(specially concurring).
Since there are divergent opinions by the members of this Court as to the proper disposition of this case, I feel that it is desirable to briefly express the basis for my concurrence with Justice Lockwood.
The hard core of the editorial lies in these few sentences:
“Nothing illustrates better the dangerous left-wing ideas of Attorney General Wade Church than his proposals for the setting up of a ‘people’s council’ in Arizona. * * * THE COMMUNIST PARTY under Lenin created its own ‘people’s councils’ which functioned * * * just the way Wade Church wants the Arizona ‘people’s council’ to function. * * * People’s councils * * * were formed with the sole purpose * * * of intimidating, blackmailing, and terrorizing the elected parliaments and district assemblies * * * The ‘people’s council’ idea is only another name for the Communist technique of the seizure of power * *
These statements charge, not as an expression of opinion but as a positive assertion of fact, that Church proposed creating a people’s council in Arizona to function just the way the councils that the Communist Party set up under Lenin functioned, they being formed for the purpose of intimidating, blackmailing and terrorizing legislatures and that this is the means of the Communists’ seizure of power. It can only be understood to mean that Church was advocating the seizure of power through unlawful acts in the same manner as did the Communists, thereby destroying the democratic government of- Arizona. The rhetorical question, “Does he [Church] advocate Communism,” having already been answered by the previous purportedly factual statements, does not ameliorate the serious nature of the charges but serves rather to drive home to the reader the conclusion that Church was indeed advocating Communism.
That parts of the editorial may be fairly susceptible of another or other interpretations, that is to say, are not libelous per se, does not detract from or exclude the clear charge that Church wished to operate in the same way as the Communists, by intimidation, blackmail and terror.
“ ‘It is further the law in this state and elsewhere that if the language charged to be libelous is unambiguous it is the function of the court to say whether it is libelous per se.’ Broking v. Phoenix Newspapers, supra [76 Ariz. 334, 264 P.2d 415].” Phoenix Newspapers v. Choisser, 82 Ariz. 271, at 276, 312 P.2d 150, at 153.
Accordingly, it is my opinion that the trial court properly instructed the jury that the editorial was libelous per se.
The jury, under the instructions of the trial court, found actual malice, malice in fact. I do not think it can reasonably be argued that there is insufficient evidence to sustain the verdict in this respect. The author of the editorial, Michael Padev, gained his information about Church’s speech from a newspaper report, which is deserving of being requoted in part since, I believe, it is determinative of the question.
“CHURCH FLAYS LEGISLATURE’S
‘THIRD HOUSE’
“FLAGSTAFF (Special) — Atty. Gen. Wade Church last night called for a ‘people’s council’ to offset the special interest ‘third house’ which rules Arizona from Hotel Adams.
“He urged organized labor to join churches, PTAs, minority groups, and others and hire full-time personnel to match lobbyists with the mines, power *599group, construction industry, finance interests, and cattle groups.”
The newspaper account points out that what Wade Church meant by his use of the phrase “people’s council” was to “hire full-time personnel to match lobbyists” with other interests. In representative government, lobbying is a lawful and accepted procedure for communicating the wishes of the electorate to the membership of legislatures. No stretch of the imagination can equate this democratic process with the Communist technique for the seizure of power through intimidation, blackmail and terror. The editorial is not only false but the jury could have concluded that Padev must have known it was false. From knowledgeable falsity or a reckless disregard of whether it was false, there can be inferred malice. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262; Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248; Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, reh. denied 389 U.S. 889, 88 S.Ct. 11,13, 19 L.Ed. 2d 197, 198; Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456; Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597; Henry v. Collins, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892; Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125. See for example the statement in Curtis Publishing Co. v. Butts, supra, 388 U.S. 130 at 153, 87 S.Ct. at 1991:
“That is to say, such officials were permitted to recover in libel only when they could prove that the publication involved was deliberately falsified, or published recklessly despite the publisher’s awareness of probable falsity.”
