It is only in respect to privilege as to deliberately false and malicious publications by newspapers that this dissent is directed.
I think that there is a substantial difference between, on the one hand, an inadvertently false defamation and, on the other hand, a defamation which is known to be false and which is wilfully and maliciously published. That difference, it seems to me, assumes legally significant importance when we examine the constitutional questions which are raised by the subject legislation. I agree in large measure with Justice Traynor’s discussion of the constitutional principles involved but I do not agree that those principles extend to the protection of the publication of defamatory matter which is known to be false and which is deliberately and maliciously uttered.
Justice Traynor says, “There are at least two bases on which the Legislature could reasonably conclude that the retraction provisions of section 48a provide a reasonable sub*151stitute for general damages in actions for defamation against newspapers and radio stations, namely, the danger of excessive recoveries of general damages in libel actions and the public interest in the free dissemination of news.”
Considering the above stated two bases in relation to maliciously and deliberately uttered known-to-be-false defamations, I think that their substance completely vanishes. The first asserted base is “the danger of excessive recoveries of general damages in libel actions.” But does the policy of the state consider, or permit this court to believe, that there is any danger of “excessive recoveries of general damages” in libel actions which are based on knowingly false, deliberate and malicious publications? Why does the law provide for punitive damages, as against other defamers, where the matter is known to be false and is deliberately, wilfully and maliciously published? If the state has any such policy as is suggested for base No. 1, why does it provide that in all libel eases other than against a newspaper or radio broadcasting company (under the conditions specified in Civ. Code, § 48a), where the conditions of malice, knowledge and wilfulness obtain, that punitive damages may be assessed?
Base No. 2 is stated in the majority opinion to be “the public interest in the free dissemination of news.” But surely the license, whether limited or unlimited, to wilfully, knowingly and maliciously utter false and defamatory matter does not serve “the public interest in the free dissemination of news”; rather does it tend to defeat that interest by encouraging the malicious dissemination of matter known to be false.
It is contended, in defense of the majority position, that the legislation can be sustained “not because the malicious conduct of such persons ought not to be actionable, but because, if their conduct were actionable, actions would be brought against them in cases in which they had not spoken falsely and maliciously . . . And the real question is whether it is proper on grounds of public policy to remit such questions to the judgment of a jury.” The example cited in the text as quoted by the majority opinion is the immunity given participants in a judicial proceeding. The argument is not persuasive to me. The most regular participants in judicial proceedings are judges. Judges of courts are public officers, responsible to the people; while they may not be sued for libel or slander as arising out of judicial acts, they are not self-*152selected or self-constituted, and they are subject to election and recall. The people have no such power over newspaper publishers who, conceivably, can be completely irresponsible. Likewise, as to other participants (than judges) in judicial proceedings, there is a fundamental difference between their relationship to such a public governmental proceeding and the relationship of a publisher to his private enterprise; so too, is there a very basic difference between a court, which is an institution of government, and a newspaper, which is a private enterprise. (And it is to be devoutly hoped that the difference shall never be destroyed.)
Furthermore, I think that section 9, article I, of our California Constitution is entitled to more significance in its application here than is accorded it by the majority. It provides that “Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” I think that the clause “being responsible for the abuse of that right” has affirmative rather than mere negative significance. I think that responsibility for abuse of the right is a fundamental part of our concept of freedom of speech and press. It forms a part of the definition of the very liberty which is guaranteed. Unless there is responsiblity for abuse of the right then such right becomes more than a “liberty”; it becomes a license. The malicious and deliberate publication of that which is known to be false, uttered for the sole purpose of injuring the subject, is not, in my estimation, within the freedom guaranteed by the Constitution. Eather is such a publication an “abuse of that right” to which the liberty does not extend.
The courts have been most zealous to protect freedom of speech and press against prior restraint. There is no accepted principle of constitutional law which suggests that they should be so zealous to absolve from subsequent responsibility for a clear abuse of the liberty. Indeed, the very strictness of the rule against prior restraints bespeaks need of subsequent responsibility for abuses.
