concurring.
The Nebraska Bill of Rights, section 5, reads: “* * * in all trials for libel, both civil and criminal, the truth when published with good motives, and for justifiable ends, shall be a sufficient defense.” Section 25-840, R. R. S. 1943, reads: “The truth * * * shall be a complete defense unless it shall be proved by the plaintiff that the publication was made with actual malice. Actual malice shall not be inferred or presumed from publication.”
The district court refused to allocate risks of nonpersuasion in harmony with the statute. It instructed the jury that defendants were to carry the risk on issues of good motives and justifiable ends. The instruction is traceable to an interpretation of the Constitution in Wertz v. Sprecher, 82 Neb. 834, 118 N. W. 1071. Wertz decided that for justification defendant must prove good *37motives and justifible ends. It has received trenchant criticism for establishing an absolute and not a minimum standard. See Franklin, “The Origins and Constitutionality of Limitations on Truth as a Defense in Tort Law,” 16 Stan. L. Rev. 789. The jury instruction was prejudicially erroneous.
No constitutional issue of a federal dimension having been raised, the majority opinion does not answer this question: Is the judgment under review a product of an unconstitutional interference with free expression? See, Puentes v. Board of Education, 392 U. S. 653, 88 S. Ct. 2271, 20 L. Ed. 2d 1341; Pickering v. Board of Education, 391 U. S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811; Beekley Newspapers Corp. v. Hanks, 389 U. S. 81, 88 S. Ct. 197, 19 L. Ed. 2d 248; Curtis Publishing Co. v. Butts, 388 U. S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094; New York Times Co. v. Sullivan, 376 U. S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686.