(dissenting)—Before the legal dust from New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 Sup. Ct. 710 (1964), had time to settle, a later decision, Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L. Ed. 2d 1094, 87 Sup. Ct. 1975 (1967), replaced it, in my opinion, as a more proximate authority in the present case. Under the rationale of Butts, the instant judgment should be affirmed. Indeed, Butts comes far closer to Grayson than does New York Times Co. v. Sullivan, supra, and were it not for the punitive damages allowable under the laws of Georgia, Butts and the instant case would be strikingly similar.
If I am mistaken about this and New York Times Co. v. Sullivan, supra, becomes the final yardstick upon which the law will measure a freeman’s rights to freedom from defamation and slander, we are beginning the decline of the rights to privacy cherished by the common law and will ultimately see the end to everyone’s commonlaw right to protect his good name and fame by personal action in the courts. The common law aspires to provide a remedy for every legal wrong. It gives to the party aggrieved a choice of whether to seek the remedy and a power with which to assert it. There thus abides in the common law a unique quality, making every man in some degree the master of his own destiny, enabling him to preserve, as it did to establish by his own efforts, his good name and fame.
*1009Even criminal statutes forbidding obscene, profane and libelous language do not in principle violate the first and fourteenth amendments to the United States Constitution.3
In this case, I think the evidence permitted the jury to find that the Post article seurrilously defamed and grievously damaged John Grayson. During all of his youth, young manhood and early middle age, Grayson had been identified with education, athletics and amateur sports. For nearly 15 years prior to publication of the Post article, Grayson lived, worked and strived in the collegiate milieu among students, athletes and faculty.
He played on his high school basketball teams, and played varsity basketball 2 years at Eastern Oklahoma A. & M. College, and 2 years at the University of Oklahoma. On graduating from the University of Oklahoma as an accredited teacher in 1938, he taught academic subjects and coached basketball in a junior high school, but this was interrupted by a year of service in the Army during the war. After his discharge from the Army, he coached basketball and assisted in football at Central High School, Muskogee, Oklahoma, for a few years and then at Springfield High School, Springfield, Missouri, for 4 years. Inaugurating his career in college coaching, he was then appointed head basketball coach and assistant athletic direc*1010tor at Nebraska Wesleyan University, Lincoln, Nebraska. After 2 years at Nebraska Wesleyan, the University of Oklahoma, where he had been a student and varsity athlete, appointed him assistant basketball coach at a raise in salary from that received at Nebraska Wesleyan. Additionally, he taught academic courses in the graduate school at Oklahoma. Following 3 years as assistant head coach at Oklahoma, Idaho State College, Pocatello, Idaho, engaged him—at an increase in salary—as its head basketball coach in 1953. From Idaho State, he went to the University of Washington under contract with the Associated Students of the University of Washington, a nonprofit corporation, to assume the position of varsity basketball coach. The University of Washington at Seattle is one of the largest universities in the nation, and we should take judicial notice that it is a major center of intercollegiate athletics on the Pacific Coast, facing major competition in basketball, football, crew and track.
By the time Grayson read about himself in the Post article, he had attained a high position in his career as head coach at one of the nation’s greatest universities. His professional reputation as a basketball coach and his position in amateur sports, among university people, coaches, officials and sports fans, including the parents and friends of college students, was of great value to himself and to his family. He had much to lose from the defamation.
Among the defamatory statements included in the magazine article—one not alluded to in the majority opinion—at pages 31 and 32 of The Saturday Evening Post for January 5-12, 1963, is found an extremely baleful implication. After describing Grayson as a coach who makes a practice of bullying referees, inciting his players and sports fans to violence, rowdyism, obscenities, and unsportsmanlike conduct, and after vilifying him for acts and personality traits which proclaimed his unfitness to serve as a coach or faculty member at any school or college—or even attending games as a spectator for that matter—the article goes on to say:
*1011Rowdyism in basketball, I believe, contributes directly to a deeper and more serious problem, one that basketball has so far been unable to solve—the “fix” scandals that keep breaking out, season after season. When gamblers see open defiance of authority, officials held in contempt, coaches stirring up trouble and colleges making no move to control the situation, they figure it’s a logical next step for them to move in.
A gambler in Kansas City told me, “You know why kids can be bought? They watch their coach panic and go crazy when he’s losing and they feel awful. That’s as sophomores. By the time they’re seniors, they’ve seen so much daffy stuff they think the whole game is nuts and why shouldn’t they make money out of it?”
