(concurring in part and dissenting in part). I concur with all of the opinion in this case except part 9 thereof. Specifically, I disagree that as a matter of constitutional law (1) “[i]n any case where the plaintiff is required to prove actual malice he must do so, not merely by the fair preponderance of the evidence, but by ‘clear and convincing proof’” which “involves a degree of belief greater than the usually imposed burden of proof by a fair preponderance of the evidence, but less than the burden of proof beyond a reasonable doubt imposed in criminal cases,” (2) “the jury must find facts according to such a standard, and must be charged accordingly,” and (3) “ [i]n ruling on a defendant’s motion for a directed verdict in a defamation case, the judge certainly must apply the clear and convincing proof’ standard.”
I recognize that in New York Times Co. v. Sullivan, 376 U. S. 254, 285-286 (1964), the Supreme Court, through Mr. Justice Brennan, indicated that the proof of actual malice presented in that case would not constitutionally sustain the judgment because it lacked “convincing clarity.” I also recognize that in Rosenbloom v. Metromedia, Inc. 403 U. S. 29, 52 (1971), Mr. Justice Brennan, for three members of the court, transposed his New York Times Co. “convincing clarity” language into a requirement that actual malice be proved by “clear and convincing proof.” I further recognize that in Gertz v. Robert Welch, Inc. 418 U. S. 323, 342 (1974), a majority of the court interpreted the New York Times Co. standard as permitting a public official or public figure to “recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.” It is doubtless possible to read these excerpts, as the court today has done, to require that juries be instructed to find for the defendant on the issue of malice unless they view the evidence on that issue as “clear and convincing” in the plaintiff’s favor. It is also possible to infer that this standard involves a degree of belief lying *873somewhere between that required to support a verdict in an ordinary civil case and that required to support a verdict of conviction in a criminal case. It may even be possible to interpret this language as requiring the trial judge in a jury case to direct a verdict1 for the defendant unless he is personally satisfied that the evidence establishing malice is clear and convincing. And perhaps the language can also be construed as demanding that members of appellate courts review trial transcripts and exhibits and thereafter reverse a denial of a motion for a directed verdict unless they are personally satisifed that the evidence establishing malice is clear and convincing. I, however, view this language as little more than confusing rhetoric — words which have been given no content by the United States Supreme Court. For reasons hopefully explained below, I would not give these words the content given them by the court today.
1. The Supreme Court has not defined “convincing clarity” or “clear and convincing.” Neither has it stated whether these undefined terms raise questions of law or of fact. The court today creates a definition for these phrases and seemingly rules that they raise questions of both law and fact. In considering these holdings, it is helpful to bear in mind that they are not explicitly mandated by the Supreme Court.
2. My feeling that the phrases “convincing clarity” and “clear and convincing” are essentially rhetorical is reinforced by the fact that in the Gertz case the court said: “Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life” (emphasis supplied). *874418 U. S. at 352 (1974). It seems to me that if, as the court today holds, the plaintiff in a defamation action has a special burden of proof in regard to the issue of malice, then the defendant has a similar (although perhaps not identical) burden of proof on the issue whether the plaintiff is a public personality.
The question thus arises whether the burden of. adducing “clear” evidence on an issue is less than the burden of adducing “clear and convincing” evidence on an issue. If these phrases are not mere rhetoric, then each must set a precise, independent standard. If we hold, as the court apparently does, that one implication of the existence of such precise, independent standards is that juries must be instructed to find facts according to those standards, we raise the spectre of requiring trial judges in defamation cases to instruct juries as to four separate and distinct burdens of proof, falling variously on the plaintiff and defendant. That is to say that since the court today defines “clear and convincing” evidence as that which would satisfy a burden somewhere between those imposed by the ordinary preponderance of the evidence and reasonable doubt standards utilized in civil and criminal cases, and since “clear” evidence is presumably stronger than a preponderance of the evidence but not so strong as “clear and convincing” evidence, then a trial judge must instruct the jury as to the meaning of: (1) “a preponderance” of the evidence, by which most of the facts in issue must be found, (2) “beyond a reasonable doubt,” so that the standard can help define other terms, (3) “clear and convincing” evidence, by which malice must be proved, and (4) “clear” evidence, by which the public character of the plaintiffs personality must be proved. A juror listening to a judge instructing him to draw such fine distinctions in his levels of belief would likely agree with Mr. Bumble: “If the law supposes that, . . . the law is a ass, a idiot.” Dickens, Oliver Twist, ch. 51.
