Owens v. Scott Publishing Co.

Donworth, J.

(dissenting)—This case (which has been argued three times in this court) presents for decision a very important legal question, namely: Is a newspaper the insurer of the truth of every fact it publishes concerning a public official (or candidate for public office) in connection with his official acts?

The majority opinion answers the foregoing question by saying “Yes.” This clarifies the law on the subject of libel in this state and puts an end to the confusion created by dicta which has appeared in our decisions from time to time during the sixty-five years of this court’s existence. While it is highly desirable to have the law of libel definitely established, I am firmly of the opinion that, for the reasons stated below, the answer to the question should have been “No.”

Since newspapers and private citizens are governed by the same law relative to libel, it follows, of course, that the rule established by the majority opinion makes every private citizen the insurer of every fact he has courage enough to publish concerning a public official in connection with his official acts.

My review of the more than sixty slander and libel cases decided by this court since its creation convinces me that the court has never before, except by way of dictum, laid down the harsh rule of strict liability set out in the majority *682opinion. In this case, for the first time, the court was asked to weigh the relative merits of the so-called liberal and strict rules governing fair comment or privileged criticism as applied to the official acts of public officials. The majority opinion does not discuss or weigh the relative merits of these two rules but, instead, formally adopts the dictum of earlier cases.

Before discussing the merits of the two basic rules relating to the law of libel, I desire to consider another matter concerning which I believe the majority is in error, to wit, in brushing aside so lightly the trial court’s conclusion that the jury’s verdict was the result of passion or prejudice.

Passion or prejudice. In the recent case of Anderson v. Dalton, 40 Wn. (2d) 894, 246 P. (2d) 853, 35 A. L. R. (2d) 302, this court pointed out that there are two lines of cases dealing with excessive damages: (1) cases in which damages were regarded as excessive but not necessarily involving passion or prejudice, and (2) cases in which damages have been regarded as excessive and given under the influence of passion or prejudice. In that opinion it was said that in most cases we have granted an alternative new trial, giving the prevailing party the option of either remitting a portion of the amount of the verdict or submitting to a new trial. The opinion added, however, that:

“We have not hesitated to grant a new trial unconditionally when we felt that circumstances rendered it likely that the passion or prejudice may not have been confined to the issue of damages but may have so permeated the deliberations of the jury as to render it unjust to hold a litigant foreclosed by any of the jury’s findings.” (Italics mine.)

In the case at bar the trial judge, who saw what happened in the trial court, decided that passion and prejudice not only “may have,” but did “so permeate the deliberations of the jury” that it would be “unjust to hold a litigant foreclosed by any of the jury’s findings.”

Appellant in the present case was a wheat farmer and a cattle raiser. He testified that as a result of the publication of the article complained of he was humiliated and depressed. Though not required to do so by the pleadings, he *683attempted to prove special damages by testifying that as a result of the publication he lost some of his customers who previously had purchased cattle from him. He later conceded, however, that he had been able to sell all of his wheat and cattle, despite the fact that it was a bad year in the cattle business and some other cattlemen had not been able to sell their cattle. He also testified that he was shunned by different persons at meetings of his lodge, his club and civic groups as a result of which he suffered great humiliation. The persons named by appellant as those who shunned him were called as witnesses by respondents and each such witness testified he or she had not shunned appellant. Some of them testified that they had not even read the article on which this suit is based and so had no reason to shun him.

During the first oral argument in this court the attorneys for each side stated that it would be difficult for this court to conceive of the supercharged atmosphere in which the case was tried. Under circumstances such as these where the trial judge, who was able to observe the demeanor of the parties, attorneys, witnesses, jurors, prospective jurors, and spectators in the court room, concluded that the verdict was so excessive as to unmistakably indicate that it was given as a result of passion and prejudice, I believe this court should be extremely reluctant to set aside the trial court’s order granting a new trial on all issues. By so doing, this court substitutes its judgment for that of the trial judge, merely from reading a cold record which, as the attorneys have stated, cannot convey the supercharged atmosphere in which the action was tried.

In my opinion, there is a considerable difference between asking this court to grant a new trial on grounds of excessive damages in a case where the trial court has refused to do so and in asking this court to affirm an order granting a new trial when the trial court has concluded that, taking all of the circumstances into consideration (including the admittedly supercharged atmosphere in which the case was tried), the verdict is so excessive as to unmistakably indicate that it was given as a result of passion and prejudice. Though *684it would not be correct to say that there is a presumption that the trial judge correctly found that passion and prejudice existed in a given case, it certainly is true that the trial judge’s finding of passion and prejudice is entitled to some weight when this court is reviewing his order granting a new trial. In the present case the majority opinion gives slight weight, if any, to the trial court’s finding of passion and prejudice and erroneously grants respondents a new trial limited solely to the determination of the amount of damages.

After my study of the record, I agree with the trial court that the verdict is so excessive as to unmistakably indicate that it was given under the influence of passion and prejudice. Furthermore, I believe it would be unjust to hold defendants foreclosed by the jury’s findings on other issues (such as liability) where the jury had returned a verdict of $40,000 damages on the meager showing of damages made here. Such a verdict should, in my opinion, shock the conscience of this court, and should not be permitted to stand. Kramer v. Portland-Seattle Auto Freight, 43 Wn. (2d) 386, 261 P. (2d) 692. I, therefore, would grant a new trial as to all issues for this reason alone.

