(specially concurring).
I concur in the result. I join in Sections II, III, and IV of Judge Black’s thorough and thoughtful opinion. I also join in much of Section I. In particular, I agree that a complaint alleging defamation against a public official must be precise regarding (1) what statement in a newspaper article or editorial is false and (2) in what respect the statement is false. As I read the complaint, the alleged problem with the articles and editorials is that they suggested that what happened constituted misconduct by Andrews. But the complaint does not adequately allege that the newspaper either (1) falsely reported what happened or (2) expressed opinions implying the allegation of undisclosed defamatory facts. See Restatement (Second) of Torts § 566 (1976).
Although I agree with the result, I differ with the opinion in one respect. The opinion gives too little weight to context in determining whether a statement is “of and concerning” an individual.
An individual can sue for defamation only if the allegedly defamatory statement is “of and concerning” the individual. See New York Times Co. v. Sullivan, 376 U.S. 254, 288, 84 S.Ct. 710, 730, 11 L.Ed.2d 686 (1964). The majority opinion appears to hold that an allegedly libelous statement cannot be “of and concerning” a public official if the statement names only “the village,” “the Council,” or some other public body, regardless of the nature of the statement or whether the context of the publication establishes that the statement is focused on a particular individual. The majority opinion states: “[W]hen the criticism can legitimately be interpreted as criticism of a government entity, rather than a government official, the First Amendment requires adoption of the former interpretation.” Majority Op., 119 N.M. at 484, 892 P.2d at 617.
Such a requirement is unnecessary to protect the First Amendment values espoused by the United States Supreme Court and is not required by Supreme Court precedent. Although there may be sound reasons to abolish defamation actions by public officials, “the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy Constitutional protection.” Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964). “[T]he use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.” Id. Given this appraisal by the Supreme Court of false defamatory statements made with actual malice, it would be surprising if the Court cloaked such a statement with immunity just because the person making the statement was careful to refer to the defamed individual only by title rather than by proper name.
Indeed, the two Supreme Court decisions that address the “of and concerning” requirement — Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966) and Sullivan — suggest that it is the substance of the criticism (does it focus on government operations or on the individual office holder?) rather than the form (is the individual identified by official title or by proper name?) that matters.
Rosenblatt summarized the Supreme Court’s position as follows: “[I]n the absence of sufficient evidence that the attack focused on the plaintiff, an otherwise impersonal attack on governmental operations cannot be utilized to establish a libel of those administering the operations.” 383 U.S. at 80, 86 S.Ct. at 673. The Court was not immunizing all attacks that name only governmental bodies. For example, the Court wrote: “Were the statement at issue in this case an explicit charge that the Commissioners and Baer or the entire Area management were corrupt, we assume without deciding that any member of the identified group might recover.” Id. at 81, 86 S.Ct. at 673.
More importantly, the Supreme Court has made clear that an individual may recover for an accusation naming a public entity if surrounding circumstances establish that the attack was directed at the individual. After all, the statement in Rosenblatt that impersonal attacks are immune from liability is prefaced by the qualification: “in the absence of sufficient evidence that the attack focused on the plaintiff.” Thus, Rosenblatt states, “Even if a charge and reference were merely implicit, as is alleged here, but a plaintiff could show by extrinsic proofs that the statement referred to him, it would be no defense to a suit by one member of an identifiable group engaged in governmental activity that another was also attacked.” Id. at 81-82, 86 S.Ct. at 673-74.
In Rosenblatt one of the Court’s two holdings was that the trial court had erred by permitting the jury “to infer both defamatory content and reference from the challenged statement itself, although the statement on its face is only an impersonal discussion of government activity.” 383 U.S. at 82, 86 S.Ct. at 674. The article at issue did not mention the plaintiff. If the Supreme Court had adopted the view of the panel majority that a statement is privileged if it “can legitimately be interpreted as criticism of a government entity,” then the fact that “the statement on its face is only an impersonal discussion of government activity” should have disposed of the entire Rosenblatt litigation, because a “legitimate interpretation” of the article is that the plaintiff was not being criticized personally. But the Rosenblatt opinion implicitly rejects this view by going on to discuss the plaintiffs “second theory, supported by testimony of several witnesses, ... that the column was read as referring specifically to him[.]” Id. at 83, 86 S.Ct. at 674. (The Court then disposed of this theory by holding that “[e]ven accepting [plaintiff’s] reading,” id., the verdict must be set aside because the plaintiff may have been a public official yet the jury was not instructed that it must find actual malice. Id. at 83-88, 86 S.Ct. at 674-77.)
Sullivan is consistent with Rosenblatt. In Sullivan the Supreme Court was reviewing a jury verdict. The Court’s conclusion that the newspaper advertisement criticizing the police was not “of and concerning” Sullivan, the police commissioner, did not rest exclusively on the language of the advertisement, which failed to mention Sullivan by name or official position. The Court wrote: “Although the statements may be taken as referring to the police, they did not on their face make even an oblique reference to [Sullivan] as an individual. Support for the asserted reference must, therefore, be sought in the testimony of [Sullivan’s] witnesses.” Id. 376 U.S. at 289, 84 S.Ct. at 731. The Court then proceeded to review that testimony. Id. Such a review would have been totally unnecessary if the Court had adopted the view that the statement is immune from liability if it can be “legitimately interpreted” as not referring to Sullivan personally. The Court would simply have stated that Sullivan had no cause of action because the advertisement could legitimately be interpreted as criticism of the police department rather than as criticism of Sullivan himself.
The panel majority’s approach is similar to that of the district court opinion reviewed in Saenz v. Playboy Enterprises, 841 F.2d 1309 (7th Cir.1988), aff'd 653 F.Supp. 552 (N.D.Ill.1987). The appellate court summarized the district court’s view as being “that a public official may never establish defamation by innuendo where such inferences must be drawn from allegedly defamatory statements which also render a critical assessment of governmental conduct.” Id. at 1314. That view was rejected on appeal. After analyzing Sullivan and Rosenblatt, the Seventh Circuit concluded that the Supreme Court had “recognized that a public official could make out a claim where the allegedly defamatory charges were merely implicit, provided the official demonstrates that the accusations were made of and concerning him.” Id. at 1316. Based on this authority, I do not believe that we can properly dismiss allegations in the complaint on the ground that they were not “of and concerning” Andrews just because the alleged defamatory statement does not mention Andrews by name, particularly when Andrews is mentioned by name later in the same article or editorial, or even in the same paragraph.
I am sympathetic to the panel majority’s effort to foreclose any civil action that smacks of a claim for seditious libel. But Sullivan and its progeny have already constructed a mighty fortress against such claims. “A vast difference exists between a government’s effort to punish speech critical of official policy or acts, where even truth was no defense, and an official’s effort to clear his name of an allegation that he acted contrary to official policy and human decency, in a situation in which he must prove both falsity and actual malice.” Sharon v. Time, Inc., 599 F.Supp. 538, 555 (S.D.N.Y.1984). In short, the panel majority has engaged in well-intended overkill.