dissenting.
In this world of sloganistic wordsmanship and phrase making, it becomes easier than agonizing about the hard effort of thinking to relegate decision making to spontaneous reactivity and opinion-determining words. Spender, do-gooder, ultraconservative, soft on crime, gun control, abortion, and censorship serve as examples. In this case, the umbrella of the First Amendment casts a shadow which tends to exclude deeply important issues. These in-*923elude summary judgment decision making. It is followed by an application of a derived or directed federal concept to diminish efficacy of our state constitutional right to the integrity of the whole individual to be protected by a jury trial review through a damage claim.
There is much with which I do agree in the scholarly and complete majority opinion. There was much about which I likewise agreed in the effort of Justice Thomas to write a majority opinion before this case was reassigned and with which I also joined in concept to favor disposition within the Wyoming Constitution.
I will leave the subject to be critically considered by Justice Thomas in his dissent regarding the broad base anticipations and concepts of the Wyoming Constitutional Convention when its members wrote Wyo. Const, art. 1, § 20. I will generally limit this dissent to the immediately pressing question regarding inappropriateness of deciding by summary judgment that the Wyoming Constitution is invalid. I also do not accept the view that the First Amendment to the United States Constitution determines that the provisions of Wyo. Const, art. 1, § 20 should be abrogated or ignored. I reject decision making for the libel case through summary judgment rather than jury trial exposure guaranteed by the explicit terms of our constitution.
The real issue we determine here is that Wyo. Const, art. 1, § 20 is involved and cannot be ignored whether or not, as the majority essentially determines, it is in essence invalidated by Fourteenth Amendment incorporation of the First Amendment to the United States Constitution. We do that when considering a scurrilous publication which, by any definition, panders a prurient course of character assassination. This is not an injunctive action to stop exposure of the world to the product— good, bad or indifferent. This is a damage case to assess defamation tort responsibility by exposure of the purveyor to a jury review and verdict decision. In Spence v. Flynt, 816 P.2d 771 (Wyo.1991), cert. denied — U.S. —, 112 S.Ct. 1668, 118 L.Ed.2d 388 (1992), the cause was to attack the attorney to defeat litigation, and now it comes directly in this case as an effort to defeat the muckraker by multiplying the quantity of muck.
First, let’s look at the text of the two constitutional provisions. This is done to assess why the majority feels required to superimpose a federal veto on the Allied-Signal, Inc. v. Wyoming State Bd. of Equalization, 813 P.2d 214 (Wyo.1991) clear intent application of the Wyoming Constitution in this case. We would then deny the litigant access to a jury trial for review of unabused truth and good intent for justifiable ends as defenses.
Wyo. Const, art. 1, § 20 states:
Freedom of speech and press; libel; truth a defense.
Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right; and in all trials for libel, both civil and criminal, the truth, when published with good intent and [for] justifiable ends, shall be a sufficient defense, the jury having the right to determine the facts and the law, under direction of the court.
U.S. Const, amend. I states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
It would be wise, before we wade deeply into the morass provided in the litigative pursuits of the Hustler publications, to recall clearly and with specificity what summary judgment is all about. It should be apparent that if the product with which we are concerned is so acceptable or important, then the purveyor should have no objection to a jury review and discernment. This court made a serious effort in Cordova v. Gosar, 719 P.2d 625 (Wyo.1986), as followed by Davenport v. Epperly, 744 P.2d 1110 (Wyo.1987), to properly understand the diverse applications of summary judgment as a procedural deterrent to the *924litigant’s right to a jury trial.1 In Cordova and Davenport, summary judgment was recognized in a six stage review: (1) legal sufficiency of the complaint; (2) procedural sufficiency of the motion for summary judgment and attached affidavits and deposition material; (3) substantive sufficiency of the affidavits to initially support the motion; (4) procedural sufficiency of responsive affidavits; (5) substantive legal issue disposition (factual issues not relevant); and (6) disposition if there are no material issues of fact (material factual issues do not exist). Cordova, 719 P.2d at 635-36.
Consequently, when an adequately developed summary judgment litigative attack is unleashed, the decisional process addresses a contended basis for granting the relief by either of two decisions: (a) a dispositive rule of law which controls without regard for conflicting schemes of fact; or (b) absence of material issues of fact to be determined from the affidavits and depositions as admissible evidence if a trial were to be held.
Summary judgment then, if properly developed, either presents a law case, Dean W. Knight & Sons, Inc. v. State ex rel. Dept. of Transp., 155 Cal.App.3d 300, 202 Cal.Rptr. 44 (1984), or a no factual conflict case, Davenport, 744 P.2d 1110. It is now apparent that the federal court system, through the Triad cases, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); and Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), cert. denied 481 U.S. 1029, 107 S.Ct. 1955, 95 L.Ed.2d 527 (1987), has moved beyond the conventional standard for state court and prior federal law. This effort has not met with acceptance among the state judiciary and particularly not in Wyoming. This court has not been willing to accept the supposition of federal cases to base “trial” upon affidavits and bits and pieces of deposition material rather than the integrity of an actual trial with live witnesses and, perforce, even a jury decision.
In simplest text, if we are looking at the component of summary judgment involving existence of a material issue of fact, the principle is stated:
The motion for summary judgment should be sustained in the absence of a real and material fact issue considering movant’s burden, respondent’s right to the benefit of all favorable inferences and any reasonable doubt, with credibility questions to be resolved by trial.
Cordova, 719 P.2d at 640.
