dissenting:
I respectfully dissent. By failing to apply the full procedural protections afforded by the First Amendment, the majority intrudes on the field of free expression in two of its most important contexts — consumer protection and public safety.
In New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court held that specific constitutional protections of speech limit the state’s power to award damages in libel actions brought by public officials. Id. at 288, 84 S.Ct. 710. One means of protecting speech is the actual malice standard, which is set forth by the majority in our case. Majority Op. at 1202; see also New York Times, 376 U.S. at 285-86, 84 S.Ct. 710. Another means is the independent examination rule, which requires an appellate court to independently review the whole record, “so as to assure [itself] that the judgment does not constitute a forbidden intrusion on the field of expression.” New York Times, 376 U.S. at 285, 84 S.Ct. 710 (citation omitted). In adopting the actual malice standard and independent examination rule, the Supreme Court noted the importance of protecting “the principle that debate on public issues should be uninhibited, robust, and wide-open. ...” Id. at 270, 84 S.Ct. 710. The Court also recognized that an “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the breathing space they need[ ] to survive.” Id. at 271-72, 84 S.Ct. 710 (internal quotation marks and citation omitted).
The majority undermines these procedural protections both by failing to adopt the independent examination rule in the summary judgment context and by erring in its application of the actual malice standard.
1. Independent Examination
The majority dismisses the argument of Consumers Union of United States, Inc. (“Consumers Union”) that we must conduct an independent examination of the record under New York Times. Majority Op. at 1201-02 & n. 10. In doing so, the majority overlooks the ongoing debate among the courts and legal scholars regarding the applicability of the “independent examination” rule of New York Times to appeals from summary judgment motions.1 Thus, the majority avoids the difficult issue at hand, i.e., whether the additional procedural protection of independent examination is applicable in this case.
From the outset, it is worth noting that it is an open question as to whether the independent examination rule applies to appeals from summary judgment. In fact, the Supreme Court has recognized that the scope of procedural protections in First Amendment cases remains unclear. Waters v. Churchill, 511 U.S. 661, 671, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (recognizing that, although “some procedural requirements are mandated by the First Amendment, and some are not[,]” the Court has not “discovered a general principle to determine where the line is to be drawn.”).
In Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), the Supreme Court held that the clearly-erroneous stan*1207dard of review under Rule 52(a) of the Federal Rules of Civil Procedure does not prescribe the standard of review for determinations of actual malice. Id. at 514, 104 S.Ct. 1949. The Court emphasized the importance of independent appellate review as enunciated in New York Times, describing it as “a rule of federal constitutional law” that “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.” Id. at 510-11, 104 S.Ct. 1949.
Since Bose Corp., several of our sister circuits have extended the rule of independent examination to the summary judgment context. See, e.g., Andersen v. McCotter, 100 F.3d 723, 725 (10th Cir.1996); Secrist v. Harkin, 874 F.2d 1244, 1251 (8th Cir.1989); Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1293 (D.C.Cir.1988); Herbert v. Lando, 781 F.2d 298, 308 (2d Cir.1986); cf. Bartimo v. Horsemen’s Benevolent & Protective Ass’n, 771 F.2d 894, 898 (5th Cir.1985) (conducting independent review of the record on appeal from a directed verdict for the defendant).
However, the applicability of the independent review to appeals from, summary judgment remains uncertain within our circuit. Compare Playtime Theaters, Inc. v. City of Renton, 748 F.2d 527, 535 (9th Cir.1984) (conducting an independent review of the record to ensure that protected speech was not impermissibly inhibited),2 with Kaelin v. Globe Communications Corp., 162 F.3d 1036, 1039 (9th Cir.1998) (failing to discuss the applicability of the independent review rule). Despite it being an open question, the majority brushes aside Consumers Union’s argument that we must independently review the record.3 This is an error, and I would find that the rule of independent examination applies in the summary judgment context.
The application of the independent review rule is the logical extension of New York Times for it addresses the Supreme Court’s concerns regarding the chilling of speech. 376 U.S. at 278, 84 S.Ct. 710 (‘Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive.”). As a practical matter, the threat and actual cost of litigation, including attorneys fees, inhibit speech. See id. at 278-79, 84 S.Ct. 710; see also Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 280 n. 76 (3d Cir.1980) (“The cost of litigating a libel action, burdensome on even the largest news organizations, *1208often can cripple smaller news operations.”)- At times, the costs of a successful defense can be the same or greater than what the damage awards would have been. See Lee Levine, Judge and Jury in the Law of Defamation: Putting the Horse Behind the Cart, 35 Am. U.L.Rev. 3, 38 (1985). Moreover, the defense costs prior to trial can be extraordinarily high. See id. at 91.
