though petitioner was not a public official or public figure. It accepted respondent's contention that that privilege protected discussion of any public issue without regard to the status of a person defamed therein. Accordingly, the court entered judgment for respondent notwithstanding the jury's verdict."
As mentioned, the Court of Appeals affirmed. Gertz v. Robert Welch, Inc., 471 F.2d 801 (7th Cir. 1972).
In reversing the circuit court the United States Supreme Court said:
"We hold that, so 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."
On July 17, 1974, no opinion having issued here, we ordered that counsel file simultaneous briefs within sixty days on the following points:
"1. In the light of the U.S. Supreme Court decision in Gertz v. Robert Welch, Inc., decided June 25, 1974, 42 Law Week 5123, what is the appropriate standard of liability that Colorado should adopt for a publisher or broadcaster of defamatory falsehoods injurious to a private individual?
"2. Should there be a different standard of liability upon publications of matters of general or public concern than if the matter has no public interest or public concern, and if so, what should be the standards for each?
"3. If this Court should decide not to require the actual malice test for liability, but should instead lay down a less stringent rule for liability, should this rule be retroactively applied, if so, in what manner?
"4. In the light of the above questions, if this court should determine the actual malice was lacking in this case as a matter of law, what should be the disposition of this case?"
Thereafter, briefs were filed by the parties, as well as by the Colorado Press Association as amicus curiae. We heard further oral arguments in the light of Gertz on November 19, 1974.
We are asked to — and we herein — pronounce the standard of liability for a publisher or broadcaster of defamatory falsehood which is injurious to a private individual and which relates to an event of public general concern. On the one hand, the defendants ask that we apply the plurality standard of Rosenbloom. In contrast, the plaintiffs request us to rule that the Colorado standard in such cases will be that of simple negligence, i.e., to follow the dissent of Mr. Justice Harlan in Rosenbloom. With a limitation made later herein, we adopt the standard of the plurality in Rosenbloom; rule that the court correctly instructed the jury as to the standard of liability ;and hold that the evidence was sufficient to support the verdicts.
It might be said that, under the result reached here, we need not adopt one or the other of the suggested standards. We feel, however, that the bench, the bar and the public are entitled now to an announcement of the rule in Colorado on this point.
The gate has been opened by Gertz. We find Gertz slightly enigmatic in that it permits use to rule — as we do here rule — contrary to some of the opinions expressed therein. Gertz does not follow, and appears to disapprove of, the rule stated above in Rosenbloom. This thought is predicated in part upon the following language in Gertz:
"For these reasons we conclude 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 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 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.' Rosenbloom v. Metromedia, Inc., 403 U.S., at 79. We doubt the wisdom of committing this task to the conscience of judges. Nor does the Constitution require us to draw so thin a line between the drastic alternatives of the New York Times privilege and the common law of strict liability for defamatory error. 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."
In Gertz the majority appears to favor a simple negligence standard in cases not involving a public official or public figure. At least, it indicates that such a standard is permissible in discussing exemplary damages: " . . . punitive damages are wholly irrelevant to the state interest that justifies a negligent standard for private defamation actions."
[3] In the instant case, the plaintiffs admittedly were neither public officials nor public figures. The trial court found that the subject involved was a matter of public interest and concern. We agree. It followed Rosenbloom, except that in its instruction the term "actual malice" was not used. Instruction No. 2, after advising the jury that some of the publication were libelous per se, read:
"You are instructed, however, that under the law a newspaper and its staff . . . are privileged to publish even defamatory material concerning an individual, provided such privilege is not abused. The privilege is abused only if the Plaintiffs establish that the publications were false in some material manner and such statements were published with knowledge that they were false or with reckless disregard of whether they were false or not."
I.
As already stated, we are asked by the plaintiffs to adopt a rule of simple negligence as the standard of liability under which the publisher of a defamatory statement against a private individual may be held liable, if the matter involves an event of public or general concern. In such matters the defendants request that we adopt the rule of Rosenbloom.
