(dissenting).
I respectfully dissent. I would affirm the district court.
Although I question the majority’s conclusion that plaintiff was not a limited public figure,1 I would rest affirmance on other grounds. I believe that defendants are not liable for two independent reasons: (1) their article was protected by the common law privilege to publish a fair report of an official public record, and (2) they did not act with the degree of fault required for liability to be imposed.
Both the fair-report privilege and the requirement of fault derive from constitutional principles and public policy of the utmost importance to a free society. A wooden application of these legal rules can significantly diminish the protection they provide to a vigilant press. Because I believe that the majority opinion imposes an excessive burden on the news media, I respectfully dissent.
A. THE FAIR-REPORT PRIVILEGE
As this court recently stated, “The essence of the fair report privilege is that no liability will attach for the republication of * * * defamatory statements so long as the republication is a fair and accurate report of an official or public proceeding.” Stover v. Journal Publishing Co., 105 N.M. 291, 294, 731 P.2d 1335, 1338 (Ct.App.1985), cert. denied, 484 U.S. 897, 108 S.Ct. 230, 98 L.Ed.2d 189 (1987). We adopted the formulation of the Restatement (Second) of Torts Section 611 (1977), that an article concerning an official action or proceeding is privileged if the article “is accurate and complete or a fair abridgement of the occurrence reported.” The majority agrees that articles based on official reports of arrests may come within the privilege. See Mathis v. Philadelphia Newspapers, Inc., 455 F.Supp. 406 (E.D.Pa.1978); Steer v. Lexleon, Inc., 58 Md.App. 199, 472 A.2d 1021 (1984); Biermann v. Pulitzer Publishing Co., 627 S.W.2d 87 (Mo.App.1981); Restatement, supra, § 611 comment h. Cf. Short v. News-Journal Co., 58 Del. 107, 205 A.2d 6, aff'd, 58 Del. 592, 212 A.2d 718 (1965) (IRS report of assets seized).
1. Constitutional and Public Policy Underpinnings
According to some commentators, the Constitution mandates the fair-report privilege. See Hill, Defamation and Privacy Under the First Amendment, 76 Colum.L. Rev. 1205, 1219-20 (1976); Restatement, supra, § 611 comment b (“If the report of a public official proceeding is accurate or a fair abridgment, an action cannot constitutionally be maintained, either for defamation or for invasion of the right of privacy.”). See generally Medico v. Time, Inc., 643 F.2d 134, 143-46 (3d Cir.1981) (discussing, without adopting, view that there is a constitutional fair-report privilege). Although the United States Supreme Court has not reached the question of whether the Constitution requires adoption of the privilege in its totality, it has adopted the core of the privilege, using language that recognizes the values supporting the privilege as a whole. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), the Court held that the first and fourteenth amendments to the Constitution prohibit imposition of liability upon a television station for accurately reporting a statement in an official public record. The parents of a deceased rape victim sued for invasion of privacy when the victim’s name was reported by the station. The Court wrote: “At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records.” Id. at 496, 95 S.Ct. at 1047. In explaining this result, the Court wrote:
[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally * * * * * * * The commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions ... are without question events of legitimate concern to the public and consequently fall within the responsibility of the press to report the operations of government.
Id. at 491-92, 95 S.Ct. at 1044-45. See The Florida Star v. B.J.F., — U.S. -, 109 S.Ct. 2603, 2612, 105 L.Ed.2d 443, 458-59 (1989) (reproduction of police news release that named plaintiff as rape victim is constitutionally protected, despite state statute barring media publication of names of victims of sexual offenses).
To be sure, the information broadcast in Cox was not only an accurate report of official information, it was also true. In any case, Cox does not suggest that the Constitution protects every report, however inaccurate, regarding an official record or proceeding. The quoted passages do, however, reflect the value that our society and our Constitution place on news reports of official business, particularly the business of law enforcement.
Three important components of the common law privilege are corollaries to the propositions stated in Cox. First, because of the public’s need to evaluate the administration of government, reporting official government statements is important even when the government is wrong. This corollary is one of the reasons justifying the rule that “[t]he fact that statements made in the proceedings were false will not upset the privilege, not even when the reporter knew that the statements were false and reported them anyway.” Stover v. Journal Publishing Co., 105 N.M. at 294, 731 P.2d at 1338. Accord Restatement, supra, § 611 comment a.