In broader text, we have alternatively stated:
“ * * * ‘Summary judgment should not be granted where contradictory inferences may be drawn from undisputed evi-dentiary facts.’ * * * ‘Even where the facts bearing upon the issue of negligence are undisputed, * * *, if reasonable minds could reach different conclusions and inferences from such facts, the issue must be submitted to the trier of fact.’ * * * ‘ “Evaluative judgment between two rationally possible conclusions from facts cannot be engaged in on summary judgment.” ’ * * * ‘Summary judgment is not appropriate where the record, including documents and pleadings, establishes facts which give rise to contradictory inferences, one of which supports the party opposing the motion.’ * **>>** *
*925“ * * * The motion for summary judgment is a drastic remedy and one which is designed to pierce the formal allegations and reach the merits of the controversy — but only when no material issue of fact is present. * * * Although both parties are obligated to come forward with their evidence, the burden is on the moving party to demonstrate clearly that there is no genuine issue of material fact and if that is not done, the motion for summary judgment should be denied. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in the affidavits, exhibits, and depositions. * * *
“ * * * If the evidence is subject to conflicting interpretations or reasonable minds might differ as to its significance, summary judgment is improper[.]” Weaver v. Blue Cross-Blue Shield of Wyoming, Wyo., 609 P.2d 984, 986-987 (1980).
Precedentially significant are the credibility and the reasonable-inference principles. * * *
******
We would synthesize the general principles advanced by some Wyoming cases and general standards of many well-reasoned cases from the federal courts and other states:
(a) The motion for summary judgment is a drastic remedy and one which is designed to pierce the formal allegations and reach the merits of the controversy — but only when no material issue of fact is present. Although both parties are obligated to come forward with their evidence, the burden is on the moving party to demonstrate that there is no genuine issue of material fact.
(b) The court should scrutinize with care movant’s affidavits and indulge leniency to respondent’s affidavits but not to permit overtrading on the indulgence of the court since there must be a genuine issue of a material fact to be tried after looking at the record from the viewpoint most favorable to respondent and giving to him all favorable inferences to be drawn from the facts contained in the affidavits, exhibits, and depositions.
(c) When credibility is to be tested, the witnesses should testify at trial.
(d) Cross-motions do not concede the absence of factual issues.
(e) Finally, then, to determine whether the evidence is in factual dispute or subject to conflicting interpretation or of differing significance with respondent afforded the benefit of reasonable doubt.
Cordova, 719 P.2d at 639-40 (emphasis in original).
The challenge then presented is to determine, as a result of the majority’s decision, whether supersession of the Wyoming constitutional provision regarding the right to a jury trial explicitly stated in Wyo. Const, art. 1, § 20 is a determination as a matter of law without regard for conflicts of fact or whether we have the character of summary judgment determined by the conclusion that there is no material issue of fact presented.
Although I do not enthusiastically accept invalidation of the solemn provisions of the Wyoming Constitution, whether by summary judgment or otherwise, it becomes even less acceptable if a fact finding exercise is utilized as an adjunct of the summary judgment disposition. In recognizing that in essence what we label here as summary judgment is in actuality a fact finding exercise by appellate review, I respectfully and urgently dissent from this decision. Alternatively, I would think that if we start down this pathway, it is highly preferable for this court to declare Wyo. Const, art. 1, § 20 void and ineffective. This court can then start over with the sole protection to be provided in this jurisdiction for freedom of speech or liability for libel and defamation to come from the periodic incursion into constitutional law by the United States Supreme Court.
The overwhelming issue for this libel action appeal is whether, as a matter of law, Hustler Magazine’s “comments” cannot be *926found to be actionable under the Wyoming Constitution as limited to the extent it would be by the First Amendment decisions of the United States Supreme Court. The use in this case of a summary judgment proceeding to invalidate Wyoming Constitution requirements and guarantees is, in my opinion, unnecessary and inappropriate.
The first decisional examination made by the majority was whether an alleged defamatory statement “purports to state or imply ‘actual facts about an individual.’ ” Maj. op. at 914 (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 2706-07, 111 L.Ed.2d 1 (1990)). I find that inquiry and the coordinate concerns of the majority opinion to be, in totality, factual determinations and, consequently, not subject to resolution under the established rules of this court for summary judgment. Cordova, 719 P.2d 625. It should be clearly understood that the issue of this case is not whether the statements are determina-tively actionable as a matter of law, but whether the statements cannot be actionable in any circumstance consequently justifying summary judgment disposition. Unfortunately, this court’s opinion applies the matter of law summary judgment resolution by a comprehensive factual issue evaluation. Combining the two alternatives for a grant of summary judgment only logically results in a totally invalid conclusion. The majority first outlines the scope of expected factual issues:
[A] court must scrutinize the type of language used, the meaning of the statement in context, whether the statement is verifiable, and the broader social circumstances in which the statement was made.
Maj. op. at 914. The majority then follows with a detailed factual analysis:
The type of language used.
The kind of language used may signal readers that a writer is not purporting to state or imply actual, known facts. * * * Clearly falling into this category are Hustler’s statements characterizing Dworkin as: “ ‘little guy’ militant lesbian feminist,” a “shit-squeezing sphincter in her own right,” “one of the most foulmouthed, abrasive manhaters on Earth,” a “repulsive presence,” “a cry-baby who can dish out criticism but clearly can’t take it,” “Spence’s foaming-at-the-mouth client,” and “a censor.”
Id. at 914-915. Having exercised this factual review conceptual interpretation, the majority then answers: “Under prevailing constitutional First Amendment safeguards, that language cannot, as a matter of law, form the basis for a defamation claim.” Id. at 915.
