Journal-Gazette Co. v. Bandido's, Inc.

DICKSON, Justice,

dissenting.

I respectfully dissent from the majority opinion as to its disapproval of Indiana’s traditional common law standard, the failure to use reasonable care (often referred to as “negligence”), in private defamation cases against media defendants. The majority instead chooses the actual malice standard, which federal constitutional jurisprudence mandates only in certain other specified circumstances.

A. Limitations Imposed by Federal Jurisprudence ■

Defamation actions, when brought against media defendants, are subject to limitations imposed by the First Amendment1 to the Constitution of the United States, and thus are analyzed under the United States Supreme Court’s freedom of speech and press jurisprudence. Under federal constitutional jurisprudence, the plaintiffs status (whether a public official, a public figure, or a private figure) and the subject matter of the defamatory statement (whether a matter of public or private concern) determine the standard that the plaintiff must prove, the extent to which a state may protect the reputations of its citizens and allow remedy for injury to reputation, the damages available, and the standard of appellate review.

1. The Plaintiffs Status as a Factor

The highest standard — the one most protective of media publication — applies when public officials2 bring defamation actions for statements relating to their official or public conduct. Such public officials may not recover damages for defamatory falsehoods unless they prove both that the statement was false and that the defendant acted with “actual malice.” New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The U.S. Supreme Court in New York Times announced, “The constitutional guarantees require ... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80, 84 S.Ct. at 726, 11 L.Ed.2d at 706. The Court concluded that imposing a higher standard on public official plaintiffs would safeguard First Amendment values, would shield media defendants from threats that could cause self-censorship, and would minimize the “chilling effect” that potential liability could have on free speech. See id. at 267-83, 84 S.Ct. at 719-27, 11 L.Ed.2d at 698-708.

The same standard that governs public officials also applies to a second category of plaintiffs, public figures. In defamation actions brought by public figure plaintiffs, the New York Times standard applies, and the plaintiffs must prove actual malice. Curtis Publ’g Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). “Public figures” are those who are “intimately involved *474in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” Id. at 164, 87 S.Ct. at 1996, 18 L.Ed.2d at 1116 (Warren, C.J., concurring in the result).

In the category of public figure plaintiffs are three subcategories of public figures. The first subcategory is comprised of involuntary public figures. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789, 808 (1974). Such individuals would become public figures “through no purposeful action of [their] own.” Id. However, in only the most “exceedingly rare” instances would such truly involuntary public figures be found. Id.

The second and third subcategories include “those who ... have assumed roles of especial prominence in the affairs of society.” Id. at 345, 94 S.Ct. at 3009, 41 L.Ed.2d at 808. In both of these cases, the individuals become public figures because “they invite attention and comment,” id., and “assume special prominence in the resolution of public questions,” id. at 351, 94 S.Ct. at 3013, 41 L.Ed.2d at 812. In the second subcategory are persons who “occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.” Id. at 345, 94 S.Ct. at 3009, 41 L.Ed.2d at 808. Thus, one becomes a public figure “for all purposes and in all contexts” when that “individual ... achieve[s] ... pervasive fame or notoriety [in the community].” Id. at 351, 94 S.Ct. at 3013, 41 L.Ed.2d at 812.

The third subcategory of public figures is most common. These individuals are not public figures for all purposes, but rather only for limited or particular purposes. Limited purpose public figures are those who have “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Id. at 345, 94 S.Ct. at 3009, 41 L.Ed.2d at 808. These plaintiffs are those who have “voluntarily injeet[ed] [them-]sel[ves] or [are] drawn into [] particular public contovers[ies] and thereby become[] public figure[s] for a limited range of issues.” Id. at 351, 94 S.Ct. at 3013, 41 L.Ed.2d at 812. In such instances, private individuals become “public” with respect to particular controversies, and thus may be public figures for certain purposes, but not for others. In order to determine whether a plaintiff is a limited purpose public figure, one considers the plaintiffs specific “participation in the particular controversy giving rise to the defamation.” Id. at 352, 94 S.Ct. at 3013, 41 L.Ed.2d at 812. See also id. at 345, 94 S.Ct. at 3009-10, 41 L.Ed.2d at 808.

In contrast to the standard of proof required for media defamation actions brought by public officials/figures, actions brought by private individuals are not governed by the same federal constitutional constraints. When private individuals, who are neither public officials nor public figures and who have not interjected themselves into particular public controversies, sue for injury caused by libelous statements, the more demanding New York Times standard does not apply. Id. at 343, 94 S.Ct. at 3008-09, 41 L.Ed.2d at 807 (noting that “the New York Times rule states an accommodation between th[e] concern [of providing the press and broadcast media with immunity from liability] and the limited state interest present in the context of libel actions brought by public persons” and concluding that “the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them”). In reaching this holding, the Supreme Court emphasized that the private figure plaintiff

has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.

Id. at 345, 94 S.Ct. at 3010, 41 L.Ed.2d at 808.

2. Individual Reputation as a Factor

Notwithstanding the important constitutional interests involving the freedom of speech and the press, the U.S. Supreme Court has acknowledged the high value of *475the interest that individual citizens have in protecting personal reputation:

The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. See New York Times Co. v. Sullivan, supra, at 293, 84 S.Ct. 710 (Black, J., concurring); Garrison v. Louisiana, 379 U.S., at 80, 85 S.Ct. 209 (Douglas, J., concurring); Curtis Publishing Co. v. Butts, 388 U.S., at 170, 87 S.Ct. 1975 (opinion of Black, J.). Such a rule would, indeed, obviate the fear that the prospect of civil liability for injurious falsehood might dissuade a timorous press from the effective exercise of First Amendment freedoms. Yet absolute protection for the communications media requires a total sacrifice of the competing value served by the law of defamation.

Gertz, 418 U.S. at 341, 94 S.Ct. at 3007-08, 41 L.Ed.2d at 806 (emphasis added).

The Supreme Court has recognized that society also values the reputation of individuals. The Gertz Court stated that “[t]he legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose.... ” Id. at 341, 94 S.Ct. at 3008, 41 L.Ed.2d at 806.

Our accommodation of the competing values at stake in defamation suits by private individuals allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times. This conclusion is not based on a belief that the considerations which prompted the adoption of the New York Times privilege for defamation of public officials and its extension to public figures are wholly inapplicable to the context of private individuals. Rather, we endorse this approach in recognition of the strong and legitimate state interest in compensating private individuals for injury to reputation.

Id, at 348-49, 94 S.Ct. at 3011, 41 L.Ed.2d at 810. The Gertz Court then went on to quote approvingly from the following portion of Justice Stewart’s concurring opinion in Ro-senblatt v. Baer:

The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being— a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.
We use misleading euphemisms when we speak of the New York Times rule as involving “uninhibited, robust, and wide-open” debate, or “vehement, caustic and sometimes unpleasantly sharp” criticism. What the New York Times rule ultimately protects is defamatory falsehood. No matter how gross the untruth, the New York Times rule deprives a defamed public official of any hope for legal redress without proof that the lie was a knowing one, or uttered in reckless disregard of the truth.
That rule should not be applied except where a State’s law of defamation has been unconstitutionally converted into a law of seditious libel. The First and Fourteenth Amendments have not stripped private citizens of all means of redress for injuries inflicted upon them by careless liars. The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.
Moreover, the preventive, effect of liability for defamation serves an important public purpose. For the rights and values of private personality far transcend mere personal interests. Surely if the 1950’s taught us anything, they taught us that the *476poisonous atmosphere of the easy lie can infect and degrade a whole society.

Rosenblatt v. Baer, 383 U.S. 75, 92-94, 86 S.Ct. 669, 679-80, 15 L.Ed.2d 597, 609-10 (1966) (Stewart, J., concurring) (footnotes omitted) (quoted in part in Gertz, 418 U.S. at 341, 94 S.Ct. at 3008, 41 L.Ed.2d at 806). See also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 757-58, 105 S.Ct. 2939, 2944, 86 L.Ed.2d 593, 601-02 (1985) (quoting Justice Stewart).

3. Subject Matter as a Factor

Following New York Times in 1964, the U.S. Supreme Court initially focused primarily on the plaintiffs status (i.e., whether the plaintiff is a public official, public figure, or private figure). However, in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., the Court shifted its focus to the subject matter of the defamatory statemént in reaching its holding. 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). In Dun & Bradstreet, a private figure plaintiff sued a non-media defendant, a credit reporting agency, for sending an incorrect credit report to five subscribers.

