(dissenting):
I respectfully dissent. The majority does not address, nor did the parties here, the potential impact of the decisions of the United States Supreme Court on this case. Furthermore, the majority opinion, in my view, does not accurately interpret South Carolina case law concerning defamation. I would *304affirm the trial court’s granting of a directed verdict in favor of the defendant as to the defamation claim, but on a different ground than that employed by the trial judge.
I. FIRST AMENDMENT ISSUES
A proper assessment of any defamation case in the modern era should begin with a review of the United States Supreme Court cases concerning the balancing of the interests of persons to speak freely. The cases styled New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. (2d) 686 (1964) and Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. (2d) 1094 (1967) were the first of a series of pronouncements in which a deeply divided Supreme Court struggled with the proper parameters of state defamation law in light of first amendment rights. In New York Times and Butts the rule was established that a public figure plaintiff suing for defamation must prove, by clear and convincing evidence, that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.
Neither party has advanced a view as to whether the plaintiff here could be characterized as a “public figure.” A reading of the record convinces me, however, that she is not to be treated as such. The analysis should therefore move to those cases dealing with “private figure” plaintiffs.
The first case decided in this vein was the much-debated Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. (2d) 789 (1974). Gertz was a 5-4 decision with one justice concurring, yet it appears now to be firmly established precedent by virtue of the doctrine of stare decisis.1 In Gertz, a private figure sued a magazine publisher over a matter of “public concern.” Observing that private figures are “more vulnerable to injury than public officials and public figures” and that private figures are “also more deserving of recovery” than public figures, the Court held that, “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” 418 U.S. at 346, 347, 94 S. Ct. at 3010.
*305However, the Gertz Court also held that if only negligence is proven by the plaintiff (and liability is not based on a showing of knowledge of falsity or reckless disregard for the truth) then “the States may not permit recovery of presumed or punitive damages.” 418 U.S. at 350, 94 S. Ct. at 3011. Rather such a plaintiff could only recover proven actual injuries.2 Gertz contained broad language, and was thought by many to establish a definitive rule regarding private figure plaintiffs. Alas, complexity crept into the legal landscape.3
In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S. Ct. 2939, 86 L. Ed. (2d) 593 (1985), Justice Powell, with Justices Rehnquist and O’Connor joining, opined that the rules established in Gertz applied only when the allegedly defamatory speech involved a matter of “public concern.” Then Chief Justice Berger and Justice White concurred *306in the judgment, expressing their views at that time that Gertz should be overruled entirely, and not just limited in its application. Moreover, and apparently for the first time, the Court intimated that it was of some import that the defendant in Gertz was a media defendant. Four dissenters protested mightily, pointing out that the language of Gertz did not indicate such limitations. Justice Brennan went so far to note, in dissenting, that six members of the Court at that point in time (the four dissenters and the two members concurring in the judgment) did not agree with Powell’s view that whether the defendant was a media member was relevant. 472 U.S. at 783, 784, 105 S. Ct. at 2958 (Brennan, J., dissenting). The dissenters also disagreed with Powell’s characterization of what kind of speech constituted a matter of “public concern.”4
Dun & Bradstreet involved a private figure plaintiff suing a nonmedia defendant over speech of only private concern. In that context, wrote Justice Powell, “permitting recovery of presumed and punitive damages in defamation cases absent a showing of ‘actual malice' (knowledge of falsity or reckless disregard for the truth) does not violate the first amendment.” 472 U.S. at 764, 105 S. Ct. at 2947. Whether the present members of the Court will adhere to the rules announced in Dun & Bradstreet is not known.
The final case of importance in this area is Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S. Ct. 1558, 89 L. Ed. (2d) 783 (1986). Although also a 5-4 decision, Hepps was recently cited with approval in the 7-2 decision styled Milkovich v. Lorain Journal Co., 497 U.S. —, 110 S. Ct. 2695, 111 L. Ed. (2d) 1 (1990). The Hepps Court held that “the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern.” 475 U.S. at 777, 106 S. Ct. at 1564.5 The Court specifically reserved judgment on the same question when a plaintiff sues a nonmedia defendant. Justice Brennan concurred specially to renew his objection *307that the media/nonmedia distinction is irrelevant; but in Hepps he was joined only by Justice Blackmun.
