dissenting:
With much respect to the views of my conscientious brethren, I must nevertheless dissent from the majority’s affirmance of the award against the publisher for the first article of February 25, 1980, see Appendix “A”, supra, 738 F.2d at 676. In my view, the first article is an essentially accurate lay summary of civil proceedings, identified as such, in which Levine was found by the state trial judge to have converted computer tapes and to have misappropriated trade secrets of his former corporation.
The majority affirms the jury finding that the reporting of the civil proceedings was negligently done and contained defamatory falsehoods. In its valiant and commendable effort to uphold the jury verdict, however, the majority has inadvertently critiqued the first article for jury-findable falsehoods and negligence with the eye of a law review note editor. I believe the standard of judicial review of utterance within the potential ambit of the First Amendment does not permit such justifying approach in order not to disturb a jury verdict against a publisher.
The majority has correctly found Levine to be a private individual rather than a public figure. That being so, the measure of whether the libel award for publication of this article offends the First Amendment is provided by Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). By this measure, a private defamation plaintiff may recover (only) such damages as are sufficient to compensate for actual injury, insofar (as here) recovery is allowable under state law, which may constitutionally provide for recovery for defamatory falsehoods negligently published. This measure is to be compared with the standard prohibiting libel recovery by public officials and public figures, which may not be constitutionally upheld absent “actual malice” in their publication. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). See generally Nowak, Rotunda, and Young, Constitution*679al Law, 780-89 (1978) and Tribe, American Constitutional Law, 633-48 (1978).
Gertz does not, however, address the issue as to the standard of appellate review or as to the extent of required appellate deference to jury findings (a) that an article contained defamatory falsehoods and (b) that these jury-found-inaccuracies were negligently accomplished. For reasons to be developed more fully, in my view, the majority is in error in rubber-stamping the jury verdict as to the first article because: (1) an examination of the article against the judicial proceedings and conduct upon which it is founded would not, under the normal standard of review, permit a reasonable-minded jury in a First Amendment case to conclude that the first article offended in either of these two factual respects; and (2) the recent United States Supreme Court decision in Bose Corporation v. Consumers Union of United States, Inc., — U.S. -, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)—although limited in specific holding to appellate review of jury-found “actual malice” in a New York Times v. Sullivan context—bespeaks to me a broader holding that requires independent appellate review in defamation cases before stripping a public report of public proceedings of First Amendment protection.
(1)
The majority has fairly stated the facts. This Texas-based litigation arises out of a publication of an article (February 25, Appendix “A”) relating to litigation by and against Levine in New Jersey, where he was formerly employed. Levine was employed in Texas at the time of the publication. The New Jersey litigation concerned his alleged conversion of some computer tapes from a corporation. The article described that litigation and characterized Levine’s underlying conduct primarily as reflected by that litigation, including a reference to a statement in an affidavit therein by Gutman,1 an official of an opposing party, that as to the tapes in Levine’s possession, this could only have come about through “outright theft.” The article also included facts obtained from interviews relating to events surrounding the litigation.
As the majority’s statement of the facts underlying the published article shows, 738 F.2d at 663-666, the article primarily concerns post-1972 litigation in which the state trial court found that Levine had converted computer tapes from the corporation and had misappropriated its trade secrets. Prior to the litigation in New Jersey, Levine had left the corporation in 1972, on accusations of incompetence and of a conflict of interests; a settlement agreement between the corporation and Levine took note of the circumstance that “accusations have been made against Levine of wrongdoing by the taking of secret profits”, of supplying false information and of “technical incompetence”. However, in the settlement agreement, the corporation ratified a time service contract entered into between Levine and a third party and “ratified and approved Levine’s performance of his responsibilities and duties ..., it being understood that such ratification is limited to the area of responsible professional judgment and conduct and is not intended to and expressly excludes ratification, approval, or release of any wrongdoing, misrepresentation, or fraud.”
