Witmer, J.
(dissenting). As much as I sympathize with the plaintiff and his plight in this case, I must dissent from the court’s holding in his favor. The larger issue of the public policy involved, founded upon the First Amendment of the United States Constitution, transcends the wrong done to plaintiff herein, if it was such, and requires affirmance of the judgment. The appeal presents the question of the liability of a telephone company for the transmission by one of its subscribers of allegedly defamatory recorded messages concerning the plaintiff.
Since the trial court dismissed the two complaints on defendant’s motion at the conclusion of the testimony, holding that there was no question of fact for the jury, in considering this *162case we must, of course, accord to plaintiff every favorable inference which a jury could draw from the evidence. I accept the statements of facts contained in the majority opinion and make the following additions thereto:
(1) Before plaintiff requested that the telephone company terminate Jackson’s service he had unsuccessfully sought an injunction and action by the city Police Department against Jackson. Plaintiff was advised by counsel that injunctive relief against Jackson was not available under our law (see 34 N Y Jur, Libel and Slander, § 6) and was advised by the Police Department that they had no authority to restrain Jackson’s messages. He then turned to the telephone company, the defendant, to request that it impose the restraint that the law otherwise had made unavailable to him.
(2) Defendant’s attorneys advised it that it had no right or duty to interfere with Jackson’s use of his telephones for transmitting said recorded messages.
(3) At trial plaintiff testified that he had known Jackson “ quite well ” over a number of years. Although Jackson was not a member of plaintiff’s church, plaintiff had determined that “ some of the ministers [within plaintiff’s diocese] had made contact with him [Jackson] ”, and he had heard that those ministers fed information to Jackson. This internal controversy, which plaintiff described as “a political church football ”, developed within plaintiff’s church after his appointment as bishop in 1968, before any of the recordings that are the subject of this action. Plaintiff conceded that many of the details in the recordings, other than the accusations of adultery and other scandalous behavior, were accurate and might suggest that someone with knowledge of plaintiff’s activities had authored the statements. Two of the ministers within plaintiff’s jurisdiction, both of whom had known plaintiff, testified in his behalf that they had believed the statements made by Jackson. Jackson, subpoenaed by defendant, testified that he had known plaintiff for some time, had talked with people from Memphis, the headquarters of plaintiff’s church, and ‘1 knew this information. ’ ’ Plaintiff did not exercise his right to cross-examine Jackson concerning the sources of his knowledge.
In light of these facts and the applicable law I believe that the trial court achieved the correct result.
The telephone company cannot be liable to plaintiff under the law of defamation unless it is held that by providing service to Jackson it “ published ” his messages and did so under eireum*163stances such that the “ publication ” was not privileged. In my view neither of such holdings can be made on this record.
Although it is recognized that a telegraph company may be held to have published a message submitted to it by a sender (Klein v. Western Union Tel. Co., 257 App. Div. 336, 339-340, app. withdrawn 281 N. Y. 831; see, Smith, Liability of a Telegraph Company for Transmitting a Defamatory Message, 20 Col. L. Rev. 30, 33-50 [1920]), such publication occurs through the direct participation" of agents of the telegraph company. Thus, when the telegraph sender submits a message to agent A who transmits it to agent B who delivers it to the recipient, agent A has communicated the message to agent B and agent B has communicated the message to the addressee. In the case of a modern-day telephone call, however, the caller communicates directly with the listener over the facilities of the telephone company, with no publication by the company itself. Whether the caller uses his own tape recorder or leases facilities from the telephone company to permit him to transmit the same message on a continuous basis, the legal significance of the communication is the same. The sender’s message in such cases is communicated directly to the recipient without being published by or to any person employed by the telephone company. The telephone company’s role in this communication is not legally different from the role played by a person who leases a sound amplification system to a person who makes a defamatory public speech, or who leases a typewriter to one who writes defamatory messages or a tape recorder to one who broadcasts a defamatory message. In none of these cases does the mere leasing of communication facilities cast the lessor in liability under libel laws, even if the lessor is informed about the nature of the message being communicated. In no sense has the person providing the facilities participated in preparing the message, exercised any discretion or control over its communication, or in any way assumed responsibility. For these reasons, there has been no publication in the present case, because the telephone company was not the legal cause for communicating the defamatory matter to third persons.
