concurring.
The primary issue in this case is the appropriate standard of care to impose upon a media defendant in a libel action brought by a private individual for a defamatory statement concerning a public matter. The majority imposes the standard of actual malice set forth in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
I disagree. The majority’s position extends the use of the strict New York Times standard too far and strikes an improper balance between a private person’s interest in his reputation and the press’s first amendment freedoms. I too am committed to an uninhibited, robust, and free press. However, the practical effect of the application of the New York Times standard has been to prevent the plaintiff from recovering in nearly all defamation cases in which the standard has been applied. Eaton, “The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer,” 61 Va.L.Rev. 1349, 1375 (1975); L. Tribe, American Constitutional Law, 638-640 (1978). Indeed, the U.S. Supreme Court continues to place additional burdens on plaintiffs who must *286prove actual malice.1 Thus, applying the New York Times standard to a private person affords an individual no practical way to protect his reputation.
Even in cases where the New York Times standard is not at issue, the U.S. Supreme Court has imposed substantial constitutional restrictions before a private figure plaintiff can recover damages in defamation actions. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 748 (1974), the Court invalidated the prevailing common-law standard and held that even when private figures are involved, the constitutional requirement of fault supersedes the common-law presumptions as to fault and damages. Under Gertz, states may no longer impose liability without fault, but may define the level of fault required for recovery by private persons, at least where substantial damage to reputation is apparent on the face of the defamatory statement. Nonetheless, Gertz requires that in order for a private-figure plaintiff to recover presumed or punitive damages he or she must meet the New York Times actual malice standard.2 Recently in Philadelphia Newspapers *287Inc. v. Hepps, — U.S. —, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986), the Court again imposed additional restrictions holding that a private-figure plaintiff must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant.3
Given these substantial constitutional and statutory restrictions, I believe that private-figure plaintiffs should be allowed to recover if they show that the conduct of the media defendant, measured against the conduct of a reasonable and prudent media figure acting under similar circumstances, was negligent. Such a standard would preserve an individual’s right to recover actual damages for loss to his reputation by the publication of a false statement, while it would still protect the right of the public to a free and uninhibited press.
I
Today the Court takes New Jersey libel law in a new direction that is contrary to the decisions of the U.S. Supreme Court and the majority of states. Despite its acknowledgement that Sisler is a private figure, the Court holds that because he “has voluntarily and knowingly engaged in conduct that one in his position should reasonably know would implicate a legitimate public interest, engendering the real possibility of public attention and scrutiny,” he will be allowed to recover actual damages only if he establishes actual malice.4 Ante at 272. *288The Court bases this conclusion not on the New Jersey Constitution but on New Jersey common law. As evident from the Court’s own analysis of New Jersey case law, ante at 273, prior to this decision and our decision today in Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125 (1986), we have never imposed the New York Times actual malice standard on a private figure who has not assumed the risk of publicity by voluntarily thrusting himself into the public spotlight.
The majority’s approach does not properly balance the interest of the public in preserving a free press and the interest of a private individual in protecting his reputation. In its equation, the majority undervalues the importance of a person’s interest in his good name. As Justice Stewart eloquently stated in his concurrence in Rosenblatt v. Baer, 383 U.S. 75, 92-94, 86 S.Ct. 669, 679-80, 15 L.Ed.2d 597, 609-610 (1966);
The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.
... The First and Fourteenth Amendments have not stripped private citizens of all means of redress for injuries inflicted upon them by careless liars. The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. Yet imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.
Moreover, the preventive effect of liability for defamation serves an important public purpose. For the rights and values of private personality far transcend mere personal interests. Surely if the 1950’s taught us anything, they taught us that the poisonous atmosphere of the easy lie can infect and degrade a whose society.
In essence, the majority is adopting the repudiated doctrine of Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). There the Supreme Court extended the New York Times standard to all libel actions, regardless of a plaintiff’s status, so long as the defamatory statement relates to matters of “public or general interest.” Three years later, the Court, realizing it had extended the requirement of actual malice too far, reversed itself in Gertz.
*289The Supreme Court’s decision in Gertz represents a sounder accommodation between the competing interests of the press and the individual. Because private persons lack “access to the channels of effective communication ... to counteract false statements” and because they have “relinquished no part of [their] good name[s]” by “thrust[ing] themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved,” the Court held that private persons are entitled to greater protection than public ones. Gertz, 418 U.S. at 344-45, 94 S.Ct. at 3009, 41 L.Ed.2d at 808.5
Since Gertz, the controlling factor in determining the standard of care to be used in a libel case is the status of the individual — whether a public figure or a private figure. See, e.g., Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976) (wife of a wealthy Palm Beach socialite involved in a much-publicized divorce was not a public figure simply because her affairs were of interest to the public and hence the media defendant was not entitled to the actual malice standard); Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979) (public controversy into which plaintiff may thrust his or her personality must pre-exist the defamatory publication. “Those charged with defamation can*290not, by their own conduct, create their own defense by making the claimant a public figure.” Id. at 135, 99 S.Ct. at 2688, 61 L.Ed.2d at 431); Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979) (merely because events involving a private individual attract public and media attention does not make that private individual a public figure. A libel defendant must show more than mere newsworthiness to justify application of the demanding burden of the New York Times.).