In my view, the article of February 25, 1980 (see Appendix “A”, majority opinion) is a substantially accurate representation of the New Jersey proceedings and of the 1972 settlement. It may not have been totally “fair and impartial” in a lay sense, as the majority notes, because of its arrangement and emphasis on indicia of wrongdoing. However, it represents a point of view of the facts that is not unreasonable, and it does not contain any substantial falsehoods. I do not believe that a publication protected by First Amendment freedom of expression is required to be fair *680and impartial, so long as the expression is truthful.
Statements in the jurisprudence that the published description must be “fair and true” are equated only with a requirement that the published description be substantially truthful. The jurisprudence uses the term “fair”, in the context of the phrase “fair and accurate”, in the sense of a “fair” representation of the observed event or utterance, rather than “fair” in the sense of a balanced or unbiased account of an event uncolored by the author’s own opinion. (I am cited to no authority that holds otherwise.) Thus, an editorial may contain a “fair” (i.e., accurate) representation of the facts discussed, while asserting a biased and partial perspective as to those facts, without departing from the protection of the First Amendment.
This defamation action claims harm essentially because of the published report of the particulars of litigation and of public records. Congruently with the governing principles that here apply in favor of the publication’s defense against it, the Supreme Court has held, in denying an invasion of privacy action by a private individual aggrieved by public broadcast of particulars of litigation proceedings: “At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records.” Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 496, 95 S.Ct. 1029, 1047, 43 L.Ed.2d 328 (1975). “Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government....” Id., 420 U.S. at 495, 95 S.Ct. at 1046. I do not read that decision as permitting that freedom of the press — to print what is in public records of litigation — to be subverted because some particular trier of fact or some particular appellate tribunal deems that the publication’s substantially accurate report was nevertheless not “fair” or “impartial”, so long as it is substantially accurate.
What is “fair” or “impartial” depends upon the subjective evaluation of the evaluator. While I may think a dissent to my opinion or a motion for rehearing as to it is not fair and impartial, doubtless the dissenter or the rehearing-movant is equally sincere in the belief, if any, that my opinion is not fair or impartial. By reason of our constitutional guarantees, the fundamental values in freedom of publication and free expression of point of view (see (2) infra) simply cannot be inhibited by exposure to liability for that expression when it is subjectively deemed by a particular jury or a particular appellate panel to be unfair and partial. Similarly, an article that is substantively accurate — judged in the light of the objective facts sought to be depicted— cannot be deprived of First Amendment protection by a factual finding that it is substantively in accurate simply because some trier of fact may find the selection and emphasis upon the objective facts to be offensively unfair and biased.
Gertz, supra, exempted from First Amendment protection only “defamatory falsehoods”, 418 U.S. at 332, 94 S.Ct. at 3003, of private persons, if negligently made. “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 or juries but on the competition of other ideas.” Id., 418 U.S. at 339-40, 94 S.Ct. at 3007. It is thus immaterial for libel-liability purposes that the overall impression of the article conveyed the writer’s opinion, here shared by the state trial judge who so expressed himself in the state proceedings, that Levine had converted and misappropriated the property of another and had otherwise engaged in shady conduct. The objective standard constitutionally imposed is that, for libel liability to lie in this instance, the expression must be not only substantially false, but also that such falsity resulted from intent or negligence.
*681The majority finds that the evidence raised fact questions as to the substantial truth of the published reports. As I see it, quoting from their opinion, the majority finds that jury-triable issues as to the article’s substantive accuracy are presented in the following respects: (1) “repeated references to allegations of theft against Levine, although in none of the reported proceedings did [the corporation] ever in fact produce any evidence regarding how Levine came into possession of the tapes”;2 (2) Gutman’s affidavit does not “directly accuse Levine of theft,” and “[a] jury could reasonably find that the sentence, ‘And Gutman accused Levine of “outright theft” ’, was not a substantially accurate account of proceedings in the lawsuit”;3 (3) “The substantial truth of the statement in the article that ‘the New Jersey attorney general’s office is considering further legal action, but wonders whether its reach extends to Texas’ also is a question for the jury”;4 and (4) the “substantial truth of the statement that the individuals who posted appeal bonds for Levine ‘may be forced to pay for [his] disappearance’ is an open issue. It easily could be read by an ordinary reader as suggesting that Levine had violated an appearance bond and was fleeing from the law”5, Majority, 738 F.2d at 668-669 (emphasis added by the writer). For the reasons stated in notes 2 through 5, supra, I would find that none of these circumstances are actionably inaccurate.
