(concurring):
I concur in the court’s opinion. My attempt here is to set out what I conceive to be the proper procedure in handling the issue of actual malice in New York Times Co. v. Sullivan1 cases.
In my judgment New York Times Co. v. Sullivan makes actual malice a constitutional issue to be decided in the first instance by the trial judge applying the Times test of actual knowledge or reckless disregard of the truth.2 Cf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Unless the court finds, on the basis of pretrial affidavits, depositions or other documentary evidence, that the plaintiff can prove actual malice in the Times sense, it should grant summary judgment for the defendant. Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965, 20 A.L.R.3d 972 (1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967). Compare Goldwater v. Ginzburg, 2 Cir., 414 F.2d 324, 336-337 (1969), cert. denied, 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970).
If the case survives the defendant’s summary judgment motion, the trial court at the close of the plaintiff’s case must decide whether actual malice has been shown with “convincing clarity.” 3 In making this judgment the court will judge the credibility of the witnesses and draw its own inferences from the evidence. If the trial is permitted to proceed, the court will be called upon again to make a judgment on the actual malice issue at the close of all of the evidence. If the motion for a directed verdict at this stage of the trial is denied, the actual malice issue, along with the other issues, is then submitted to the jury under the Times instruction without any indication from the court or counsel that the court has decided that the evidence shows actual malice with “convincing clarity.”
*923This two-step procedure in which both the trial judge and the jury must find actual malice before there can be judgment for the plaintiff provides the protection of the First Amendment freedom that Times sought to make secure in areas of public concern. As the Court stated in Rosenblatt v. Baer in support of its requirement that the trial judge in the first instance determine whether the evidence shows the plaintiff in a libel suit to be a public official: “Such a course will both lessen the possibility that a jury will use the cloak of a general verdict to punish unpopular ideas or speakers, and assure an appellate court the record and findings required for review of constitutional decisions. Cf. Speiser v. Randall, 357 U.S. 513, 525 [78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460]; New York Times, 376 U.S., at 285 [84 S.Ct. 710].” 383 U.S. at 88 n. 15, 86 S.Ct. at 677.
I am authorized to say that Judge SPOTTSWOOD W. ROBINSON, III, concurs in this opinion.
. 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
. Compare Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597 (1966): “We remark only that, as is the ease with questions of privilege generally, [in a libel ease] it is for the trial judge in the first instance to determine whether the proofs show respondent to be a ‘public official.’ ”
. New York Times Co. v. Sullivan, supra Note 1, 376 U.S. at 285-286, 84 S.Ct. 710.