If, however, we were to hold that the telephone company published Jackson’s messages because it allowed him to use its facilities to transmit the messages (or, more precisely, because it refused to terminate his telephone service) (see Restatement, Torts 2d, § 581, Comment b [Tentative Draft No. 12, 1966]), we should do so only in conjunction with the corresponding rule extending a broad conditional privilege to the *164telephone company. Thus, we should follow Matter of Figari v. New Yor Tel. Co. (32 A D 2d 434, 445-447) and Klein v. Western Union Tel. Co. (257 App. Div. 336, 339-340, opp. withdrawn 281 N. Y. 831) in extending to public service telecommunication companies the qualified privilege that has been redefined, without change material to this action, in Restatement, Torts 2d (§ 612, Tentative Draft No. 12 [1966]) as follows:
“ (2) A public utility under a duty to transmit a message is conditionally privileged to do so, even though it knows the message to be defamatory, unless
“ (a) the sender of the message is not privileged to send it, and
“ (b) the agent who transmits the message knows or has reason to know that the sender is not so privileged.”
The reasons for the qualified privilege are explained in Klein v. Western Union Tel. Co. (supra) where the court wrote:
“ this defendant is placed in a precarious position with respect to its refusal to accept, transmit and deliver messages preferred to it with a tender of the proper charges # * *. If the defendant at its peril is required to censor messages which contain statements of fact or innuendo about a third party of the character of the messages here sent, it would subject itself to a possible suit on the part of the sender, either by reason of its refusal to accept or for the delay occasioned by its investigation * * * (p. 339).
“ We are of opinion that ordinarily such a company, in accepting, transmitting and delivering messages, is entitled to a qualified privilege. This rebuts any presumption of malice from the fact that the message is libelous per se as between sender and the party mentioned therein, and, in order to justify a recovery, the party libeled must furnish evidence of actual or express malice or bad faith on the part of the carrier ” (pp. 339-340; emphasis supplied).
(See, also, Western Union Tel. Co. v. Lesesne, 182 F. 2d 135, 137 [4th Cir.], cert. den. 344 U. S. 896; Smith, Liability of a Telegraph Company for Transmitting a Defamatory Message, 20 Col. L. Rev. 30-50, 369-393 [1920]; Note and Comment, 29 Mich. L. Rev. 339-344 [1930]; 1 Harper and James, Law of Torts [1956], § 5.18, pp. 404-405.)
This qualified privilege, incorporated in the Restatement, serves to accommodate several important social policies: (1) the due process right to continued access to telephone service (Telephone News System v. Illinois Bell Tel. Co., 220 F. Supp., 621, 625-626, affd. 376 U. S. 782); (2) the First Amendment *165right of telephone subscribers to access to public communication facilities, which a public service corporation may not lightly abridge, especially where the communication concerns matters of public concern (Matter of Figari v. New York Tel. Co., 32 A D 2d 434); (3) the interest of telephone subscribers in being free from excessive monitoring of their private use of telephone facilities; (4) the recognition that telephone companies do not and should not exercise editorial responsibility for the content of otherwise private messages transmitted over its lines; (5) the need to protect the telephone company from the precarious position of being subject to suit (a) by the sender for terminating or refusing service or (b) by the person defamed if the company decides to permit service to continue; (6) the recognition that it would be unwise and socially expensive to impose the burden upon the telephone company to investigate complaints about the truth of communications by its subscribers; (7) the recognition that the person defamed may enter into the public debate to protect his reputation and may sue the sender for damages; (8) the recognition that a telephone company, which with very limited exceptions extends its facilities to all users, has exhibited no actual or implied ‘' malice ’ ’ when it merely refuses to censor a particular communication; (9) the recognition that the sender acts within the scope of his First Amendment privilege as long as he has not, to the telephone company’s knowledge, recklessly disregarded the truth and hence should not be penalized by the loss of telephone service for the exercise of that privilege; and (10) the recognition that the subscriber has a meritorious claim to a hearing or other independent review as to whether his conduct is protected by the First Amendment before his service may be terminated.
