(dissenting). In affirming the judgments in this case the court reaffirms and applies the holding *589in Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 851, 870 (1975), to the effect that “a plaintiff who is a public officer or a public figure may in such an action recover only on proof of ‘actual malice’ (wilful or reckless disregard of the truth in the publishing of the libel),” and that “as, matter of constitutional law,” a “plaintiff is required to prove actual malice... not merely by the fair preponderance of the evidence, but by ‘clear and convincing proof.’ ”
If, indeed, the United States Supreme Court has mandated that the proof of malice in such a case must be by “clear and convincing proof,” then I would agree that the trial judge made a commendable effort “to describe the elusive intermediate level of burden of persuasion in terms which the jury could understand,” as stated by the court in today’s opinion. At 587.
However, for the reasons stated in my separate opinion in Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 872 (1975), I do not agree that the United States Supreme Court has constitutionally mandated that the plaintiff prove malice in such a case by anything more than a fair preponderance of the evidence. In any event that court has not mandated that such proof be by “clear and convincing” evidence. Further, I do not agree that a requirement for proof of a fact by “clear and convincing” evidence is capable of being explained by a trial judge to a jury in any manner which enables the jury to figuratively calibrate and weigh the evidence as if it were a tangible object being measured and weighed by precision instruments, for the purpose of determining whether it satisfies that “elusive intermediate level of burden of persuasion” at some indefinite level between proof by a fair preponderance of the evidence and proof beyond a reasonable doubt. I would not impose on the plaintiff a burden of proof which is so difficult to articulate, even by an appellate court of last resort, and therefore even more difficult to be understood or applied by a jury. Because of what I believe was an error in instructions, I would reverse for a new trial.