concurring.
I concur in reversal of the judgment in this case based on the grounds and reasons stated in the Court’s opinion. I do this, however, in order for the Court to be able at this time to agree on an opinion in this important case based on the prevailing constitutional doctrine expressed in New York Times Co. v. Sullivan, 376 U. S. 254. The Court’s opinion decides the case in accordance with this doctrine, to which the majority adhere. In agreeing to the Court’s opinion, I do not recede from any of the views I have previously expressed about the much wider press and speech freedoms I think the First and Fourteenth Amendments were designed to grant to the people of the Nation. See, e. g., New York Times Co. v. Sullivan, 376 U. S., at 293 (concurring opinion); Rosenblatt v. Baer, 383 U. S. 75, 94 (concurring and dissenting opinion).
I.
I acquiesce in the application here of the narrower constitutional view of New York Times with the belief that this doctrine too is bound to pass away as its application to new cases proves its inadequacy to protect freedom of the press from destruction in libel cases and other cases like this one. The words “malicious” and particularly “reckless disregard of the truth” can never serve as effective substitutes for the First Amendment words: “. . . make no law . . . abridging the freedom of speech,, or of the press . . . .” Experience, I think, is bound to prove that First Amendment freedoms can *399no more be permanently diluted or abridged by this Court’s action than could the Sixth Amendment’s guarantee of right to counsel. I think the fate that befell Betts v. Brady, 316 U. S. 455 (cf. Gideon v. Wainwright, 372 U. S. 335), is already foreseeable, even if only dimly, for the New York Times’ dilution of First Amendment rights.
II.
I think it not inappropriate to add that it would be l difficult, if not impossible, for the Court ever to sustain a judgment against Time in this case without using the recently popularized weighing and balancing formula. Some of us have pointed out from time to time that the First Amendment freedoms could not possibly live with the adoption of that Constitution-ignoring- and-destroying technique,1 when there are, as here, palpable penalties imposed on speech or press specifically because of the views that are spoken or printed. The prohibitions of the Constitution were written to prohibit certain specific things, and one of the specific things prohibited is a law which abridges freedom of the press. That freedom was written into the Constitution and that Constitution is or should be binding on judges as well as other public officers.. The "weighing” doctrine plainly encourages and actually invites judges to choose for themselves between conflicting values, even where, as in the First Amendment, the Founders made a choice of values, one of which is a free press. Though the Constitution requires that judges swear to obey and enforce it, it is not altogether strange that all judges are not always *400dead set against constitutional interpretations that expand their powers, and that when power is once claimed by some, others are loath to give it up.
Finally, if the judicial balancing choice of constitutional changes is to be adopted by this Court, I could wish it had not started on the First Amendment. The freedoms guaranteed by that Amendment are essential freedoms in a government like ours. That Amendment was deliberately written in language designed to put its freedoms beyond the reach of government to change while it remained unrepealed.2 If judges have, however, by their own fiat today created a right of privacy equal to or superior to the right of a free press that the Constitution created, then tomorrow and the next day and the next, judges can create more rights that balance away other cherished Bill of Rights freedoms. If there is any one thing that could strongly indicate that the Founders were wrong in reposing so much trust in a free press, I would suggest that it would be for the press itself not to wake up to the grave danger to its freedom, inherent and certain in this “weighing process.” Life’s conduct here was at most a mere understandable and incidental error of fact in reporting a newsworthy event. One does not have to be a prophet to foresee that judgments like the one we here reverse can frighten and punish the press so much that publishers will cease trying to report news in a lively and readable fashion as long as there is — and there always will be — doubt as to the complete accuracy *401of the newsworthy facts.3 Such a consummation hardly seems consistent with the clearly expressed purpose of the Founders to guarantee the press a favored spot in our free society.
See, e. g., In re Anastaplo, 366 U. S. 82, 97 (dissenting opinion); Braden v. United States, 365 U. S. 431, 438 (dissenting opinion); Barenblatt v. United States, 360 U. S. 109, 140-145 (dissenting opinion).
Jefferson wrote that the purpose of the First Amendment is “. . . guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violates either, throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals.” 8 Jefferson, Works 464-465 (Ford ed. 1904).
See, for example, Curtis Publishing Co. v. Butts, 351 F. 2d 702 ($3,000,000 libel judgment, cut to $460,000 on appeal), cert. granted, post, p. 811; Associated Press v. Walker, 393 S. W. 2d 671 (Tex. Civ. App.) ($500,000 libel judgment), cert. granted, post, p. 812; New York Times Co. v. Sullivan, 376 U. S. 254 ($500,000 libel judgment), reversed.