concurring in part and dissenting in part.
I do not approve the compensatory-damage standard of liability the majority imposes upon the media defendants.
The free press clause of the First Amendment was designed, not so much as a license for publishers, but as an engine of the people’s right to know what the press is uniquely equipped to discover and report. The goal of the majority, which I applaud, is to strike a public-policy balance between the interest a private person has in his good name and the interest the public has in the media’s freedom to publish. When a defamatory publication causes these competing interests to collide, courts must weigh constitutional values and resolve the conflict by defining the standard of liability. Except for cases involving qualified privilege (a concept left undefined), the majority has adopted a simple-negligence standard. I fear that standard creates an impolitic imbalance between the competing interests.
The actual-malice standard weighs heavily in favor of the media defendant at the expense of the injured private plaintiff; on the other hand, the simple-negligence standard tends to chill both reportorial free press and editorial free speech, and self-censorship by a timorous media disserves the people’s right to know. I would reject both standards and strike a balance midway between the two extremes.
For compensatory-damage claims, I favor a gross-negligence standard. Specifically, I would hold that, when the content of a false publication makes substantial danger to the reputation of a private person apparent, that person may recover compensatory damages against a media defendant if he proves by a preponderance of the evidence that the defendant’s negligence in the investigation and verification of the content of the publication was so gross as to shock the conscience of fair-minded men and so heedless of the truth as to evince a flagrant indifference to his rights. *53See Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569 (1975).
I recognize that the courts of most states, exercising the discretion granted in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), have adopted the simple-negligence standard. We ought not fear to join the minority. This Commonwealth first proclaimed the free-press principle in 1776 in Article XII of the Virginia Declaration of Rights, and James Madison was largely responsible for inclusion of the First Amendment in the Constitution of the United States. In my view, a rule which makes publishers and broadcasters liable for simple negligence weakens Virginia’s historical commitment to freedom of the press and encumbers the right of the people to learn what they need to know to govern themselves wisely.
In keeping with the standard I have defined, I will concur in part and dissent in part. In the Gazette case and in the Charlottesville Newspapers case, I must dissent from the decision to affirm the several verdicts because each was based upon an instruction defining the simple-negligence standard. For the same reason, I dissent from the decision to affirm the compensatory-damage award in the Port Packet case; however, I concur in the decision to reverse the punitive-damage award in that case because I agree that the evidence fails to show actual malice. In the Fleming case, I concur in full.