*875Moreover, it is by no means entirely clear that the problem of special burdens of proof is limited to the issues of malice and whether the plaintiff is a public personality. Circuit Judge Bell, specially concurring in Firestone v. Time, Inc. 460 F. 2d 712, 722-723 (5th Cir. 1972), cert. den. 409 U. S. 875 (1972), said: “The Supreme Court has not expressly added the requirement of clear and convincing proof of falsity to the plaintiff’s burden of proof. . . . Such a standard of proof seems implicit however, in the stated requirement in New York Times that plaintiff has the burden of showing by clear and convincing proof that publication was with knowledge of falsity or with reckless disregard as to falsity vel non. I conclude for the same constitutional reasons giving rise to this stringent proof requirement that the clear and convincing proof standard would also apply to proving that the statement was false in the first instance.” If I were to agree that a special burden of proof were properly applicable to any of the issues in a defamation case, I, like Circuit Judge Bell, would find it difficult to isolate one among many issues to which to apply such a special burden.
3. Even assuming that the “convincing clarity” and “clear and convincing” language in the New York Times Co., Rosenbloom, and Gertz cases does require some special instructions to the jury, I do not believe that this language requires that juries in this Commonwealth be instructed that they find certain facts with “a degree of belief greater than the usually imposed burden of proof by a fair preponderance of the evidence, but less than the burden of proof beyond a reasonable doubt imposed in criminal cases.” Admittedly, the quoted definition fairly defines a level of proof employed, as an outgrowth of ancient chancery practice, in many States on a few narrow issues, principally involving attempts to prove by oral evidence matters which ordinarily are required to be proved by written evidence. See McCormick, Evidence, § 340 (2d ed. 1972). It is admittedly also true, as *876pointed out in fn. 10 of the court’s opinion in this case, that some of our early cases indicated that we followed such a rule on similar issues. However, there are also indications in the latest of the cases cited by the court and in a subsequent case that phrases such as the ones involved here are substantially rhetorical, and too vague to admit of definition or to be employed in general use. In Kidder v. Greenman, 283 Mass. 601, 613-614 (1933), we said: “It is settled that where reformation of an instrument is sought on the ground of a mutual mistake the proof must be ‘full, clear, and decisive.’. . . Whether this rule requires proof ‘beyond a reasonable doubt’ as those words are used in the criminal law . . . or merely recognizes that, in determining the preponderance of evidence, a completed instrument is evidence of great weight of the intention of the parties thereto and such evidence is not readily overcome by paroi evidence of such intention, need not be considered, for the rule, however stated, is not applicable to the present case” (emphasis supplied). In Matter of Mayberry, 295 Mass. 155, 167 (1936), this court held “that cause for disbarment may be established by a fair preponderance of the evidence as in other civil causes and that proof beyond reasonable doubt as in criminal cases is not required.” We added: “Nor do we think that there is in this Commonwealth any rule of law establishing for such cases an intermediate standard of proof, such as that the evidence must be ‘clear and convincing’ or ‘not of doubtful character.’ Such midway expressions may have some place in emphasizing the care with which the trier of fact should approach the decision of an issue so important to the respondent as the loss of his profession. . . . But such terms are too vague to serve generally as a practical guide in the trial of cases.” Cf. Commonwealth v. Bell, 356 Mass. 724, 725 (1969).
In my view, we could accommodate our trial practice to the evidentiary requirements of New York Times Co., Rosenbloom, and Gertz simply by having judges instruct *877juries to find for the defendant in a defamation action unless the plaintiff proves every necessary element of his claim for relief by a preponderance of the evidence, but that on the issue of malice they should scrutinize the evidence with special care, not lightly inferring the presence of malice, and that they should find that the defendant acted with malice only if they find the evidence on that issue clear enough to convince them by a preponderance of the evidence. A similar instruction, running in favor of the plaintiff, could be given on whether the plaintiff is a public personality. Such instructions should be adequate to satisfy any constitutional requirements imposed by the Supreme Court without formally incorporating into our jurisprudence an unworkable standard of proof, a standard of proof which will be unintelligible to juries, and which we have heretofore generally eschewed.
4. The court’s opinion states that, “ [i]n ruling on a defendant’s motion for a directed verdict in a defamation case, the judge certainly must apply the ‘clear and convincing proof’ standard. That is to say, the judge must determine whether the jury would be warranted in concluding that malice was proved by clear and convincing evidence.” This statement, touching, as it does, on our historic allocation of functions between judge and jury, seems to me to raise a serious problem. Despite the court’s disclaimer of an intention to do so,2 it appears, inevitable that, by reason of the statement that the trial judge must make a preliminary determination whether the jury could find the evidence on the malice issue clear and convincing, the judge must to some degree evaluate thé weight and credibility of possibly conflicting and ambiguous evidence and draw his own inferences therefrom. I would prefer a statement to the effect that, in so far as malice is concerned, a case must go to the jury if there is any evidence from which malice could be *878inferred, and that it is for the jury alone to determine whether that evidence is clear and convincing. It is true that some Federal courts have adopted or advocated a practice in defamation cases being tried to juries of having judges grant directed verdicts in the face of conflicting or ambiguous evidence on the malice issue if personally unconvinced that the defendant in fact acted maliciously. I regard such a practice as improvident and would proscribe it in our courts unless the United States Supreme Court were unequivocally to require it as matter of Federal constitutional law. I do not believe that the Supreme Court has imposed such a requirement.