Second, for the press to assist the public in evaluating government action, it must enjoy a privilege to supplement its report of an official proceeding or record with accurate background information. See El Greco Leather Prods. Co. v. Shoe World, Inc., 623 F.Supp. 1038, 1043 (E.D.N.Y.1985) (addition of background material did not remove article from protection of statutory fair-report privilege), aff'd on other grounds, 806 F.2d 392 (2d Cir.1986). Certainly it is in the public interest for the press to scrutinize who it is that the police are arresting. “Where there is no such scrutiny — as is true in some totalitarian countries — individuals sometimes disappear without a trace and without public knowledge or accountability.” Bell v. Associated Press, 584 F.Supp. 128, 130 (D.C.Cir.1984). Under the common law, a conditional privilege is abused by publishing additional defamatory matter only if the additional defamatory matter is unprivileged. Restatement, supra, § 605A. True statements are privileged, id. at Section 581A, so they can always be added without jeopardizing a conditional privilege. Although the fair-report privilege is not generally considered a conditional privilege, see id. at Section 599 comments a and c, the same rule should apply with respect to supplementing a fair report with truthful matter. Cf id., § 611 comment a (fair-report privilege is broader in scope than the conditional privileges).
Third, the privilege should not be limited to verbatim reproductions of a public proceeding or record. Cox spoke of the role of the press to present the facts of government operations “in convenient form.” 420 U.S. at 491, 95 S.Ct. at 1044. The press must be permitted to abridge the record and to convey the record with literary style that can capture the reader’s attention. So long as the press preserves the gist or “sting” of the official record, the privilege should apply. Because the concept of the “sting” of an official record is central to my disagreement with the majority, I discuss it at some length.
2. Sting
As already noted, Stover adopted the Restatement view that the fair-report privilege applies if a news article “is accurate and complete or a fair abridgement of the occurrence reported.” Restatement, supra, § 611. “It is not necessary that [the article] be exact in every immaterial detail or that it conform to that precision demanded in technical or scientific reporting.” Id. at comment f. The privilege fails only if the article “convey[s] an erroneous impression.” Id. A shorthand expression for this doctrine is that the privilege applies if the article preserves the “sting” of the official record. See Ricci v. Venture Magazine, Inc., 574 F.Supp. 1563, 1570 (D.Mass.1983); Haynik v. Zimlich, 30 Ohio Misc.2d 16, 21, 508 N.E.2d 195, 200 (Ohio Com.Pl.1986).
A few examples of errors or omissions that did not defeat the fair-report privilege may be instructive. In Crittendon v. Combined Communications Corp., 714 P.2d 1026 (Okla.1985), a television station reported on a malpractice trial in which a gynecologist was accused of performing an unnecessary hysterectomy. The station reported that the plaintiff contended that the removed uterus was “perfectly healthy,” whereas plaintiff’s expert witness admitted that the uterus actually had a minor cervical irritation. But the expert testified that the abnormality occurs in over ninety percent of women and that nothing in the pathologist’s report justified a hysterectomy. The court stated that the sting of the broadcast was accurate. In Dudley v. Farmers Branch Daily Times, 550 S.W.2d 99 (Tex.Civ.App.1977), the privilege protected an article reporting that plaintiff had been charged with the theft of property worth $168,000, when the official record showed that the charge was only for theft of property worth more than $50 and plaintiff claimed that the property was worth less than $7,000. An accurate report would have had the same sting.
Two other cases illustrate the protection of the privilege despite omission of “exculpatory” matter. The plaintiff in Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (1963) was stopped by New York State Police during the famous Apalachin meeting of alleged organized crime figures. The plaintiff complained about a news story taken from an official state report of the meeting. The story omitted information in the report, such as (1) plaintiff’s having been released by the state police without charges being filed and (2) his birth date. (The birth date would have revealed that he was too young to have been the person convicted of a rape attributed to him in both the official report and the news story.) Yet the court held that the summary was fair and substantially correct. In Ricci v. Venture Magazine, Inc., the defendant published an article stating that the plaintiff had threatened a witness at a trial; the article did not report that the plaintiff’s attorney had objected at trial to the characterization of the plaintiff’s gesture as a threat and had disputed the accusation. Judge Robert Keeton, a noted authority on tort law, held that the article need not contain such contrary assertions. He explained:
[T]he requirement of fairness and accuracy extends only to matter relevant to a claimed defamatory sting — that is, to matter bearing upon whether the communication is reasonably susceptible of interpretation in a derogatory sense____
******
* * * [A] “fair and accurate” report need be neither exhaustive in detail nor perfectly precise in language____ Media reports [of trials] may permissibly focus on the more dramatic occurrences, to the exclusion of the less interesting.