Even if we assume, notwithstanding the provisions of section 9, article I, relative to responsibility for abuse of the right, that the Legislature could completely abolish the cause of action for libel, such assumption does not save the statute here. The Legislature has not abolished a cause of action; neither has it undertaken to define an “abuse of that right” *153for which the publisher may be responsible. If the subject statute had extended the exemption to general damages only it would be far easier to defend. But by framing the statute to exempt both general and punitive liability for the most pernicious abuse to which a newspaper may be put, it seems that what the Legislature has really done is to create a special privilege for an arbitrarily selected class. The special privilege is exemption' from liability for general and punitive damages for libel, whether deliberate and malicious or merely inadvertent, unless a retraction is requested and refused. The retraction, if demanded and published, may be followed immediately by a new defamation. By the express terms of the statute it extends the exemption to include the deliberate and malicious publication of known falsehoods. Since the privilege is extended to deliberately false and malicious publications it is, in effect, a license to defame. Such privilege or license is extended to, and only to, newspapers and radio broadcasting companies. The metropolitan daily and the rural weekly have the privilege; United States News and World Report, Time Magazine, Esquire, Fortune, etc., do not. What reasonable basis is there for giving the “newspaper,” whether daily or weekly, such license to deliberately and maliciously defame while withholding that license from magazines of every type 1 Why should magazines and publications generally, other than newspapers and radio broadcasting companies, be subject to punitive as well as general damages for malicious publications while the special class is exempt? Assuming that there is a reasonable basis for the classification insofar as inadvertent libel is concerned, I find none for such classification in relation to the special privilege to deliberately defame.
At the beginning of this discussion I pointed out that the majority opinion declares the proposition that “There are at least two bases on which the Legislature could reasonably conclude that the retraction provisions of section 48a provide a reasonable substitute for general damages in actions for defamation against newspapers and radio stations, namely, the danger of excessive recoveries of general damages in libel actions and the public interest in the free 'disRP.Tni-nat.irvn of news. ’ ’ It has been shown that both of those bases disappear when applied to deliberately false and malicious publications. And there is a still more fatal inadequacy in the majority position.
The fundamental part of their proposition is that the *154“Legislature could reasonably conclude that the retraction provisions . . . provide a reasonable substitute for general damages in actions for defamation against newspapers and radio stations.” That proposition completely ignores the element of punitive damages. The statute relieves its beneficiaries from liability for punitive as well as general damages. What reasonable substitute is provided for punitive damages ? Certainly not the retraction provision. In full compliance with the law and shielded by it, the publisher could follow every retraction with a reiteration of the same or a still more calumnious defamation. There is sound policy behind the law which provides for exemplary damages in certain cases. (“ [W] here the defendant has been guilty of oppression, fraud or malice . . . the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. ’ ’ (Civ. Code, § 3294.) If this law is good generally what reasonable basis is there for exempting “newspapers and radio stations” in relation to their deliberately false and malicious publications?
I reiterate that it is only in respect to the licensing, in effect, of deliberately false and malicious publications that this dissent is directed. I cannot think that the great body of reputable newspapers and radio broadcasting companies which serve our country and our people so well would ever stoop to the vicious practices which the statute would permit. But there is nothing to prevent vicious persons from entering the publishing business and from taking full advantage of the law as it is upheld. The reputable publishers themselves may in the long run suffer more from the nefarious practices of which the law permits and which it encourages than they would from defending a few libel actions against the unfounded charge of falsity and malice.
Since the majority opinion affirms the judgment on the theory that section 48a is valid in its every element and application I do not discuss whether what I believe to be the invalid portions or applications of the statute could be deleted and the remainder upheld. Likewise, for the purposes of this dissent, I accept the implications of the majority that affirmance of the judgment depends on sustaining the statute in its entirety.
For the reasons above stated I would reverse the judgment.
Appellant’s petition for a rehearing was denied May 11, 1950. Carter, J., and Schauer, J., voted for a rehearing.