concurring specially.
I agree that the order of the district court granting summary judgment to the appellees in this case must be reversed. I am satisfied that the order of the district court refusing to disqualify members of the Spence firm from representing Spence should be affirmed. I cannot, however, join the rationale for reversal represented by the holding that Spence is not a “public figure” merely because his role in the predicate to the allegedly defamatory publication was that of a legal advocate. That is precisely the role that results in Spence being a “public figure,” and it is clear that, both in the trial court and in his argument to this court, Spence stipulated and conceded that he is, indeed, a “public figure.”
Even so, there exists ample justification to reverse the summary judgment entered by the trial court. The philosophical question posed in this case is whether the First Amendment to the Constitution of the United States constitutes a universal smile sufficient to ward off the Virginian’s unhol-stered pistol.1 In this instance, the legal *780issue tracks the philosophical question, and there is nothing in the record to indicate that Hustler was “smiling.” Is one entitled, as a matter of law, to impugn another with whatever lewd, obscene, and profane vilification, revilement, defilement, or slur one chooses by virtue of the right of free speech embraced by the First Amendment to the Constitution of the United States and Article 1, Section 20 of the Constitution of the State of Wyoming? The district court answered “Yes” to that question by granting the motion for summary judgment presented on behalf of the appellees. Our answer appropriately can be “No.”
Words, such as those published in this case, indeed “are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942) (emphasis added). The implication of the Chap-linsky holding is that the full range of constitutional protection does not extend to such expressions as this record discloses. Whether, however, a defense to the claims of defamation or intentional infliction of emotional distress can be premised upon the right to publish an opinion depends, in an instance such as this, upon a determination that the statement is one of opinion rather than one of fact, just as the decision in Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988), depended upon whether, in fact, the statement was parody rather than fact. The issue is one that appropriately should be resolved by a jury, and thus summary judgment is not appropriate.
I add only the suggestion that in an instance such as this, in which the only *781purpose of the published language is to inflict injury or offer insult, true malice is present. Concededly, this is not the technical sort of actual malice that is described as actual knowledge of falsehood or reckless disregard of the truth in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), but that definition relates to what purport to be statements of fact. When the claim that the statement is an expression of opinion is injected, that technical definition of “actual malice” may no longer pertain, and the traditional definition of malice, i.e., the intention or desire to harm another, may be invoked. If the latter definition is applicable, there should be no necessity to determine whether the object of the published comment is a public figure. There is no newsworthy value of such expressions of opinion.
. In The Virginian, his classic novel about the American cowboy and life in the West, Owen Wister incorporates this marvelous vignette:
" * * * Through folding doors I passed from the bar proper with its bottles and elk head back to the hall with its various tables. I saw a man sliding cards from a case, and across the table from him another man laying counters down. Near by was a second dealer pulling cards from the bottom of a pack, and opposite him a solemn old rustic piling and *780changing coins upon the cards which lay already exposed.
"But now I heard a voice that drew my eyes to the far corner of the room.
'"Why didn't you stay in Arizona?’
“Harmless looking words as I write them down here. Yet at the sound of them I noticed the eyes of the others directed to that corner. What answer was given to them I did not hear, nor did I see who spoke. Then came another remark.
'"Well, Arizona’s no place for amatares.’
“This time the two card dealers that I stood near began to give a part of their attention to the group that sat in the corner. There was in me a desire to leave this room. So far my hours at Medicine Bow had seemed to glide beneath a sunshine of merriment, of easygoing jocularity. This was suddenly gone, like the wind changing to north in the middle of a warm day. But I stayed, being ashamed to go.
"Five or six players sat over in the corner at a round table where counters were piled. Their eyes were close upon their cards, and one seemed to be dealing a card at a time to each, with pauses and betting between. Steve was there and the Virginian; the others were new faces.
"‘No place for amatares,’ repeated the voice; and now I saw that it was the dealer’s. There was in his countenance the same ugliness that his words conveyed.
" “Who’s that talkin’?’ said one of the men near me, in a low voice.
" ‘Trampas.’
‘"What’s he?’
"‘Cow-puncher, bronco-buster, tin-horn, most anything.’
‘"Who’s he talkin’ at?’
" 'Think it's the black-headed guy he’s talking at.'
" 'That ain't supposed to be safe, is it?’
"‘Guess we’re all goin’ to find out in a few minutes.'
" ‘Been trouble between ’em?’
“ ‘They’ve not met before. Trampas don’t enjoy losin’ to a stranger.’
“‘Fello’s from Arizona, yu’ say?’
“ ‘No. Virginia. He’s recently back from ha-vin' a look at Arizona. Went down there last year for a change. Works for the Sunk Creek outfit.’ And then the dealer lowered his voice still further and said something in the other man’s ear, causing him to grin. After which both of them looked at me.
“There had been silence over in the corner; but now the man Trampas spoke again.
“‘And ten,’ said he, sliding out some chips from before him. Very strange it was to hear him, how he contrived to make those words a personal taunt. The Virginian was looking at his cards. He might have been deaf.
“ 'And twenty,’ said the next player, easily. "The next threw his cards down.
"It was now the Virginian’s turn to bet, or leave the game, and he did not speak at once.
"Therefore, Trampas spoke. “Your bet, you son-of-a-.'
"The Virginian's pistol came out, and his hand lay on the table, holding it unaimed. And with a voice as gentle as ever, the voice that sounded almost like a caress, but drawling a very little more than usual, so that there was almost a space between each word, he issued his orders to the man Trampas:—
‘"When you call me that, smile!’” Wister, The Virginian (1902) (emphasis in original).