Thus, without directly saying that Grayson was connected with gamblers, it suggested that he pandered to their sinister influence, and that, because of Grayson and others like him, the gamblers had been able to corrupt a clean sport at its fountainhead; it implied that, but for his willful misbehavior, this corruption might not exist. If false, the article was a vicious one indeed, and in many respects more devastating than that written about Wallace Butts because there the facts purportedly came from eavesdropping—a questionable source, indeed—whereas here the authenticity of the story was buttressed by the unavoidable implication that not only were the writers eyewitnesses to the events but one of them was a participant in them.
In Butts, the court makes what seems to me to be a distinction between public officials, i.e., persons holding public office, and persons who, because of their activities, are merely in the public eye, thereby putting a much needed brake in the runaway aspects of the New York Times case. The Butts opinion, referring to New York Times, supra, makes this distinction by saying, at 144:
The questions presented for review there [New York Times Co. v. Sullivan] were premised on Sullivan’s status as an elected public official, and elected officials traditionally have been subject to special rules of libel law.
The court in Butts implied that the most important thesis supporting New York Times Co. v. Sullivan was that it *1012concerned an elected public official, because “Such officials usually enjoy a privilege against libel actions for their utterances,” and that “speech can rebut speech, propaganda will answer propaganda.” But, in distinguishing it from New York Times, the court said in Curtis Publishing Co. v. Butts, supra, at 154:
In the cases we decide today none of the particular considerations involved in New York Times is present. These actions cannot be analogized to prosecutions for seditious libel. Neither plaintiff has any position in government which would permit a recovery by him to be viewed as a vindication of governmental policy. Neither was entitled to a special privilege protecting his utterances against accountability in libel.
Thus, after pointing out the distinction between a public official such as Sullivan in New York Times and Wallace Butts, the athletic director and formerly the football coach at the University of Georgia, the court, in Butts, went on to say, at 154-55:
And both Butts and Walker commanded a substantial amount of independent public interest at the time of the publications; both, in our opinion, would have been labeled “public figures” under ordinary tort rules.
These similarities and differences between libel actions involving persons who are public officials and libel actions involving those circumstanced as were Butts and Walker, viewed in light of the principles of liability which are of general applicability in our society, lead us to the conclusion that libel actions of the present kind cannot be left entirely to state libel laws, unlimited by any overriding constitutional safeguard, but that the rigorous federal requirements of New York Times are not the only appropriate accommodation of the conflicting interests at stake.
The court then proceeded to announce the rule in Butts as follows, at 155:
We consider and would hold that a “public figure” who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly *1013unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.
A reasonable paraphrase of the foregoing statement, I think, says that a “public figure” who is not a “public official” may recover damages for a defamatory falsehood of the kind that makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.
In affirming the judgment in favor of Butts, the court upheld a verdict of $60,000 in general damages and $3,000,000 in punitive damages. Earlier, the trial court had reduced the $3,000,000 verdict in punitive damages to $400,000, making a total judgment of $460,000. The jury was not instructed in Butts that malice must be pleaded and proved to support a verdict for general damages, but was told, in considering punitive damages, “to assess ‘the reliability, the nature of the sources of the defendant’s information, its acceptance or rejection of the sources, and its care in checking upon assertions.’ ” These were said to be relevant to a determination of whether defendant had proceeded with “ ‘wanton and reckless indifference’ ” when the jury was considering punitive damages.
In referring to compensatory damages of $60,000 or general damages as they were known to the trial court in that case, the Supreme Court said, at 157:
Given the extended history of the case, the amount of the evidence pointing to serious deficiencies in investigatory procedure, and the severe harm inflicted on Butts, we would not feel justified in ordering a retrial of the compensatory damage issue, either on the theory that this aspect of the case was submitted to the jury only under the issue of “truth,” or on the very slim possibility that the jury finding regarding punitive damages might have been based on Curtis’ attitude toward Butts rather than on Curtis’ conduct. (Footnote omitted.)
This, of course, brings Grayson directly within the ambit of Butts, for the compensatory damages in Butts are the *1014legal equivalent of general damages allowable in Washington awarded to Grayson. Thus, as I understand the Butts case, if one is a public figure rather than a public official, matters of ill will or attitude in cases of manifest defamation need not be specially pleaded and proved to support general or compensatory damages, but may be inferred from the circumstances—malice being indispensable only for punitive damages. After all, unless malice be imported from the words, pictures and drawings, how does one go about proving that a national publishing corporation harbors a grudge or ill will against someone? Corporations, by their very nature as artificial creatures, are impersonal, possessing neither emotions nor sentiments, and reflect only the transient attitudes of the persons who happen to be running them at the time.