The Dun & Bradstreet plurality opinion, authored by Justice Powell and joined by Chief Justice Rehnquist and Justice O’Con-nor, characterized its cases after New York Times as “all involving public issues.” Id. at 755, 105 S.Ct. at 2943, 86 L.Ed.2d at 600. See also id. at 756, 105 S.Ct. at 2943, 86 L.Ed.2d at 600 (“Like every other case in which this Court has found constitutional limits to state defamation laws, Gertz involved expression on a matter of undoubted public concern.”). This Dun & Bradstreet opinion suggested that the media protections first recognized in New York Times and developed in subsequent cases extend, as the Ro-senbloom plurality had stated, only to “defamatory statements involving] a ‘matter of public or general interest.’ ” Id. at 755, 105 S.Ct. at 2943, 86 L.Ed.2d at 600 (quoting Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 44, 91 S.Ct. 1811, 1820, 29 L.Ed.2d 296, 312 (1971) (plurality opinion of Brennan, J.)).3 In Dun & Bradstreet, Justice Powell noted that the Court had “never considered whether the Gertz balance obtains when the defamatory statements involve no issue of public concern.” 472 U.S. at 757, 105 S.Ct. at 2944, 86 L.Ed.2d at 601. In determining the appropriate standard, the plurality opinion stated that it would “balance the State’s interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression.” Id. at 757, 105 S.Ct. at 2944, 86 L.Ed.2d at 601. The Dun & Bradstreet plurality noted that the state interest in allowing compensation for damaged reputations was “identical to the one weighed in Gertz [ ] ... [ — which was] ‘strong and legitimate.’ ” Id. at 757, 105 S.Ct. at 2944, 86 L.Ed.2d at 601 (quoting Gertz, 418 U.S. at 348, 94 S.Ct. at 3011, 41 L.Ed.2d at 810). However, the plurality concluded that “[t]he First Amendment interest[ — in speech on matters of purely private concern — ] ... is less important than the one weighed in Gertz [which was a matter of public concern].” Dun & Bradstreet, 472 U.S. at 758, 105 S.Ct. at 2944, 86 L.Ed.2d at 602. See also id. at 759, 105 S.Ct. at 2945, 86 L.Ed.2d at 603.

The Court continued, “In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest adequately supports awards of presumed and punitive damages— even absent a showing of ‘actual malice.’ ” Id. at 761, 105 S.Ct. at 2946, 86 L.Ed.2d at 603-04 (footnote omitted). The plurality then asserted that the speech at issue, an incorrect credit report, was not a matter of public concern and, like advertising, was “hardy and unlikely to be deterred by incidental state regulation.” Id. at 762, 105 S.Ct. at 2947, 86 L.Ed.2d at 605. The plural*477ity concluded that “permitting recovery of presumed and punitive damages in defamation cases absent a showing of ‘actual malice’ does not violate the First Amendment when the defamatory statements do not involve matters of public concern.” Id. at 763, 105 S.Ct. at 2947, 86 L.Ed.2d at 605.

To date, U.S. Supreme Court opinions have not directly confronted the First Amendment’s requirements when the plaintiffs are public officials or all purpose public figures and the subject matter is merely of private concern.4 In New York Times, when the Court first articulated its new standard, it stated that “[t]he constitutional guarantees require ... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’....” New York Times, 376 U.S. at 279-80, 84 S.Ct. at 726, 11 L.Ed.2d at 706 (emphasis added). The Rosenbloom plurality noted that defamatory speech may enter into “aspects of the lives of ‘public figures’ that are not in the area of public or general concern.” Rosenbloom, 403 U.S. at 48, 91 S.Ct. at 1822, 29 L.Ed.2d at 314, quoted in Gertz, 418 U.S. at 364, 94 S.Ct. at 3019, 41 L.Ed.2d at 819 (Brennan, J., dissenting).5

Regarding the implications * of Dun & Bradstreet for this issue, Professors Nowak and Rotunda have explained:

There is nothing in the Powell plurality [in Dun & Bradstreet ] that would limit its application to cases where the plaintiff is a private person. That is, for the three Justices who make tip the Powell plurality, it may well be the ease that a public official or public figure could also collect presumed or punitive damages without even showing any negligence on the part of the defendant if the alleged defamation does not involve a matter of “public concern.”

John E. Nowák & Ronald D. Rotunda, Constitutional Law § 16.35, at 1102 (5th ed.1995). Professor Tribe has also noted:

In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., the Court took the bifurcated analysis of public figure-private figure and bifurcated it once more, stating that the first amendment would protect only “speech on matters of public concern.” Accordingly, when the plaintiff is not a public figure and the contested statement is not about a matter of public concern, the “actual malice” standard does not apply.

Laurence H. Tribe, American Constitutional Law § 12-13, at 873 (2d ed.1988). Professor Tribe further explained that, “as Dun & Bradstreet made clear, the Court is especially reluctant to limit the common law of defamation when the subject matter of the speech is ‘purely private.’ ” Id. § 12-13, at 878.6 ,

*4784. State Authority in Private Defamation Actions

As discussed in the preceding sections, the U.S. Supreme Court recognizes that individual states have the option to select the standard of proof applicable when private individual plaintiffs assert defamation actions against media defendants regarding matters of public concern. While the states may choose the New York Times actual malice standard, which the Supreme Court applies to require public official/figure plaintiffs to prove actual malice when their public conduct is at issue, this standard is not obligatory upon the states in private defamation cases. The U.S. Supreme Court has expressly recognized that the states have the authority to define the appropriate standard of liability in cases in which media defendants are alleged to have defamed private figure plaintiffs. Gertz, 418 U.S. at 345-46, 94 S.Ct. at 3010, 41 L.Ed.2d at 809 (stating that “the States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual”). The Gertz Court explained that, under its accommodation of the competing values, the Constitution “allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times.” Id. at 348, 94 S.Ct. at 3011, 41 L.Ed.2d at 810. The Gertz Court also stated, “[S]o long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Id. at 347, 94 5.Ct. at 3010, 41 L.Ed.2d at 809. See also Rosenbloom, 403 U.S. at 68-72, 91 S.Ct. at 1832-34, 29 L.Ed.2d at 326-28 (Harlan, J., dissenting) (arguing that the states could constitutionally allow private individuals to recover damages for defamation on the basis of a reasonable care standard); id. at 86-87, 91 S.Ct. at 1841, 29 L.Ed.2d at 336 (Marshall, J., dissenting) (arguing that the states should be “essentially free to continue the evolution of the common law of defamation and to articulate whatever fault standard best suits the State’s need,” as long as liability is not imposed without fault).

The Gertz Court refused to follow the Ro-senbloom plurality opinion which would have extended the New York Times test to those defamation cases brought by private figure plaintiffs and involving issues of public concern. Gertz, 418 U.S. at 346, 94 S.Ct. at 3010, 41 L.Ed.2d at 809. The Court disapproved of such an extension on two grounds: (1) “[t]he extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable,” and (2) “it would occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of ‘general or public interest’ and which do not — to determine, in the words of Mr. Justice Marshall, ‘what information is relevant to self-government.’ ” Id. at 346, 94 S.Ct. at 3010, 41 L.Ed.2d at 809 (quoting Rosenbloom, 403 U.S. at 79, 91 S.Ct. at 1837, 29 L.Ed.2d at 332). The Court concluded that the “general or public interest” test was entirely unsuitable in private defamation actions:

The “public or general interest” test for determining the applicability of the New York Times standard to private defamation actions inadequately serves both of the competing values at stake. On the one hand, a private individual whose reputation is injured by defamatory falsehood that does concern an issue of public or general interest has no recourse unless he can meet the rigorous requirements of New York Times. This is true despite the factors that distinguish the state interest in compensating private individuals from the analogous interest involved in the context of public persons. On the other hand, a publisher or broadcaster of a defamatory error which a court deems unrelated to an issue of public or general interest may be held liable in damages even if it took every reasonable precaution to ensure the accuracy of its assertions....

Gertz, 418 U.S. at 346, 94 S.Ct. at 3010, 41 L.Ed.2d at 809. See also Rosenbloom, 403 U.S. at 62-72, 91 S.Ct. at 1829-34, 29 *479L.Ed.2d at 322-28 (Harlan, J., dissenting) (urging that a “reasonable man” or simple negligence standard should apply to media defendants in defamation actions brought by private individuals); id. at 79, 91 S.Ct. at 1837, 29 L.Ed.2d at 332 (Marshall, J., dissenting) (arguing that the approach taken by Justice Brennan in the plurality opinion would inadequately serve and, in fact, “threatens society’s interest in protecting private individuals from being thrust into the public eye by the distorting light of defamation”).

The Gertz Court provided two rationales for its creation of two different standards for defamation plaintiffs: (1) private figures are more vulnerable to injury because they typically have less media access than public officials/figures to counteract defamatory speech, and (2) private figures are more deserving of recovery because they have not voluntarily become involved in public controversies in order to influence their outcome. Gertz, 418 U.S. at 344-45, 94 S.Ct. at 3009-10, 41 L.Ed.2d at 807-08. The Court noted that its approach served two important purposes: (1) it “provides a more equitable boundary between the competing concerns involved,” and (2) it “recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation.” Id. at 347-48, 94 S.Ct at 3010-11, 41 L.Ed.2d at 809-10.