Id. at 1567. The test is whether an ordinary reader could reasonably draw a more derogatory conclusion from the abridgement than could reasonably be drawn from the complete report:
[A]pplying a common sense standard of expected lay interpretation of the report, I conclude that it could not be found that the abridgement was an unfair one * * * * The critical question is whether a report of a trial occurrence can reasonably be interpreted as describing the occurrence in a way that conveys a materially greater defamatory sting than would be conveyed by a technically correct and less abridged report. If not, the report has not offended the fairness requirement. A full report of all the details of this incident, including the two eyewitness reports, the claims that the gesture was a threat, and the judge’s decision to sever, as well as Ricci’s attorney’s version, would be no less susceptible of being read as conveying a sting derogatory to plaintiff than was the abridged report actually made.
Id. at 1568.
3. The Fair-Report Privilege Protects Defendants in This Case
Whether an allegedly libelous statement is privileged is a question of law for the court to determine. See Marchiondo v. Brown, 98 N.M. 394, 400, 649 P.2d 462, 468 (1982). Applying the principles discussed above to the facts of this case, I would find the article in question to be privileged as a matter of law. Comparison of the article with the arrest record reveals that the article was in substance nothing more than a combination of (1) an abridgement of the official arrest report, and (2) accurate information concerning plaintiff. Because the abridgement preserved the sting of the arrest report, the article is protected by the fair-report privilege.
The arrest record states that the arrestee was James M. Furgason, residing at 1407 Rockwood, Alamogordo, New Mexico, and born on June 4, 1945. Assume that the arrest record contained no further description of the arrestee. Then the article unquestionably would be privileged. The portion of the article on which plaintiff bases his claim is as follows:
A prominent local bar owner who serves on the Mayor’s Committee for Driving While Intoxicated and Alcoholism was arrested Thursday night for abuse of chemical substance and negligent use of a deadly weapon.
JameS M. Furgason, 41, 1407 Rock-wood, who owns the popular bar and package store, Furgi’s, 817 Scenic Dr., was arrested at 9:45 p.m. Thursday night after allegedly being observed sniffing paint.
A second version of the same two paragraphs might read:
Official police records report that a James M. Furgason, born June 4, 1945, of 1407 Rockwood, was arrested Thursday night for abuse of chemical substance and negligent use of a deadly weapon. He was arrested after allegedly being observed sniffing paint.
James M. Furgason, 41, of 1407 Rock-wood owns the popular bar and package store, Furgi’s, and serves on the Mayor’s Committee for Driving While Intoxicated and Alcoholism.
Everything in the second version is either an accurate and complete report of the hypothesized arrest record (at least with respect to the identity of the arrestee) or is unchallenged as being true. No one could doubt its being privileged. Juxtaposing a complete report of an official record and true information cannot subject a journalist to liability. Yet if the second version is privileged, so must be the published paragraphs. Although in retrospect one can see differences between the two paragraphs from the published article and the second version, the differences would escape the ordinary reader. The sting of the two versions is identical. Nor does adding the headline, “Bar owner accused of sniffing paint,” change the sting. The chief difference between the two versions is that the one appearing in the newspaper is better written. That should not be the source of liability. Cf. Read v. News-Journal Co., 474 A.2d 119, 121 (Del.1984) (“An action for defamation cannot be premised solely on defendant’s style or utilization of vivid words in reporting a judicial proceeding.”) If we require news articles to be written with meticulous precision, the resulting soporific style would hinder the dissemination of information to the public more than if New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) were overruled. In particular, I would not require the lead paragraph to say that the information comes from an official police report. Not only does the third paragraph of the story explicitly state, “According to the report by Department of Public Safety Officer Greg Cavelli,” but also the reader would naturally infer that the source of the information was the police, rather than personal observation by the reporter. See Medico v. Time, Inc., 643 F.2d at 139 n. 17; Ricci v. Venture Magazine, Inc., 574 F.Supp. at 1570; Foley v. Lowell Sun Publishing Co., 25 Mass.App.Ct. 416, 519 N.E.2d 601 (1988), aff'd, 404 Mass. 9, 533 N.E.2d 196 (1989).