In this case, we are faced with a private figure plaintiff suing a media defendant over a matter of, in my view, private concern. The United States Supreme Court has not yet addressed such a scenario. We might do well to assume that the rules articulated in Dun & Bradstreet, supra, apply, and that Justice Brennan’s view that a media/nonmedia distinction is irrelevant would prevail, although this prediction on my part of future Supreme Court action is just that, a prediction. The majority would of necessity agree with my prediction and interpret Dun & Bradstreet to apply here, since it focuses solely on South Carolina law and eschews any mention of first amendment “actual malice” and whether the speech here is of public concern. Even assuming, however, that Dun & Bradstreet, and thus South Carolina law, controls this particular case, I disagree strongly with the majority’s interpretation of our state law.
II. INTERPRETATION OF SOUTH CAROLINA DEFAMATION LAW
The phrase in the news article leading to the instant litigation was: “there simply was no family support to encourage her (the victim) to continue her education.”61 generally agree with the majority’s recitation of the applicable rules in South Carolina regarding libel. I strongly disagree with the majority’s application of those rules to the instant controversy.
As the majority points out, the initial step in a libel analysis is to determine whether a statement is a defamatory one. “A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Restatement of Torts (2d) § 559 (1977). However, I would hold that it is unnecessary to determine whether the particular statement in this case is defamatory because in my view the plaintiffs defamation action should be dismissed for the fundamental reason that the statement is substantially true.
*308The majority also holds that certain extrinsic evidence of “how someone else perceived the [allegedly defamatory] words” is admissible on the issue of whether the instant statement was libelous, citing Nettles v. MacMillan Petroleum Corp., 210 S.C. 200, 42 S.E. (2d) 57 (1947). Such evidence is admissible, as was stated by this Court in Nettles, when a statement is ambiguous and capable of either a defamatory or innocent meaning. As was stated at the outset of the opinion by Justice Fishburne in Nettles, “[t]he action [in Nettles] is for slander.” Id. Nettles did not address the libel per sedibel per quod distinction in any manner whatsoever.
However, our decision in Capps v. Watts, 271 S.C. 276, 246 S.E. (2d) 606 (1978) is analogous to the instant case on this point. In Capps, the plaintiff was called a “paranoid sonofabitch” by the defendant. Extrinsic evidence was admitted demonstrating that such a comment could be and was understood by others to “impute personality traits and judgment deficiencies to the plaintiff which are incompatible with . . . [his job].” 246 S.E. (2d) at 609. The Capps court stated clearly that the resort to such extrinsic evidence indicated that the statement, if libelous, was libel per quod. Similarly, if extrinsic evidence in this case is used to determine the meaning of the allegedly defamatory statement, then such statement, in my view, is libel per quod if libelous at all. As such, the plaintiff would have the burden of proving special damages, since the instant statement does not fall within the four special categories of defamatory statements of: (1) crime, (2) loathsome disease, (3) unfitness for business, trade or profession, and (4) unchastity. The majority holds that the instant statement is libelous per se. Contradictorily, the majority’s ruling permits the extrinsic evidence, yet also excuses the plaintiff from the burden of proving special damages.7 Thus, while I do not deem it necessary to reach these issues, I note my disagreement generally with the majority’s reasoning in this regard.
*309III. SUBSTANTIAL TRUTH AS A DEFENSE
This Court has held that a sufficient defense to libel is made out where the evidence demonstrates that the statement was substantially true. Dauterman v. State-Record, Co., 249 S.C. 512, 154 S.E. (2d) 919 (1967). Here, the record is replete with evidence that the victim was in fact without family support.