Therefore, private figure plaintiffs must at least prove negligence to recover in defamation actions against media defendants for injury to their reputations. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 768, 106 S.Ct. 1558, 1559, 89 L.Ed.2d 783, 787 (1986) (“In Gertz, the Court held that a private figure who brings a suit for defamation cannot recover without some showing that the media defendant was at fault in publishing the statements at issue.”) (citing Gertz, 418 U.S. at 347, 94 S.Ct. at 3010, 41 L.Ed.2d at 809); Dun & Bradstreet, 472 U.S. at 763, 105 S.Ct. at 2947, 86 L.Ed.2d at 605 (Burger, C.J., concurring in the judgment) (“In Gertz ..., contrary to well-established common law prevailing in the states, a divided Court held that a private plaintiff in a defamation action cannot recover for a published falsehood unless he proves that the defendant was at least negligent in publishing the falsehood.”); id. at 766, 105 S.Ct. at 2949, 86 L.Ed.2d at 607 (White, J., concurring in the judgment) (“[I]n Gertz ..., the court again dealt with defamation actions by private individuals, for the first time holding that such plaintiffs could no longer recover by proving a false statement, no matter how damaging it might be to reputation. They must, in addition, prove some ‘fault,’ at least negligence.”) (citing Gertz, 418 U.S. at 347, 350, 94 S.Ct. at 3012, 41 L.Ed.2d at 811). In 1986, with Philadelphia Newspapers, the Court provided the following summary of its case law:

One can discern in these decisions two forces that may reshape the common-law landscape to conform to the First Amendment. The first is whether the plaintiff is a public official or figure, or is instead a private figure. The second is whether the' speech at issue is of public concern. When the speech is of public concern and the plaintiff is a public official or public figure, the Constitution clearly requires the plaintiff to surmount a much higher barrier before recovering damages from a media defendant than is raised by the common law. When the speech is of public concern but the plaintiff is a private figure, as in Gertz, the Constitution still supplants the standards of the common law, but the constitutional requirements are, in at least some of their range, less forbidding than when the plaintiff is a public figure and the speech is of public concern. When the speech is of exclusively private concern and the plaintiff is a private figure, as in Dun & Bradstreet, the constitutional requirements do not necessarily force any change in at least some of the features of the common-law landscape.

Philadelphia Newspaper's, 475 U.S. at 775, 106 S.Ct. at 1563, 89 L.Ed.2d at 791-92.

Thus, in defamation actions brought by private figure plaintiffs against media defendants, and presumably in those by public officials/figures involving private matters, states may apply their own common law or statutory standards. The Gertz Court seemed to. contemplate at least two alterna*480tive standards of liability that the states could adopt: (1) the actual malice standard suggested by the Rosenbloom plurality when defamatory statements involve issues of “general or public interest,” or (2) some negligence standard short of strict liability as suggested by the Gertz majority.

5. Standard of Appellate Review

The U.S. Supreme Court has imposed a special standard of appellate review when federal First Amendment implications require application of the New York Times actual malice standard. In such cases, appellate courts must independently review trial court determinations of actual malice to ensure that the correct standard was applied— that plaintiffs proved by clear and convincing evidence that the defendants acted with actual malice in publishing falsehood with knowledge of the falsity or reckless disregard for whether it was false. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 514, 104 S.Ct. 1949, 1967, 80 L.Ed.2d 502, 526 (1984) (“Appellate judges in such a case must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity.”). That Court also stated, “Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars entry of any judgment that is not supported by clear and convincing proof of ‘actual malice.’ ” Id., 466 U.S. at 511, 104 S.Ct. at 1965, 80 L.Ed.2d at 523.

However, the U.S. Supreme Court has not imposed this special standard of independent appellate scrutiny upon the states when reviewing verdicts in defamation cases involving private figure plaintiffs, even in matters of public concern, or in those involving public officials/figures and private concerns. The states remain free to determine the applicable standard of appellate review in such cases.

B. Determining the Rules for Indiana Defamation Law

As noted above, the decisions of the U.S. Supreme Court have recognized the substantial authority of the states to determine state law regarding private figure defamation cases against media defendants in matters of public and private concern. In the absence of statute, the Indiana Supreme Court must select the appropriate common law standards of proof for our state, considering both freedom of the press and media accountability for defamatory falsehoods about private individuals.

Neither this challenge nor its resolution is of recent vintage. Two hundred and one years ago, three years before he became Chief Justice of the United States, John Marshall wrote:

Among those principles deemed sacred in America, among those precious rights considered as forming the bulwark of their liberties, which the Government contemplates with awful reverence; ... there is no one ... more deeply impressed on the public mind, than the liberty of the press. That this liberty is often carried to excess, that it has sometimes degenerated into licentiousness, is seen and lamented; but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good to which it is allied, perhaps it is a shoot which cannot be stripped from the stalk, without wounding vitally the plant from which it is torn. However desirable those measures may be, which might correct without enslaving the press, they have never yet been devised in America. No regulations exist which enable the government to suppress whatever calumnies or invectives any individual may ch[oo]se to offer to the public eye, or to punish such calumnies and invectives otherwise, than by a legal prosecution in courts, which are alike open to all who consider themselves as injured.

Letter from John Marshall to Talleyrand (Apr. 3, 1798), in 3 The Papers of John Marshall 447 (1984) (emphasis added). Later, as Chief Justice, Marshall declared for the unanimous Court: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60, 69 (1803).

*4811. Viewing Aafco in Perspective

Shortly after the U.S. Supreme Court in Gertz expressly permitted individual states to determine the applicable standard of proof in private figure defamation cases, a divided panel of the Indiana Court of Appeals issued its opinion in Aafco Heating & Air Conditioning Co. v. Northwest Publications, Inc., 162 Ind.App. 671, 321 N.E.2d 580 (1974), preferring to displace the negligence standard with the actual malice test. The Indiana Supreme Court did not grant transfer,7 nor have we until now ever addressed the Gertz option issue. Transfer was sought in Aafco during an era prior to this Court’s recognition of the renewed vitality of Indiana’s own constitution. Reflecting on this era, Professor Baude observed twelve years later: “Nobody expects, therefore, the Indiana Supreme Court to find [state] constitutional rights the federal courts do not force upon it.” Patrick Baude, Is There Independent Life in the Indiana Constitution?, 62 Ind. L.J. 263, 268 (1987). Fifteen • years would elapse between Aafco and the publication of Chief Justice Shepard’s seminal article, Second Wind for the Indiana Bill of Rights, 22 Ind. L.Re'v. 575 (1989), which triggered a refocusing of judicial and legal attention on the provisions of the Indiana Constitution.

The precedential value of Aafco is dubious for several other reasons. Aafco was handed-down just six months after the U.S. Supreme Court decided Gertz,8 but over ten years before Dun & Bradstreet.9 Thus, the Aafco court was unable to benefit from extensive federal and state case law and scholarly discussion that have appeared in the ensuing twenty-five years. During this time, some Indiana judges have questioned the wisdom of the Aafco standard,10 and federal judges have hesitantly applied it as Indiana law.11 Furthermore, it places Indiana among *482a very small minority of jurisdictions that extend to the media considerably more protection than the U.S. Supreme Court requires. See Chang v. Michiana Telecasting Corp., 900 F.2d 1085, 1087 (7th Cir.1990) (citing Rodney A. Smolla, Law of Defamation § 3.11 (1989)).12 The vast majority of the states, either through their courts or legislatures, have chosen some form of negligence standard in defamation actions brought by private figure plaintiffs.13 See Smolla, supra, § 3.10.

*4832. The Right to Remedy for Reputation Injury

Article I, Section 12 of the Indiana Constitution provides: “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase, completely, and without denial; speedily, and without delay.” Ind. Const. art. I, § 12 (emphasis added). When confronted with a choice between alternative common law policies, this Court will find guidance in the values embodied in our state constitution, particularly this provision assuring remedy for injury to reputation. Bals v. Verdmco, 600 N.E.2d 1363,1365 (Ind.1992).14 Neither the Court' of Appeals in Aafco nor the majority in the present case considers or discusses the import of Indiana’s express constitutional protection for the right to remedy for harm to reputation. However, the majority does acknowledge that the law of defamation was created because of society’s strong interest in protecting against attacks upon individual reputation.15

*484The reputation remedy provision of our present state constitution, adopted in 1851, parallels its 1816 predecessor, which stated, “That all Courts shall be open, and every person, for injury done him, in his lands, goods, person, or reputation, shall have remedy by the due course of law; and right and justice administered without denial or delay.” Ind. Const, art. I, § 12 (1816) (emphasis added). We find no record of the intentions of Indiana’s framers in either 1816 or 1851 with respect to this provision.

But the principles embraced in Section 12 have a long and distinguished history. For millennia, many of the world’s major cultures and religions have placed immense value on the preservation of an individual’s good name or reputation. The ancient Wisdom Literature of the Jewish and Christian religions declares that “[a] good name is to be chosen rather than great riches.” Proverbs 22:1 (Revised Standard). See 1 Raymond E. Brown, The Law of Defamation in Canada 4 (1987) (“Some form of legal or social constraints on defamatory publications ‘are to be found in all stages of civilization, however imperfect, remote, and proximate to barbarism.’”) (quoting Henry C. Folkard, The Law of Slander and Libel 7 (5th ed. 1891)); Martin L. Newell, The Law of Slander and Libel in Civil and Criminal Cases 1-28 (Mason H. Newell ed., 3d ed.1914). In fact, many of the earliest law codes subjected defamatory speech to severe criminal and civil sanction. See Newell, supra, at 1-18.

