dissenting.
Because I do not agree that the Court’s decision strikes a fair balance between the media interests represented by Newsweek and the individual interests represented by Janklow, I respectfully dissent.
Since 1964, the press has enjoyed the benefit of the Supreme Court’s decision in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), which bars a public official injured by a defamatory publication from any judicial remedy unless the official can prove not only that the material was false, but also that it was published with actual malice. See Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964). The plaintiff must make a strong showing of actual malice if the case is to survive a motion for summary judgment and get to the jury. See Brown v. Herald Co., Inc., 698 F.2d 949 (8th Cir.1983) (per curiam); cf. Bose Corp. v. Consumers Union, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). Actual malice in the libel context is difficult to prove, and very few libel plaintiffs have succeeded in making the requisite showing. Since Sullivan', publishers have enjoyed both in theory and in practice a very high degree of protection from liability for material defamatory of public officials and other persons found to be public figures. See, e.g., Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C.Cir.1980). This judicially created limitation on libel actions has, interestingly enough, no apparent relationship to any change that has occurred in either the Constitution or society since the Bill of Rights was ratified in 1791.1 Libel *1307is still libel. All that has changed is the prevailing judicial perception of where the balance should be struck between libel plaintiffs and libel defendants, who in our time are frequently large media organizations such as Newsweek.
Today’s decision tips the balance still farther in the media’s favor. To the fortress of actual malice, the Court adds a virtually impenetrable outer barrier built upon an extremely broad and elastic definition of opinion. Because opinion is not actionable, see Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974), the result is that many libel cases (and probably almost all libel cases in which the plaintiff is a public official) will be dismissed before the issue of actual malice is ever reached. I find it hard to believe that this is what Justice Powell had in mind when he penned his famous dictum in Gertz that “[ujnder the First Amendment there is no such thing as a false idea.” Id. Ideas are one thing, but tawdry attacks on character and reputation are another.2 I do not see any reason to extend absolute protection under the First Amendment to statements that qualify as opinion rather than fact only by means of judicial semantics based on the Oilman factors.
For the reasons set forth in the panel opinion in this case, I believe that the meaning that a jury could draw from the Newsweek article here at issue — that Jank-low prosecuted Banks because Banks had resurrected a 15-year-old Indian girl’s claim that Janklow had raped her — amounts to an assertion of fact rather than an expression of opinion. See Janklow v. Newsweek, Inc., 759 F.2d 644, 649-652 (8th Cir.1985). The panel opinion includes my analysis of the Oilman factors as applied to the present case, and I will not burden this dissent by repeating that analysis here or by nitpicking the Court’s present discussion of those factors. Beauty is in the eye of the beholder, and it would appear that the result to be obtained through application of the Oilman factors is in the eye of the judge. Clearly those factors do not yield predictability, unless the prediction is that their application almost always will result in keeping defamation actions brought by public officials and public figures from reaching a jury.
I would not carry judicial absolutism this far. After all, the Constitution includes *1308the Seventh Amendment as well as the First. Moreover, it seems clear to me that the Bill of Rights exists to protect individuals from the various forms of tyranny that were well known to the Framers, not to sanction cheap attacks upon the dignity and sanctity of the individual for the sake of gauzy philosophical abstractions such as “editorial judgment.” As the Court notes, ante at 1306, First Amendment rights are among the most precious enjoyed by Americans, but that does not answer the question of how far those rights should go at the expense of other rights. Also precious is the right to obtain legal redress for injury to one’s person or property, including injury to reputation, caused by the wrongdoing of another. The latter right is especially compelling, both legally and ethically, when the injury-causing act can be shown to have been done with actual malice, as First Amendment jurisprudence currently requires in regard to public officials and public figures. What is called for, it seems to me, in cases raising the fact/opinion issue, is a thoughtful balancing of the competing interests, not the nearly total subordination of the individual’s reputational interest to the media’s desire for immunity from accountability to individuals harmed by defamatory material published with actual malice.
The Court’s decision means that we never shall know whether Janklow would have been able to make a submissible case on the issue of actual malice. The indications, however, are that he would have made a strong showing on that issue. For example, there is evidence in the record that, prior to publication, Newsweek was aware that Janklow was prosecuting a number of the Custer riot cases before Banks brought up the rape allegation. There is also evidence in the record that Newsweek was aware that Banks, wishing to avoid successful prosecution by Janklow, had a motive for derailing Janklow’s candidacy for attorney-general. Moreover, Janklow argues in his brief that Banks himself specifically told Newsweek that Janklow was prosecuting him before he brought up the rape allegation. Janklow also argues in his brief that the manner in which the article evolved during the editorial process provides evidence of actual malice. He contends, and apparently would have been prepared to show, that as the article progressed from initial draft to final form, the portrait of Janklow as a vindictive and bigoted racist grew more and more vivid. He points out that one of the Newsweek reporters who worked on the Banks story stated in a deposition that the article was “outrageous” and that Newsweek had in fact done “a job on him and we also riddled it with errors.” (Foote deposition at 83). These facts, if shown by clear and convincing evidence, could easily be taken by a jury, it seems to me, as demonstrating “a high degree of awareness of ... probable falsity” of the assertion that Janklow initiated Banks’s prosecution for revenge. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968) (quoting Garrison v. Louisiana, 379 U.S. at 74, 85 S.Ct. at 216).
