concurring.
For the reasons set forth in Justice Sullivan’s opinion, I agree that the free flow of ideas and information requires giving the press considerable latitude in reporting on matters of public concern. Specifically, I agree that the “actual malice” standard should be applied to reports on matters of public concern, and that clear and convincing evidence should be required for a defamation recovery on a matter of public concern. I agree that this standard should apply to discourse on matters of public concern irrespective of the characterization of the plaintiff as a public or private figure. In the vast majority of cases involved, it may make little practical difference whether this higher standard is based on the activity rather than the persons because a matter of public concern seems to generate a finding of public or “quasi public” figure. Nevertheless, in considering the extent to which we should tip the scales in favor of free expression, I believe it is helpful to think in terms of the activity rather than the persons involved. Finally, I agree with Justice Sullivan that the fair index test, generously construed, is the proper standard for evaluating a headline.
I reach all of these conclusions purely as a matter of Indiana defamation law. I agree with Justice Sullivan that this case can be resolved under existing federal constitutional precedent and that this analysis produces the same result as I reach under state law and the Court of Appeals reached under Aafco Heating & Air Conditioning v. Northwest Publications Inc., 162 Ind.App. 671, 321 N.E.2d 580 (1974). I do not agree with Justice Dickson that the availability of a federal constitutional resolution renders it inappropriate to express an opinion on these state law issues. To the contrary, I believe this Court should first address the state law issues. In my view their resolution disposes of this case consistent with Justice Sullivan’s opinion. However, I disagree with Justice Sullivan’s analysis in some respects.
The “Fair Index” Test
First, I would conclude that the “fair index” test is met on the facts of the case. The fair index test requires a court to determine whether the headline fairly indicates the substance of the matter to which it refers. Maj. op. at 458 (quoting Burgess v. Reformer Publishing Corp., 146 Vt. 612, 508 A.2d 1359 (Vt.1986)). The substance of the article was that the restaurant had been ordered to close because of health concerns including “evidence of insects and rodents.” The subhead-line read: “Inspectors find rats, roaches1 at local eatery.” In my view, giving reasonable license to editorial choice of words, this sub-headline fairly captured the topical sentence of the article and that is the end of the analysis.2
*470 The Meaning of “Actual Malice” and “Reckless Disregard”
Even if the headline were not a fair index of the article, I agree that Bandido’s failed to demonstrate that the paper acted with actual malice. I reach that conclusion under state law alone, applying the clear and convincing evidence standard. For the reasons Justice Dickson explains in Part B.5. of his dissent, state law should adhere to the conventional standard of appellate review of jury verdicts. Applying that standard, I nonetheless agree with Justice Sullivan’s ultimate resolution of this case. The Journal Gazette may properly adopt an internal rule that headlines should be comprised of terms taken from the story, but failure to observe that guideline is not in itself evidence of malice or reckless disregard for the truth. To the contrary, in my view a headline writer’s translation of “rodents” to “rats” does not by itself come close to supporting a finding of actual malice. I base that conclusion not on the testimony of the headline writer but on ordinary usage. As a matter of law some latitude in choice of language is required and substitution of rats for rodents in this context is within that permissible range.
I also write separately to make clear my view that Indiana law need not parallel federal public figure law in all respects. The federal constitution may require a higher degree of malice for claims by a public official or public figure. However Gertz v. Welch, 418 U.S. 323, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), explicitly gives the states latitude in formulating their defamation law as to claims by a private individual. As the Court of Appeals held in Aafco and this Court holds today, Indiana law requires a showing of actual malice for claims by private individuals based on publication of matters of public concern. In this case, there is no basis to conclude that any reckless disregard or serious doubt existed to support a finding of actual malice. The writer of the article inferred from the public report of rodent droppings that a rodent must be in the area. The headline writer assumed from this, at worst somewhat imprecisely, that the rodent was a rat and not some other rodent. Neither inference in my view approaches recklessness or ill will.
