dissenting. Because I view this case as containing justiciable issues under New York Times Co. v. Sullivan (1964), 376 U.S. 254, and its progeny, I must dissent.
It is well-settled that defamation actions will not lie for the occasional and inevitable erroneous statement. New York Times Co., supra, at 271-272; Garrison v. Louisiana (1964), 379 U.S. 64, 74; Time, Inc. v. Hill (1967), 385 U.S. 374, 388. On the other hand, the author of New York Times also determined that:
“The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administrar tion. * * * That speech is used as a tool *222for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.'* * *” (Emphasis added.) Garrison, supra, at 75.
By its decision today, the majority has upheld the grant of summary judgment where the plaintiff’s depositions, affidavits, and pleadings demonstrated the existence of the factual issue of whether he may reasonably have been the victim of a maliciously published calculated falsehood, which was so published by a reporter in league with a political candidate, and who sought to directly affect the outcome of a political contest. Where triable issues of this magnitude are before this or any other court, it is imperative that such occurrences be exposed to the full light of trial. Contrary to the majority view, the United States Supreme Court has stated that summary judgment is generally not utilized to decide a defamation case where the publisher’s state of mind is called into question under the “actual malice” standard. See, e.g., Hutchinson v. Proxmire (1979), 443 U.S. 111, 120, at fn. 9; Wolston v. Reader’s Digest Assn., Inc. (1979), 443 U.S. 157, 161, at fn. 3.
In the case sub judice, the relevant focus must be upon the conduct and state of mind of the publisher, Curtis Pub. Co. v. Butts (1967), 388 U.S. 130, 153, whether there was an intent to inflict harm through falsehood, Garrison, supra, at 73, and whether the publisher knew or had “reason to suspect that his publication * * * [was] false,” Herbert v. Lando (1979), 441 U.S. 153, 160. Where the reporter “must have known that a number of the statements in the feature story were untrue,” then a finding of calculated falsehood is justified. Cantrell v. Forest City Pub. Co. (1974), 419 U.S. 245, 253.
Under the above standard, construing the allegations and supporting materials of the parties in favor of plaintiff, as Civ. R. 56 requires, it can only be concluded that a motion for summary judgment ought not to have been granted to the defendant. In Captain Perez’s amended complaint, he avers that the publisher reported that hé had seized illegal drugs which were “then subsequently resold in the streets by the plaintiff * * *.” In paragraph eleven, he states that such report was untrue, and in paragraph fourteen he states that “all of which statements and implications were false and untrue * * *.” These allegations were reiterated in his answers to defendant’s first set of interrogatories at paragraphs four and five, as well as within his deposition at pages 113,114, 118 and 128. We have, then, allegations of a publication and that such publication was false.
Moreover, on the issue of actual malice, Captain Perez averred in his complaint that the false statements were “known to be untrue or with proper inquiry would have been found to be false and were deliberately made by defendant Younkin * * *.” The above allegations which were reiterated in his deposition were opposed by the publisher in his affidavit which asserted little more than his denial of wrongdoing and, as relied upon by the trial court, that he believed in the witness’ credibility and had fairly and accurately reported the criminal charges against Captain Perez. The law is, however, clear upon the point that the deposition of a publisher that he acted in good faith will not “automatically” overcome contrary statements in a summary judgment proceeding. See St. Amant v. Thompson (1968), 390 U.S. 727, 732.
More particularly, Captain Perez *223relied upon two specific allegations which, if either were proven at trial, could satisfy the “actual malice” standard under applicable law. First, it was asserted that the publisher relied upon one known to be a drug dealer, who was known to have a criminal record and was of bad repute, and that the publisher failed to investigate the informant’s allegations. The law in this area is beyond dispute. Whenever the publisher asserts reliance upon the word of an informant, the inquiry may shift to the reputation of the informer for veracity. St. Amant, supra, at 733. Furthermore, “recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” (Emphasis added.) Id. at 732. This may also imply a subjective awareness of probable falsity, i.e., that the publisher, “ ‘in fact entertained serious doubts as to the truth of his publication.’ ” Herbert v. Lando, supra, at 156-157, quoting St. Amant, supra, at 731.
Applying such standards to the present case we find, as undisputed fact, an informant with a criminal past who was a known drug dealer, and whose services as a drug informant had been refused by Captain Perez some time prior to the interview. That the publisher knew of his informant’s criminal past cannot be doubted since he made such past a part of his presentation, and also because he had procured the story in cooperation with the candidate who was ultimately elected. The publisher’s statement that he sought police comment is, first of all, only of tangential use on the issue of whether the publisher failed to investigate the accuracy of the report. There may have been fair reason to refuse comment to the publisher. For example, a story by Younkin revealed the secret location of the narcotic squad’s operational base, the various methods used to investigate drug dealers, as well as the identities of participating enforcement agents. Further, in Captain Perez’s deposition, he stated that he refused to talk to the publisher because, on a prior occasion when discussion was had over a particular matter, the publisher “went back to the TV and told them just the opposite.” Also, he stated under oath that he had no knowledge as to the subject of the publisher’s phone calls. By reliance upon unanswered phone calls, the publisher can hardly be said to have discharged his duty to investigate the accuracy of an obviously suspect story initiated by a source having every motive to destroy the effectiveness of the narcotics unit.
The second allegation was that the publisher had adjusted the informant’s version of the events. This allegation is contained in Captain Perez’s affidavit and made in express reliance upon revelations of such conduct set forth in the deposition of the informant. Evidence of the editorial process, i.e., the decision-making process, to include or exclude particular material or to publish one version of a story instead of another, is particularly relevant in determining the existence of actual malice. Herbert v. Lando, supra, at 157, 173. An “examination of. the editorial process [is appropriate] to prove the necessary awareness of probable falsehood * * Id. at 172. In the instant case, the informant’s deposition stated that during rehearsals for the on-camera interview, the publisher solicited changes in wording, both to eliminate and to substitute words, for the stated purpose of making such statements “stronger.” This statement clearly provides evidence upon the issue of actual malice. Therefore, these matters should be remanded for trial as presenting-triable issues.
Accordingly, I dissent.
Sweeney, J., concurs in the foregoing dissenting opinion.