The difficulty in this case, however, is that the public records available to defendant Clausen when he wrote the article included more than the name, address, and date of birth of the arrested person. The arrest record stated that the arrestee was unemployed, thirty-two years old, six feet six inches tall, one hundred sixty-five pounds in weight, with brown hair, blue eyes and a fair complexion. It listed among the property on the arrestee a brown wallet and thirty-four cents in change. In addition, that same morning the Public Safety Department gave Clausen, apparently coincidentally, a Crime Stopper news release reporting a burglary a month earlier at Furgason’s home. Reported stolen in the burglary were, among other items, a revolver and a wallet. The article omitted this information; it “abridged” the public record. An astute observer who knew of the omitted information might have surmized that the arrestee was not the prominent bar owner, but was the individual who stole the bar owner’s wallet and drivers’ license. Thus, one could claim that the abridgement was unfair because it omitted “exculpatory” information that might have directed suspicion away from plaintiff.
Nevertheless, the fair-report privilege protects defendants. The article was a fair abridgement of the official record because it conveyed the sting of the police report. The sting of the official arrest report in this case was that “James M. Furgason” was arrested for sniffing paint and other crimes. That sting is not altered by the inclusion of other information in the arrest record. On the contrary, the information describing the arrested person confirms more than it undermines his identification as plaintiff. The identifying information that was most precise — and presumably most reliable — pointed to plaintiff: the full name (with the unusual spelling of the last name), home address, birth date and social security number were all those of plaintiff. Although there were some discrepancies (such as an incorrect age and employment status), these could be explained as a consequence of the arrested person’s intoxication, his desire to avoid — or at least delay — publicity injuring his business, or error by the arresting officer. In any event, an article can be privileged without including every detail from the official report that might lead a reader to question the sting. See Ricci v. Venture Magazine, Inc. What is important is that inclusion in the article of a verbatim copy of the arrest record would not materially change what the ordinary reader would conclude from the article. See Biermann v. Pulitzer Publishing Co. (privilege applies to report of arrest, even though some official documents might cast doubt on identity of plaintiff as the person arrested).
My view is not affected by the existence of the Crime Stopper news release. That release and the arrest report are sufficiently distinct that reference to the release was not required in the article concerning the public record of the arrest. To be protected by the fair-report privilege in reporting on an official action, a publisher should not have to include a fair abridgement of every related occurrence. Imposition of such a requirement would inevitably burden the free flow of important information to the public. Moreover, even if it were necessary to measure the published article against both the arrest report and the Crime Stopper release, a “full report * * * would be no less susceptible of being read as conveying a sting derogatory to plaintiff than was the abridged report actually made.” Ricci v. Venture Magazine, Inc., 574 F.Supp. at 1568. A “full report” would still imply that plaintiff was the person arrested.
If I am correct in my characterization of the sting of the arrest record, then the entire article must be privileged. Everything in the article not taken from the arrest record was accurate information about James M. Furgason, 41, of 1407 Rockwood or was otherwise unchallenged in this lawsuit. As already stated, adding truthful information to a fair summary of an official report should not subject the publisher to liability. News media frequently provide the useful service of putting official statements or proceedings in context. Background information on a person who is the subject of an official accusation is generally newsworthy. The fair-report privilege should not be construed so as to discourage the reporting of such information.
B. FAULT OF DEFENDANTS
1. Constitutional Basis of the Fault Requirement
Defendants are not liable also because they acted without the required fault in publishing the article. In New Mexico the plaintiff must prove negligence to recover for defamation. Marchiondo v. Brown, 98 N.M. at 402, 649 P.2d at 470. The negligence standard follows from the constitutional requirement of fault. See id.; The Florida Star v. B.J.F., — U.S. at -, 109 S.Ct. at 2612, 105 L.Ed.2d at 459 (liability for defamation of private figures is evaluated under a standard of “ordinary negligence”). The United States Supreme Court explained the rationale behind that requirement in Gertz v. Robert Welch, Inc., 418 U.S. 323, 340-41, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974):
Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate * * * * [P]unishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties. As the Court stated in New York Times Co. v. Sullivan, supra, [376 U.S.] at 279: [84 S.Ct. at 710] “Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.” The First Amendment .requires that we protect some falsehood in order to protect speech that matters.