Next examined is: “The meaning of the statement in context.” This legal application of a factual review is considered when the majority factually applies:
Certain formats — editorials, reviews, political cartoons, monthly features — signal the average reader to expect a departure from what is actually known by the writer as fact. As explained in another case, “[t]he reasonable reader who peruses [a] column on the editorial or Op-Ed page is fully aware that the statements found there are not ‘hard’ news like those printed on the front page or elsewhere in the news sections of the newspaper.” Ollman v. Evans, 750 F.2d 970, 986 (D.C.Cir.1984), cert. denied 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985). * * *
The Hustler article appears under the heading “Bits and Pieces” and is a regular monthly feature. The tone of the article is pointed, exaggerated and heavily laden with emotional rhetoric invoking first amendment principles. We are convinced that the average reader is fully aware that the statements found there are not “hard news.” Readers of that magazine expect that Hustler’s writers will make strong opinionated statements in that column, a recognized home of opinion and comment. That proposition is inherent in the very notion of a regularly appearing “Bits and Pieces” page which is akin to an editorial page.
Maj. op. at 915.
From this totally directed factual analysis in appellate review, the next topic, “Verifiability of the statements,” reaches *927further for appellate adjudicatory fact finding. Id. at 915.
Continuing to apply the broad concepts of summary judgment adjudication, my objection to what is done does not end here since the search factually expands beyond the printed record within the topic of “The broader social circumstances in which the statement was made.” Id. at 916. The context is stated: “The importance of social context has been recognized by the United States Supreme Court,” and then the factual conclusion to determine that dismissal is proper is sequentially stated:
Dworkin is an antipornography activist whose activities are in the form of public advocacy and direct political involvement. She participated in the drafting of the Indianapolis antipornography ordinance that was enacted and then held unconstitutional. * * * Hustler’s Bits and Pieces article is an ad hominem attack against an advocate of a social, moral and political viewpoint contrary to Hustler’s. The statements in question were uttered in the context of an ongoing debate in which Dworkin seeks to destroy the industry of which Hustler is a part. In response, Hustler seeks to destroy Dworkin’s viewpoint by vilifying its advocate. In such a heated and spirited confrontation, of which the statements are a part, abusive epithets, exaggerated rhetoric and hysterical hyperbole are expected.
Id.
Four statements are then examined “which appear more likely to be objectively capable of proof or disproof.” Id.
The majority then tells us:
The four statements are: Dworkin is a “lesbian”; when Indianapolis contemplated an antiporn ordinance co-authored by her, supporters asked her to “stay away for fear her repulsive presence would kill it”; Dworkin “advocates bestiality, incest and sex with children”; and Dwor-kin initiated a “nuisance suit” against Hustler. We consider these statements in the light of Dworkin’s legal burden of having to prove with convincing clarity not only the falsity of the statements, but also that Hustler uttered them with knowledge of the falsity or in reckless disregard for the truth.
Id. at 916-917.
The majority then states, which defines the keynote for my attack on this summary judgment decision: “As shall be seen, Dworkin has not satisfied her burden in this summary judgment setting.” Id. at 917 (emphasis added). Overtly missing is the initially emplaced burden of the movant to either show that disposition is proper as a matter of law or that no material factual issues exist. The first burden in application of Wyoming summary judgment concepts does not properly fall on a respondent.
The misapplication of the burden makes a point which could be continued through the balance of the majority opinion. The summary judgment had not been initially granted by the trial court or now approved by this tribunal as a matter of law except after judicial reference and analysis to the compelling and comprehensive factual conflicts. This is a stage six, Cordova, 719 P.2d at 636, summary judgment where conflicting facts are actually analyzed to then be determined by a favorable inference based upon the implication that no genuine issue is present. I cannot find that conclusion to properly follow from this recitation by even the wildest adaptation of the English language. The criteria for granting summary judgment is comprehensively and clearly defined by this court and cannot by any means be satisfied within this profusely demonstrated, factually conflicting appellate record.
This leads to my conclusion that the jury-directed fact finding function detailed in the Wyoming Constitution has been turned upside down. Summary judgment in this case becomes a trial mechanism for the fact finder trial judge and appellate court to become lawmaker, judge and jury regarding the solemn subjects of both freedom of speech and damage for libel addressed in Wyo. Const, art. 1, § 20. If the evidentiary status was that well-determined and self-evident, it would seem certain that the jury can properly decide. The *928constitutionally constituted jury, with proper instruction, should reliably be expected to answer the demands of justice without preemption by a summary judgment decision. The only escape from this inevitable certainty is for the judiciary to avoid incursion into fact finding and to leave decision making to legal concepts. The majority here decides that under no circumstances or character of events can actionable libel be established by writings at issue in this litigation. If this is not true, we just turn the judiciary into the fact finder for it to slide into a conclusionary and reference comparison making instrumentality for all final fact finding for Wyoming defamation cases. I do not accept this to be procedurally correct or constitutionally valid.
Stripped of its complexities and the significant academic direction of analysis, this majority opinion simply tests the validity and consequent constitutionality under the United States Constitution of a firm and certain provision adopted by the founders of this state at the constitutional convention in 1889. I do not so lightly abandon the Wyoming Constitution to summary judgment adjudicative disposition. I find value in retaining the civil liability defenses which are constitutionally stated for this jurisdiction that “the truth, when published with good intent [for] justifiable ends, shall be a sufficient defense * * Wyo. Const, art. 1, § 20.
To first review the Wyoming cases, I would not find Tschirgi v. Lander Wyoming State Journal, 706 P.2d 1116, 1117 (Wyo.1985) to be faintly comparable where the issue there presented was essentially whether appellant was “wrestled to the ground.” Since the appellant was essentially “wrestled to the ground,” no factual issue was presented. Id. at 1117. That status cannot be compared to this case. Nor do I find the call-in radio broadcast portrayed in Adams v. Frontier Broadcasting Co., 555 P.2d 556 (Wyo.1976) to be relevant authority. Recognizing that the case itself was a political decision relating to an alleged political figure, the validity of the statement of the anonymous caller was first, unexpected and, second, not knowingly untrue by the radio station when broadcast. Obviously, the appellate court in the case opted to favor call-in programs over possible derogatory comments by anonymous participants. That situation cannot be accurately related to the events of this deliberate publication thoughtfully prepared in considerable detail for which the fact finding exercise of present adjudication is employed.
