specially concurring:
I concur in the Constitutional Law section of the opinion and in the result. I cannot join in the State Law section. We usually address potentially dispositive questions of state and local law before reaching constitutional issues because this may make constitutional decision unnecessary. The avoidance of unnecessary decisions on constitutional grounds is a policy, not an iron-bound rule of decision that requires district and appellate courts to jump through state law hoops for the sake of nicety. Application of the principle in this case elevates form over substance.
I would assume without deciding that under state law the plaintiffs in this case would be entitled to recover, and I then would directly address the constitutional issue which, we all agree, bars plaintiffs from recovery. This would be an orderly, sensible and direct solution, saving of judicial time and effort and doing no injury to the law of Mississippi. The majority eschew this direct route to the jugular because they consider that they are immutably bound to consider state law first to determine whether constitutional decision is required. In pursuit of this aim, and acknowledging their difficulties, the majority decide at least the following questions of Mississippi law:
1. A statement that a person is divorced or is a cuckold is as a matter of law capable of a defamatory meaning. The majority find no Mississippi cases on this question.
2. A relative of a person to whom a libelous statement refers may have a cause of action for libel although the only cited case (from a federal district court) says the Mississippi law is uncertain on this question. No other Mississippi state cases can be found. See majority opinion, n.7.
3. A dispute over whether the material in this case was libel per se or libel per quod is resolved by a holding that Mississippi does not recognize the distinction — plaintiffs were not required to plead and prove special damages because under Mississippi law whether a statement is libelous per se is the same question as whether it is defamatory at all.1
4. After the decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) Mississippi would permit recovery for a negligent libel, although before Gertz Mississippi required malice (or presumed malice). No case authority is given to support this conclusion.
This excursion through the Mississippi law is little more than hypothetical. We do not know whether the correct choice of law is that of Tennessee or of Mississippi. This is discussed at length in footnote 6 to the majority opinion. It is inconsistent with federalism to go through a mere ritual of vindicating the principle of addressing state law first, predicating the formal rite upon an assumption that the law to be examined is that of a particular state. The courts of that state have the primary right to establish and construe its body of law. Moreover, pronouncements unnecessarily made in this case may adversely affect the rights of future litigants not parties to this suit who find themselves bound by Mississippi law and faced by citation of this decision as precedent. Ironically, the majority recognize that if we had decided that the action was not barred by the First Amendment, it might then have been necessary to “explore further” to find out if the assumed applica*1261tion of Mississippi law had been justified. See majority opinion, n.6. This stands on its head the principle of deciding issues of state law first.
. The cases discussed by the majority do not clearly decide that libel per quod, in which special damages must be proved, does not exist in Mississippi. See, e. g., Manasco v. Walley, 216 Miss. 614, 63 So.2d 91 (1953). I cannot with assurance find a clear answer in the Mississippi cases. \ logical way to resolve the confusing case law would be to hold that language susceptible of both innocent and defamatory meanings — as was the language in this case — is actionable but not actionable per se. The majority have not chosen this route.