In 1978, when the victim was ten years old, her mother (the plaintiff) began an adulterous affair which lasted off and on until the trial in this case. (Tr. 230,11.14-15; 231,11.21-24) In 1981 the plaintiff was admitted to a hospital for emergency treatment, having taken a life threatening dose of a drug called Elavil. (Tr. 236,11.4-7) The plaintiff could not deny that she stated, during that same year, that “[w]hat scares me is I can’t seem to love anymore. I care about my children but I can’t seem to love them.” (Tr. 243,11. 9-16) The plaintiff made a conscious decision to stay on welfare rather than take a job. (Tr. 217,11.12-14)
The record indicates that the victim’s father was a convict, unable to provide support for the victim for some time due to his incarceration. (Tr. 250, 11. 1-4) At one point, the victim was placed in the custody of her father with the plaintiffs permission. (Tr. 251, 11. 1-12) This was so despite the fact that the plaintiff stated that she had tried to kill him “twice and would kill him now if [she] thought [she] didn’t have to go to jail.” (Tr. 250, 11. 17-20) This is so also despite the fact that the plaintiff asserts that he once threatened to cut her nine month old son Joey’s throat. (Tr. 253, 11. 17-20) The record also indicates that the plaintiffs son Joey was in 1984 arrested for housebreaking, auto breaking, attempted larceny, and other crimes, and was declared a delinquent. (Tr. 260,11.7-12)
Within a span of two years, the record shows, the victim was enrolled in five different high schools. (Tr. 255, 11. 16-18) The victim dropped out of school completely after October, 1984. (Tr. 255, 11. 13-15) One high school refused to give the victim academic credit as a result of excessive absences, which the plaintiff admitted were the result of the victim’s playing “hooky,” or being a truant. (Tr. 248,11.17-23) In October of 1984, the victim ran away from home with a carnival. (Tr. 257,11.1-4)
After the plaintiff managed to encourage Shannon to return home, Shannon stayed at home, never re-enrolling in school. *310The plaintiff, by way of explanation, stated, “[s]he had missed so much until there was no reason for her to go back. She wouldn’t have passed.” (Tr. 257,11.18-20) The plaintiff admitted that she had not sought any help from the public schools to encourage Shannon to continue her education, since she did “not have much faith in the public school system.” (Tr. 264,11. 10-18) The plaintiff also did not avail herself of any of the various state agency help in getting Shannon back in school. (Tr. 266, 11. 20-23) Finally, the plaintiff rejected Department of Youth Services’ advice that Shannon be forced to attend school. (Tr. 267,11. 4-14)
While it may be true that the plaintiff did all she felt she could to further Shannon’s education, and while it may be a fact that the plaintiff did lend minimal support in this regard, the appropriate test is whether the allegedly offensive statement is “substantially true.” In my view, upon a review of the record, it is.8
I do not mean to advocate this kind of reporting, however. I dissent because I disagree that a valid defamation claim has been demonstrated by the plaintiff. Indeed, in my opinion, this news story was actionable if at all as an “invasion of privacy” claim. As stated in Rycroft v. Gaddy, 281 S.C. 119, 314 S.E. (2d) 39, 42 (Ct. App. 1984), “three different causes of action can arise under the tort of invasion of the right of privacy: (1) wrongful appropriation of personality; (2) publicizing of private affairs of no legitimate public concern; and (3) wrongful intrusion into private affairs.” Here, the plaintiff may have been successful pursuing the cause of action set out in (2), above. While the murder itself was obviously of public concern, I am not convinced that the statements regarding the victim’s family support are.
“The right of privacy does not prohibit the publication of matter which is of legitimate public or general interest. Public or general interest does not mean mere curiosity, and newsworthiness is not necessarily the test... [o]rdi*311narily,... whether a fact is a matter of public interest is a question of fact to be decided by a jury.”
Hawkins v. Multimedia, Inc. 288 S.C. 569, 344 S.E. (2d) 145, 146 (1986).