Similarly, Spriggs v. Cheyenne Newspapers, 63 Wyo. 416, 182 P.2d 801 (1947) provides no summary judgment justification or persuasion since the case was determined by a jury verdict. John J. Spriggs, a participant in significant litigation, was an anathema to the members of the Wyoming Supreme Court, but at least the decision making, fact finding process was retained for jury examination. Williams v. Blount, 741 P.2d 595 (Wyo.1987) and Oil, Chemical and Atomic Workers Intern. Union v. Sinclair Oil Corp., 748 P.2d 283 (Wyo.1987), cert. denied 488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988) did not raise the constitutional question and likewise cannot provide authority for summary judgment inversion of Wyo. Const. art. 1, § 20.
This leaves MacGuire v. Harriscope Broadcasting Co., 612 P.2d 830 (Wyo.1980) for discussion. In MacGuire, the issue was the existence of sufficient indicia of malice to defeat summary judgment. Conversely, for this present case, the actual existence of malice could hardly be questioned. We do not have here a contested malice case, we have a case where, despite malice, we are asked to determine whether First Amendment rights as interpreted by the United States Supreme Court supplement the dual interests of free speech and responsibility for misuse constructed into the Wyoming constitutional provision, Wyo. Const, art. 1, § 20. Furthermore, I would join with Justice Rooney in his special concurrence in MacGuire to follow his justified understanding of the basic nature of summary judgment and the disingenuous result if certain cases are casually excluded from its specifically established criteria and limitations. Justice Rooney said: “If there is a ‘genuine issue as to any material fact,’ a trial should be had to resolve it. The *929plaintiff ought not be required to prove his case at the summary judgment stage. He need only establish that there is an issue of material fact.” MacGuire, 612 P.2d at 841. Furthermore, he accurately added for determination of malice:
“In reviewing an appeal from the granting of a summary judgment and in determining the existence of a genuine issue of material facts, the court must inquire from the viewpoint most favorable to the party opposing the motion, Timmons v. Reed, Wyo., 569 P.2d 112 (1977). Facts asserted by such party and supported by affidavits or other evidentiary material must be taken as true, Trautwein v. Leavey, Wyo., 472 P.2d 776 (1970), and be given every favorable inference, which may be reasonably and fairly drawn from them, Bluejacket v. Carney, Wyo., 550 P.2d 494 (1976).”
MacGuire, 612 P.2d at 841, Rooney, J., specially concurring. To be complete for Wyoming case law analysis, the political handbill case of Phifer v. Foe, 443 P.2d 870 (Wyo.1968), involving campaign disputes between public officials, can hardly be found to be applicable here where the differentiated malice issue predominated in the decision made.
I share with Justice Rooney a disinclination to create a general exception in defamation cases for the utilization of summary judgment. MacGuire, 612 P.2d at 840. However, I take that concern further in my analysis to look directly at the clear language of the Wyoming Constitution. I conclude that for defamation cases, we not only rewrite summary judgment concepts but also determine that the applicable Wyoming constitutional provision regarding freedom of the press, Wyo. Const, art. 1, § 20, is constitutionally invalid under the constraints of the Constitution of the United States. I find that opinion neither necessary nor appropriate. I take this position without legal embarrassment while recognizing that the requirements established by interpretation of the First Amendment to the United States Constitution are controlling upon the state court by virtue of the application of the incorporation doctrine through enforcement by the Fourteenth Amendment. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).
We are presented an interpretative responsibility which clearly embraces the differentiated concepts addressed by this court in Allied-Signal, Inc., 813 P.2d 214. If clear and specific language means anything, the Wyoming constitutional provision cannot be reconciled with the decision this court now makes. Conversely, if I follow the pathway now taken by this present majority in utilizing a historical perspective, I likewise find the applied principles to be fallacious.2
I follow a perception gained through a close examination of both the initiating history and the specific language of the Wyoming constitutional provision. Its adaptation and utilization need take us no further than to determine that defamation provides an application for summary judgment identical to and not more easily provided than exists for any other civil litigation. The same standard should be followed. Contrarily, this majority now takes a constitutional provision and upends it by application of a differentiated concept of summary judgment which leads the trial judge and the appellate tribunal to make the fact finding decisions required for adjudicatory resolution.
*930Legal historians trace the ancestry of the Wyoming constitutional provision in adopted style to Chapter 60 of 32 George III, enacted in 1792 and known by the title of “Fox’s Libel Act”. Entitled “An Act to Remove Doubts Respecting the Function of Juries in Cases of Libel,” the purpose answered was to require a finite jury decision in criminal libel proceedings. The Act assured an actual jury decision and limited the prior process wherein the scope of decision by the jury was constrained and the real decision was made by the court as a matter of law. See Oakes v. State, 98 Miss. 80, 54 So. 79 (1910). See also Annotation, 33 L.R.A. (N.S.) 207 (1911) and Annotation, 51 L.R.A. (N.S.) 369 (1914).
Although Fox’s Libel Act originally addressed only criminal libel proceedings, in due time through early constitutional conventions and then clear identification in the Western states, the provision applied equally to either civil or criminal proceedings. That law and the American constitutional provisions which followed were intended to clarify the preeminence in fact finding left for the jury’s consideration and verdict. This history cannot be properly applied to demean and diminish or extinguish the use of the jury for fact finding decision. Not so surprisingly, until recent time, that understanding of the purview of Wyo. Const, art. 1, § 20 did not create a question of a differentiated status regarding summary judgment from the usual civil case.