In the present case, instructions Nos. 8 and 9 instructed that “fair comment” and “privileged criticism,” if shown, would constitute a qualified defense, and that the truth is an absolute defense.4 And the court instructed, too, that *1015want of malice is a mitigating factor in damages.5
The court also told the jury:
By the laws of this state, neither damages by way of punishment as to a defendant (sometimes called punitive damages or “smart money”) nor damages by way of an example to others (sometimes called “exemplary damages”) are allowable and you cannot include in your verdict any sum for either of these purposes. Instruction No. 14.
I would think, therefore, that these together with all other instructions, when applied to a flagrant and manifest defamation by a magazine of national circulation, brought this case within the Butts rationale. The general damages were affirmed, therefore, in Butts under the same circumstances as I would affirm them here, for we do not have punitive damages in this state and the court told the jury so.
The blatant and scurrilous nature of the defamatory remarks against Grayson along with the obvious innuendoes arising from them when considered in light of the undeniable deliberation, planning, preparation, editing and circulation essential to get the libel into the hands of the readers, gave the Curtis Publishing Company ample time and opportunity to investigate and check all phases of the arti*1016cle before circulating it. Thus, the circumstances connected with the manufacture and circulation of the magazine and the libel itself show highly unreasonable conduct, an extreme departure from the standards of responsible publishers.
I would not put the burden of proving malice upon the victim simply because he is in the public eye or occupies a position of prominence, whether he be a brain surgeon, lawyer, professor, bank president, actor, editor, scientist, industrialist, labor leader, clergyman or athletic coach. Although New York Times seems to cast this burden on the victim of a libel if he happens to be a public official, I see no reason to change the libel rules further by extending this burden beyond public officials.
Curtis, as has been noted, had the benefit of every material defense. The court advised the jury that the good faith of the defendants and want of malice could be considered as mitigating factors; that the truth was an absolute defense and that Grayson, being a public figure, was subject to honest criticism; and that if based “on true facts the criticism or comment may be severe, vehement, exaggerated or even prejudiced.”
That the Post was a magazine of national circulation was apparent to and properly considered by the jury. Before reaching the reader, the magazine had been planned, written, edited, spaced, made up, printed and distributed. The entire enterprise was one of forethought, preparation and studied execution. All of these considerations, I think, put Grayson’s case squarely within the rationale of Butts in showing a substantial danger to reputation, highly unreasonable conduct, and an extreme departure from the standards of a responsible publisher.
Contrarily, New York Times Co. v. Sullivan, supra, relied upon by the majority as of controlling authority, seems to me of little more than purely academic concern in this case. The Supreme Court had published New York Times before the Grayson case came on for trial and it was cited in argument to the trial court in connection with the sixth *1017affirmative defense.6 The main implication and thrust of arguments based on it were directed to whether Grayson was a public official within the meaning of New York Times, for the public figure idea had not yet generated. Indeed, defendants here thought to plead the New York Times rationale in the sixth affirmative defense by alleging merely that Grayson was an employee of the state. Thus, everyone connected with the instant case—and justifiably so—thought that New York Times, seeming then to be an abrupt departure from existing rules of libel, would be applicable to public officials only, that is, only to persons holding what could fairly be called a public office, who, possibly through their office, enjoyed certain immunities from liability for defamation when speaking or writing officially. The trial court accepted this as the meaning of New York Times.
That New York Times could and ought not be extended or enlarged is clear from a careful reading of it, particularly in this case because Grayson, a basketball coach, is not a public official. Not being a public official, he was entitled to the traditional protection against false, defamatory statements thought to exist under the common law for the protection of everyone’s good name and reputation. Therefore, the trial judge, in my opinion, properly struck Curtis’ sixth affirmative defense for the reason that John Grayson, holding the position of basketball coach at the University of Washington, could not be said to be a public official.
But the trial court had other good reasons for rejecting the New York Times rationale here for there is grave doubt in New York Times that the material complained of contained any libel at all concerning the plaintiff, Mr. Sullivan.