Nor, for the reasons so stated, does the overall impression of the article, in my opinion, constitute a substantially untrue statement by omitting “facts ... which partially refute the false impression of the partial statement” or “by omission of part of the facts.” Golden Bear Distributing Systems v. Chase Revel, Inc., 708 F.2d 944, 1949 (5th Cir.1983). In the cited decision, a libel award was upheld when untruthful facts were mixed with truthful facts in a way that imported wrongdoing to the libel plaintiff that was in fact committed by another entity, with the overall impression being that the libel plaintiff had itself committed these wrongful acts. Here, however, wrongful acts were in fact committed by the present libel plaintiff, as expressly held by the state trial judge in the proceedings described in the allegedly defamatory article. Evaluated in terms of a lay reader, not of a legal technician, no inaccuracies (and certainly no negligent inaccuracies) were stated in the published summary de*682scription of the long and somewhat technical litigation.
My concern, however, as was that of my conscientious brothers of the majority, centers upon the extent that these appellate views can override the factual conclusion to the contrary of a properly instructed jury. As I suggest in (2) infra, the Supreme Court’s recent decision in Bose Corporation, supra, has recently indicated that independent appellate review is required of libel awards, where First Amendment protection of expression is at issue, whether in favor of private persons or of public figures.
Nevertheless, if I am in error in this regard, the Supreme Court’s expression therein imports, because of the fundamental constitutional values at issue, a broader appellate review of what a reasonable-minded trial jury could conclude as to whether a published statement is action-ably false and was negligently made. That is, the permissible range of jury inference of negligence in a non-constitutional area (such as a personal injury suit) may be far greater than as to utterance within the ambit of the First Amendment protection, because of the constitutional values at issue in the latter. First Amendment-exempting negligence, thus, is as a matter of constitutional law more subject to judicial control as to its outer limits and less left to the unfettered discretion of the jury to infer negligence from factual behavior than in other non-constitutional areas of the law.
This differing appreciation of the judicial scope of review of jury verdicts in First Amendment cases is the crux of the differences between my esteemed brethren of the majority and myself. I note, however, that although judicial review of jury findings in First Amendment cases may be broader than in other cases, this is simply because as a matter of law the ambit of negligence and inaccuracy is narrowed by constitutional limits upon the cause of action. Generically, however, such First Amendment review is no less a traditional exercise of judge powers over jury factual discretion than when a personal injury verdict is set aside because, after according credibility and factual inferences most favorably to the jury's finding, the factual conduct so proved nevertheless does not, as a matter of law, fall within the ambit of negligent conduct that constitutes actionable negligence.6
*683Thus, reflecting the constitutional dimension added in 1974 to the requirement for defamation liability to private persons by Gertz v. Robert Welch, Inc., supra, the Restatement of Torts 2d, Section 580B (1977) provides that (pertinently to present facts) the publisher “is subject to liability if, but only if, he ... knows that the statement is false and that it defames the other” or “acts negligently in failing to ascertain” these matters.7 See also Reporter’s Comment (c). As Reporter’s Comment (k) (“Appellate review of determination of negligence”) reflects, Gertz’s constitutional dimension added to private defamation action also imports an added degree of judge review .of jury determinations of liability in such instances, founded upon constitutional rule:
The determination of whether a defendant was negligent involves the application of the standard (what a reasonable person would do) to the facts that are found to exist in the particular case. This question is frequently called a fact issue and it is normally submitted to the jury. But the rule that liability cannot be imposed for a defamatory publication unless the defendant was negligent or more seriously at fault is a rule imposed by the Constitution. The application of the standard, therefore, necessarily involves a constitutional right, as in the case of the determination of whether the defendant acted in reckless disregard of the truth or falsity of a communication in a defamation action by a public official or public figure. (See § 580A, Comment g). As in that case, the determination is subject to possible constitutional review all the way through the appellate process.