These principles were embodied in the 1215 Magna Charta. Its provisions were transmitted to America largely through Lord Edward Coke’s highly influential commentary on the Magna Charta, which was among the most frequently read legal texts in colonial America. See David Schuman, The Right to a Remedy, 65 Temp. L.Rev. 1197, 1199 (1992). The historical antecedent of Article I, Section 12 of the Indiana Constitution is vividly seen in Article 40 of the Magna Charta, which Coke restated as providing:

[Ejvery Subject of this Realm, for injury done to him in [goods, land, or person], ... may take his remedy by the course of the Law, and have justice and right for the injury done him, freely without sale, fully without any denial, and speedily without delay.
Hereby it appeareth, that Justice must have three qualities, it must be [Free, for nothing is more iniquitous than justice for sale; Complete, for justice should not do things by halves; and Swift, for justice delayed is justice denied]; and then it is both Justice and Right.

Faith Thompson, Magna Carta Its Role in MaKing of the English Constitution, 1300-1629, at 365 (1948) (quoting Sir Edward Coke, Seoond Institute 55-56 (4th ed. 1671)). Although neither the original federal Constitution nor its Bill of Rights contains a remedies clause, the drafters of many of the original state constitutions did include a remedies clause, and, as other states were added to the Union, many adopted similar provisions. See John H. Bauman, Remedies Provisions in State Constitutions and the Proper Role of the State Courts, 26 Wake Forest L.Rev. 237, 243-44 (1991). English common law and American colonial governments protected reputation as a property interest. See Ronald J. Krotoszynski, Jr., Fundamental Property Rights, 85 Georgetown L.J. 555, 592 (1997).

Presently, thirty-nine state constitutions contain,16 or have been construed to con*485tain,17 remedies clauses, providing that state courts should be open to all and provide remedies for injury. See Bauman, supra, at 237 & Appendix (compiling state constitution remedies provisions); Schuman, The Right to a Remedy, supra, at 1201 & n. 25. These clauses, however, vary from constitution to constitution, protecting different combinations of the following interests: person, personal and real property, character and reputation, privacy, immunities, and other rights. See David Schuman, Oregon’s Remedy Guarantee: Article I, Section 10 of the Oregon Constitution, 65 Or.L.Rev. 35, 40 (1986) (citing 9 William F. SwindleR, Sources and DOCUMENTS OF THE UNITED STATES CONSTITUTIONS 508 (1973)); Bauman, supra, at 284-88 (compiling state constitutional provisions). At least thirty-four states, including Indiana, specifically identify reputation18 or character 19 as a protected interest.

Of the thirty-nine states with a remedies provision, thirty-one20 have adopted a negligence standard. Of particular significance is the fact that, of the thirty-four states that specifically protect reputation or character, twenty-four21 have exercised the Gertz option to follow a negligence standard, and only one22 (other than our Court of Appeals in Aafco) has opted for the actual malice standard. Oregon and Illinois, for example, have expressly identified the remedies provision in support of retaining the negligence standard. The Oregon Court of Appeals stated: “We also conclude that a higher standard of media liability than the First Amendment requires ... would unduly restrict the, right assured by Article I, section 10.”23 Bank of Oregon v. Independent News, Inc., 65 Or.App. 29, *486670 P.2d 616, 627 (Or.Ct.App.1983), aff'd, 298 Or. 434, 693 P.2d 35 (Or.1985). The Illinois Supreme Court observed:

The adoption of a requirement of actual malice cannot, of course, be justified on the theory that such a requirement furthers some overriding public policy of this State, for prior to New York Times it was not considered that liability for defamation required any showing of fault at all, let alone proof of actual malice. Moreover, the constitutions of this State have from the outset recognized as fundamental the rights of “enjoying and defending life and liberty, and acquiring, possessing and protecting property and reputation.” (Const, of 1818, art. VIII, sec. 1.) From the outset it has been recognized that an individual is entitled to a remedy “for all injuries and wrongs that he may receive in his person, property or character.” (Const, of 1818, art. VIII, sec. 12; Const, of 1848, art. XIII, sec. 12.) (In the most recent constitutions the word “reputation” is substituted for “character.” Const, of 1870, art. II, sec. 19; Const, of 1970, art. I, sec. 12.) The freedom of speech provisions of both our former and present constitutions (Const, of 1870, art. II, sec. 4; Const, of 1970, art. I, sec. 4) recognize the interest of the individual in the protection of his reputation, for they provide that the exercise of the right to speak freely shall not relieve the speaker from responsibility for his abuse of that right.

Troman v. Wood, 62 Ill.2d 184, 340 N.E.2d 292, 297 (Ill.1975). The court went on to adopt the negligence standard. Id. at 299.

Defamation law is concerned primarily with protecting reputation.24 Judicial concern for injury to reputation can be seen throughout Indiana case law. In 1847, four years before the adoption of Indiana’s present constitution, this Court explained that “[a] libel is said to be a malicious defamation expressed in printing or writing, or by signs, pictures, & c., tending to injure the reputation of another, and thereby exposing such person to public hatred, contempt, or ridicule.” Armentrout v. Morando, 8 Blackf. 426, 427 (Ind.1847) (citing 2 Selw. N. P., 1061). In 1854, this Court stated that “[a]ny publication that tends to degrade, disgrace, or injure the character of a person, or bring him into contempt, hatred, or ridicule, is as much a libel as though it contained charges of infamy or crime.” Johnson v. Stebbins, 5 Ind. 364, 366-67 (1854). In State ex rel. Lopez v. Killigrew, 202 Ind. 397, 401, 174 N.E. 808, 810 (1931), we observed that the “right of reputation was early recognized in Anglo-American law, and the machinery of legal redress is at the disposal of any person to vindicate his good name.”

Clearly, legal recognition and protection of a person’s reputational interest is deeply entrenched in our history and practice. The Indiana Constitution expressly protects an individual’s right to remedy for harm to reputation. This fact is particularly significant in determining how Indiana should exercise the Gertz option. Strongly favoring reasonable recourse to remedy for defamation injuries, our express constitutional provision supports a common law rule of accountability upon proof of failure to use reasonable care, rather than one imposing responsibility only upon proof of actual malice. This is consistent with the jurisprudence of an overwhelming majority of other states.

3. Responsibility for Abuse of Free Speech

In protecting the freedom of speech and the press, the Indiana Constitution does not merely reiterate the language of the First Amendment. Rather, it both emphasizes the broad scope of the freedom and requires responsibility for its abuse. Indiana’s provision states: “No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever, but for the abuse of that right, every person shall be responsible." Ind. Const. *487art. I, § 9 (emphasis added). Tortious defamation constitutes such abuse of the right to speak and print freely. As this Court recently explained:

Section 9 was certainly not intended to create a private warrant by which an individual might impair the fundamental rights of private persons. Our common law of torts, the mechanism by which we vindicate such private encroachments, makes this clear.25 When the expressions of one person cause harm to another in a way consistent with common law tort, an abuse under § 9 has occurred.

Price v. State, 622 N.E.2d 954, 963-64 (Ind. 1993). See also id. at 959 (citing Gibson v. Kincaid, 140 Ind.App. 186, 221 N.E.2d 834 (1966), for the proposition that “expression will be curtailed only when it infringes another’s rights.”). The Price Court concluded, on the one hand, that “treating as abuse political speech which does not harm any particular individual (‘public nuisance’) does amount to a material burden” but, on the other hand, “sanctioning expression which inflicts upon determinable parties harm of a gravity analogous to that required under tort law does not.” Price, 622 N.E.2d at 964.

Indiana citizens have long understood that the clause “every person shall be responsible” means accountability by liability for damages in our courts of law. Contemporaneous with the constitutional convention that resulted in the adoption of the Indiana Constitution, this Court affirmed a judgment awarding damages in a defamation action against a newspaper, stating:

It is plain, from the general context of the decisions in cases of this kind, that booksellers and publishers of newspapers are considered as standing in situations of peculiar responsibility, and far from relaxing in their favor the general rule that all persons are bound so to carry on their trade or business as not to injure others, the Courts of law have felt the necessity of applying it in their cases with the utmost stringency. The press is a most potent engine for the diffusion of both good and evil, and, while on the one hand we can scarcely estimate too highly the advantages of its perfect freedom, for all useful purposes, on the other, we cannot but be sensible of the necessity of a strong curb to prevent such freedom from degenerating into licentiousness. The law, however, in- holding publishers of books and newspapers responsible for slanderous attacks upon private character, only carries out, with respect to them, the same principles which are applicable to injuries resulting from the transaction of other kinds of bush ness.

Dunn & Another v. Hall, 1 Ind. 344, 354 (1849) (emphasis added).26 See also Sourbier v. Brown, 188 Ind. 554, 559-60, 123 N.E. 802, 804 (1919) (discussing joint and several, liability for the primary and secondary publications of libelous statements and using the phrases “responsible for,” “held responsible for,” and “the consequences’ of which he is responsible” in the same context with “is liable for the consequences” and “be held for damages”); Wayne Works v. Hicks Body Co., 115 Ind.App. 10, 19-27, 55 N.E.2d 382, 386-89 (1944) (en banc) (using, in a libel *488action, the concepts of “liable for” and “responsible for” interchangeably). ■

Neither the framers of the Indiana Constitution nor this Court, past or present, have intended to cloak defamation with immunity under Indiana’s free speech clause. The express inclusion of the “responsibility for abuse” limitation in Section 9 is clear instruction to the contrary.

