dissenting:
Section 18-13-105, 8B C.R.S. (1986), criminalizes the publication or dissemination of a statement that tends to “impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose [that person] to public hatred, contempt, or ridicule.” I have no disagreement with the majority’s partial invalidation of this statute to the extent that it attempts to criminalize the libel of public officials and public figures on matters of public concern. The instant prosecution does not involve the libel of a public official or a public figure, but rather is based on the alleged libel of a private person on essentially a matter of private concern. Because I am unable to accept the majority’s construction of section 18-13-105 as related to the criminal libel of a private person, I dissent.
In the context of libel, the term “actual malice” means making a statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964). The majority rejects the defendant’s claim that the lack of the “actual malice” requirement in section 18-13-105 renders the statutory proscription of criminal libel overbroad and concludes, instead, that “section 18-13-105 can be applied constitutionally to private defamers who ‘knowingly publish or disseminate ... any statement or object tending ... to impeach the honesty, integrity, virtue, or reputation’ of a private individual.” Maj. op. at 939. The majority reaches this conclusion by drawing primarily on Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (opinion of Powell, J., announcing judgment of court), and Rowe v. Metz, 195 Colo. 424, 579 P.2d 83 (1978), both of which involved civil claims for defamation brought by a private person on a matter of private concern. I acknowledge that in matters of purely private concern, the free speech protections of the United States and Colorado constitutions are less stringent than in the case of speech involving a matter of public concern. Dun & Bradstreet, 472 U.S. at 759-60, 105 S.Ct. at 2945-46. We deal in this case, however, with the statutory definition of a crime and not with the conditions for recovery of civil damages for an alleged defamatory statement.
In considering whether a criminal statute is constitutionally overbroad, a court’s task is to determine “whether the enactment reaches a substantial amount of constitutionally protected conduct.” Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). Because ambiguous statutory terminology causes citizens to “ ‘steer far wider of the unlawful zone’ ... than if the boundaries of the forbidden areas were clearly marked,” Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377 (1964) (quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958), the vagueness of a statutory enactment affects overbreadth analysis. Hoffman Estates, 455 U.S. at 494, n. 6, 102 S.Ct. at 1191, n. 6. The mere fact that a private person may recover civil damages for libel without proof of actual malice affords no basis, in my view, on which to construct a rationale for criminal libel. In Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), for example, the United States Supreme Court re*942versed the conviction of Garrison, the District Attorney of Orleans Parish, Louisiana, for criminal libel based on his disparaging remarks at a press conference that eight judges on the criminal court of the Parish were inefficient, lazy, had taken excessive vacations, and had hampered his efforts to enforce the vice laws. Garrison was prosecuted under a Louisiana criminal statute that defined criminal defamation as the malicious publication of anything that tends to “expose any person to hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse,” or “[t]o injure any person” in his “business or occupation.” 379 U.S. at 65 n. 1, 85 S.Ct. at 211 n. 1. The Supreme Court held that the Louisiana statute failed to pass constitutional muster because it “directs punishment for true statements made with ‘actual malice,’ ” as well as false statements without regard to whether the person making the statements knew the statements were false or acted in reckless disregard of whether they were true or false. 379 U.S. at 78, 85 S.Ct. at 217. In the course of its opinion, the Court remarked that “[cjhang-ing mores and the virtual disappearance of criminal libel prosecutions lend support to the observation that ‘under modern conditions, when the rule of law is generally accepted as a substitute for private physical measures, it can hardly be urged that the maintenance of peace requires a criminal prosecution for private defamation.’ ” 379 U.S. at 69, 85 S.Ct. at 213 (quoting Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J., 877, 924 (1963)).
Although the persons libeled by Garrison’s remarks were public officials, I do not read the Court’s opinion to turn the decision on that ground. Indeed, the Court observed in the course of its opinion that criminal sanctions “cannot be justified merely by the fact that defamation is evil or damaging to a person in ways that entitle [that person] to maintain a civil suit.” 379 U.S. at 69-70, 85 S.Ct. at 213-14 (quoting Model Penal Code, Tent.Draft No. 13, 1961, § 250.7, Comments, at 44). A construction of statutory criminal libel that does not incorporate as essential elements of that crime the falsity of the statement and knowledge of its falsity, or at a minimum reckless disregard of truth or falsity, will inexorably induce silence as an alternative to avoiding entrapment in the amorphous and uncertain zone of criminality created by the statute. See Tollett v. United States, 485 F.2d 1087 (8th Cir.1973) (statute punishing libelous, scurrilous, defamatory, or threatening statements, written on outside of envelope or postcard, stricken as unconstitutionally overbroad and vague); Gottschalk v. State, 575 P.2d 289 (Alaska 1978) (Alaska’s criminal defamation statute invalidated as overbroad and unconstitutionally vague).