As the Supreme Court stated in another (actual malice) context than the present, fundamental First Amendment non-chilling considerations apply “where the alleged libel consists in the claimed misrepresentation of the gist of a lengthy governmental document” reported by a publication now sued for libel. Time, Incorporated v. Pape, 401 U.S. 279, 291, 91 S.Ct. 633, 640, 28 L.Ed.2d 45 (1971). “Where the document reported is so ambiguous as this one was, it is hard to imagine a test of ‘truth’ that would not put the publisher at the mercy of the unguided discretion of the jury.” Id. These considerations equally apply in the present context, I believe, to judicial oversight over a trial jury’s unwarranted factual determinations of falsity and negligence in what the court perceives to be overall a substantially truthful account of lengthy and somewhat technical litigation.
One final comment: On remittitur, the defendant publication was held liable for $255,000 in compensatory damages, an award affirmed by the majority, arising out of publication of the article of February 25, 1980, Appendix “A”. May I suggest that, even had the article been printed free of the quibbles as to accuracy of which the plaintiff complains, the damages to his reputation and to his employment opportunities would have been as great? These damages primarily resulted from the published report and the factual circumstances reflected by litigation in New Jersey, and *684the truthful report of charges against Levine levied in that litigation. The underlying cause of Levine’s damages, thus, was his wrongful conduct in New Jersey, not the words used in reporting it when reported in the publication that, as is not questioned, was constitutionally protected if truthfully reporting the conduct.
(2)
On April 30, 1984, in Bose Corporation v. Consumers Union of the United States, Inc., — U.S. -, 104 S.Ct. 1949, 80 L.Ed.2d 502, the Supreme Court clarified the standard of appellate review where First Amendment values are at issue. Admittedly, the issue there before the Court concerned a libel award against a “public figure” entity, where New York Times v. Sullivan applies, so as constitutionally to prohibit imposition of such awards unless clear and convincing evidence proves “actual malice”. In Bose, the district court in a bench trial had held that this standard was met. The court of appeals reversed. The issue before the court was whether the clearly-erroneous standard of Fed.R.Civ.P. 52(a) inhibited appellate review of the central factual determination, i.e., that actual malice was proved because the writer had actual knowledge of the trier-found falsity. The Court affirmed the exercise of independent review by the court of appeals, that had resulted in reversal of the libel judgment.
In holding that independent appellate review was constitutionally required insofar as the trier's conclusion was not founded on mere credibility evaluation, the Court stated “that in cases raising First Amendment issues we have repeatedly held that an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure ‘that the judgment does not constitute a forbidden intrusion on the field of free expression.’” — U.S. at -, 104 S.Ct. at 1958. In Bose Corporation, the Court independently reviewed the testimony of the witness and reached a “factual” conclusion contrary to that of the district court as to whether the statement was falsely made with knowledge of its falsity. In concluding that the expression was constitutionally protected, the Court incidentally noted, with relevance to issues before us, that “adoption of the language chosen was ‘one of a number of possible rational interpretations’ of an event,” and that “[t]he choice of such language, though reflecting a misconception, does not place the speech beyond the outer limits of the First Amendment’s broad protective umbrella.” — U.S. at -, 104 S.Ct. at 1966.
The Court justified the exercise of independent appellate review partly on the ground that the issue of whether expression fell outside the First Amendment’s protection was a mixed question of law and fact, — U.S. at-, 104 S.Ct. at 1958, and partly because this determination presented a constitutional issue of whether the Constitution protected, or did not, the expression in question:
The requirement of independent appellate review ... is a rule of federal constitutional law. It emerged from the exigency of deciding concrete cases; it is law in its purest form under our common law heritage. It reflects a deeply held conviction that judges — and particularly members of this Court — must exercise such review in order to preserve the precious liberties established and ordained by the Constitution. The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact. Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of “actual malice.”