Insofar as we are advised, this is the first opinion by a state court of last resort under Gertz. Speaking for the majority of the Court of Appeals of Indiana, Third District, Judge Staton wrote AAFCO Heating and Air Conditioning Company v. Northwest Publications, Inc., 162 Ind. Ct. App. 671, 321 N.E.2d 580 (announced December 30, 1974). The majority there (2 to 1) came to substantially the same result as the majority of this court, although in making its determination it relied in some part upon a state constitutional provision. Parenthetically, for the uninitiated who seek expositions upon the backgrounds and issues of the subject, we suggest they start with the excellent discussion in Gertz and AAFCO.
The "reckless disregard" portion of "actual malice" under the New York Times test was the subject of further explanation or definition in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). As we read St. Amant, it says virtually that in order for there to be a finding of reckless disregard of the truth, there "must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." The plurality in Rosenbloom followed this statement from St. Amant.
[4] In adopting the rule of Rosenbloom, we do so with the limitation that "reckless disregard" for whether or not a statement is true does not mean that there must be a finding that the person making the statement had serious doubts as to the truth thereof. In short, we adopt Rosenbloom, but without the stated explanation or definition made by St. Amant as to "reckless disregard."
[5] We hold that, when a defamatory statement has been published concerning one who is not a public official or a public figure, but the matter involved is of public or general concern, the publisher of the statement will be liable to the person defamed if, and only if, he knew the statement to be false or made the statement with reckless disregard for whether it was true or not.
The St. Amant statement of "serious doubts" as a test of "reckless disregard" has merit in that it gives a more concrete guideline to a jury with respect to "reckless disregard." However, the consensus of the majority of our court is that we should not approve the St. Amant definition at this time, since the term "reckless disregard" has had rather frequent usage in the tort field in this state.
Cantrell v. Forest City Publishing Co., 418 U.S. 909, 95 S.Ct. 465, 41 L.Ed.2d 1156 was announced on December 18, 1974, about six moths following the announcement of Gertz. This affirmed the trial court wherein the judgment had been granted to private individuals for libel. It quotes the trial judge's instruction as follows: "Recklessness implies a higher degree of culpability than negligence. Recklessly means wantonly, with indifference to consequences." It appears from this that the St. Amant definition was not used.
[6] The First Amendment provides, "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . . " Under the Fourteenth Amendment, this applies to the states. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). We recognize that there is no perfect rule to be promulgated which will balance the conflict between the First Amendment right of the press and the injury sustained by a person defamed, more particularly when that person is a private individual involved in a subject of public or general concern. Our ruling here results simply from our conclusion that a simple negligence rule would cast such a chilling effect upon the news media that it would print insufficient facts in order to protect itself against libel actions; and that his insufficiency would be more harmful to the public interest than the possibility of lack of adequate compensation to a defamation-injured private individual. We quote from Judge Staton in AAFCO:
"The United States Supreme Court recognized in New York Times Co. v. Sullivan, supra, that a rule requiring the media to guarantee the truth of its news reporting would lead to self-censorship. Publishers, fearful of being unable to prove the truth of their statements, would avoid the publication of controversial articles. We refuse to adopt a rule that would allow private citizens to obtain damage judgments on the basis of a jury determination that a publisher probably failed to use reasonable care. Such a rule would promote self-censorship by causing publishers to 'steer far wider of the unlawful zone.' Speiser v. Randall (1958), 357 U.S. 513, 536. The uncertainty attendant upon a reasonable care standard would charge the press with 'the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.' Time, Inc. v. Hill, supra, 385 U.S. at 389. A publisher's fear of guessing wrong about juror assessment of the reasonableness of the news gathering procedures he employs would inevitably deter 'protected' speech. Furthermore, the standard of proof employed in libel actions heightens the risk of self-censorship inherent in a 'reasonable care' standard of media privilege."
In Rosenbloom it was observed that "the vagueness of the negligence standard itself would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate." From St. Amant: "To insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protects some erroneous publications as well as true ones." From Gertz: "The First Amendment requires that we protect some falsehood in order to protect speech that matters."
II.
[7] We hold that the evidence was insufficient to support a finding of reckless disregard or knowledge of falsity on the part of Trent. Before writing his story Trent investigated what Simco had told him. He contracted the Assistant District Attorney and a detective for the Colorado Springs Police Department who both verified the substance of Simco's story. Further, Trent called Mrs. Walker who did not tell him anything to cause him to disbelieve the story. Only after his investigation did he report what he had good reason to believe was the truth of the matter. Additionally, only one statement was unsupported by the evidence — that the goods had been priced for $2,000.