Numerous other states have expressly relied upon their state constitution’s “responsibility for abuse” provision, finding that it mandated or guided their choice of the negligence standard under the Gertz option. The Kentucky Supreme Court determined that, “while it is our option under Gertz to adopt a standard of fault, Kentucky Const., Sec. 8,27 mandates that we adopt a standard which adequately protects the private individual from defamation. We choose simple negligence.” McCall v. Courier-Journal & Louisville Times, 623 S.W.2d 882, 886 (Ky. 1981). The Oklahoma Supreme Court concluded that the state constitution28 expressly “weighted the right [to liberty of speech and press] with the responsibility for an abuse of that right” and required a “balancing of] the news media rights with that of a private individual” and determined that the negligence test expressed in Gertz was “more parallel” to the state constitution. Martin v. Griffin Television, Inc., 549 P.2d 85, 92 (Okla.1976). See also Troman, 340 N.E.2d at 297, 299 (noting that “[t]he freedom of speech provision! ] of ... our ... present [Illinois] constitution ] (... art. I, sec. 12)29 recognize[s] the interest of the individual in the protection of his reputation, for [it] provide[s] that the exercise of the right to speak freely shall not relieve the speaker from responsibility for his abuse of that right” and adopting the negligence standard rather than the actual malice standard in private defamation actions against media defendants); Jones v. Palmer Communications, Inc., 440 N.W.2d 884, 898 (Iowa 1989) (construing Article I, Section 7 of the Iowa Constitution30 to require the adoption of a negligence standard for private plaintiffs in defamation actions); Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713, 725 (Va.1985) (holding that Article I, Section 12 of the Virginia Constitution31 “recognizes the balance to be struck between the right of free expression enjoyed by the individual and the press on the one hand and the right of defamed individuals to ' hold the speakers ‘responsible’ for damage to reputation on the other” and determining that “a negligence test strikes a proper balance”); Denny v. Mertz, 106 Wis.2d 636, 318 N.W.2d 141, 150-51 (Wis.1982) (holding that “a private individual need only prove that a media defendant was negligent in broadcasting or publishing a defamatory statement,” stating that “freedom of the press is not an absolute, but may be limited to protect the valid reputation interest of members of society,” and concluding that “a negligence standard complies with the guarantee of freedom of the press contained in the Wisconsin Constitution” 32).

*489To the extent that the U.S. Supreme Court allows, we should apply the “responsibility for abuse” language of Article I, Section 9 of our Indiana Constitution to favor the common law rule that would require publishers of defamatory statements to be responsible in damages when they negligently injure private figure plaintiffs or plaintiffs involved in issues of private concern.

4. What’s Best for Indiana: “Negligence” or “Actual Malice”?

The “responsibility for abuse” clause of Section 9 and the “remedy for harm to reputation” clause of Section 12, separately and collectively, counsel this Court to conclude that, in private defamation actions, media defendants should be held accountable upon proof of failure to use reasonable care, rather than only upon proof of actual malice.

The U.S. Supreme Court has reserved to the states the power to fashion their statutory or common law of defamation as it applies to private individuals because that Court recognized the important, legitimate state interest in protecting the reputations of its citizens. This important value has been memorialized in our constitution and the decisions of our courts, until Aafco. The Indiana Constitution calls us to respect both of the constitutional interests that are in issue here— the free speech interest and the reputational interest. While vigorously preserving the crucial right of Indiana citizens to speak, write, and print freely, we should also preserve the rule of accountability for failure to exercise reasonable care when a private individual suffers harm from the publication of a defamatory falsehood. The applicable standard for private figure plaintiffs should be that of negligence, whether the subject matter is one of public or private concern.33

The same negligence standard should likewise apply in defamation cases where public official/figure plaintiffs sue media defendants, but where no matter of public concern is involved. Just like the state prerogative to choose the negligence standard for private figure plaintiffs in matters of public concern, U.S. Supreme Court opinions appear to permit each state to adopt its own standard when the defamatory statements are matters of private concern, regardless of the status of the plaintiff. In these cases, the defamatory statements are not directed to the public conduct of public officials/figures and would thus be beyond the scope of the federal constitutional protections. Thus, I would hold that, to the extent allowed by the U.S. Supreme Court, when public officials/figures bring defamation actions against media defendants and the defamatory speech does not involve his official or public conduct or matters of public concern, the same negligence standard would apply.34 Stated differently, this negligence standard would apply to those defamation actions that lie outside the scope of the special protection afforded to free speech under the U.S. Constitution.

5. Preserving Indiana’s Standards of Proof and Appellate Review

In his separate opinion, Justice Boehm asserts not only that Indiana common law should follow the Aafco actual malice requirement, but further that such actual malice must be proven by clear and convincing evidence. I disagree. For the same reasons that I favor the negligence standard rather than actual malice, I am convinced that we should retain our preponderance of the evidence standard35 rather than impose *490upon private defamation plaintiffs the additional burden of proving their case by clear and convincing evidence. Even if we choose the optional actual malice test for private figure defamation cases, the present Indiana standard of proof at trial should be retained. Moreover, the present standard is all the more important if the actual malice requirement is adopted. I concur with Justice Boehm, however, in his recognition that Indiana’s conventional standard of appellate review applies to private figure defamation cases subject to the actual malice requirement. In reviewing claims of insufficient evidence in private figure defamation cases, our standard of appellate review now requires that we neither reweigh the evidence nor judge the credibility of witnesses but consider only the evidence most favorable to the judgment along with all reasonable inferences, and reverse only if there is a lack of proof on an essential element of the plaintiffs claim. Martin v. Roberts, 464 N.E.2d 896, 904 (Ind.1984). Even in those rare instances, such as punitive damages, in which our preponderance standard is replaced by the clear and convincing standard of proof, Indiana appellate courts will affirm the judgment if, “considering only the probative evidence and the reasonable inferences supporting it, without weighing evidence or assessing witness credibility, a reasonable trier of fact could find such damages proven by clear and convincing evidence.” Bud Wolf Chevrolet, Inc. v. Robertson, 519 N.E.2d 135, 137 (Ind.1988). Indiana courts should not heighten appellate scrutiny of jury verdicts by using the federal standard of independent appellate evaluation of the full record to determine whether the evidence of actual malice is also clear and convincing to the appellate tribunal.

Using the federal independent appellate evaluation of the record standard results in a significant number of jury verdicts being reversed on appeal. This point is graphically illustrated by reports that less than a third of libel verdicts against media defendants survive after independent review. See Nowak & Rotunda, supra, § 16.33, at 1093 (citing Milo Geylelin, Libel Defendants Fare Well on Appeal, Research Finds, Wall STREET J., May 31, 1994, at BIO, col. 1 (midwest ed.)); Seth Goodchild, Note, Media Counteractions: Restoring the Balance to Modem Libel Law, 75 Geo. L.J. 315, 323-24 (1986). Adoption of the federal standard of appellate review and application of the New York Times proof standard (i.e., actual malice by clear and convincing evidence) would mean likely reversal to most jury verdicts awarding damages to defamation litigants in actions against media defendants.

Justice Boehm is also correct in retaining our standard of appellate review because adoption of the federal independent review standard would also detract from the right to jury trial in civil cases which is expressly ensured by Article I, Section 20 of the Indiana Constitution.36 The existing standard of appellate review reflects our keen awareness of a jury’s unique capacity to weigh conflicting evidence, to judge witness credibility, and to consolidate the diverse perspectives and experiences of individual jurors into one verdict. Rather than adopting a standard of appellate review that imposes elevated scrutiny and casts suspicion upon jury decisions, we should preserve our existing standard that presumes the correctness of their verdicts and honors them with respectful deference and consideration.

C. Conclusion

The majority issued its opinion to elaborate on the state standard of proof required in defamation cases brought by private individuals. It candidly acknowledges that this issue- may not be relevant to this case or properly before the Court, but explains its discussion as appropriate “as it relates to the future of defamation law in Indiana.” Slip op. at 452 n. 7. The facts of the case before us do not present the issue of interest to the majority. This case was not tried to the jury on the basis of the plaintiff being a private individual and thus was not subject to the optional state standards permitted under Gertz. Rather, the trial court here had determined and instructed the jury that the plaintiff, Bandido’s Inc., was a “limited public *491purpose figure.”37 As a defamation action brought by a public figure plaintiff, proof of actual malice was required as a matter of federal First Amendment law. Curtis Publ’g, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094.

Because the trial court determined that Bandido’s was a limited purpose public figure plaintiff, First Amendment jurisprudence as to the actual malice standard necessarily governed this case. This case does not involve the application of a state standard of proof permitted under the Gertz option. It is therefore unnecessary to the resolution of this appeal to discuss the elements of proof for private figure defamation plaintiffs. Because the opinions of my colleagues undertake discussion of an issue not presented by the facts of this case, however, I respond with the foregoing considerations.