Because of these costs and their effects on speech, the procedural protection of the independent examination rule is necessary not only for appellate review of post-trial decisions, but also for appellate review of summary judgment decisions. The independent examination rule provides further protection of the media’s First Amendment rights. Moreover, it addresses concerns regarding the chilling effects on speech of successive, costly litigation. See Steaks Unlimited, Inc., 623 F.2d at 280 (“Regardless whether particular statements made by consumer reporters are precisely accurate, it is necessary to insulate them from the vicissitudes of ordinary civil litigation in order to foster [the goals of] the First Amendment....”).
2. Applying the Procedural Protections Mandated By New York Times
The majority incorrectly applies the actual malice standard and disregards the importance of independent review. By doing so, it allows a forbidden intrusion on the field of free speech.
The majority fails to contextualize Consumers Union’s testing of the Samurai within the purpose and mission of the organization. The District Court recognized the importance of this when it stated: “The trier of fact could not be expected to disregard the nature of defendant’s business — testing and reporting on consumer products — nor would plaintiff so urge, and it would be error for a court to so instruct. Thus, it is clear that, based on the information CU had gathered, it was concerned about the safety of the Suzuki Samurai.” Viewed in this context, the actions and words of Consumers Union were appropriate. Consumers Union began its investigation of a product with the assumption that it could or might be unsafe. Once the product had performed in a manner that could be deemed unsafe, Consumers Union continued to test it more rigorously. Although the events that occurred in this case suggest that Consumers Union’s representatives had the intractable, “bulldog” mentality of a consumer advocacy organization, the facts do not evince actual malice as required by the law.
In addition, this is not a case in which Consumers Union contrived to make the Samurai roll over. Suzuki admits that there had been four independent lawsuits in which the vehicle rolled over, including one lawsuit by the Attorney Generals of seven states. Certainly, when choosing to republish references to the rating, numerous rollover instances such as these reaffirmed Consumers Union’s opinion that the vehicle was “Not Acceptable.”
On a broader level, the majority’s reasoning has troubling implications. If taken to its logical end, the majority’s reasoning will allow any deficiency in a consumer group’s test to become the grounds for litigation. This will inhibit the speech of organizations and individuals who would fear voicing their findings and views because of the threat of litigation. See New York Times, 376 U.S. at 278-79, 84 S.Ct. 710. Suppression of such speech will create less informed consumers and hinder public safety and health. See Steaks Unlimited, Inc., 623 F.2d at 280 (discussing the importance of First Amendment protection for consumer reporting). Moreover, it will give the government the sole voice in this field. In cases, such as this, where the consumer organization disagrees with the government agency’s find*1209ings or where the agency criticizes the organization’s findings, companies will be able to use this fact as proof that the organization was acting with actual malice.4
As stated by the majority, the appropriate standard is whether a reasonable jury could find by clear and convincing evidence that Suzuki proved actual malice on the part of Consumers Union. Here, no reasonable jury could find clear and convincing evidence of actual malice. See Kaelin, 162 F.3d at 1039. After an independent review of the record, it is unquestionable that the District Court constitutionally applied the principles of actual malice. The grant of summary judgment was necessary both to avoid the inhibition of free speech by the media and to protect public safety and health. For these reasons, I would affirm the District Court’s decision.
. See, e.g., Eugene Volokh & Brett McDonnell, Freedom of Speech and Independent Judgment Review in Copyright Cases, 107 Yale LJ. 2431, 2432, 2443-45 (1998); Scott Matheson, Jr., Procedure in Public Person Defamation Cases: The Impact of the First Amendment, 66 Tex. L.Rev. 215, 289-97 (1987); Lee Levine, Judge and Jury in the Law of Defamation: Putting the Horse Behind the Cart, 35 Am. U.L.Rev. 3, 50-91 (1985). The debate among the circuits is discussed further below.
. This decision was reversed on other grounds by the Supreme Court in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). In its opinion, the Supreme Court specifically declined to address this issue. Id. at 53 n. 3, 106 S.Ct. 925 ("We need not review the correctness of the Court of Appeals' interpretation of Bose Corp., since we determine that, under any standard of review, the District Court’s findings should not have been disturbed.”).
. In addition, the majority misconstrues my argument, contending that the adoption of the independent examination rule would override the summary judgment standard that we have previously applied to the actual malice issue. Majority Op. at 1201-02. However, the majority ignores the fact that other circuits have applied the independent examination rule consistent with the summary judgment standard. See, e.g., Secrist v. Harkin, 874 F.2d at 1251; Herbert v. Lando, 781 F.2d at 305, 308. In applying both standards in conjunction, we would determine whether there is a genuine issue of material fact as to actual malice under the summary judgment standard. In doing so, we would "make our own independent review of the record to ensure the principles of actual malice are constitutionally applied.” Secrist, 874 F.2d at 1251.
. This concern is most likely part of the reason that the District Court stated that the NHTSA study was not entitled to greater weight than any other study or opinion regarding testing methods. The majority, however, chooses to give the NHTSA study greater weight and, thus, discourages the nongovernmental voices in the fields of consumer protection and vehicle safety. Majority Op. at 1203-05.