Under these circumstances, we cannot find evidence to support the jury's finding that Trent reckless disregarded the truth.
III.
[8] We hold that the evidence sufficiently supports a finding of publication of statements by the defendants, Sun and Woestendiek, with reckless disregard as to whether they were true (as to compensatory damages), and, with a wanton or reckless disregard of the rights and feelings of the plaintiffs (as to exemplary damages).
The following are some of the items of evidence from which the jury could conclude that the defendants, Sun and Woestendiek, did act recklessly in the sense involved both as to compensatory damages and punitive damages: entitling a published letter, "Black eye for all dealers," which letter stated that the Walkers preferred to resell the articles rather than return them to the rightful owners; publishing letters expressing anger at the law being used to protect the guilty and not the innocent; publishing an opinion that the writer was thoroughly amazed that the plaintiffs would even consider selling merchandise known to be stolen; headlining a letter "State 'fence' paradise': publishing an opinion that the writer would not do business with one who knowingly sells stolen property; and continuing to publish news articles and letters two weeks after the settlement had been made.
[9,10] There was sufficient basis for the finding of reckless disregard on the part of Woestendiek and the Sun in the publication of the defamatory letters. Although a publisher can assume the truth of the facts contained in this reporters' stories, Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), this cannot apply to the publication of the letters. Woestendiek — and only Woestendiek — selected the letters to be published. This supports the jury's verdict as to Woestendiek and, of course, the Sun.
New York Times and Rosenbloom hold that First Amendment questions of constitutional fact compel an appellate court's de novo review, and that liability must be supported with convincing clarity. This is not a case, however, for us to become a thirteenth juror. We believe there was convincing clarity to the evidence presented by and on behalf of the plaintiff. See Cantrell v. Forest City Publishing Co., supra, as cited in footnote 2 hereof.
We have gone quite a great distance in this opinion to protect the public media under the First Amendment. Under the facts of this case, the right of free press does not compel or justify us in finding as a matter of law that the plaintiff did not prove their case against Woestendiek and the Sun as to both types of damages.
IV.
[11] We anticipate the issue: Is the determination that a matter is of public interest or concern a question of law for the court or a question of fact for the jury? We rule that it is a question of law for the court. In doing so, we are not unmindful of the difficulties engendered as above set forth by Mr. Justice Powell in Gertz. The cases which we have read either hold or assume that this is a question of law for the court. This was the assumption in Gertz Firestone v. Time, Inc., 271 So.2d 745 (Fla. 1972) specifically so held.
V.
[12] The trial court, we think, wisely did not use the term "actual malice" in the instructions. As stated above, this was a term used to designate a constitutional standard in New York Times. This use of "actual malice" is entirely different from common-law "malice." Because of the possibility of confusion of meanings the trial judge eliminated "actual malice" from the instructions, mentioning Mr. Justice Brennan's footnote [9] in Rosenbloom. As indicated, we entirely agree with the trial judge and think that it would not be good practice to use the term "actual malice" in instructions in future cases.
VI.
[13] The defendants have argued that a demand to the publisher for retraction of an allegedly false statement should be a condition precedent to the commencement of an action for libel. Colorado Jury Instructions 22:15 provides for consideration of retraction in mitigation of damages. We have concluded that whether a demand for retraction should become a condition precedent to the filing of an action is more properly within the legislative ambit than the subject of initial judicial purview. For an example of statutes making such provision, see Kapellas v. Kofman, 1 Cal.3d 20, 459 P.2d 912, 81 Cal. Rptr. 360 (1969); and AAFCO, supra. We, therefore, do not rule upon whether a demand for retraction should be a condition precedent.
VII.
We have been asked to hold that it is no longer necessary to maintain the distinction between libel per se and libel per quod. This question, as with others that have been presented in this case, we reserve for decision in some other case at some later date.
Judgment affirmed in part and reversed in part, and cause remanded with directions to vacate the judgment against Trent and dismiss the complaint as to him.
MR. JUSTICE ERICKSON and MR. JUSTICE LEE specially concur in part and dissent in part.