2. The Need for Judicial Scrutiny of the Standard of Care Applied by the Trier of Fact
Because the purpose of the fault requirement is to minimize undesirable self-censorship, courts must closely scrutinize claims of negligence to prevent triers of fact from setting standards that could excessively chill press coverage. Negligence is an imprecise concept. An instruction to the jury on the meaning of negligence in a defamation case can probably achieve no greater precision than such an instruction in any other tort case. See SCRA 1986, Civ.UJI 13-1009 (uniform jury instruction for defamation, which adopts traditional language used to define negligence in ordinary tort context). Such imprecision ordinarily does not pose a significant problem. In the usual tort case no public policy is violated by giving the jury wide rein to determine what constitutes ordinary care for a reasonably prudent person. The requirement of negligence in defamation cases, however, has the purpose of advancing the first amendment interest in promoting the flow of information and ideas. We cannot expect juries to weigh first amendment principles adequately when determining the standard of care. Even specific jury instructions on the importance of the first amendment would surely be insufficient for the task. Indeed, perhaps the chief function of the first amendment is to protect against attitudes toward speech which are likely to be reflected by a jury. “[W]here first amendment rights are at stake, * * * jury flexibility is dangerous inasmuch as jurors are likely to represent majoritarian attitudes toward unpopular speakers and ideas.” L. Tribe, American Constitutional Law § 12-13, at 882 (2d ed.1988). Therefore, in defamation litigation the judiciary must shoulder responsibility for the protection of first amendment values. This responsibility includes careful appellate review of findings of fault in defamation cases, even after non-jury trials. Appellate courts should conduct “an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited.” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 505, 104 S.Ct. 1949, 1962, 80 L.Ed.2d 502 (1984) (reversing trial court’s finding of actual malice). Accord Harte-Hanks Communications, Inc. v. Connaughton, — U.S. -, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (affirming jury’s verdict of actual malice). See Restatement, § 580B comment k (advocating appellate review of finding of negligence in defamation cases). Cf. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. at 518 n. 2, 104 S.Ct. at 1969 n. 2 (Rehnquist, J., dissenting) (factual review is more justified when finding was by jury).
Judicial oversight is not necessary solely to set minimum requirements for the standard of fault. Uncertainty as to the legal standard can itself cause undesirable self-censorship. See Harte-Hanks Communications, Inc. v. Connaughton, — U.S. at -, 109 S.Ct. at 2695, 105 L.Ed.2d at 588. By reviewing facts carefully and articulating why a defamation defendant has satisfied or failed to satisfy the requirements of the law, courts encourage adherence to sound reporting practices and minimize inappropriate self-censorship. See Robertson, Defamation and the First Amendment: In Praise of Gertz v. Robert Welch, Inc., 54 Tex.L.Rev. 199, 256-57 (1976). In the words of Professor Tribe, “[T]he first amendment should be understood to require the states to develop bodies of law markedly clearer and more coherent than is customary in the common law of negligence.” L. Tribe, supra, at 882-83 (footnote omitted).
Moreover, even when a jury ultimately vindicates the defendant in a defamation case, the burden of the litigation itself may have a substantial deleterious impact. Fear of the costs of trial, despite the probability of ultimate success, may deter publication of an important news item. See Anderson, Libel and Press Self-Censorship, 53 Tex.L.Rev. 422, 435-36 (1975). Summary judgment, therefore, serves an essential function in protecting first amendment interests. In defamation cases “courts cannot justifiably resolve all doubts against use of summary procedures because the important interests are not all on the side of preserving jury trial.” Id. at 469.
3. The Meaning of Fault in the Context of This Case
Leading authorities have articulated the meaning of negligence in the defamation context as publishing an article “with negligent disregard for the truth,” Ricci v. Venture Magazine, Inc., 574 F.Supp. at 1571, or “with lack of reasonable grounds to believe in its truth.” Restatement, supra, § 580B comment 1, at 230-31. Accord W. Keeton, Defamation and Freedom of the Press, 54 Tex.L.Rev. 1221, 1227-28 (1976). The fault of defendants in this case could be viewed as arising in one of two ways: First, defendants may have been negligent in omitting from the article certain items that might have cast doubt on plaintiffs identity as the arrestee. See Restatement, supra, § 611 comment b. Second, defendants may have been negligent simply for believing that plaintiff was the person who had been arrested.