Courts generally recognized that “a fairly high threshold of public activity is evidently necessary for a finding that a person has voluntarily plunged into a public controversy.” L. Tribe, American Constitutional Law 645 (1978). Here, however, the majority labels the plaintiff as a public figure even though it simultaneously acknowledges that he: has not attained special prominence in the affairs of society; has not thrust himself to the forefront of particular public controversies in order to influence the resolution of the issues involved; does not command a substantial amount of independent public interest; has not achieved pervasive fame or notoriety even in the Franklin Township area; and, finally, has not sought attention in the public controversy. In fact, the majority states that particularly since his retirement, the “plaintiff has avoided publicity concentrating on his private business affairs.” Ante at 269. In short, despite the majority’s facile label, Sisler has none of the characteristics of “a public figure” under federal constitutional analysis and hence under federal law would not have to prove actual malice in order to recover actual damages.
What then has Sisler done to deserve this extra burden, the necessity of establishing the New York Times actual malice standard, in order to recover for actual damages to his reputation? I submit that he has done nothing. I find little merit to the majority’s contention that Sisler’s conduct, the perfectly legal transaction of borrowing money from a bank in which he *291was a former officer,6 is of such import that Sisler “relinquished part of his reputation to the public eye.” Sisler remains a private person. Thus, I submit that it is not what Sisler has done but merely because the defamatory statement concerns a matter of public concern that the majority forces him to adhere to the stricter standard. The mere fact that the press is attracted to Sisler’s activities does not make him, and should not make him, a public figure. As the Court in Gertz concluded, the extension of the New York Times test” to every item of public interest “would abridge this legitimate state interest [protection of a person’s reputation] to a degree that we find unacceptable.” Gertz v. Robert Welch, 418 U.S. at 346, 94 S.Ct. at 3010, 41 L.Ed.2d at 809.
The majority’s decision has broad ramifications. It will affect all former bank officials and directors, as well as former officers and directors of other regulated industries or high-profile corporations, in dealing with their companies. The following come within the majority’s conception of a semi-public figure: attorneys who take cases with a high profile or involving unpopular causes, see Gertz v. Robert Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 748; individuals who receive awards from the government or well-known private organizations, see Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411; as well as people who simply seek to defend themselves in lawsuits, see Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154.
Aside from inadequately protecting a private individual’s reputation, there are other serious flaws with the notion of a “semi-public figure.” The introduction of a new undefined variable into an already confused field can result only in greater uncertainty in this area of the law. This unpredictability will be compounded by the fact that this is a new standard, differ*292ent from the federal private/public dichotomy. Moreover, this new creation of the majority sets forth no defined guidelines to determine whether a private person will be deemed a “semi-public” person. It concludes only that the process will develop on a case-by-case basis. While the majority may know a “semi-public figure” when it sees him or her, I am not sure that either the media or the legal profession will. Where we can discern generally applicable rules, I think that they should be preferred to the majority’s approach, which subjects both the public and the press to unpredictable second-guessing of the judiciary.
II
The question remains what standard of liability should apply to a defamatory statement about a private individual relating to a matter of public concern in order to best protect the freedom of the press and the good name of the citizen. The majority of states that have considered the issue after Gertz have adopted some variant of the ordinary negligence standard. See Restatement (Second) of Torts § 580B, appendix and reporter’s notes (1976); Sisler v. Courier-News Co., 199 N.J. Super, 307, 314-15 (App.Div.1985). Four states have adopted a higher standard than negligence.7 The Restatement likewise has adopted a negligence standard for the defendant who defames a private person, regardless of whether the matter concerns a public or private issue.8
*293Mindful of the already substantial constitutional restrictions placed on a private-figure libel plaintiff, I would allow recovery upon proof by a clear preponderance of evidence that the. media defendant was negligent in making the false and defamatory statement.9 As an additional safeguard to the press, I would define the media defendant’s standard of conduct by reference to the conduct of the reasonably prudent media defendant in the community or in a similar community under similar circumstances. Under this standard, media defendants will be held to the skill, knowledge, and experience normally exercised by members of that profession.