Apart from the specific facts in this case, the “reckless disregard” prong of “actual malice” should be satisfied under Indiana law if one publishes a report with no idea whether it is true or not. Accordingly, although New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and Aafco, utilize the term “reckless disregard,” I think “reckless indifference” for the truth may be a better term for the activity that is sufficient to impose liability. Thus, in my view, Indiana law should recognize the five scenarios described by Justice White and discussed by Justice Sullivan in footnote 27 as meeting the legal standard of reckless disregard. Justice White identified these as examples of situations where a trier of fact may find assertions of good faith unpersuasive, and described them as:
Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of the his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they likely prevail when the publisher’s allegations are so inherently improbable that only a reckless [person] would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of the [informant’s] reports.
St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). I believe these circumstances, if found by the trier of fact and not offset by other facts supporting veracity, should constitute reckless disregard for purposes of liability for injury to reputation of a private person as a matter of Indiana law, even on topics of public concern.
*471 Identifying Matters of Public Concern
I also wish to emphasize the point in the majority opinion that matters of public concern do not include every activity of a person who for other reasons is in the public eye. I recognize that drawing a line between matters of public and private concern may prove to be problematic. Over time, however, guidelines will emerge and some are already available, assuming Indiana law will track federal constitutional doctrine on this point. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761-62, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). Restricting the actual malice requirement to publications on subjects of public concern will leave the vast majority of the six million Hoosiers for whom Chief Justice Shepard expresses concern subject to a simple negligence standard for defamation. The drawing of these lines illuminated by the experience of concrete cases will afford the opportunity to rein in abuses that are perceived to flow if the press proves to be insufficiently checked by an actual malice standard. In order to strike this balance properly it is important that Indiana law, like federal constitutional law, treat the determination of public concern as a proposition of law, not a factual determination. Moreover, if the issue is left to the trier of fact, a very substantial risk of chilling speech would likely result from its often inconsistent and unclear resolution. Finally, we have a quarter of a century of experience under Aafco and so far the harm to the citizenry is not apparent. In any event, this case presents no significant question on this point. The health status of a restaurant open to the public is plainly a matter of public concern under the precedents and for the reasons cited by Justice Sullivan.
Indiana Constitutional Provisions
I agree with Justice Dickson that it is appropriate on occasion to look to constitutional provisions for direction in the development of our common law. See, e.g., Doe v. Methodist Hosp., 690 N.E.2d 681 (Ind.1997). However, here we find somewhat specific provisions pointing in opposite directions. In my view, adopting an actual malice test for defamation actions on matters of public concern gives appropriate recognition to the balance necessary between the conflicting values evidenced in our state constitution: a remedy for injury to reputation and the important interest in the free interchange of thought and opinion. Article I, section 12, of the Indiana Constitution explicitly identifies injury to “reputation” as one proper subject of judicial remedy. Article I, section 9, is even more emphatic than the First Amendment in prohibiting any law “restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever” and it provides for a person to be “responsible” only for “abuse” of those rights. “Abuse” seems to me to fortify the inference that actual malice is an appropriate test for any defamation claim on a matter of public concern. The standard we adopt today gives appropriate recognition to the interest in one’s reputation and preserves the notion that one is responsible for abusing the free speech right, but it accomplishes this while still protecting the vital right to comment on, speak about and offer criticism of our government and other matters of public concern. It also leaves to a negligence standard all claims based on allegedly defamatory statements on matters of no public concern.
. The conclusion that this headline meets the fair index test is supported by application of the test *470in other cases. Compare Hein v. Lacy, 228 Kan. 249, 616 P.2d 277 (Kan. 1980) (headline that Senator Hein voted to "legalize homosexuality" accurately reflected the content of the text where Hein had voted to remove the “legal prohibition of consensual homosexual relationships") with Burgess, 508 A.2d at 1359 (headline "Grand Jury Probes Embezzlement: Burgess denies getting funds” failed the fair index test because it conveyed the false impression that Burgess was being investigated by a grand jury when in fact he was only a witness).