The majority similarly misunderstands the context of case law in adjoining states regarding these constitutional provisions. The burden of those cases, which will be considered in later review, was not to establish a differentiated class for defamation cases where summary judgment becomes more appropriate. It was rather to define the integration of the constitutional provisions to guarantee the similar right to trial by jury in for defamation.
The historical underpinnings of American law relating to nonsuit/summary judgment criteria are well established and firmly defined in relating to the disparate function of the jury to make the fact finding and the judge to determine issues of law. That rule is: if there is some evidence to sustain the plaintiff's case, the weight and sufficiency is to be passed upon by the jury. Hornsby v. South Carolina Ry. Co., 26 S.C. 187, 1 S.E. 594 (1887); Lingenfelter v. Louisville & N.R. Co., 9 Ky.L.Rptr. 116, 4 S.W. 185 (1887). See also Eaton v. Lancaster, 79 Me. 477, 10 A. 449, 449 (1887) (“If there was any evidence which, if believed by the jury, would authorize a verdict for the plaintiff, a nonsuit should not have been ordered.”).
These firmly established principles of general law were also equally applied to the defamation case. State constitutional provisions or statutory enactments which adopted the thesis of Fox’s Libel Act are considered not to eliminate, but rather to assure the responsibility of the court to provide instructions on the law and to assure that fact finding was retained by the jury. Perhaps the most exhaustive case, Oakes, 54 So. 79, pursued this concept with a detailed examination of prior English cases. Clearly recognized in detail of numerous cases is the difference between libel per se and libel per quod. If the statement was determined to be libelous as a matter of law, the fact finding exercise by the jury was appropriately diminished. If the subject was libel per quod, the determinative obligation of the court was equally constrained. The difference in defamation cases is the additional requirement for libel per quod to require special damages to be actionable. Boucher v. Clark Pub. Co., 14 S.D. 72, 84 N.W. 237 (1900). In quoting a much earlier English case, the Mississippi court in Oakes recognized with approval in regard to libel per se:
“Libel is a question of law, and the judge is the judge of the law in libel as in all other cases; the jury having the power of acting agreeably to his statement of the law or not. All that the statute does is to prevent the question from being left to the jury in the narrow way in which it was left before that time [passage of the statute of George III]. The jury was then only to find the fact of the publication, and the truth of the innuendoes; for the judges used to tell them that the intent was an inference of law, to be *931drawn from the paper, with which the jury had nothing to do. The Legislature has said that it is not so, but that the whole case is to be left for the jury.”
Oakes, 54 So. at 81 (quoting Rex v. Burdett, 4 B. & A. 131, 1 How.St.Trials (N.S.) 1).
Oakes provides a detailed discussion of this understanding which clearly recognized defamation to be identical in adaptation with other civil actions:
The enactment of this statute was largely influenced by the argument of Alexander Hamilton in the case of People v. Croswell, [3 Johns.Cas. 365 (N.Y.)], supra, and by the opinion of Chancellor Kent rendered in the case. Hamilton only contended for the right of juries in libel cases to render a verdict as broad as the issue involved, and this contention was upheld by Chancellor Kent in the opinion rendered by him in the case. This provision was incorporated into our first Constitution, adopted in 1817, while this controversy over the rights of juries in libel cases was fresh in the minds of all men conversant with the then recent history of this country and of England. Had this controversy never arisen, there would have been no necessity for the adoption of this provision. Since the controversy centered around the rights of juries to render a general verdict in libel cases, as broad and comprehensive as such a verdict is in all other criminal cases, the conclusion is irresistible that its adoption was for the purpose of settling the right of juries so to do, and not to confer upon them the right to determine the law for themselves without the assistance, or against the direction, of the court. Indeed, any doubt on this point ought to be removed by the language of the Constitution itself, for it does not simply provide that the jury shall determine the law and the facts, but provides that it shall do this “under the direction of the court.” State v. Burpee, 65 Vt. 1, 25 Atl. 964, 19 L.R.A. 145, 36 Am.St.Rep. 775, 790; Com. v. Anthes, 5 Gray (Mass.) 185; Drake v. State, 53 N.J.Law 23, 20 Atl. 747; 2 McClain’s Cr.Law, § 1070; 3 Greenleaf, Evidence, § 179; Com. v. McManus, 143 Pa. 64, 21 Atl. 1018, 22 Atl. 761, 14 L.R.A. 89; State v. Syphrett, 27 S.C. 29, 2 S.E. 624, 13 Am.St.Rep. 617; Brown v. State, 40 Ga. 689; Edwards v. State, 53 Ga. 428; Sparf v. U.S., 156 U.S. 51, 15 Sup.Ct. 273, 39 L.Ed. 343; Cooley’s Const.Lim. (7th Ed.) 665; Franklin v. State, 12 Md. 236; Harris v. State, 75 Tenn. 538.
If juries have the right to determine the law of libel for themselves, free from the control of the court, the result would be not only that the law would be uncertain, because of the different views which different juries might take of it, but their judgment of the law, however erroneous, would be final; for in that event neither the trial court nor this court would have any right to review same, and could grant no relief to a defendant, however erroneously he may have been convicted. The court would have no right to decide any question of law which might arise on the trial, by demurrer or otherwise. Should a citizen, under this construction of the Constitution, be indicted for libel, and the matter charged to be such be never so harmless or lawful, the court would be powerless to prevent his conviction and punishment, should the jury decide that, in its judgment, the matter charged was libelous. The jury would be the judge of the meaning of the Constitution and the statutes, whether statutes were valid, what the common law is, what the law of privilege is — in short, of all questions of law which could arise on the trial.
Oakes, 54 So. at 82-83.