Applying this qualified or conditional privilege to the facts of this case, it appears that no question of fact was presented for the jury. Jackson was" conditionally privileged to comment about the fitness of such a public figure as plaintiff to serve as pastor or bishop of his church (Rosenbloom v. Metromedia, 403 U. S. 29, 31-33, 43-44; Trails West v. Wolff, 32 N Y 2d 207; Washington v. New York News, 37 A D 2d 557), under standards of New York Times Co. v. Sullivan (376 U. S. 254) and Rosenbloom v. Metromedia (supra), so long as he did not act with knowledge that the defamatory statement was false or with reckless disregard of whether it was false. Although evidence was introduced to show both that plaintiff had met with representatives of defendant to deny the truth of Jackson’s messages and had supported portions of these denials with a *166letter from the Welfare Department and that defendant had made no investigation to determine the truth of the messages, nothing was introduced to establish that defendant had affirmative reason to know whether Jackson had knowledge of the falsity of the statements or had acted in reckless disregard for their truth or falsity. At trial plaintiff indicated that he believed Jackson had received information from some members of his church. Jackson stated that he talked with some persons in Memphis, Tennessee, but he relied principally upon his own personal knowledge of plaintiff. The evidence did not show, more than that at the time of the publication defendant had been presented with assertions and possibly reasonable suspicions that Jackson’s messages may have been untrue in certain respects. At the same time the telephone company had plaintiff’s admission that many of the statements contained in the recorded messages were true. Had defendant inquired of Jackson about the statements which plaintiff asserted were untrue, presumably Jackson would have given assurance of their truth just as he testified upon the trial. It is noteworthy that plaintiff did not cross-examine Jackson on the trial as to the truth of those statements and the source of his knowledge thereof; and even some of plaintiff’s. ministers testified that they believed the statements were true. Thus, there was no showing that Jackson exceeded his qualified privilege. Under such circumstances, even if we hold that the telephone company was a publisher of Jackson’s messages, the company was entitled to rely on Jackson’s qualified privilege (Youmans v. Smith, 153 N. Y. 214, 222).
The evidence was clear that defendant refused to interfere with Jackson’s messages because it had been advised by counsel that it had no legal right to interfere. Moreover, plaintiff has failed to furnish evidence of “ actual or express malice or bad faith ” of the defendant, within the meaning of Klein v. Western Union Tel. Co. (257 App. Div. 336, 340). Nothing in the record even raises an inference that defendant acted for any purpose or motive inconsistent with the purposes served by its qualified privilege as a public service company or that it knew or had reason to know that Jackson had exceeded his conditional privilege to publish his messages. Accordingly, there was no evidence to show that defendant abused its qualified privilege.
Although I agree with the majority’s observation that the recurring nature of the defamatory remarks in this case is a factual difference from the ordinary telegraph transmission (but cf. Matter of Figari v. New York Tel. Co., 32 A D 2d 434) *167in that here the telephone company had a limited opportunity to investigate the possible defamatory content of Jackson’s progressive communications, I do not believe that this fact should justify a departure from the Restatement rule in favor of the standards of New York Times Co. v. Sullivan (376 U. S. 254) and Rosenbloom v. Metromedia (403 U. S. 29). Quite apart from the problem that Jackson changed his messages, necessitating, under the majority’s proposed standard, successive investigations by the telephone company and legal opinions from its counsel, I believe that there are important differences between private publishers, for whom the New York Times standard was adopted, and public telecommunications corporations. There is merit in the statement in Comment g of Restatement, Torts 2d (§ 612 [Tent. Draft No. 12 (1966)]) that, “As a public servant it [the public utility] is not required to make inquiry or investigation as to the circumstances, and the reasons or purposes for which its service is demanded ”. Moreover, the conditional privilege applicable to public telecommunication corporations serves purposes entirely different from those served by the New York Times privilege and the former has arisen from an entirely different legal background. Under the common law prior to the New York Times decision radio stations and newspaper publishers were held strictly liable for the republication of a defamatory statement unless they had no reason to know of its defamatory character (Restatement, Torts, § 581; 1 Harper and James, The Law of Torts, § 5.18, pp. 402-408, n. 2, 9, 10 [1956]). The qualified privilege adopted in New York Times was designed to accommodate the First Amendment rights of the publisher by protecting him from liability for defamation in reporting on matters of public concern, unless he acted in reckless disregard of the truth (Rosenbloom v. Metromedia, 403 U. S. 29, 52-53). Thus, that privilege was purposefully designed to accommodate the competing social policies and fundamental rights present where a publisher undertakes to report and comment on matters of public concern.
The origin of the qualified privilege which has been extended to public telecommunications corporations is entirely independent of the New York Times privilege, and it was developed long before the New York Times privilege, in recognition that such corporations are not editorially responsible for the content of the messages transmitted over their facilities, since they provide those facilities without any actual or implied malice but only in the exercise of the duty to the public which they have assumed by public charter (Klein v. Western Union Tel. Co., *168supra; Western Union Tel. Co. v. Lesesne, supra; Smith, Liability of a Telegraph Company for Transmitting a Defamatory Message, 20 Col. L. Rev. 30-50, 369-393 [1920]; Note and Comment, 29 Mich. L. Rev., 339-344 [1930]; 1 Harper and James, Law of Torts, § 5.18, pp. 404-405). Because the considerations of public policy for communication through the facilities of public service corporations are entirely different from the policies applicable to private publishers, it is unsound to incorporate the New York Times standard in this case.