With respect to the first theory of liability, Judge Keeton has concluded that the fault must be more than merely the omission of evidence from which a reasonable person might draw an inference contrary to that appearing in the article. He wrote:
It may be argued that Supreme Court decisions recognizing the constitutional requirement of fault with respect to accuracy of a derogatory statement of fact necessarily so modify earlier precedents regarding reports of public proceedings as to compel summary judgment for media defendants as to any challenge for incompleteness of a report in failing to disclose contentions or evidence contradictory to that correctly reported. I do not conclude that such an invariable rule is implicit in the constitutional requirement of fault. Nevertheless, it is clear that merely showing contradictory evidence upon which reasonable persons might come to different findings is insufficient to show that defendant displayed an unreasonable disregard for the accuracy or fairness of the report.
Ricci v. Venture Magazine, Inc., 574 F.Supp. at 1571.
The second theory — that defendants were negligent in concluding that the arrested person was plaintiff — raises the question of how far a reporter must go in second-guessing an official arrest record. The above formulations of the meaning of negligence suggest that a publisher of a defamatory statement is not negligent if he has checked out the statement sufficiently to have a reasonable basis for believing it. Thus, liability would not result from failing to make an inquiry that might be reasonable if one wanted to “nail down” the statement, so long as the information already available makes belief in the statement reasonable. A situation similar to the one before us arose in Bell v. Associated Press. Police officers arrested an imposter claiming to be a football star; defendant reported that the athlete had been arrested. The court denied liability, explaining:
If the Associated Press were to be held liable, * * * it would have to be on the theory that, even with respect to what appeared to be a public figure involved in an official proceeding, it had a duty not to report on the proceeding as it was reflected in the official police and court records without first conducting a painstaking investigation into the accuracy of the official reports and the identity of the person charged. Such a rule would have the consequence of delaying significantly the publication of news concerning public figures who are charged with criminal offenses, or of halting the publication of such reports altogether. Because such consequences are inconsistent with the values embodied in the First Amendment, the law does not impose such burdens on the press. [Footnote omitted.]
Id. at 132. See Wilson v. Capital City Press, 315 So.2d 393 (La.Ct.App.3d Cir. 1975) (no negligence in relying on police press release of arrest); Horvath v. Ashtabula Telegraph, 8 Med.L.Rptr. 1657, 1982 WL 5841 (Ohio App.1982) (no negligence in identifying person arrested; no duty to interview the accused person); B. Sanford, Libel and Privacy: The Prevention and Defense of Litigation § 8.4.3.3 (1985) (discusses whether it is negligence to rely on an official source). But see Melon v. Capital City Press, 407 So.2d 85 (La.Ct.App.lst Cir. 1981). Although the court in Bell found that the plaintiff was a public figure and therefore was considering only whether the defendant acted with actual malice, the concern expressed about the functioning of the press applies equally to our case. In Alamogordo there would be greater legitimate public interest in the arrest of plaintiff than in the out-of-state arrest of a nationally prominent football player.
4. Application of the Legal Standard to the Facts in this Case
The essential facts are not in dispute. To be sure, even when the parties agree on the facts, the jury in a typical negligence case still bears responsibility for determining whether the defendant’s conduct was within the standard of care. Thus, if this were a typical negligence case, I would agree that summary judgment was improper on the issue of negligence. As explained above, however, the first amendment values at stake in a defamation action require judicial scrutiny beyond what would otherwise be appropriate. Courts must consider the. implications for first amendment interests in permitting a finding of liability and restrict jury discretion accordingly. In light of that mandate, a review of the events of the day on which the article was published convinces me that reversal would impose too burdensome a standard of care on the everyday operation of our hews media.
On the day of the article Clausen conformed to his usual morning schedule. That schedule would begin at the Daily News at about 7:30 a.m. Sometime before 8:30 a.m. he would go to the Department of Public Safety (DPS), then to the State Police office and on to City Hall to visit the municipal court, magistrate court, and other departments'. He would also stop by the funeral home to see if there were any obituaries to publish. Usually he would return to his office between 10:00 and 10:30 a.m. and prepare his stories for an 11:00 a.m. deadline. The deadline occasionally could be delayed a bit, although layout of the paper needed to be completed by noon for the press run, so that distribution of the paper could begin about 12:30 p.m.
