dissenting.
The First Amendment is first, not because it has primacy over other amendments, but because freedom of speech is the sort of subject that would come up first in any discussion about what it means to live in a free society. The law of defamation has enjoyed an historical exception to the freedom guaranteed by the First Amendment, but it yields to the First Amendment when their interests diverge.
This is a case about a reporter interested in uncovering a potential public scandal. Like a local Pulitzer Prize winning cartoonist, the reporter does not aim to please, but just aims. The court believes that his aim this time crossed the line from protected speech to actionable defamation. Because I disagree, I dissent.
The court ultimately concludes that a jury could find liability based on the false statement that Lewis Currier’s signature was on an agreement to lease town property for $1 per year, and, therefore, the trial court erred in granting summary judgment. I disagree for two separate but related reasons.
1. Substantial Truth
The court bases its decision upon the following statement:
His signature is on the agreement between Jerome and the authority earmarking town land to be leased for 10 years at $1 per year for the authority’s office.
In this, the reporter erred. His signature was not on an agreement but on a letter to the town attorney instructing him to draw up an equipment lease between his wife’s business and the town. The terms of that lease were 10 years at $1 per year. Exhibit 25, appendix to petition for review. Thus, a literally accurate statement would have been as follows:
His signature is on the letter instructing the town attorney to draw up an agreement between Jerome and the authority for the use of equipment for 10 years at $1 per year.
The way in which the statement and the truth diverge is irrelevant to that which the reporter was communicating. That the agreement related to equipment rather than a leasehold was a distinction without a difference. And, as a matter of law, it does not matter whether the principal signed the document or instructed his agent to prepare it. If he was disqualified from signing it, he surely was disqualified from participating at all. He should have disqualified himself from any involvement and had someone else, the vice mayor perhaps, make decisions and instruct the lawyer to draw up an agreement. The reporter was communicating that the chief executive officer of the town had entered into a sweetheart deal between the town and his wife’s business for a certain term at a certain price.
Under the Restatement (Second) of Torts § 581(A) cmt. f (1977), “[i]t is not necessary to establish the literal truth of the precise statement made. Slight inaccuracies of expression are immaterial provided that the defamatory charge is true in substance.”
*296I believe that the slight inaccuracy identified is quite immaterial to that which the reporter sought to communicate, and that the defamatory charge here is true in substance. The substance of the charge was nepotism and inside dealing, not leaseholds versus equipment. For this reason alone, summary judgment was appropriately granted.
2. The Clear and Convincing Evidence Standard
Because it is undisputed that the Curri-ers were public figures, they must prove actual malice by clear and convincing evidence. In addition, because of the heightened standard, the judge in granting or denying summary judgment must use that heightened standard in evaluating the evidence. The court concedes that under Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 724 P.2d 562 (1986), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the question is whether any reasonable jury could find that the plaintiff has shown actual malice by clear and convincing evidence. Or, as we recently stated in Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990), the judge should grant summary judgment if on the state of the record he would have to grant a motion for directed verdict at the trial.
As stated in section one above, I am of the view that the alleged defamatory material was substantially true. That would have ended the inquiry. But suppose one believes, as does the majority here, that the substantial truth test has not been met? What is left of this case? Could any reasonable jury find by clear and convincing evidence that the defendant published with knowledge of falsity or reckless disregard of the truth because the agreement was for equipment rather than a leasehold? Does it matter? No judge would let such a case go to the jury. It is not likely that such a case would go to the jury even under the preponderance of the evidence standard. But, where, as here, in deciding whether the quantum of evidence is clear and convincing, the court must evaluate and weigh that evidence, “at least to some minimal extent,” Orme School, id. at 308, 802 P.2d at 1007, it is hard to imagine a judge concluding that the heightened standard has been met on summary judgment. This is not a more probable than not standard. This is a “highly probable” standard. State v. King, 158 Ariz. 419, 422, 763 P.2d 239, 242 (1988). Under these circumstances, I am of the view that the relationship between the minimal divergence between the truth and the statement and the heightened standard of proof in libel cases requires that summary judgment be entered against the plaintiff. The trial judge thought so. Three members of the court of appeals thought so. I think so. For all these reasons, I dissent.