The majority’s preference to repudiate the negligence standard of proof in favor of the actual malice standard for private figure defamation cases presents an unnecessary and substantial impairment to the right of injured citizens to seek legal recourse and remedy in Indiana courts. This limitation is opposite to the words, spirit, and history of the Indiana Constitution, contrary to the overwhelming authority from other state jurisdictions, and detrimental to sound public policy. I believe that the majority approach endangers personal privacy, encourages irresponsible journalism, and unnecessarily deprives injured persons of reasonable recourse for harm suffered from defamatory distortions and falsehoods published by entertainment and news media. For these reasons, I dissent.

SHEPARD, C.J., concurs.

. The First Amendment provides in part: "Congress shall make no law ... abridging the freedom of speech, or of the press_” U.S. Const. amend. I.

. The designation "public official” "applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 676, 15 L.Ed.2d 597, 605 (1966). See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789, 807 (1974) (identifying public officials as "those who hold governmental office”).

. The Gertz Court emphatically rejected the Ro-senbloom plurality opinion. Gertz, 418 U.S. at 346, 94 S.Ct. at 3010, 41 L.Ed.2d at 809. However, the Dun & Bradstreet plurality seemed to breathe new life into some aspects of the Rosen-bloom plurality when it quoted the Rosenbloom plurality opinion and embraced that plurality’s ruling on the subject matter of the speech. Dun & Bradstreet, 472 U.S. at 755-63, 105 S.Ct. at 2943-47, 86 L.Ed.2d at 600-05. See also id. at 785 n. 11, 105 S.Ct. at 2959 n. 11, 86 L.Ed.2d at 620 n. 11 (Brennan, J., dissenting) ("Distrust of placing in the courts the power to decide what speech was of public concern was precisely the rationale Gertz offered for rejecting the Rosen-bloom plurality approach.”).

. This issue would only arise in a small number of cases involving public officials and all purpose public figures. The involuntary public figures class is small and rare, and such individuals become public figures through no purposeful action of their own. Gertz, 418 U.S. at 345, 94 S.Ct. at 3009, 41 L.Ed.2d at 808. Limited purpose public figures only become public figures because they are linked to particular public controversies, and thus they are public figures only for a limited range of issues. Id. at 352, 94 S.Ct. at 3013, 41 L.Ed.2d at 812. When they do not qualify as public figures, these individuals retain their status as private figure plaintiffs.

. However, the Gertz Court indicated that the public’s interest in speech about public officials might extend to " ‘anything which might touch on an official's fitness for office.’" Gertz, 418 U.S. at 344-45, 94 S.Ct. at 3009, 41 L.Ed.2d at 808 (quoting Garrison, 379 U.S. 64, 77, 85 S.Ct. 209, 217, 13 L.Ed.2d 125, 134 (1964)). The Gertz Court also described all purpose public figures as those who "invite attention and comment,’’ id. at 345, 94 S.Ct. at 3009, 41 L.Ed.2d at 808, and who “assume special prominence in the resolution of public questions," id. at 351, 94 S.Ct. at 3013, 41 L.Ed.2d at 812, and as public figures "for all purposes and in all contexts” because those "individual[s] ... achieve ... pervasive fame or notoriety [in the community],” id.

.Similarly, Professor Smolla has also provided' the following commentary regarding the implications of Dun & Bradstreet when the plaintiffs are public officials/figures and the subject matter is purely private: "Because the speech is outside of the scope of comment on public officials or public figures to whom the actual malice test applies, those persons may essentially ’revert’ to private figure status, and since the speech is not about a matter of public concern, strict liability may apply.” Rodney A. Smolla, Law of Defamation § 3.04 (1989 ed. & Supp.1998). Professor Smolla continued: "Nevertheless, the implications of Dun & Bradstreet are yet to be worked out, and it seems at least possible that for certain purely private matters, defamatory speech involving public officials and all purpose public figures could revert *478below the Gertz negligence standard all the way to strict liability.” Id.

. Because of various factors including the burden of other pending cases, particularly criminal cases for which this Court has exclusive constitutional responsibility, the denial of transfer does not necessarily reflect Supreme Court approval of decisions of the Court of Appeals in which transfer is sought. "The denial of a petition to transfer shall have no legal effect other than to terminate the litigation between the parties in the Supreme Court.” Ind. Appellate Rule 11(B)(4).

. The Aafco decision was handed down on December 30, 1974, and the Gertz decision was handed down on June 25, 1974. In his dissent in Aafco, Judge Garrard noted that "at the time the trial court rendered its decision, it was guided only by the plurality opinion of Rosenbloom v. Metromedia, Inc. (1971), 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, which indicated that application of the New York Times standard would be proper.” Aafco, 162 Ind.App. at 689, 321 N.E.2d at 591-92. Judge Garrard continued: "However, on June 25, 1974, the Supreme Court issued its decision in Gertz v. Welch (1974), 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789, and by a majority of the Court redefined the applicability of First Amendment privilege as a defense in certain libel actions. It therefore becomes necessary to determine whether Aafco has presented a viable claim on the facts presented under the modification announced in Gertz.” Id. at 689, 321 N.E.2d at 592.

. The Dun & Bradstreet decision was handed down on June 26, 1985.

. Indiana Court of Appeals Judge Garrard has consistently stated his disagreement with the majority opinion in Aafco, and he was joinéd by Judge Hoffman. See Journal-Gazette Co. v. Bandido’s, Inc., 672 N.E.2d 969, 973 n. 3 (Ind.Ct.App.1996) (expressing disagreement with the Aafco standard); Patten v. Smith, 172 Ind.App. 300, 307, 360 N.E.2d 233, 238 (1977) (Garrard, J., concurring in result with opinion in which Hoffman, J., concurred) ("I adhere to my dissent in Aafco ... and reiterate that actual damages should be allowed for the negligent publication of a defamatory falsehood involving a private individual who is neither a public official nor a public figure.”); Aafco, 321 N.E.2d at 591, 593-94 (Garrard, J., dissenting) (disagreeing with the Aafco majority’s interpretation of Gertz and Article 1, Section 9 of the Indiana Constitution and objecting to the court’s new standard).

.See Jean v. Dugan, 20 F.3d 255, 262 (7th Cir.1994); Chang v. Michiana Telecasting Corp., 900 F.2d 1085, 1087 (7th Cir.1990); Schaefer v. Newton, 868 F.Supp. 246, 252 (S.D.Ind.1994). In a Seventh Circuit opinion. Judge Easterbrook spoke critically of the Aafco standard:

In Aafco ..., a panel of the state’s court of appeals held that in Indiana even private figures must establish actual malice, if the statements relate to an issue of public concern.
Aafco puts Indiana among a small minority of states. According to Rodney Smolla, The Law of Defamation § 3.11 (1989 ed.), only four (Alaska, Colorado, Indiana, and New Jersey) require a private-figure plaintiff to prove actual malice. Michigan recently switched to a negligence standard, Rouch v. Enquirer & News, 427 Mich. 157, 398 N.W.2d 245 (1986), and a federal court has predicted that Alaska will follow suit when it has the chance, Sisemore v. *482U.S. News & World Report, Inc., 662 F.Supp. 1529 (D.Alaska 1987). Moffatt v. Brown, 751 P.2d 939 (Alaska 1988), which rejects the “clear and convincing proof’’ requirement in private figure cases, suggests that Sisemore may be prescient. Aafco itself was the product of a divided panel, and in a later case, Patten v. Smith, 172 Ind.App. 300, 360 N.E.2d 233 (3d Dist. 1977), Judge Garrard, the author of the dissent in Aafco, picked up the support of a newly appointed colleague, Judge Hoffman. Patten did not overrule Aafco ....
... If we had nothing but Aafco and Patten to go on, we would think the law of Indiana muddy. Two subsequent cases have followed Aafco, deeming it authoritative. Cochran v. Indianapolis Newspapers, Inc., 175 Ind.App. 548, 372 N.E.2d 1211, 1218 & n. 3 (2d Dist. 1978); Elliott v. Roach, 409 N.E.2d 661, 685-86 (Ind.App. 4th Dist. 1980). No Indiana court has disagreed with Aafco, and four years ago we took Aafco to be the established law of Indiana. Woods v. Evansville Press Co., 791 F.2d 480, 483 (7th Cir.1986). See also Gintert v. Howard Publications, Inc., 565 F.Supp. 829, 838-39 (N.D.Ind.1983)....
Aafco has drawn adverse comment from several judges of Indiana — not only Judges Garrard and Hoffman but also the panel in Cochran, which expressed doubts but followed Aafco to maintain uniformity. Yet it does not stand alone, and although the trend in other states is against it, New Jersey adopted the actual malice standard even as Michigan abandoned it. Sisler v. Gannett Co., 104 N.J. 256, 516 A.2d 1083 (1986). New York uses an intermediate approach, Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569 (1975), and decisions of appellate courts in California go both ways, see Smolla (collecting cases). Skepticism among Indiana’s judges is not the same as conflict in decision. Aafco is straightforward and, for the moment, the reigning expression of state law. The Supreme Court of Indiana has had ample opportunity to express a different view and has so far elected not to do so....

Chang, 900 F.2d at 1087.