On January 23, 1987, Clausen received from the DPS Records Office a copy of the arrest record and the officer’s handwritten report relating to James M. Furgason. He was not permitted to copy the documents, but he took notes. After reading the arrest record and the officer’s report, Clausen, in accordance with his customary practice, went upstairs to talk to detectives to see if they could add anything more with respect to the case. He spoke with Detective Ray Bailey and Captain Richard Nix. Although there are discrepancies between the accounts of Clausen and the police officers concerning their discussions that morning, they agree that they spoke about the bizarre nature of the offense (undoubtedly referring not to the conduct itself but to its being committed by a prominent bar owner). After this discussion Clausen went back to the DPS Records Office to pick up the Crime Stopper report, which had not been typed when he first arrived. The report related to the burglary of plaintiffs home three weeks earlier. Clausen then returned to Bailey’s office to ask if the gun involved in the arrest was the same one reported stolen by plaintiff. He inquired whether insurance fraud might be involved. Clausen testified that Bailey told him that he did not know if it was the same gun; Bailey testified that there was a discrepancy between the description of the gun in the arrest report and the description of the gun that had been provided by plaintiff after the burglary. Clausen noted that the Crime Stopper report mentioned that plaintiff reported a stolen wallet.
At about 9:30 a.m. Clausen left the DPS and spent five to ten minutes at the State Police office reviewing the log. From there he went to City Hall, where he asked the clerk for the list of the members of the Mayor’s Committee on Alcoholism and Driving While Intoxicated. He had recognized the name “Furgason” on the arrest record as being the name of a member of the committee. He confirmed that “Jim Furgason” of “1407 Rockwood” belonged to the committee. He then continued with his usual routine, checking with the magistrate court, other offices at City Hall, the funeral home and then municipal court. While waiting for municipal court to finish, he, as was his custom, called the newspaper to let the city editor know what stories he had picked up. Clausen testified that he planned to attend the arraignment of Furgason at 10:00 a.m.; but the arraignment was moved to 11:00 a.m. Clausen returned to his office about 10:30 a.m. Between 10:30 and 11:00 a.m., or 11:20 a.m., he wrote the Furgason story and typed in the obituaries. Shortly before 11:00 a.m, he called the magistrate court to check on the arraignment of Furgason and was informed that the arraignment would be that afternoon.
Given the requirements of Clausen’s routine and the newspaper deadline, Clausen took reasonable steps to check out his story. Besides discussing the matter with Detective Bailey, Clausen obtained from City Hall a list of the members of the mayor’s committee and checked that the Furgason on the mayor’s list had the same address as in the police report and the same work telephone number as that listed to Furgi’s in both the city directory and the telephone directory. He noticed the discrepancy between the age and birth date on the arrest record and asked a DPS Records office employee about the matter. The employee responded that it was probably just an arithmetic error (which would be a reason not to be overly concerned about the specific height and weight reported on the arrest record). At the newspaper office Clausen called DPS to confirm his recollection of the essential facts stated on the arrest record. He also checked with another member of the newspaper staff to see if the description of Furgason’s build seemed to fit. (It is not clear whether Clausen asked the staff member whether Furgason was “tall and thin” or specifically asked whether he appeared to be six feet six inches tall and 165 pounds.)
Although Clausen certainly had questions about the reported arrest, he pursued those questions with a variety of sources. The responses he received confirmed the identity of the person arrested. Nothing in the record suggests that anyone responsible for the article’s* publication maintained substantial doubts as to its truth before it was published. See Moloney v. Tribune Publishing Co., 26 Wash.App. 357, 613 P.2d 1179 (1980).
To assist in evaluating the conduct of the newspaper, it is helpful to review the thoughts and acts of the police department, particularly those of Detective Bailey. Bailey testified that he thought the person arrested was plaintiff. When asked what he talked about with Clausen in the morning, he answered:
I believe I told him I thought there was something wrong, it didn’t make sense. Like I say, it was just a casual conversation. And said it just didn’t make sense, a man of his caliber being arrested for chemical abuse. I made the statement, I believe that he only had 43$ or something on him, which didn’t make sense, either.
And he was just talking about the case in particular. And I told him I was still going to run the Crime of the Week, even though he was arrested for chemical abuse.
Bailey testified that the arrest bothered him the whole day. He had discussed it with the other detectives. Then, “just like a bolt of lightning, it hit us.” Around 2:30 or 3:00 in the afternoon, while the detectives were having coffee, he realized that the person arrested might have obtained plaintiff’s identification in the burglary of plaintiff’s residence.