The majority’s expressed fear of hypothetical cases of continuing recorded libelous messages by mentally deranged or deceased persons is not well founded. First, the contract for telephone services between the subscriber and the company would not survive the death or incompetency of the subscriber, and secondly, such an occurrence to the sender of a recorded message would present no greater problem for the person defamed than does the ordinary publication of any defamatory matter. Except for situations not here pertinent, the person defamed cannot obtain a court-imposed prior restraint upon the publication (Nann v. Raimist, 255 N. Y. 307, 317; 34 N Y Jur, Libel and Slander, :§ 6) and must instead rely on his ability to defend himself in the forum of public debate or by means of a damage suit against the person responsible for the defamation. These familiar public policy rules, of course, represent considered judgments about the relative merits of free public debate and the individual’s right to insulation from untruthful assertions (Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95-96; Rosenbloom v. Metromedia, 403 U. S. 29, supra; Carroll v. Princess Anne, 393 U. S. 175, 180-182; Teitel Film Corp. v. Cusack, 390 U. S. 139; Freedman v. Maryland, 380 U. S. 51, 57-59; Bantam Books v. Sullivan, 372 U. S. 58, 70-71).
The standard stated by the majority would be extremely difficult of application. They assert that “ a minimal investigation would require that the company contact the sender [and] this duty is not an unreasonable or onerous one ”, and they add that (‘ where the company has investigated the message and found even a small evidence of truth, it should not remove the telephone.” In light of the majority holding herein, that test is impractical and not useful. On a practical view of this case it would require affirmance. As interpreted by the majority, it appears that competent counsel would be hard pressed to advise the telephone company that any investigation would satisfy its burden in a particular set of factual circumstances other f.ban the same investigation as that expected of a newspaper *169publisher. In other words, the majority would impose the same responsibility upon a public telephone company as that imposed on a private organization for profit that undertakes direct responsibility for what is published and has the resources to verify its stories. That burden would be unreasonably onerous when applied to a telephone company in light of the manifest differences between the social functions of the two, particularly since the telephone company merely makes a physical service available to a customer’s independent use.
The standard adopted by the majority would compel the telephone company to infringe upon the expected privacy and freedom of its subscribers. Suppose that a political party, in the course of a telephone campaign to bring its messages to the voters, were to criticize a public official by means of a form message which party workers repeated to the persons called. Suppose, further, that the public official were to complain to the telephone company that the message was not truthful in certain respects. The majority’s standard would require that the telephone company monitor the messages, conduct an investigation into their truthfulness, be a fact finder, and terminate service if it appeared to the telephone company that the messages were not true. Of course, if the telephone company were incorrect in its assessment of the truth, the damage remedy available to a disappointed political candidate would be too late, uncertain and inadequate. This extraordinary prior restraint, moreover, would make the telephone company a public censor and would mean that many telephone messages would be terminated even if the sender were privileged under the New York Times rule to communicate them. The majority’s rule, imposing an imminent penalty of loss of telephone service upon a person engaging in robust public debate, would clash severely with the rights granted under the First Amendment as interpreted in New York Times Co. v. Sullivan (supra). The “ derivative privilege ” which the majority declines to adopt is necessary, it is submitted, to safeguard fully the First Amendment rights of the subscribers of telephone services.