Specifically, I would consider “the medium, the size and location of the publisher or broadcaster, its resources and technological capabilities, and deadline pressures.” L. Tribe, American Constitutional Law 646 (1978); Anderson, “Libel and Self-Censorship,” 53 Tex.L.Rev. 422 (1975). It would be unfair to impose the journalistic practices of a large urban newspaper on a small weekly paper and vice-versa. Among the key factors would be time. The thoroughness of the check that a reasonable journalist would make before publishing the statement may depend on whether the communication was a matter of topical news requiring prompt publication to be useful, or one in which time and opportunity to investigate were ample. *294In the latter situation, due care may require a more thorough investigation. Restatement (Second) of Torts § 580B.10
I am aware of the concerns of critics who fear that the imposition of such a reasonably-prudent-media-defendant standard would favor only the orthodox papers and create unwelcome pressure for uniformity. However, I believe that these fears are greatly exaggerated. Many of the dangers are substantially alleviated when the defendant is judged by standards of publishers of comparable resources, deadline pressures, space limitations, and technological capabilities. Moreover, similar pressures apply to negligence cases involving new and unorthodox medical treatment or legal theories. In those cases, as here, we can safely entrust decisions to juries whose members will be able to weigh all of the factors depending on the circumstances of the case.
III
The majority fears that use of a lesser standard than actual malice would have a chilling effect upon freedom of the press. On the contrary, I believe that a reasonably-prudent-media-defendant standard would have little, if any, practical effect on the functioning of responsible journalism.
The judicial muzzle that the press feared before and after New York Times fortunately has not materialized. First, the Gertz limitations, particularly the removal of the specter of presumed and punitive damages in the absence of the New York Times standard, “eliminates significant and powerful motives for self-censorship that otherwise are present in the traditional libel action. By so doing, the Court leaves what should prove to be sufficient and adequate breathing space for *295a vigorous press.” Gertz v. Robert Welch, 418 U.S. at 354, 94 S.Ct. at 3014, 41 L.Ed.2d at 813 (Blackmun, J., concurring.)
Second, experts in the area of defamation law believe that even with the New York Times rule as it is applied here today, there is still a self-censorship effect because of the inherent costs of defamation litigation. See Lewis, “New York Times v. Sullivan Reconsidered: Time to Return to ‘The Central Meaning of the First Amendment,’ ” 83 Col.R.Rev. 603 (1983). Precisely because our press is the freest in the world, the amount of libel litigation continues to grow along with increasing judgments and costs. It is the magnitude of the financial burden more than any other factor that makes libel a threat to the press today. Anderson, “Libel and Press Self-Censorship,” 53 Tex.L.Rev. 422, 436 (1975). There probably will be little difference in the costs to the press of defending a libel action under the negligence standard as contrasted with the actual malice test.11 Under both standards, not only the press but also the defamed individual has to devote substantial resources and time, and emotional energy in a libel action. It is the costs to the defamed individual that the majority ignores.
Furthermore, many commentators agree that a motion for summary judgment should be no less available under a negligence standard than under the New York Times standard. Anderson, supra, 53 Tex.L.Rev. at 469 (1975). As explained by Professor Tribe:
Short of an absolute privilege to defame which would accord no weight to society’s pervasive interest in preserving reputation, the most efficacious strat*296egy to reduce self-censorship may be liberal use of summary judgment procedures in defamation actions, so as to avoid long and costly litigation. There is no reason summary judgment should be less available under Gertz than under New York Times, at least after the substance of the Gertz “fault” standard has become apparent. Thus Gertz seems justifiable in broad outline as an accommodation making it easier for aggrieved individuals to obtain redress of reputational injuries without significantly affecting the level of self-censorship by the press. L. Tribe, American Constitutional Law 642-43 (1978).
Given the already substantial constitutional restrictions imposed on a private-figure plaintiff to recover in a libel suit, I do not perceive any intolerable burden to freedom of speech or press to impose a duty of reasonable care upon those who exercise those freedoms. In today’s world, the media can have a considerable impact on the life and livelihood of an individual. Neither the intentional lie nor the negligent error substantially advances society’s interest in a free and uninhibited press.
Most reporters are responsible and careful. Thus, requiring the news media to use due care in gathering and reporting in areas where there is a particular danger of damaging an individual’s reputation should not prove an undue burden on the press, particularly when such negligence is to be determined by the conduct of the reasonably prudent publisher or broadcaster in the community or under similar circumstances. True, under this standard greater care would have to be exercised with respect to private-figure plaintiffs, but this is justifiable as a proper balance between the interests of the press and the interests of a private citizen.
IV
Applying a reasonably prudent media defendant standard to this case, I would find that the plaintiff has established that the statement was false and that it presented a substantial danger to his reputation. By defendants’ own admission, it appears that their conduct was negligent, and not in accordance with generally acceptable journalistic practices. No evidence, however, was specifically introduced to prove that the defendants’ acts were less than those expected of responsible journalists. *297Therefore, the defendants should have a right to be tried under the reasonably-prudent-media-defendant standard. Accordingly, I would concur in the majority’s decision to remand the matter for retrial, but unlike the majority, I would hold that the plaintiff may establish defamation against the defendants by simply establishing that their conduct was negligent, as measured by the conduct of a reasonably prudent media figure acting under similar circumstances.12
GARIBALDI, J., concurring in the result.