— U.S. at -, 104 S.Ct. at 1965.
Although this expression of the Court and its specific holding relate only to appellate review of “actual malice” awards in First Amendment cases, it seems to me that the Court’s rationale extends to appel*685late review of other instances in which First Amendment protection is sought to be denied to public expression of view or interpretation of events, whether it be an alleged libel against (as here) a private person or a public figure.
The Court notes “categories of communication and certain special utterances to which the majestic protection of the First Amendment does not extend,” including among them “[l]ibelous speech.” — U.S. at -, 104 S.Ct. at 1961. It then states:
In each of these areas, the limits of the unprotected category, as well as the unprotected character of particular communications, have been determined by the judicial evaluation of special facts that have been deemed to have constitutional significance. In such cases, the Court has regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited. Providing triers of fact with a general description of the type of communication whose content is unworthy of protection has not, in and of itself, served to eliminate the danger that decisions by triers of fact may inhibit the expression of protected ideas. The principle of viewpoint neutrality that underlies the First Amendment itself, see Police Department of Chicago v. Mosley, 408 U.S. 92, 95-96 [92 S.Ct. 2286, 2289-2290, 33 L.Ed.2d 212] (1972), also imposes a special responsibility on judges whenever it is claimed that a particular communication is unprotected. See generally, Terminiello v. Chicago, 337 U.S. 1, 4 [69 S.Ct. 894, 895, 93 L.Ed. 1131] (1949).
— U.S. at -, 104 S.Ct. at 1961-62.
Immediately preceding this discussion, the Court had stated the fundamental reasons for the Constitution-based duty of the appellate court to determine whether constitutional protection of expression was offended by the liberal award in question:
When the standard governing the decision of a particular case is provided by the Constitution, this Court’s role in marking out the limits of the standard through the process of case-by-case adjudication is of special importance. This process has been vitally important in cases involving restrictions on the freedom of speech protected by the First Amendment, particularly in those cases in which it is contended that the communication in issue is within one of the few classes of “unprotected” speech.
The First Amendment presupposes that the freedom to speak one’s mind is not only an aspect of individual liberty— and thus a good unto itself — but also is essential to the common quest for truth and the vitality of society as a whole.
— U.S. at -, 104 S.Ct. at 1961.
In Bose Corporation, the Court held that this constitutional duty imposed on all judges required that, on review, an appellate court must independently assess trier-found determinations, whether of trial judge or of jury, that (a) the burden of proof (convincing clarity in that case) was met to show that the expression was both (b) false and (c) knowingly so made within the meaning of the Constitution. As I read the Court’s opinion,.it reached a different conclusion as to each of these determinations by the trier.
In our similar constitutional duty to exercise independent review to determine whether “the communication at issue is within one of the few classes of ‘unprotected’ speech,” id., we must independently determine, after affording weight to all credibility determinations by the trier of fact, whether the present expression (a) was false and (b) was negligently made, as well as (c) that both these factual requirements were proved by a preponderance of the evidence. Exercising this duty imposed upon me by the Constitution, I find — for the reasons more fully stated in (1) supra —that the trial jury erred in all three respects.
*686 Conclusion
Therefore, with the utmost respect for the view of my brethren in the majority, I must respectfully dissent.
. Gutman, a codefendant in this suit, was assessed, upon remittitur of the jury award, $255,-000 in compensatory damages and punitive damages of $125,000 (for these statements and other defamatory statements made by him to the reporter). Gutman’s case was settled after his appeal, so no issue regarding these findings is before us.