Perhaps the clearest statement of the practice I would not follow is contained in the concurring opinion of Circuit Judge Wright3 in Wasserman v. Time, Inc. 424 F. 2d 920, 922-923 (D. C. Cir. 1970), cert. den. 398 U. S. 940 (1970), setting out “what I conceive to be the proper procedure in handling the issue of actual malice .... In my judgment New York Times Co. v. Sullivan makes actual malice a constitutional issue to be decided in the first instance by the trial judge applying the Times test of actual knowledge or reckless disregard of the truth. . . . Unless the court finds, on the basis of pretrial affidavits, depositions or other documentary evidence, that the plaintiff can prove actual malice in the Times sense, it should grant summary judgment for the defendant. ... If the case survives the defendant’s summary judgment motion, the trial court at the close of the plaintiff’s case must decide whether actual malice has been shown with ‘convincing clarity.’ In making this judgment the court will judge the credibility of the witnesses and draw its own inferences from the evidence. *879If the trial is permitted to proceed, the court will be called upon again to make a judgment on the actual malice issue at the close of all of the evidence. If the motion for a directed verdict at this stage of the trial is denied, the actual malice issue, along with the other issues, is then submitted to the jury under the Times instruction without any indication from the court or counsel that the court has decided that the evidence shows actual malice with ‘convincing clarity.’ This two-step procedure in which both the trial judge and the jury must find actual malice before there can be judgment for the plaintiff provides the protection of the First Amendment freedom that Times sought to make secure in areas of public concern” (emphasis supplied). Circuit Judge Wright’s views were quoted with apparent approval by another Federal Court of Appeals in Bon Air Hotel, Inc. v. Time, Inc. 426 F. 2d 858, 864-865 (5th Cir. 1970).
This notion that the trial judge in a jury case, when ruling on a motion for a directed verdict, should “judge the credibility of the witnesses and draw . . . [his] own inferences from the evidence” is wholly foreign to our law. In upholding a denial of a motion for a directed verdict, we have said: “In deciding the correctness of this ruling upon the motion we need only consider evidence favorable to the plaintiff from whatever source it came, including evidence more favorable to her than that given by herself. If upon any reasonable view of the evidence there is found any combination of circumstances from which a rational inference may be drawn in favor of the plaintiff, then there was no error in the denial of the motion, even if there may be other and different circumstances disclosed in the evidence which, if accepted as true by the jury, would support a conclusion adverse to the plaintiff. The question presented by the motion was not the weight of the evidence but whether there was any evidence viewed in the light most favorable to the plaintiff that would support her cause of *880action.” Howes v. Kelman, 326 Mass. 696, 696-697 (1951). Identical or similar statements of the law are so numerous as to render any attempt at exhaustive citation pointless.
In light of our law on directed verdicts, I would adopt and apply the views expressed in Guam Fedn. of Teachers, Local 1581, of the Am. Fedn. of Teachers v. Ysrael, 492 F. 2d 438, 441 (9th Cir. 1974), cert. den. 419 U. S. 872 (1974). The court therein stated that “with respect, we are not persuaded by the second phase of Judge Wright’s analysis in Wasserman which suggests that in deciding these motions, the trial court should judge the credibility of witnesses and draw its own inferences from the evidence. We think that in a libel case, as in other cases, the party against whom a motion for summary judgment, a motion for a directed verdict, or a motion for a judgment notwithstanding the verdict is made is entitled to have the evidence viewed in the light most favorable to him and to all inferences that can properly be drawn in his favor by the trier of fact. We think, too, that in such cases it is not only not the duty of the judge, or of this court of appeal, to weigh the credibility of the evidence, or to draw inferences in favor of the moving party (except, of course, when no contrary inference can legitimately be drawn), but that neither the judge nor this court on appeal has the authority to weigh credibility or to choose among legitimate inferences in such cases. The standard against which the evidence must be examined is that of New York Times and its progeny. But the manner in which the evidence is to be examined in the light of that standard is the same as in all other cases in which it is claimed that a case should not go to the jury. If the evidence, so considered, measures up to the New York Times standard, the case is one for the jury, and it is error to grant a directed verdict, as the trial judge did in this case.”
Although the court focuses on the trial judge’s duty in considering a motion for a directed verdict, it would seem that the same duty would inhere, if at all, in considering a motion for judgment notwithstanding the verdict or a motion, perhaps accompanied by affidavits, for summary judgment. See Mass. R. Civ. P. 50 (a), 50 (b), and 56 (b), 365 Mass. 814, 824 (1974).
See fn. 11 of the court’s opinion, ante, 870.
The main opinion in the Wasserman case was per curiam. Since only three judges sat on the panel, and since one of them, Circuit Judge Robinson, joined Circuit Judge Wright’s concurring opinion, I suppose the concurring opinion states the law in the District of Columbia Circuit.