The court instructed the jury, at the appellants’ request, on the issue of malice as follows:
“Now, as previously stated, in order for plaintiff to be entitled to recover in this case, he must prove by a preponderance of the evidence not only that the editorial and any reasonable inferences therefrom complained of was false, but also that the defendants were actuated or motivated by actual malice in publishing it.
“In this connection, you are instructed that to establish actual malice, you must find that the publication was wrongfully and intentionally published with spite or ill will towards the plaintiff, and with a desire to injure him. Mere negligence or carelessness alone is not sufficient.”
The instruction does not conform to the subsequent ruling of the United States Supreme Court in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, adhered to and quoted with approval in the numerous cases since. See cases cited supra. The present interpretation of the First Amendment requires that a publication of and concerning a public official be false, and made either with the knowledge that it was false or with reckless disregard as to whether it was false.
The appellants’ requested instruction was a correct exposition of the law as it then existed in Arizona. Phoenix Newspapers v. Choisser, supra; Broking v. Phoenix Newspapers, supra. Our invariable rule forbids that a litigant complain of his own requested instructions. We will not permit a party to lead the trial court into error. However, it is apparent that appellants, in good faith, attempted to apprise the trial court of the law in Arizona. This was their responsibility. They should not be charged with clairvoyance in not anticipating the course of the decision in New York Times v. Sullivan supra. The decision in that case was announced March 9, 1964. Appellants’ opening brief was filed in this Court on April 20, 1964, and, while no reference was there made to the Times decision, the reply brief discussed it in detail. Further, counsel subsequently devoted the principal portion of his oral argument to the question of malice as it related to the Times decision. Accordingly, I am of the view that appellants timely raised the constitutional issue and this *600Court must give it the recognition that the Supreme Court of the United States did in Curtis Publishing Co. v. Butts, supra, and Rosenblatt v. Baer, supra.
The quoted instruction has been specifically condemned in Rosenblatt v. Baer wherein the United States Supreme Court stated:
“ * * * it is clear that the jury instructions were improper. * * * The trial court * * * defined malice to include 'ill will, evil motive, intention to injure. * * * ’ This definition of malice is constitutionally insufficient where discussion of public affairs is concerned; * * *.” 383 U.S. 75 at pp. 83, 84, 86 S.Ct. 669, at p. 675.
But were this Court to consider that the appellants could not question their own requested instruction, we would still be compelled to find reversible error in the light of the appellee’s requested instruction also given by the court as discussed by Justice Lockwood.
Appellants raise two further matters which should be briefly considered in order that this case be correctly disposed of on retrial. First, appellants pleaded the defense of fair comment. They urge that this is a complete defense to the action and complain that the trial court refused to give their instruction embodying fair comment. In New York Times v. Sullivan, supra, it was recognized that the defense of fair comment is defeasible if actual malice is established. (See footnote 33.)
But the failure to give an instruction on fair comment is, in my opinion, clearly reversible error. There are certain statements in the editorial which are obviously comment. The jury should be instructed alternatively that the appellants are entitled to comment fairly upon any factual statements made without actual malice but as to any comments which are derived from or follow from knowingly false statements, or statements made in reckless disregard of whether they are true or false, the defense of fair comment does not apply.
Second, appellants complain of the introduction of certain exhibits as evidence o£ malice. It is not necessary to comment on each exhibit but sufficient to point out that evidence of aggravating circumstances is always admissible to enhance punitive damages where tortious conduct is alleged. Lutfy v. R. D. Roper & Sons; Motor Co., 57 Ariz. 495, 115 P.2d 161. On retrial, such of the appellee’s evidence as shows aggravating circumstances should' be admitted for consideration by the jury-limited by a cautionary instruction that such evidence is admitted only for the-purpose of establishing or enhancing punitive damages.
Because of the lack of adequate instructions on malice and fair comment. I am of the opinion the case must be reversed' for retrial.