The Court suggests that the change of a single word in the article would have yielded a piece without even an arguable misstatement of underlying fact. See ante at 1304. But this really begs the question at hand, for all libel actions turn in one way or another on simply that — word choice. The question here is not whether courts will be making editorial judgments about these specific word choices but rather whether Newsweek will be held accountable for its editorial judgments, i.e., for the words that it does choose. Moreover, considering the carefully crafted nature of the article and its blatant anti-Janklow bias, this aspect of the Court’s opinion strikes me as being disingenuous.
Judge Arnold has remarked that “the article as a whole is tendentious and slanted. It is transparently pro-Banks.” 759 F.2d at 657 (Arnold, J., dissenting). The District Court, in its memorandum opinion granting Newsweek’s motion for summary judgment, expressed its “sense of outrage at the unfairness of the article.” Janklow v. Newsweek, Inc., No. 83-4023, slip op. at *13097 (D.S.D. Mar. 29, 1984). The District Court also had this to say about the article:
Rape is one of society’s most reprehen-sive crimes. The claim of rape referred to by Newsweek was made over fifteen years earlier, and was investigated at that time by federal law enforcement officials who found insufficient evidence to prosecute. It was investigated again in 1975 by the F.B.I., the White House, and the Senate Judiciary Committee when Janklow, then the Republican Attorney General of South Dakota, was nominated for a position on the board of the Legal Services Corporation. The Senate Judiciary Committee was composed of, among others, Senators Ted Kennedy, Walter Móndale and Allen Cranston, none of whom have [sic] any reputation for whitewashing misdeeds of Republican officeholders. The F.B.I., the White House and the Senate Judiciary Committee determined that the rape claim was unfounded and without any factual basis. When Newsweek ran as a news item this thoroughly discredited, fifteen-year-old claim against the defendant, now Governor of South Dakota, it engaged in journalistic conduct more commonly associated with tabloids like the National Enquirer and the Globe.
Id. at 7-8.
The issue, of course, is not whether the article is unfair. It is, and conspicuously so. The issue is not whether the implication that the article invites — that Janklow’s prosecution of Banks was motivated by a desire for personal revenge — is defamatory. Clearly it is. The issue is whether this quite precise implication, readily derived from a precisely stated factual scenario, should be deemed a statement of fact or a statement of opinion. I see no good reason to distort the commonly understood meaning of a perfectly good and useful word by cloaking in the Constitutionally protected mantle of “opinion” this precise and factually based implication. To the contrary, an implication that Janklow prosecuted Banks for personal revenge is hardly the sort of idea best illuminated through public debate. It is rather a charge of serious misconduct, and as such it is ideally suited for judicial resolution. I believe that what Judge Friendly said of the charges at issue in Cianci v. New Times Publishing Co., 639 F.2d 54 (2d Cir.1980), is equally applicable here.
To call such charges merely an expression of ‘opinion’ would be to indulge in Humpty-Dumpty’s use of language. We see not the slightest indication that the Supreme Court or this court ever intended anything of this sort and much to demonstrate the contrary.
639 F.2d at 64.
I would reverse this case and remand it to the District Court for further proceedings consistent with the panel opinion.
. The adoption of the First Amendment was largely a response to the English government’s suppression of ideas in the prerevolutionary period by the exercise of seditious libel laws and prior restraints. Needless to say, the present action neither is criminal in nature nor operates *1307as a prior restraint. Rather, Janklow merely seeks a remedy for the injury to his reputation resulting from Newsweek’s publication of a defamatory article. Blackstone’s view of libel, contemporaneous with that of the Founding Fathers, provides an interesting contrast to the position adopted in Sullivan. In commenting upon what constitutes freedom of the press in criminal libel actions, surely equally applicable to civil actions brought by an individual, Blackstone noted:
The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publica-tions____ Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity____ Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or en-quiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects.
IV W. Blackstone, Commentaries on the Laws of England 151-52 (The Layston Press, 1967) (reproduction of 1st American edition, 1772). Similarly, Thomas Jefferson believed in the importance of a free press, but according to his leading biographer
His advocacy of freedom for the press was subject to certain qualifications. He believed that falsehood and defamation could and should be punished under state laws.
D. Malone, Jefferson The President — Second Term 1805-1809 9 (Little, Brown and Company 1974). See also R. Epstein, Takings 86 (Harv. Univ.Press 1985) (defamation actions weighted in favor of plaintiffs prior to Sullivan); Oilman v. Evans, 750 F.2d 970, 1038-39 & nn. 1-2 (D.C. Cir. 1985) (Scalia, J., dissenting).
. Justice Powell illustrated the sort of idea that never can be false by reference to Thomas Jefferson's Inaugural Address, in which Jefferson stated: “If there be any among us who would wish to dissolve this Union or change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” 418 U.S. at 340 n. 8, 94 S.Ct. at 3007 n. 8.