For reversal and remandment — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 7.
For affirmance — None.
In Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), the Court held that an appellate court must perform a de novo review of a trial court's actual malice determination in order to ascertain whether there was clear and convincing evidence of that actual malice. The court found that a review by the clearly erroneous standard of Rule 52(a) of the Federal Rules of Civil- Procedure was not adequate. This term in Jack Anderson v. Liberty Lobby, Inc., — U.S. —, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Court held that a court ruling on a motion for summary judgment may dismiss libel suits without a trial unless the plaintiff provides clear and convincing evidence of malice. Cf. Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979), in which the Court held that in discovery a public official could ask a defendant journalist about his or her state of mind when publishing the alleged defamatory falsehood to seek to establish the “actual malice" of the defendant.
Dun & Bradstreet Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), a plurality of the Court determined that in a libel action brought by a private individual involving a defamatory statement of purely private concern, the plaintiff need not show actual malice in order to recover punitive damages.
In Philadelphia Newspapers, Inc., the Court also recognized that plaintiffs burden was weightier because of Pennsylvania’s shield law which allows media employees to refuse to divulge their sources. Of course, New Jersey likewise has a strong shield law, N.J.S.A. 2A:84A-21; State v. Boiardo, 82 N.J. 446 (1980); In re Maressa v. New Jersey Monthly, 89 N.J. 176 (1982); In re Farber, 78 N.J. 259 (1978). This affords the press an additional statutory protection and provides a further obstacle to the private-figure plaintiff seeking to recover in a libel action.
Under Gertz, even a private figure to establish presumed or punitive damages still must establish actual malice. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
Private persons are in a very different position when they are criticized. They have not chosen the rigors of public life: assumed the risk of injury, as it were. And their opportunities to rebut criticism are slimmer. Justice Harlan had them in mind when he said the marketplace was the best testing ground for truth "where it functions.” It does not function for the private person, because no one is interested in listening to him, and Justice Harlan warned against "the dangers of unchallengeable untruth.” For these reasons the Supreme Court seems to me to have got the balance of interests about right when it decided in Gertz that the states could allow private plaintiffs to recover for libel on any standard except liability without fault: The publisher, that is, must be shown at least to have been negligent in publishing a falsehood.
Lewis, "New York Times v. Sullivan Reconsidered: Time to Return to ‘The Central Meaning of the First Amendment,”’ 83 Col. Law Rev., 603, 622 (1983).
N.J.S.A. 17:9A-72 sets forth guidelines that permit banks to make loans to its current directors and officers. The statute imposes no restrictions on loans by banks to its former directors or officers.
Four states, Alaska, Colorado, Michigan and Indiana, have applied the actual malice test to private persons. New York has adopted a gross negligence standard. Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569 (1975); Karaduman v. Newsday, Inc., 51 N.Y.2d 531, 435 N.Y.S.2d 556, 416 N.E.2d 557 (1980).
§ 580 B. Defamation of Private Person
One who publishes a false and defamatory communication concerning a private person, ... is subject to liability, if, but only if, he
(a) knows that the statement is false and that it defames the other,
(b) acts in reckless disregard of these matters, or
*293(c) acts negligently in failing to ascertain them.
Restatement (Second) of Torts § 580B (1976).
The Gertz court held that a publisher is not subject to liability from negligence based on a publication the content of which does not warn a reasonably prudent editor or broadcaster of its defamatory potential. In such a case, the New York Times standard would have to be established in order to receive compensatory damages. Thus, the mere negligent error or careless mistatement of fact that on its face does not appear defamatory will not result in liability for a media defendant.
As in other cases requiring the evaluation of professional conduct, the customs and practices within the trade would be relevant, but not controlling. Restatement (Second) of Torts § 530(b) comment g (1977). Normally, expert testimony is introduced to establish professional customs. However, media defendants would not have to present an expert but could establish professional journalistic practices through the testimony of their own staff.
Whether the standard is actual malice or negligence, the costs of a libel action to both the plaintiffs and defendants are tremendous. Thus, both sides have an interest in finding a better way to accommodate the concerns of the press and the injured individual. I agree with these commentators who believe that the paramount interest of the person defamed is to restore his or her good name. To that end, I believe that the elimination of presumed and punitive damages serves a salutary purpose. Additionally, the Legislature, in consultation with experts in this area of the law, should work toward developing feasible alternatives to the traditional full-fledged libel action.
On remand, Sisler’s claims for mental anguish and humiliation and punitive damages would also have to be addressed.