In my view, defendants did not act with negligent disregard for the truth in reporting that plaintiff had been arrested. Defendants’ actions were reasonable under the circumstances. Arrests in general are matters of public concern. See Cox Broadcasting Corp. v. Cohn, 420 U.S. at 491-92, 95 S.Ct. at 1044-45. The apparent arrest in this case would be of particular importance because of the status of plaintiff. - Therefore, publishing the story in the earliest possible edition was appropriate. Yet time constraints presented Clausen with very little opportunity for a full investigation. See Holy Spirit Ass’n for Unification of World Christianity v. New York Times Co., 49 N.Y.2d 63, 68, 424 N.Y.S.2d 165, 168, 399 N.E.2d 1185, 1187 (Ct.App.1979) (court takes into account that article was “composed * * * under the exigencies of a publication deadline.”); B. Sanford, supra, at § 8.4.7 (discusses negligence in the context of “hot” news). To be sure, a newspaper story that one has been arrested for a crime can cause serious damage to one’s reputation; but Clausen had reasonable grounds to believe that the story was true. The name and address checked out. No apparent discrepancy was of such weight as to cast substantial doubt on the accuracy of the official report. Moreover, unlike in many defamation cases, a proper retraction could remedy virtually all the damage to plaintiff’s reputation. Although an arrest followed by dismissal of the charges can leave a permanent stain, misidentification of the person arrested is remediable. A prompt and prominent correction to the effect that one was never in fact arrested should erase the blot. See Restatement, supra, § 580B comment h (factors to be considered in assessing negligence are the time element, the interest promoted by the publication, and the potential damage to the plaintiff).
In weighing the public’s need for prompt, informative reporting concerning the conduct of its government, particularly the operation of the criminal justice system, against the potential injury to individual members of society resulting from the media’s failure to delay publication while all leads are followed, I believe that the balance must be struck in favor of the public interest, as expressed in the first and fourteenth amendments to the Constitution. When, as here, the press has an objectively reasonable basis to credit the accuracy of an official report of breaking news, publication need not be delayed to double check the accuracy of the official report. To impose liability on defendants on the record in this case would create unrealistic burdens on our news media, particularly the small-town daily newspaper. I respectfully dissent.
. The record on this point is not as developed as it might be. The matter was first raised by defendants in their rebuttal at oral argument on their summary judgment motion. Nevertheless, it appears that plaintiff was a limited public figure with respect to the issue of substance abuse. As the majority states, whether a person is a limited public figure with respect to a controversy is determined by the extent to which that person’s participation in the controversy is voluntary and the extent to which that person has access to channels of effective communication. See Hutchinson v. Proxmire, 443 U.S. 111, 133-36, 99 S.Ct. 2675, 2687-88, 61 L.Ed.2d 411 (1979). Plaintiff seems to have met both tests. He voluntarily involved himself in the issue in two respects. First, as stated in his affidavit, he called the mayor of Alamogordo to ask to serve on the Mayor’s Committee for Driving While Intoxicated and Alcoholism. He was appointed to the committee on April 8, 1986, and reappointed on October 14, 1986. Although there had been no meetings of the committee from the time of his appointment until the time of the article on January 23, 1987, the committee was not a total non-entity. It had met on April 2, 1986, the week before his original appointment. Also, it received enough attention from the media that when reporter Clausen saw the arrest record, he recognized Mr. Furgason as a member of the mayor’s committee. Second, plaintiff was not merely the owner of a local business. He injected his name into the public eye with respect to his liquor establishment by naming the business "Furgi’s” and, apparently, by spending substantial sums on advertising, including $1,000 a month on newspaper ads. Plaintiff thus intentionally injected his name and personality into the public consciousness as both a purveyor of liquor and as a public-spirited citizen working to control the abuse of that substance. (I do not in any way mean to criticize these actions by plaintiff. Such conduct may be not only good marketing but also good citizenship. Yet most persons who, because of their status, have the burden of proving actual malice in order to recover for libel could be termed good citizens.) With respect to plaintiff’s access to the media, although the record is inadequate on this issue, one would expect that plaintiff had the access necessary to rebut any misrepresentations against him. Not only was he a substantial advertiser, he was also apparently a well-known local personality. In this regard, it is of some interest that a retraction appeared on the front page of the next edition of the paper (the Sunday paper) after the inaccurate story about plaintiff appeared on the back page of the newspaper. Cf. Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264 (3d Cir.1980) (meat market that advertises a great deal is limited public figure with respect to story attacking wholesomeness of the meat it sells).