It is said in Harrington v. Butte Miner Co., 48 Mont. 550, 139 P. 451, 452 (1914) (quoting Odgers, Libel and Slander 604 (2d ed.)): “ ‘The judge, of course, may still direct the jury on any point of law, stating his own opinion thereon, if he thinks fit; but the question of libel or no libel must ultimately be decided by the jury.’ ” See also Annotation, supra, 51 L.R.A. (N.S.) at 371.
To be repetitive, the substance of these cases was not whether summary judgment *932or nonsuit could ever be granted when issues of fact did not exist, but rather if issues of fact did exist appropriate to the law, then the jury decision was required. An early text states that principle in the following fashion:
The court will generally direct judgment of nonsuit to be entered for the defendant:
(1) If there is no evidence that the defendant published the words at all, or (if the statute of limitations be pleaded) that he did so within the period prescribed.
(2) If there is no evidence that the words refer to the plaintiff.
(3) If the words proved are not actionable per se, and there is no evidence of any special damage.
(4) If the words are actionable by reason only of their being spoken of the plaintiff in the way of his office, profession or trade, and there is no evidence that the words were so spoken, or that the plaintiff held such office or exercised such profession or trade at the time of publication.
(5) If the words are not actionable in their natural and primary signification, and there is no innuendo; or if the only innuendo puts upon the words a meaning that they cannot possibly bear. If, however, it is reasonably conceivable that those addressed might by reason of any facts known to them have put upon the words the secondary meaning ascribed to them by the innuendo, then it will be a question for the jury in which meaning the words were in fact understood. Whenever the words, though primarily not actionable, are yet reasonably susceptible of a defamatory meaning, the court will not as a rule grant the motion for a nonsuit. “It is only when the judge is satisfied that the publication cannot be a libel, and that, if it is found by the jury to be such, their verdict will be set aside, that he is justified in withdrawing the question from their cognizance.” Where the words of the libel are ambiguous, allegorical, or in any way equivocal, and the jury have found that they were meant and used in a defamatory sense, the court will not set aside their verdict, unless it can be clearly shown that, on reading the whole passage, there is no possible ground for the construction put upon it by the jury. But where the words are not reasonably capable of any defamatory meaning, there the judge will be right in directing a nonsuit.
Mason H. Newell, The Law of Slander and Libel § 718, at 802-03 (4th ed. 1924) (quoting Kelly, C.G. in Cox v. Lee, L.R., 4 Ex. 288) (footnotes omitted).
The even more recent cases found from decisions in adjoining jurisdictions have not ignored these general principles. Griffin v. Opinion Pub. Co., 114 Mont. 502, 138 P.2d 580 (1943) was determined on the basis that the statement was not libelous per se and, lacking allegations of special damage, the complaint failed to state an actionable claim. Springer v. Swift, 59 S.D. 208, 239 N.W. 171 (1931) recognized that at least for South Dakota, the Fox’s Libel Act and the constitutional provisions that followed applied only to libel in that jurisdiction and did not include slander. Brodsky v. Journal Publishing Co., 73 S.D. 343, 42 N.W.2d 855 (1950) recognized that if an article was not libelous per se, special damages must be alleged. That court further found that for libel per se, the plaintiff must be clearly identified in the challenged publication. That case did recognize where, however, an article alleged to be libelous is susceptible of different interpretations, one of which is defamatory and the other not, a question for the jury is presented. The only question resolved was whether the published article was libelous per se. The same understanding is provided in Spriggs, 63 Wyo. at 437, 182 P.2d at 808 (quoting 2 Cooley, Constitutional Limitations 955 (8th ed)):
“Nevertheless, we conceive it to be proper, and indeed the duty of the judge, to instruct the jury upon the law in these cases, and it is to be expected that they will generally adopt and follow his opinion.
“Where, however, the constitution provides that they shall be judges of the law ‘as in other cases,’ or may determine the *933law and the fact ‘under the direction of the court,’ we must perhaps conclude that the intention has been simply to put libel cases on the same footing with any other criminal prosecutions, and that the jury will be expected to receive the law from the court.”
The basic determinate and foundational issue in this appeal considers whether the characterized constitutional revolution for defamation stated to result from New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) essentially eliminates jury involvement. See Clarence Morris, Modem Defamation Law ch. 2 and ch. 3 (1978). See also Ella Cooper Thomas, The Law of Libel and Slander and Related Action, ch. IX, at 55 (1973). The Sullivan clear and convincing evidentiary test came in more recent times to be joined, in the federal court system, with an evolutionary change for summary judgment. Within the current purview of the United States Supreme Court in denigrating rights to trial and jury in the Triad cases, Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505 was broadly phrased as a summary judgment decision and directly involved a Sullivan perspective of defamation.
Liberty Lobby, Inc. has not been accepted as a procedural reconstruction of Wyoming summary judgment law. However, the context and concepts advanced in this majority opinion cause concern that by indirection, something new has been created without stated intention, either by defining a separate category of defamation summary judgment or embracing a change in basic Wyoming summary judgment law. See Rodney A. Smolla, Law of Defamation § 12.07[3][b], at 12-35 (1992) in discussion of the convincing clarity requirement for proof of actual malice and the summary judgment requirement of disproof by the respondent derived from Liberty Lobby, Inc.3
When we pass through the sweep of current American defamation and First *934Amendment media cases involving the United States Constitution, starting with the incorporation doctrine application of the United States Constitution to state decisions by the Fourteenth Amendment in Stromberg, 283 U.S. 359, 51 S.Ct. 532, and continuing to Masson v. New Yorker Magazine, Inc., — U.S. —, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991), we pass by a course of guide posts or obstructive cases along that case law pathway. Overtly, we recognize the case of the new revolution, Sullivan, 376 U.S. 254, 84 S.Ct. 710; observe the application of Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); acknowledge the application to civil litigation of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), cert. denied 459 U.S. 1226, 103 S.Ct. 1233, 75 L.Ed.2d 467 (1983); understand the confusion emanating from Hutchinson v. Proxmire, 443 U.S. 111, 120 n. 9, 99 S.Ct. 2675, 2680 n. 9, 61 L.Ed.2d 411 (1979); pass by Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971); and then come to Masson, — U.S. —, 111 S.Ct. 2419. Within this process, I do not ignore Milkovich, 497 U.S. 1, 110 S.Ct. 2695 to ask: what answer does it provide? The majority in Milkovich determined that all but one of the incidents reflected in the misquotations involved issues of fact. The dissent authored by Justice Brennan, with whom Justice Marshall joined, found a further issue of fact in the last misquotation. That direction can hardly justify the adjudicatory fact finding summary judgment decision required to favor Hustler Magazine here.