*1018The so-called defamatory writing there consisted simply of a large paid advertisement in the New York Times for Tuesday, March 29, 1960, under the caption “Heed Their Rising Voices,” and concerned one of the burning political, social and moral issues of the day. The advertisement said that thousands of southern Negro students were engaged in widespread nonviolent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the United States Constitution and the Bill of Rights. It described a number of incidents in which students engaged in peacefully expressing their views on civil rights through demonstrations had been attacked with force and violence. The advertisement mentioned a number of these incidents. For example, it described events in Orangeburg, South Carolina, a place clearly having no connection whatever with the plaintiff and his official duties, pointing out that
[W]hen 400 students peacefully sought to buy doughnuts and coffee at lunch counters in the business district, they were forcibly ejected, tear-gassed, soaked to the skin in freezing weather with fire hoses, arrested en masse and herded into an open barbed-wire stockade to stand for hours in the bitter cold.
As to Montgomery, Alabama, where plaintiff lived, the advertisement merely stated that
In Montgomery, Alabama, after students sang “My Country, ’Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.
The advertisement mentioned several other incidents of similar nature “In Tallahassee, Atlanta, Nashville, Savannah, Greensboro, Memphis, Richmond, Charlotte,” all without any direct or indirect reference to Mr. Sullivan.
More than one-half of the advertisement in the New York Times described the actions of the Rev. Dr. Martin Luther King as a leader in the civil rights movement and *1019his leadership in advancing that cause by nonviolent methods in southern states. It said that Dr. King had been assaulted in person, had been arrested on fake charges, such as speeding, loitering, and perjury, a felony; that his family had been threatened; and that his home had been bombed. The advertisement or message, as it more properly should be designated, carried the signatures of many well-known actors, actresses, clergymen and persons prominent in the life and affairs of this country, including the widow of a former President of the United States. It closed with a request for contributions to aid the civil liberties movement in the South.
One has to be chasing rainbows to see any connection between Mr. Sullivan and the advertisement. His name was not mentioned in it; it did not identify him as a public official who had failed to discharge his official duties. Actually, he was merely one of three elected commissioners of the city of Montgomery, Alabama, holding some kind of supervision over the police department, the fire department, the department of cemetery and the department of scales. The article did not mention Mr. Sullivan by name, title or office, nor was anything derogatory said of him concerning the conduct of his office. Mr. Sullivan was not a state authority or official. The only possible reference to Commissioner Sullivan as supervisor of the department of scales, department of cemetery, the fire department and the police department is the extremely remote reference in the third paragraph of the full-page advertisement. Sullivan brought action against four residents of Alabama who were Negroes and clergymen, and the New York Times. The jury awarded Mr. Sullivan $500,000 as damages arising from the publication of this paragraph and its circulation by means of 394 copies throughout the whole of Alabama, only 35 of which were distributed in Montgomery County. Of course, when the trial judge instructed the jury that the statements in the advertisement were libelous per se as to Mr. Sullivan, this substantially helped his cause, but the court did not make it clear whether the plaintiff had been de*1020famed more particularly as supervisor of the department of cemeteries, department of public scales, the fire department or the police department, or in all four categories.
Manifestly, a verdict of $500,000 arising by virtue of an advertisement having a circulation of 35 copies in the plaintiff’s home county in Alabama where he held a city office, against four Negro clergymen residents of that state and against a great New York newspaper which had demonstrated its sympathies for the civil rights movement, showed an unmistakable passion and prejudice and demonstrated conclusively that the defendant could not have received a fair trial. It could well have been said as a matter of law in that case that no fair-minded jury could possibly have awarded one-half million dollars to Mr. Sullivan for the injury claimed.
Mr. Sullivan brought his action in the Circuit Court of Montgomery County, Alabama which awarded him damages of $500,000. This judgment the Supreme Court of Alabama affirmed. New York Times Co. v. Sullivan, 273 Ala. 656, 144 So.2d 25 (1962).
But the Supreme Court of the United States, in New York Times, supra, reversed the Supreme Court of Alabama not for what seems to be the more obvious reasons, i.e., a gross and palpable miscarriage of justice evidenced by the awarding of one-half million dollars in damages to a city commissioner who had suffered no pecuniary loss whatever nor loss of status or good name in his community, on the circulation of 35 copies of the New York Times in his county, but instead on the asserted basis that the judgment of a court constituted state action abridging the freedom of speech. Little wonder the trial court here found New York Times, supra, inapplicable.