Moreover, there appears to be little basis for the majority’s ready assumption that the telephone company has the authority summarily to terminate the service of a subscriber who transmits messages which the telephone company believes to be defamatory, where it appears that the sender has acted within the privilege of New York Times. The assumption is directly contrary to Matter of Figari v. New York Tel. Co. (32 A D 2d 434, 448) where the court stated that: “ a [telephone company] *170regulation which has the effect of deterring freedom of speech, not supported by any substantial governmental interest, is unconstitutional, especially where the speech sought to be regulated, whatever vagaries it embodies, is not defamatory within New York Times (supra) and its progeny and does not incite to riot or tend to provoke immediate retaliation [citations omitted]. Our heritage commands this result since the liberties guaranteed to individuals in the First Amendment are to be accorded a most liberal construction.” In Figari the court reasoned that “ it is axiomatic that the tariff of a public utility regulated by a governmental agency is efficacious only by virtue of State action” (32 A D 2d 434, 440), and it concluded that the public utility could not apply its tariffs to infringe upon First Amendment rights (pp. 446-448). Therefore, if a telephone company could terminate service because the subscriber was transmitting a defamatory message, it certainly could not do so unless it were in a position to demonstrate that the subscriber was not privileged under the New York Times standard, for otherwise the subscriber has a constitutional right to publish his message without State-imposed restraint (Near v. Minnesota, 283 U. S. 697, 713-716). If we were to find that the decision of the telephone company to terminate service resulted from private action rather than State action, we, nevertheless, could not apply a State rule of law, such as that adopted by the majority, that has the effect of imposing an invalid restriction on First Amendment rights because that rule of law constitutes “ State action” under the holding of New York Times Co. v. Sullivan (376 U. S. 254, 265-266).
I would hold that the due process clause of the Fourteenth Amendment, combined with the First Amendment, forbids the imposition of any rule of law which would require the telephone company summarily to terminate a subscriber’s service without providing an opportunity for a hearing or other independent review (no provision for which has been established in the tariff regulations), when the subscriber has exercised rights arguably within the protection of the First Amendment. That conclusion appears to be the clear implication of recent Supreme Court decisions in pornography cases where the State’s regulatory interests are even stronger than in libel cases but restraints on improper publications have been permitted (Miller v. California, 413 U. S. 15; Paris Adult Theater I v. Slaton, 413 U. S. 49) only upon procedures consistent with due process of law (Heller v. New York, 413 U. S. 483; Freedman v. Maryland, 380 U. S. 51, 57-59). The due process clause governs the procedures appli*171cable when State law requires a telephone company to terminate services (Telephone News System v. Illinois Bell Tel. Co., 220 F. Supp. 621 [N.D. Ill.], affd. 376 U. S. 782, supra; and Sokol v. Public Utilities Comm., 65 Cal. 2d 247, 252-256; 53 Cal. Rptr. 673) and due process requires an adversary hearing or other independent review when First Amendment rights are at stake (Heller v. New York, 413 U. S. 483, supra; Carroll v. Princess Anne, 393 U. S. 175, 180-182; Walker v. Popenoe, 149 F. 2d 511, 513 [D. C. Cir., 1945]; Comment, Summary Termination of Telephone Service for Suspected Illegal Use, 20 Stanford L. Rev., 136, 142-145). Thus, there are grave constitutional objections to holding that any tariff regulation could validly give the telephone company the right summarily to terminate service because allegedly defamatory messages are being transmitted.
We are bound, therefore, to construe the tariff so as to avoid an unconstitutional result. The language used in subdivision 5 of Tariff 800 leads to the conclusion that the term “ improper ” does not refer to defamatory messages. The term is used in conjunction with the words “ prohibited ” and “ unlawful ” uses of facilities, and the examples presented are similarly limited. Thus, “ improper ” appears to mean uses of the telephone services involving criminal activities, including fraud upon the telephone company. It would be difficult to extend the meaning of these terms to communications involving only civil liability for the sender. If defamatory statements are “ improper ”, then how must we construe telephone calls that are the operable facts in breach of contract, negligent misrepresentations, or deceit? Furthermore, even if we were to hold that some telephone uses giving rise to civil liability were “ improper ”, we should not find it “ improper ” for the user to exercise a freedom of expression protected by conditional privilege.
Finally, it must be observed that the majority have not explained how the failure of the telephone company to undertake minimal investigation is a legal cause of plaintiff’s damages. This record permits only the inference that if the telephone company had called Jackson it would have been told that Jackson had known plaintiff for some time, had talked with people in the church, and 1 ‘ knew this information. ” If it had checked with members of plaintiff’s church, it would have learned that the subject was, in plaintiff’s words, “ a political church football.” Presumably, this investigation would constitute grounds for the telephone company to continue Jackson’s service. There*172fore, even if we were to adopt the standard advocated by the majority, we should not reverse because there was no evidence to show that the publication would not have continued but for the failure of investigation.
For the above reasons the judgment appealed from should be affirmed.
Cardamone and Simons, JJ., concur with Goldman, P. J.; Witmer and Moule, JJ., dissent and vote to affirm judgment in opinion by Witmer, J.
Judgment reversed on the law and facts and a new trial granted with costs to abide the event.