Careful, comprehensive and detailed analysis of malice, malice in fact, malice implied, malice that is something else, willful misconduct, gross negligence, ordinary negligence, Troman v. Wood, 62 Ill.2d 184, 340 N.E.2d 292, 299 (1975), intentional misstatement, and so forth, can provide, as it has, a world of topics for law journal analysis. In recent review, see Paul D. Driscoll & Kyu Ho Youm, Harte-Hanks Communications v. Connaughton: The U.S. Supreme Court’s Application of the Actual Malice Rule, 14 Comm. and the Law 57 (1992). See also Kate Silbaugh, Sticks and Stones Can Break My Name: Nondefa-matory Negligent Injury to Reputation, 59 U.Chi.L.Rev. 865 (1992). The point resulting from this review, however, despite the Triad cases and their non-jury trial concepts, is that in Masson, the United States Supreme Court required the factual review to be resolved in a reordered jury trial decision.
Appropriate limitations on the exercise of “free speech” are recognized in current cases. See, e.g., Burson v. Freeman, — U.S. —, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) and Zarsky v. State, 827 S.W.2d 408 (Tex.App.1992). Likewise, the courts have recognized that fact finding in assessing any First Amendment limitation — for this case compensatory defamation liability— should be left (as the Wyoming Constitution actually requires) with the jury. That recognition in Masson, — U.S. —, 111 S.Ct. 2419 has support from other cases. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 330 N.E.2d 161 (1975) provides a similar result by an ordered retrial for the jury decision. Goldwater v. Ginzburg, 414 F.2d 324 (2nd Cir.1969), cert. denied 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970) approved denial of initial summary judgment and affirmed the resulting jury verdict in that libel litigation. Cf. Southard v. Forbes, Inc., 588 F.2d 140, 146 (5th Cir.), cert. denied 444 U.S. 832, 100 S.Ct. 62, 62 L.Ed.2d 41 (1979), where Judge Thornberry, in dissent, recognized the jury question presented in similar thought with the statement of Justice Rooney in his special concurrence in MacGuire, 612 P.2d at 840.
Furthermore, when summary judgment is emplaced for disposition through its affidavit and deposition review, we do not have the full record from which an adequate appellate examination to assess evidentiary sufficiency can be made. See, conversely, Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989); Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984); and Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 *935(1967), cert. denied 391 U.S. 966, 88 S.Ct. 2036, 20 L.Ed.2d 880 (1968).
We should be reminded that the comfort provided by the Wyoming Constitution has, for this past century, sufficed admirably. We should then ask ourselves: what is there in this continuum of United States Supreme Court decisions to now justify a Fourteenth Amendment due process determinate requiring invalidation of one of our constitution’s very significant provisions? Again stated, that provision is:
Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right; and in all trials for libel, both civil and criminal, the truth, when published with good intent and [for] justifiable ends, shall be a sufficient defense, the jury having the right to determine the facts and the law, under direction of the court.
Wyo.Const. art. 1, § 20.
Directly stated, segment four of the majority opinion determined that good motives and for justifiable ends should be disregarded and discarded in the defamation case as criteria for liability or the absence thereof. Maj. op. at 920. I cannot find that resolution in Wyoming constitutional reconstruction to be ordered by persuasive case law in the decisions of the United States Supreme Court. That precedent, in my opinion, does not justify or require invalidation of the constitutional provisions of Wyo.Const. art. 1, § 20 regarding both free speech and responsibility for defamation. I will not invite bad faith and unjustifiable ends to be stuck on the Wyoming Constitution like barnacles to provide a wrongdoer immunity from defamation and misconduct.
Overtly, obviously and without any question, if I engage in a similar degree of fact finding, Hustler and its principals acted with the highest degree of intended malice, bad faith and viciousness. No semblance of good faith and honest motive is to be portrayed. I envision the Wyoming Constitution as retaining a factor of validity that truth, good faith and honest intent do have a significance for determination of immunity applied judicially to the perverted Hustler material embodied here. Consequently, the singularly defined, constitutionally clear and unquestioned responsibility of the jury in defamation and libel cases surely should not be ignominiously discarded by any appellate rewriting of the Wyoming Constitution.
I agree with the balanced relationship between freedom to write and responsibility for willful and significantly negligent harm:
The constitutionally recognized interest of the individual in his reputation is not and can not be measured solely in terms of monetary compensation. At the least, the individual has an interest in preserving and restoring his reputation through an authoritative and publicly known determination that an injurious statement about him is in fact false. To foreclose or restrict the availability of the judicial process as a means of securing such a determination prevents the individual from obtaining the effective vindication to which he is entitled.
Troman, 340 N.E.2d at 297.