. Professor Smolla listed Indiana with Alaska (Gay v. Williams, 486 F.Supp. 12, 14-16 (D.Alaska 1979) (applying Alaska law)), Colorado (Diversified Management, Inc. v. Denver Post, Inc., 653 P.2d 1103, 1106, 1109-10 (Colo. 1982); Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 538 P.2d 450, 457-59 (Colo. 1975); Haan v. Board of Publications of the Christian Reformed Church, Inc., 10 Med.L.Rep. (BNA) 1671, 1672 (Colo. Dist.Ct.1984)), and New Jersey (Sisler v. Gannett Co., 104 N.J.256, 516 A.2d 1083, 1095 (N.J. 1986)), as the only four states requiring private figures to prove actual malice when the subject matter of the speech is an issue of public concern. Smolla, The Law of Defamation § 3.11.

. Professor Smolla identified the following jurisdictions as having adopted some form of negligence standard in private defamation actions against media defendants: Alabama (Mead Corp. v. Hicks, 448 So.2d 308, 313 (Ala. 1983); Browning v. Birmingham News, 348 So.2d 455 (Ala. 1977)); Arizona (Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 560 P.2d 1216, 1222 (Ariz. 1977)); Arkansas (Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660 S.W.2d 933, 937-38 (Ark. 1983); KARK-TV v. Simon, 280 Ark. 228, 656 S.W.2d 702, 704 (Ark. 1983); Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840, 844 (Ark. 1979)); California (Widener v. Pacific Gas & Elec. Co., 75 Cal.App.3d 415, 433, 142 Cal.Rptr. 304, 313 (1977)); Connecticut (Corbett v. Register Publ’g Co., 33 Conn.Supp. 4, 356 A.2d 472, 476-77 (Conn.Super.Ct.1975)); Delaware (Re v. Gannett Co., 480 A.2d 662, 666 (Del.Super.Ct. 1984), aff'd, 496 A.2d 553, 557 (Del. 1985)); District of Columbia (Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 90 (D.C. 1980)); Florida (Miami Herald Publ’g Co. v. Ane, 458 So.2d 239, 241-42 (Fla.1984); Tribune Co. v. Levin, 458 So.2d 243, 244 (Fla.1984)); Georgia (Triangle Publications, Inc. v. Chumley, 253 Ga. 179, 317 S.E.2d 534, 536-37 (Ga.1984); Savannah News-Press, Div. Southeastern Newspapers Corp. v. Whetsell, 149 Ga.App. 233, 254 S.E.2d 151, 152 (Ga.Ct.App. 1979); Williams v. Trust Co. of Ga., 140 Ga.App. 49, 230 S.E.2d 45, 47-51 (Ga.Ct.App.1976)); Hawaii (Cahill v. Hawaiian Paradise Park Corp., 56 Haw. 522, 543 P.2d 1356, 1362-67 (Haw. 1975)); Idaho (Idaho Code § 6-708); Illinois (Troman v. Wood, 62 Ill.2d 184, 340 N.E.2d 292, 299 (Ill.1975)); Kansas (Gobin v. Globe Publ'g Co., 216 Kan. 223, 531 P.2d 76, 84 (Kan. 1975); Sellars v. Stauffer Communications, Inc., 9 Kan.App.2d 573, 684 P.2d 450, 453-56 (Kan.Ct.App.1984)); Kentucky (McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 886 (Ky.1981)); Louisiana (Wilson v. Capital City Press, 315 So.2d 393, 397-98 (La.Ct.App.1975), cert. denied specifically approving decision, 320 So.2d 203 (La. 1975); Melon v. Capital City Press, 407 So.2d 85, 86 (La.Ct.App. 1981); LeBoeuf v. Times Picayune Publ'g Corp., 327 So.2d 430, 431 (La.Ct.App. 1976)); Maryland (General Motors Corp. v. Piskor, 277 Md. 165, 352 A.2d 810, 814-15 (Md.1976); Jacron Sales Co. v. Sindorf, 276 Md. 580, 350 A.2d 688, 698-700 *483(Md.1976)); Massachusetts (Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 330 N.E.2d 161, 168 (Mass. 1975)); Michigan (Rouch v. Enquirer & News of Battle Creek, 427 Mich. 157, 398 N.W.2d 245, 263-65 (Mich.1986); Deitz v. Wometco West Michigan TV, 160 Mich.App. 367, 407 N.W.2d 649, 653 (Mich.Ct.App.1987)); Minnesota (Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 491-92 (Minn.1985)); Mississippi (Brewer v. Memphis Publ’g Co., 626 F.2d 1238, 1246-47 (5th Cir.1980) (applying Mississippi law)); New Hampshire (McCusker v. Valley News, 121 N.H. 258, 428 A.2d 493, 494-95 (N.H. 1981)); New Mexico (Marchiondo v. Brown, 98 N.M. 394, 649 P.2d 462, 470 (N.M.1982)); North Carolina (Walters v. Sanford Herald, Inc., 31 N.C.App. 233, 228 S.E.2d 766, 767 (N.C.Ct.App. 1976)); Ohio (Lansdowne v. Beacon Journal Publ’g Co., 32 Ohio St.3d 176, 512 N.E.2d 979, 983-84 (Ohio 1987); Embers Supper Club, Inc. v. Scripps-Howard Broad. Co., 9 Ohio St.3d 22, 457 N.E.2d 1164, 1167 (Ohio 1984); Thomas H. Maloney & Sons, Inc. v. E.W. Scripps Co., 43 Ohio App.2d 105, 334 N.E.2d 494, 498 (Ohio Ct.App. 1974)); Oklahoma (Martin v. Griffin Television, Inc., 549 P.2d 85, 92 (Okla.1976)); Oregon (Bank of Oregon v. Independent News, Inc., 65 Or.App. 29, 670 P.2d 616, 623-29 (Or.Ct.App.1983), aff'd, 298 Or. 434, 693 P.2d 35, 43-44 (Or. 1985); Wheeler v. Green, 286 Or. 99, 593 P.2d 777, 788-89 (Or. 1979)); Pennsylvania (Marcone v. Penthouse Int'l, Ltd., 533 F.Supp. 353, 360-61 (E.D.Pa.1982), rev'd on other grounds, 754 F.2d 1072 (3d Cir.1985) (applying Pennsylvania law); Medico v. Time, Inc., 509 F.Supp. 268, 277 n. 7 (E.D.Pa.1980), aff'd on other grounds, 643 F.2d 134 (3d Cir.1981) (applying Pennsylvania law); Mathis v. Philadelphia Newspapers, Inc., 455 F.Supp. 406, 410-12 (E.D.Pa.1978) (applying Pennsylvania law)); Puerto Rico (Torres-Silva v. El Mundo, 106 P.R.Dec. 15, 3 Med.L.Rep. (BNA) 1508, 1977 WL 50834 (P.R.1977)); Rhode Island (DeCarvalho v. daSilva, 414 A.2d 806, 812-13 (R.I.1980)); South Carolina (Jones v. Sun Publ’g Co., 278 S.C. 12, 292 S.E.2d 23, 24-25 (S.C. 1982)); Tennessee (Memphis Publ’g Co. v. Nichols, 569 S.W.2d 412, 417-18 (Tenn. 1978)); Texas (Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 819 (Tex. 1976)); Utah (Seegmiller v. KSL, Inc., 626 P.2d 968, 972-76 (Utah 1981)); Vermont (Colombo v. Times-Argus Ass’n, Inc., 135 Vt. 454, 380 A.2d 80, 82-83 (Vt.1977)); Virginia (Gazette v. Harris, 229 Va. 1, 325 S.E.2d 713, 724-26 (Va.1985)); Washington (Caruso v. Local Union No. 690, 100 Wash.2d 343, 670 P.2d 240, 244-45 (Wash. 1983); Bender v. Seattle, 99 Wash.2d 582, 664 P.2d 492, 503-05 (Wash. 1983); Taskett v. KING Broad. Co., 86 Wash.2d 439, 546 P.2d 81, 84-86 (Wash. 1976)); West Virginia (Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70, 77 (W.Va.1984)); Wisconsin (Denny v. Mertz, 106 Wis.2d 636, 318 N.W.2d 141, 150-52 (Wis.1982)); and Wyoming (Adams v. Frontier Broad. Co., 555 P.2d 556, 560-62 (Wyo.1976)). Smolla, supra, § 3.10. New York Court of Appeals in Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569, 570-71 (N.Y.1975), adopted an intermediate standard of "gross irresponsibility.” Smolla, supra, § 3.12.

. See also Doe v. Methodist Hosp., 690 N.E.2d 681, 695 (Ind. 1997) (Dickson, J., concurring in result with separate opinion, in which Sullivan, J., concurred) ("The Indiana Constitution provides express recognition of an individual’s interest in reputation and accords it specific protection.").