The majority’s effort to narrow the sweep of the statutory proscription by judicial construction does not eliminate the vagueness and concomitant overbreadth inherent in the court’s construction. The majority relies on the element of “knowingly” in section 18-13-105(1) as the basis for constitutionally applying the statute to a private defamation. The majority’s construction of the term “knowingly,” however, limits that element to the publication or dissemination of the statement and not to the falsity of the statement. Maj. op. at 939. Thus, a person arguably would be subject to criminal prosecution for the knowing publication or dissemination of a defamatory statement even though the statement was true and the person making the statement knew it to be true. While it might be appropriate to subject the defamer of a private person to civil liability in the absence of actual malice, see Dun & Bradstreet, 472 U.S. 749, 105 S.Ct. 2939; Rowe, 195 Colo. 424, 579 P.2d 83, it is quite another matter to subject that same defamer to a conviction for criminal libel in the absence of any proof whatever that the statement was false or that the person making the statement either knew it to be false or, at a minimum, acted with reckless disregard of its truth or falsity.
The majority also attempts to salvage the statute by emphasizing that “[t]ruth shall remain an affirmative defense pursuant to section 18-13-105(2) and art. II, sec. 10, of the Colorado Constitution.” Maj. op. *943at 940-41 (footnotes omitted). If truth is merely an affirmative defense to criminal libel, it would seem to follow that the prosecution is under no obligation to establish the falsity of the publication in the first instance. A prosecution for criminal libel for a true statement, even if made in the belief that it was false, suffers from the same constitutional infirmity as a prosecution for a false statement made without knowledge of its falsity or without reckless disregard of its truth or falsity. See Garrison, 379 U.S. at 78, 85 S.Ct. at 217. “ ‘Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.’ The First Amendment requires that we protect some falsehood in order to protect speech that matters.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340-41, 94 S.Ct. 2997, 3007-08, 41 L.Ed.2d 789 (1974) (quoting New York Times v. Sullivan, 376 U.S. at 279, 84 S.Ct. at 725).
In the course of relegating truth to the status of an affirmative defense, the majority declines to address subsection 18 — 13— 105(2), which disallows the truth defense in libel “tending to expose the natural defects of the living.” Maj. op. at 940, note 11. If this exception to the affirmative defense in the case of a libel tending to expose the natural defects of the living remains in effect, it follows that a person publishing a true statement that exposes the natural defects of a living person would nonetheless be subject to criminal prosecution in spite of the truth of the statement.
Rather than eliminating constitutional deficiencies that render the statutory definition of criminal libel constitutionally defective, the court’s construction of the statute preserves those very deficiencies. In that respect, the court’s efforts are strikingly similar to the judicial construction of criminal libel that was struck down in Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966). Ashton was indicted for publishing a false and malicious publication that tended to degrade or injure three named persons. The trial court charged the jury that “criminal libel” is defined as “any writing calculated to create disturbances of the peace, corrupt the public morals, or lead to any act, which, when done, is indictable,” 384 U.S. at 198, 86 S.Ct. at 1409, and then added in its charge that both “falsity” and “malice” were essential elements of the offense. Id. In reversing Ashton’s conviction because he was tried and convicted on the basis of a judicial construction of criminal libel that did not eliminate the vagueness and uncertainty in the elements of the crime, the Supreme Court stated:
Here ..., we deal with First Amendment rights. Vague laws in any area suffer a constitutional infirmity. When First Amendment rights are involved, we look even more closely lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech or of the press suffer. We said in Cantwell v. Connecticut, [310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) ], that such a law must be “narrowly drawn to prevent the supposed evil,” 310 U.S., at 307 [60 S.Ct. at 905], and that a conviction for an utterance “based on a common law concept of the most general and undefined nature,” id., at 308 [60 S.Ct. at 905], could not stand.
384 U.S. at 200-01, 86 S.Ct. at 1410-11 (footnotes omitted); see Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). If the jury charge in Ashton, which included falsity and malice as essential elements of criminal libel, was not sufficient to salvage Kentucky’s definition of criminal libel from constitutional infirmity, I fail to see how the majority’s construction of section 18-13-105, which does not incorporate either falsity or malice into the definition of criminal libel, can survive constitutional scrutiny. Indeed, it has been cogently observed that “with the advent of Garrison and Ashton, a strong argument may be made that there remains little constitutional validity to criminal libel laws.” Tollett, 485 F.2d at 1094.
The absence of objective criteria in section 18-13-105, even with the majority’s construction, creates a serious potential for selective enforcement, which is “both the hallmark and the vice of a vague criminal statute.” Gottschalk, 575 P.2d at 295. It *944strikes me as a dangerous precedent when the effect of a judicial construction results in setting a net “large enough to capture all possible offenders,” and leaving it to courts “to step inside and say who could be rightfully detained, and who should be set at large.” Papachristou v. City of Jacksonville, 405 U.S. 156, 165, 92 S.Ct. 839, 845, 31 L.Ed.2d 110 (1972) (quoting United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563 (1875)). I accordingly dissent.