I dissent because of an unwillingness to accept this trial by affidavit for adjudicatory fact finding processes in a defamation case. In the even more basic concept, I would firmly contend that the mandatory text of the Wyoming Constitution should not be denied, discarded or rejected by any decision made on the subject by summary judgment. If a libel suit resulting from obscene personal attacks printed on the pages of Hustler Magazine cannot, in the Wyoming state court system, be accommodated within the text of the Wyoming Constitution requiring a dual respect of free press and responsibility for misconduct, I would leave supersession of our constitution for action by the federal courts. I do not find it necessary for us to do it. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 57, 91 S.Ct. 1811, 1826, 29 L.Ed.2d 296 (1971), White, J. concurring in the judgment. Absolute immunity should not be required to cultivate activated health in our media and guarantee their full First Amendment exercise of the right of communication. “ ‘Neither lies nor false com*936munications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation.’ ” Time, Inc., 401 U.S. at 292, 91 S.Ct. at 640 (quoting St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262 (1968)). I am even more emphatically convinced that the mechanism of decision should not be summary judgment as a substitute for the thoughtful analysis of citizens as our peers through the jury trial. Goodness, badness, good faith and demonstrated malice are not such esoteric concepts that only the judiciary, and not even the media, is afforded the opportunity and responsibility to differentiate.
Consequently, I would like to invite a trial where Hustler has the opportunity to prove either good faith or validity or to pay the price if unable to convince the examining jury. If that cannot suffice as guideposts of Wyoming behavior within our state’s constitutional concepts, I would require the United States Supreme Court to be the first to then have the duty of rewriting our state constitution.
Consequently, I dissent.
. A rank amateur would recognize that a major war, which will be determinative of the American civil justice delivery system, is being waged around summary judgment. The idiom of this time is anything to avoid trial and, even more so, a jury trial. See, for example, the President’s Council for Competitiveness, Agenda for Civil Justice Reform, which would require the trial court to make an exclusive finding of fact (based on affidavits and whatnot) before summary judgment could be denied. The presump-tiveness of the recommendation is that summary judgment should be granted and that reason is required to reject. Avoiding jury consideration at all costs is clearly apparent from this source and other major movers who seek to reconstruct the American judicial system. See Finding 8, p. 20, Table of Recommendations, Agenda for Civil Justice Reform. See also Cler-mont & Eisenberg, Trial by Jury or Judge: Transcending Empiricism, 77 Cornell L.Rev. 1178 (1992).
. It is recognized that utilization of history for interpretation of a constitutional provision or a statutory enactment is under review and attack to a greater extent at the present time than has ever previously occurred. Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115, 130, 109 S.Ct. 2829, 2839, 106 L.Ed.2d 93 (1989), Scalia, J., concurring; Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527, 109 S.Ct. 1981, 1994, 104 L.Ed.2d 557 (1989), Scalia, J., concurring; Arthur Stock, Note, Justice Scalia’s Use of Sources in Statutory and Constitutional Interpretation: How Congress Always Loses, 1990 Duke LJ. 160 (1990); Richard Nágareda, Comment, The Appellate Jurisprudence of Justice Antonin Scalia, 54 U.Chi.L.Rev. 705 (1987). Cf. John Paul Stevens, Essay, The Shakespeare Canon of Statutory Construction, 140 U.Pa.L.Rev. 1373, 1381 (1992). See also Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 Tex.L.Rev. 1073 (1992).
. The argument favoring availability of summary judgment in the defamation case has a striking resemblance to the broad scope attack on the American tort system, particularly resulting from medical malpractice cases. A text which yields to a clearly pro-media basis, Smol-la, supra, § 12.07[l][b], at 12-32.3 (quoting Martin Marietta Corp. v. Evening Star Newspaper Co., 417 F.Supp. 947, 954 (D.D.C.1976)), recognizes:
Suits against the media often chill first amendment freedoms because of the huge costs attendant to carrying a defense through trial. * * * Summary judgment was thought of as a screening device particularly useful in first amendment cases as a tool for "shielding the press from harassment.”
Persuasive argument by variant special interest groups that they should be shielded from exposure to costs of defense from claims of misconduct or fault is clearly not an unexplored phenomenon in current American adjudicatory developments. Efforts to federalize products liability is clearly the most pertinent present example. See President’s Council on Competitiveness, The Agenda for Civil Justice Reform. Extremely short statutes of limitation for professional liability and specialty actions like defamation are apparently not found to be acceptable alternatives. That continued anxiety has now brought many specialized economic interests of this nation to seek success by a legislative agenda where the litigative results were dissatisfying.
A fair evaluation was provided by Morris, supra, ch. 6, at 62-63:
The satisfying gains achieved in the freedoms of speech and press have been accompanied by a less welcome loss. Many innocent victims of vilification who could formerly go to law for vindication and compensation no longer have legal remedies. Furthermore, the majority of defamers who are advised that they will probably not be held liable for publishing a particular slur are not likely to go overboard in making detailed, prominent, and completely exculpatory apologies, if indeed they retract at all. Certainly, the immune detractor will seldom be generous to the point of compensating his victim for any financial losses caused by the canard.
It is not necessary for me to engage in ptole-maics about these major economic, philosophic and political trends now swirling like a maelstrom in contemporary American society to support my thesis that this court should not effectively disembowel the Wyoming constitutional provision by a summary judgment anticipation that it is required in order to meet federal First Amendment standards. I do not think that the cases decided by the United States Supreme Court since Sullivan rewrite Wyoming law to require judiciary fact finding, because the topic of contended wrong is defamation and libel. Certainly the United States Supreme Court cannot make that imposition upon the Wyoming Constitution by direction of the procedural adaptations of Liberty Lobby, Inc. and the other two of the Triad cases. Cf. John H. Langbein, On the Myth of Written Constitutions: The Disappearance of Criminal Jury Trial, 15 Harv.J.L. & Pub. Pol’y 119 (1992).