. This statement is well-supported in Anglo-American and Indiana law. The plurality opinion in Doe v. Methodist Hosp. recognized that “[djefamation law has traditionally addressed similar injuries to reputation.” 690 N.E.2d 681, 686 (Ind. 1997). The plurality continued, “This Court recognized 150 years ago that libelous defamation injured a person's reputation and thereby exposed him ‘to public hatred, contempt, or ridicule.’ ” Id. (quoting Armentrout v. Moranda, 8 Blackf. 426, 427 (Ind.1847)). See also 50 Am.Jur.2d Libel and Slander § 2 (1995) (“The gravamen or gist of an action for defamation is damage to the plaintiff’s reputation. It is reputation which is defamed, reputation which is injured, and reputation which is protected by the law of defamation. Defamation is an impairment of a relational interest; it denigrates the opinion which others in the community have of *484the plaintiff and invades the plaintiff’s interest in his reputation and good name.”) (footnotes omitted). Previously, this Court has noted:

The right of reputation was early recognized in Anglo-American law, and the machinery of legal redress is at the disposal of any person to vindicate his good name. Many utterances of a defamatory nature are actionable per se and, in the very beginning of the law of defamation, the rule was established that language which imputed a species of misconduct to which the law attached a criminal punishment was actionable per se, without any allegations or proof of actual pecuniary injury. Thus, it is clear that the law recognizes and protects the individual's interest in his reputation from defamation that imputes criminal misconduct, regardless of pecuniary damage....

State ex rel. Lopez v. Killigrew, 202 Ind. 397, 401-02, 174 N.E. 808, 810 (1931).

. Ala. Const, art. I, § 13; Ark. Const, art. II, § 13; Colo. Const art. II, § 6; Conn. Const, art. I, § 10; Del. Const, art. I, § 9; Fla. Const, art. I, § 21; Idaho Const, art. I, § 18; III. Const, art. I, § 12; Ind. Const, art. I, § 12; Kan. Const, bill of *485rights, § 18; Kv. Const, bill of rights, § 14; La. Const, art. I, § 22; Me. Const, art. I, § 19; Md. Const, declaration of rights, art. 19; Mass. Const. pt. 1, art. 11; Minn. Const, art. I, § 8; Miss. Const. art. Ill, § 24; Mo. Const, art. I, § 14; Mont. Const, art. II, § 16; Neb. Const, art. I, § 13; N.H. Const, pt. I, art. 14; N.C. Const, art. I, § 18; N.D. Const, art. I, § 9; Ohio Const, art. I, § 16; Okla. Const, art. II, § 6; Or. Const, art. I, § 10; Pa. Const, art. I, § 11; R.I. Const, art. I, § 5; S.C. Const, art. I, § 9; S.D. Const, art. VI, § 20; Tenn. Const, art. I, § 17; Tex. Const, art. I, § 13; Utah Const, art. I, § 11; Vt. Const, ch. I, art. 4; W. Va. Const, art. Ill, § 17; Wis. Const, art. I, § 9; Wyo. Const, art. I, § 8.

. Boswell v. Phoenix Newspapers, 152 Ariz. 9, 730 P.2d 186, 190-95 (Ariz. 1986) (holding Ariz. Const, art. 18, § 6 to be a remedy guarantee, including remedy for injury to reputation); Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 763 P.2d 1153, 1161 (N.M. 1988) (concluding that a right to a remedy is implicit in the state constitution), overruled on other grounds, Trujillo v. City of Albuquerque, 125 N.M. 721, 965 P.2d 305 (N.M. 1998).

. Twenty-three state constitutions specifically include a reputation interest: Alabama, Connecticut, Delaware, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Mississippi, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming. See Ala. Const, art. I, § 13; Conn. Const, art. I, § 10; Del. Const, art. I, § 9; III. Const, art. I, § 12; Ind. Const, art. I, § 12; Kan. Const, bill of rights, § 18; Ky. Const, bill of rights, § 14; La. Const, art. I, § 22; Me Const, art. I, § 19; Miss. Const, art. Ill, § 24; Neb. Const, art. I, § .13; N.C. Const, art. I, § 18; N.D. Const, art. I, § 9; Ohio Const, art. I, § 16; Okla. Const, art. II, § 6; Or Const, art. I, § 10; Pa. Const, art. I, § 11; S.D. Const, art. VI, § 20; Tenn. Const, art. I, § 17; Tex. Const, art. I, § 13; Utah Const, art. I, § 11; W. Va. Const, art. Ill, § 17; Wyo. Const, art. I, § 8.

. Eleven state constitutions specifically identify a character interest: Arkansas, Colorado, Idaho, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, Rhode Island, Vermont, and Wisconsin. See Ark. Const, art. II, § 13; Colo. Const, art. II, § 6; Idaho Const art. I, § 18; Mass. Const, art. XI; Minn. Const, art. I, § 8; Mo. Const. art. I, § 14; Mont. Const, art. II, § 16; N.H. Const, pt. I, art. 14; R.I. Const, art. I, § 5; Vt. Const, ch. I, art. 4; Wis Const, art. I, § 9.

. Compare states identified supra notes 16 & 17, with states identified supra note 13.

. Compare states identified, supla notes 18 & 19, with states identified supra note 13.

. Other than the Indiana Court of Appeals in Aafco, Colorado appears to be the only state that applies the actual malice standard in private defamation actions notwithstanding a state constitution that specifically ensures a remedy for injury to character. Compare Colo. Const, art. II, § 6, with Diversified Management, Inc., 653 P.2d at 1106-09 (establishing actual malice standard but not discussing the state constitutional provision regarding a remedy for injury to character).

. Article I, Section 10 of the Oregon Constitution, which provides in relevant part that "every man shall have remedy by due course of law for injury done him in his person, property, or reputation,” is nearly identical.to Article I, Section 12 of the Indiana Constitution. . • .

. The Aafco court correctly recognized that defamation law protects at least two distinct interests of individuals: (1) the desire to preserve certain aspects of their lives from unwarranted intrusion, and (2) the desire to preserve their reputations and standing in their communities. Aafco, 321 N.E.2d at 588 n. 7 (citing as an example Rosenblatt, 383 U.S. at 92, 86 S.Ct. at 679, 15 L.Ed.2d at 609 (Stewart, J., concurring)).

. In footnote 15, the Price majority stated:

In 1851 our law recognized, as it does now, that expression might constitute a tort actionable by a private party, McJunkins v. State, (1858), 10. Ind. 140, even if it was political in nature. Prosser v. Callis (1889), 117 Ind. 105, 19 N.E. 735 (libel action would lie against newspaper for charge that county auditor "botchfed]” county books); Heilman v. Shanklin (1878), 60 Ind. 424 (libel action would lie against newspaper for charge of vote buying).

Price v. State, 622 N.E.2d 954, 964 n. 15 (Ind. 1993).

. The Court repeatedly used the words "responsible” and "responsibility” when referring to defendants being accountable or liable for defama-toiy statements. Dunn, 1 Ind. at 354-55. The Court also expressed concern about publishers avoiding responsibility for libelous statements. Id. at 355-56.("[I]f he [the defendant newspaper publisher] chose to leave the management’of his business in the hands of a foreman, he must be held equally responsible for the neglect or incompetency of the latter, in not obeying his.instructions, and in suffering such a thing to be done. If publishers could avoid responsibility by telling their foremen not to admit anything personal, and then absenting themselves while a libel was inserted, they could very easily make the newspapers vehicles for the circulation of the most atrocious slanders with perfect impunity.”) (emphasis added).

. The Kentucky Constitution provides:

Freedom of speech and of the press — Printing presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof. Every person may freely speak, write and print on any subject, being responsible for the abuse of that liberty.

Ky. Const. § 8.

. The Oklahoma Constitution states that “[ejv-ery person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right_Okla Const, art. II, § 22.

. The Illinois Constitution provides in relevant part that "[ajll persons may speak, write and publish freely, being responsible for the abuse of that liberty.” III. Const, art. I, § 4.

. The Iowa Constitution provides in part that "[ejvery person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right_” Iowa Const, art. I,§ 7.

. The Virginia Constitution provides in part that "any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right....” Va. Const, art. I, § 12.

. The Wisconsin Constitution provides in relevant part that "[ejvery person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right....” Wis. Const, art. I, § 3.

.In his opinion concurring with the majority. Justice Boehm opines, "[W]e have a quarter of a century of experience under Aafco and so far the harm to the citizenry is not apparent.” Slip op. at 471. With the actual malice rule of Aafco in place during this period, the unlikelihood of success at trial or on appeal would counsel media-defamed citizens against pursuing any legal action or taking an appeal. To the extent that there may have been harm to our citizenry, it thus would not have reached our attention. This lack of cases on appeal does not establish the absence of actual harm to Indiana citizens.

. This is consistent with Justice Boehm's understanding and implied approval of the majority opinion as holding that the negligence standard is applicable to defamation claims based on matters of no public concern.

. Compare Ind. Civil Pattern Jury Instruction No. 35.13 (1989) (pattern instruction for standard defamation cases), with Ind. Civil Pattern Jury Instruction No. 35.33 (1989) (pattern instruction for public official/figure defamation cases).

. "In all civil cases, the right of trial by jury shall remain inviolate.” Ind. Const, art. I, § 20.

. The trial court instructed the jury: "In this case, the statements on which suit has been brought relate to a limited public purpose figure as well as a matter of public interest at least for the purpose of the statements at issue.” Final Instruction No. 2, Record at 850. The plaintiff did not object to this instruction. See Record at 2913.