Hence, if the plaintiff had pursued an invasion of privacy claim, the jury may have found in her favor, and whether the news statement is “substantially true” would be of no consequence.9 I would accordingly affirm on all issues.
Gregory, C.J., concurs.In a recent 7-2 decision, the Court appeared to cite Gertz as an established decision. See Milkovich v. Lorain Journal Co., 497 U.S. —, 110 S. Ct. 2695, 111 L. Ed. (2d) 1 (1990).
With regard to the meaning of “actual injury,” the Gertz Court held, “[sjuffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.” 418 U.S. at 351, 94 S. Ct. at 3012. The Court also held that such actual injuries “must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.” Id.
I point out that our state rules regarding damages differ at present from the articulated rules set forth in Gertz. Presently, in a situation where presumed damages do not apply, South Carolina law requires that a plaintiff prove and plead special damages. Unlike the “actual injury” standard defined by the United States Supreme Court, we have more strictly defined “special damages.” For instance, we have held that humilitation is not properly proven as a “special damage” without proof of some other injury or damage. Brown v. National Home Ins. Co., 239 S.C. 488, 123 S.E. (2d) 850 (1962). There is at least an implication in some of our case law that damages of a pecuniary nature must be demonstrated where special damages are required. See, e.g., Brown, supra. The resulting system presently in place in South Carolina allows, depending on the circumstances, either: (1) presumed damages; or (2) narrowly defined “special damages.” In my view, a less rigid scheme is required by the Supreme Court decisions. Whether our present rules should be retained is thus open to question, but is an issue not presented for our decision here.
In light of Gertz, many of our cases stand, in my judgment, overruled or modified. See Merritt v. Great Atlantic & Pacific Tea Co., 179 S.C. 474, 184 S.E. 145 (1936) (holding that in a slanderous or libelous per se context, actual damages need not ever be proved); Jones v. Garner, 250 S.C. 479, 158 S.E. (2d) 909 (1968) (adhering to same overly broad rule); Manley v. Manley, 291 S.C. 325, 353 S.E. (2d) 312 (Ct. App. 1987) (same); Capps v. Watts, 271 S.C. 276, 246 S.E. (2d) 606 (1978) (same); Whitaker v. Sherbrook Dist. Co., 189 S.C. 243, 200 S.E. 848 (1939) (same). See also Wilhoit v. WCSC, Inc., 293 S.C. 34, 358 S.E. (2d) 397 (Ct. App. 1987) (citing the Gertz rule but failing to properly apply it).
The Court had previously disagreed over the meaning of “public concern” in Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. (2d) 708 (1983) (5-4 decision).
The case of Herring v. Lawrence Warehouse Co., 222 S.C. 226, 72 S.E. (2d) 453 (1952) should therefore stand overruled to the extent that its sweeping pronouncements conflict with Hepps.
The majority’s recitation of other statements made in the news article directed only at Shannon have nothing to do with the instant action.
The majority contends that “this [extrinsic] evidence would not be necessary to supply a defamatory meaning, but would merely explain whether readers, in fact, interpreted the article to convey a libelous meaning on its face.” See majority opinion, fh. 5. This is illogical. Either the statement is libelous on its face, libelous per se, or it is ambiguous, libelous per quod. Only if it is ambiguous, would extrinsic evidence be admitted. See Nettles, supra.
The majority points to the trace amount of evidence tending to show that some bare family support was indeed given. This scintilla of evidence does not change my view that the statement at issue was substantially true. A reasonable juror could not, in my opinion, find in favor of the plaintiff.
But see The Florida Star v. B.J.F., 491 U.S. 524, 109 S. Ct. 2603, 105 L. Ed. (2d) 443 (1989) (although a truthful publication is not automatically constitutionally protected against a private action by a person, where the information was lawfully obtained by the publisher, damages and civil sanctions may be imposed only when narrowly tailored to a state interest of the highest order).