concurring. I concur in Justice Locher’s decision. He provides the bench and bar with sensible guidelines as to when a writing should be treated as an expression of opinion, and a meaningful definition of who qualifies as a public figure.
Almost two hundred years after the passage of the First Amendment guarantee of freedom of speech, some folks are still debating the wisdom of that idea. That, of course, is what this case is all about. All of us should be free to speak, read or hear views of whatever may be of interest. It is this particular right that distinguishes the rights of our citizenry from those of people living under fascism or communism.
As the law of libel has developed in this country, courts have been forced to distinguish between statements of fact and opinion. The common law allowed libel defendants a qualified privilege of fair comment on matters of public interest when the statements were based upon disclosed or publicly available facts and made honestly and without malice. See, e.g., Prosser, Law of Torts (4 Ed. 1971) 819-820. In Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, the United States Supreme Court raised statements of opinion to the level of constitutionally protected free speech. Justice Locher quotes with approval the basic premise of Gertz that: “* * * Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. * * *” Id. at 339-340. I believe the framers of our Constitution felt that an informed electorate was the genius of our system. Thus, in my view, free speech is the brightest star in our constitutional constellation.
Sharp criticism of a governmental official produces a far greater public good in a democracy than does artificial respect fostered by suppression of such opinion. “Progress generally begins in skepticism about accepted truths. The danger that citizens will think wrongly is serious, but less dangerous than atrophy from not thinking at all. Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error.” American Communications Assn. v. Douds (1950), 339 U.S. 382, 444. If this court sanctions in any form interference with the ideas of the opinion-maker, our claim to be guardians of a free press is hollow.
As Judge Harry T. Edwards said from the bench during oral argument in Ollman v. Evans (C.A. D.C. 1984), 750 F. 2d 970, “When you read the [libel] cases, they are a mess.” Sanford, Libel and Privacy (1985) 107. It is practically impossible to reconcile the case law in this area and Justice *262Locher has wisely eschewed such a course. Instead, we have made it clear that opinions stated in a column, cartoon or an editorial are constitutionally protected free speech. Thus, rather than rely on a legacy of confusion, we have adopted the fundamental premise that the media has the right as well as the duty to inform the public through editorial comment, however harsh, on any matter of genuine public interest.
I agree with Justice Locher’s rejection of the standard found in the Restatement of the Law 2d, Torts (1977) 170-172, Section 566, Comment a, which provides that “mixed” statements of fact and opinion are libelous if the underlying facts are not stated and if the opinion can reasonably be taken to imply the existence of defamatory facts. The Restatement approach focuses on possible reader reaction, which is a difficult standard for evaluation. Also, the Restatement approach requires courts to engage in the nearly impossible task of forming standards for intelligently analyzing the difference between a “pure” statement of opinion as opposed to a “mixed” opinion that implies defamatory facts.5 Justice Locher has wisely held that any statement of opinion, whether pure or mixed, will not form the basis for an action in tort.
I would go a step further than my colleagues, however, and grant the media the right to attain absolute protection by identifying an article as opinion. A column without such a label which is outside the editorial opinion portion of the paper would be treated as fact and be afforded only the limited protection articulated in New York Times Co. v. Sullivan (1964), 376 U.S. 254. A like test would apply to radio or television programming. I would reject any approach that requires the trial court to determine whether or not the statements are susceptible to proof of truth or falsity. If the context of the statement is in the nature of editorial comment it should be treated as privileged free speech.
This “bright-line” rule would eliminate the uncertainty of characterizing statements as opinion or fact. It would provide predictability and fairness in an area of the law which is presently a legal morass. Such a rule would be helpful to the media and would serve the public interest as it lends itself to ready compliance yet protects vital free speech interests in the expression of opinion.
The dissenters’ remarks concerning the doctrine of stare decisis *263deserve comment. First of all, I rejoice in their charismatic conversion. Second, it is clear that the demise of Milkovich v. News-Herald (1984), 15 Ohio St. 3d 292, presents no revolutionary changes in the law of libel. To the contrary, a dearth of decisional law supports Milkovich and much case law militates a contrary conclusion. Third, as Justice Locher points out, when a past decision of this court is plainly mistaken and destructive of a constitutional imperative such as freedom of speech, we should not hesitate to confess our error. As Justice Locher demonstrated, in Milkovich no test was offered with regard to distinguishing fact from opinion and no analysis was given to support the court’s conclusion. Thus, the “rationale” in Milkovich was fatally flawed.
I believe in the doctrine of stare decisis and I will continue to support this doctrine, regardless of my personal predilections as to public policy in some particular area of the law. Precision and consistency are values of the highest order in judicial decision-making. Populist jurisprudence only creates unpredictability in the law. While understanding that the common law is not immutable, we should strive to follow past experience and precedent. Justice Locher’s opinion does no violence to these concepts.
Accordingly, I concur.
As an illustration, note the learned remarks contained in Notes, Fair Comment (1949), 62 Harv. L. Rev. 1207,1213: “The statement in question should be regarded as one of fact if a substantial number of readers would understand it as intended to convey ideas the asserted validity of which is independent of the belief of the person making the statement. If a substantial number of readers would understand the statement to rest solely on the opinions of the person making the statement, the statement should be regarded as comment and should come within the privilege if the matter is one of public interest.” I pity the poor trial judge who attempts to wrestle with such an ambiguous definition! The reader-oriented approach obviously provides little or no assistance to the bar or bench as to how one may gauge the reaction of readers, what sampling is necessary, or which readers to consult.