. The state trial couj-t, in fact, found that Levine had "converted” the tapes — which, under the circumstances, meant that he had removed them from their lawful owners and had attempted wrongfully to keep possession of them. In lay parlance, "allegations of theft” were in fact made by the company — and Gutman’s affidavit in the state court record was, in fact, to the effect that the tapes in Levine's possession "came about through outright theft” — from which a reporter could, without negligence, reasonably infer that the affidavit accused Levine of theft. The article specifically identifies these allegations as arising in "two civil lawsuits”. I do not think it to be either negligent or inaccurate to refer to Levine’s misappropriation of the tapes as an alleged "theft” instead of as a "conversion” of them — the latter term may be more technically accurate for legal proceedings, but it would be completely unintelligible to a non-lawyer reader. Moreover, had the reporter used "conversion” with a full law-dictionary explanation of the term, Levine’s reputation would have been as much damaged as by the lay shorthand term actually used to express the concept.
. As previously noted in note 2, supra, Gutman’s statement in fact was to the effect that Levine "stole the tapes”, and it is in fact the most reasonable interpretation of what he intended to say.
. The majority’s conclusion that the accuracy of the statement presents a jury question, in my opinion, fails to demonstrate the falsity of the statement or the negligence of the article in so stating. The New Jersey Attorney General did in fact open an investigation of Levine’s actions in this incident (R.V., pp. 245-49, 265-66), and the state trial judge did in fact refer Levine’s conduct to the county prosecutor.
. The majority’s finding a factual issue of accuracy on the basis of what some readers "could” infer overlooks that in substance the article is true. The persons who signed the appeal bonds might indeed be forced to pay them, and that the technical reason for their doing so was that Levine did not pay the judgment, instead of that he disappeared from the scene without paying it, does not on its face appear to be defamatory.
. These concepts are not original with the writer. For instance, in Keeton, Creative Continuity in the Law of Torts, 74 Harv.L.Rev. 463, 500-01 (1962), Professor Keeton observes:
A system of supervision of application of a relatively general doctrinal formulation to particular cases involves another kind of choice also — whether the function of making evaluative findings essential to the application of the doctrinal formulation is to be treated as a question for the factfinder, usually the jury, or instead as a question for judicial decision. It is plain that the evaluative finding that characterizes conduct as negligent or not is to be made by the factfinder, with certainly no more and perhaps somewhat less judicial supervision than that over findings of physical fact. In some other areas of tort law, however, it appears to be the settled law that the function of evaluative finding is entirely judicial. These are illustrations: (1) the characterization of conduct as ultrahazardous or as falling within the principle of Rylands v. Fletcher where that principle is recognized; (2) in the law of malicious prosecution the characterization of grounds for instigating criminal proceedings as amounting to probable cause or not. In other areas of tort law, responsibility for making evaluative findings is divided between judge and jury, or other factfinder, but on a different basis from that applying to the issue of negligence. These are examples: (1) The evaluative finding of unreasonable interference with use and enjoyment of land that constitutes nuisance is sometimes left to a jury, but in practice there has been considerably more judicial supervision in this area than in that of negligence. (2) The function of characterizing a communication as defamatory is divided between judge and jury, a common formulation being that the judge determines whether the communication is capable of a defamatory meaning and the jury determines whether a defamatory meaning was conveyed. (3) The function of making an evaluative finding that particular circumstances of publication give rise to a conditional privilege is assigned to the court, but the function of making an evaluative finding of abuse of the conditional privilege is assigned to the jury, with judicial supervision. In still other areas, the allocation of responsibility is yet quite nebulous. These are examples: (1) the finding that an interference with one’s interests amounts to an actionable inva*683sion of privacy; (2) the finding that conduct of the defendant inducing a third person to break a contract with plaintiff is tortious in quality.
(Emphasis added.)
The emphasized quotation refers to a traditional division of judge-jury responsibility in defamation cases, prior to the additional constitutional restrictions on liability for defamation of private persons imposed by Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). See next succeeding paragraphs in text.
. Restatement of Torts, Section 580B (1977) provides, in full:
§ 580B. Defamation of Private Person
One who publishes a false and defamatory communication concerning a private person, or concerning a public official or public figure in relation to a purely private matter not affecting his conduct, fitness or role in his public capacity, is subject to liability, if, but only if, he
(a) Knows that the statement is false and that it defames the other,
(b) acts in reckless disregard of these matters, or
(c) acts negligently in failing to ascertain them.