Then, too, there were the new constitutional theories in New York Times to contend with. The constitution (amendment one) says “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . . ” Now, it is quite clear that no law of Congress whatever is involved in Grayson’s case nor does it appear *1021that Congress has ever enacted any statutes abridging the freedom of the Curtis Publishing Company or intends to do so within the immediate foreseeable future. Although the constitutional implication of New York Times might be said to apply in libels of a public official, there is no constitutional basis whatever for a holding that a judgment for defamation in a private suit constitutes a state action.
Since the constitutional guarantees set forth in the first amendment to the United States Constitution pertaining to the right to speak and publish freely are limitations upon the Congress and, through the fourteenth amendment to the United States Constitution, become limitations upon the state legislatures, the reading into the constitution the idea that the judgment of a court of competent jurisdiction constitutes a state action in a private civil suit between private parties and is thus the same as an act of Congress or a state statute, stretches the constitution beyond all reason necessary to preserve freedom of criticism against public officials, and would be even more novel if extended to all persons who, because of their business, profession, calling or private actions, have become prominent.
Having made a careful study of that opinion in all its ramifications, the trial court properly declined to extend New York Times beyond its stated confines, and properly limited its application to its logical intendments. On review, we will do great mischief to the law of torts and to the long-cherished common-law ambition that for every wrong there is a remedy if New York Times Co. v. Sullivan, supra, is extended to every libel case involving persons of prominence. In the coming days when the computer and electronic memory may reign and electrical impulses at the touch of a button spew out a detailed dossier on every living American, I would not relax the most basic protections of individual privacy yet developed in law—the right of every man by personal actions in the courts to hold *1022accountable every other man for his false and defamatory and damaging utterances.
Rosellini, J., concurs in the result of the dissent.
March 22, 1968. Petition for rehearing denied.
Beauharnais v. Illinois, 343 U. S. 250, 96 L. Ed. 919, 72 Sup. Ct. 725 (1952) states:
“ ‘There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. “Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.” Cantwell v. Connecticut, 310 U.S. 296, 309-310.’ Such were the views of a unanimous Court in Chaplinsky v. New Hampshire, supra, at 571-572 [315 U. S. 568, 86 L. Ed. 1031, 62 Sup. Ct. 766 (1942)].” (Italics mine.)
Instruction No. 8:
“The defendants have pleaded the defense of privileged criticism or fair comment in this case. The terms ‘fair comment’ and ‘privileged criticism’ mean essentially the same thing.
“You are instructed in this regard that persons who present their work or products to the public for its approval and acceptance thereby subject it to public criticism. Honest comment upon such work as presented to the public is privileged.
“You are instructed that the activities of the plaintiff John Grayson as a coach of the basketball team of the University of Washington, a state institution, were a matter of public concern and interest within this rule at the time the publication in question was made.
“Criticism of the acts and work of public men is privileged even though defamatory if it is based upon a substantially true statement of facts and represents the actual opinion of the critic and is not made for the purpose of causing harm to the person criticized.
“This rule does not require that the criticism express an opinion with which any person of reasonable judgment could possibly agree, but if based on true facts the criticism or .comment may be severe, vehement, exaggerated or even prejudiced.”
•Instruction No. 9:
“You are instructed that the defendants have interposed the defense *1015of truth. The defense of truth is an absolute defense and would constitute a complete justification for the publication in question.
“The defendants have the burden of proving that the publication of which the plaintiff complains is true. If you find from a preponderance of the evidence that the factual statements of the publication were substantially true as they relate to the plaintiff, then your verdict must be for the defendants.”
Instruction No. 13:
“You are instructed that good faith or lack of malice on the part of the defendants is relevant to the issue of damages. Lack of malice on the part of the publisher is a mitigating factor in respect to the question of the amount of compensatory damages, if any, to which the plaintiff may be entitled. If you should find for the plaintiff in this case, then in assessing the damages, if any, to which he may be entitled, you are to take into consideration as a mitigating factor the good faith of the defendants as you find has been established by a preponderance of the evidence.”
In its sixth affirmative defense, the defendants pleaded:
“. . . That at the time of the publication of January 5, 1963, and at all times referred to in the article referred to in paragraph V of the plaintiff’s complaint, the plaintiff was an employee of the State of Washington and, therefore, the publication and article hereinabove referred to is privileged due to the provisions of the First and Fourteenth Amendments of the Constitution of the United States.”