I will now set forth and discuss in order three additional reasons which compel me to conclude that the majority opinion is in error in declining to affirm the trial court’s granting respondents a new trial as to all issues in the case:

(1) The trial court gave conflicting instructions on the issue of whether the article was libelous per se.

(2) The jury, and not the court, should have decided whether the article was libelous per se, inasmuch as the alleged defamation was contained in the innuendoes and insinuations in the. article.

(3) The trial court did not instruct the jury correctly on the defenses of qualified or conditional privilege and fair comment or privileged criticism.

(1)' Conflicting instructions. In Paysse v. Paysse, 84 Wash. 351, 146 Pac. 840, this court held that where two instructions given were conflicting, such action constituted *685prejudicial error. The holding is well summarized in the first headnote thus:

“In an action for slander in orally charging that plaintiff was a bastard, it is reversible error to give instructions that are contradictory, telling the jury that, in the one charge, the words were libelous per se, and in similar charge, that they were not so.”

The same thing, in effect, was done by the conflicting instructions complained of in this case. Instruction No. 12 told the jury that all of the portions of the article complained of were libelous per se. Instruction No. 23 told the jury, in effect, that they might find that some of the portions of the article complained of were not libelous per se, and could find for defendants if the defense of truth was established as to other portions of the article which the jury might find to be libelous per se.

In my opinion the two instructions (No. 12 and No. 23) were clearly conflicting and hence prejudicial to respondents under the rule enunciated in Paysse v. Paysse, supra.

(2) Libel per se. In Gaffney v. Scott Publishing Co., 35 Wn. (2d) 272, 212 P. (2d) 817, this court said:

“The determination of whether a writing is libelous per se is a matter of law.”

Three cases were cited in support of the foregoing proposition. Two of them, Roane v. Columbia Publishing Co., 126 Wash. 416, 218 Pac. 213, and Graham v. Star Publishing Co., 133 Wash. 387, 233 Pac. 625, were decided on demurrers, as was the first Gaffney case, supra. The third cited case, Blende v. Hearst Publications, 200 Wash. 426, 93 P. (2d) 733, 124 A. L. R. 549, was one in which this court concluded that the trial court had erred in denying motions for a directed verdict and judgment n.o.v. and reversed a judgment for plaintiff, holding that the article complained of was not capable of being understood as libelous per se.

The rule stated in the first Gaffney case, supra, is a correct statement of law where the facts are admitted by a demurrer, or on a motion for nonsuit, directed verdict or judgment n.o.v., because only evidence favorable to the plaintiff is considered. But that rule does not mean that *686in a jury trial it is always the province 'of the court to instruct the jury whether the publication sued upon is libelous per se. On the contrary, the rule to be followed in instructing a jury, recognized by this court in the first libel case ever appealed to it, Haynes v. Spokane Chronicle Publishing Co., 11 Wash. 503, 39 Pac. 969 (and never overruled) , is that the court instructs the jury as “what is libel in contemplation of law,” and leaves it to the jury to determine whether the article actually is libelous per se in the opinion of average readers such as the members of the jury.

The same rule first enunciated by this court in 1895 in the Haynes case is given in 3 Restatement, Torts, 304, § 614, in this form:

“(1) The court determines whether a communication is capable of a defamatory meaning.
“(2) The jury determines whether a communication, capable of a defamatory meaning, was so understood by its recipient [s].”

If the article is so clearly libelous that the minds of reasonable men could not differ regarding it (such as a publication directly charging the plaintiff with murder or robbery), the court will not err in instructing that the publication is libelous per se, as a matter of law. Tennant v. F. C. Whitney & Sons, 133 Wash. 581, 234 Pac. 666. But if the article is not so clearly libelous or is ambiguous or depends upon insinuations or innuendo for its defamatory meaning, the jury, and not the court, must decide whether it was understood by the average reader as libelous. Velikanje v. Millichamp, 67 Wash. 138, 120 Pac. 876; Newell, Slander and Libel, 294; 53 C. J. S., Libel and Slander, 335, § 223; 33 Am. Jur., Libel and Slander, 277, § 294.

Gátley on Libel and Slander, p. 124 (1953) states the rule in this language:

“Libel or no Libel a Question for the Jury
“Whether the words complained of are defamatory or not is a question of fact for the jury to decide. But there is always the prior question, Are the words capable of a defamatory meaning? and this is the question for the judge to determine.”

*687See, also, 1 Belli, Modern Trials, 515.

In the case at bar the issue of whether the article was libelous per se was in bitter dispute, appellant claiming that it plainly was and respondents that it plainly was not. In ruling orally on the motions for judgment n.o.v. or for a new trial, the judge stated that the question whether the article was libelous per se had been “perplexing and elusive throughout the trial, and it still gives the court some qualms.” His reason for holding the article libelous per se was that the “insinuations” in the article were plain, and consequently he felt that the instruction that it was libelous per se was justified.

The article did not directly charge the appellant with a crime nor with any misconduct, but I agree with the trial court that it contains actionable insinuations and was to some extent ambiguous. By the overwhelming weight of authority everywhere, including the early decisions of this court, it was error for the trial court to instruct the jury that the article was libelous per se. The jury should have been instructed that the article was capable of a defamatory meaning, leaving it to the jury to decide whether it was understood as defamatory by the average reader. The fact that the jury deliberated twenty-three hours before deciding that appellant was entitled to recover, after being instructed that the article was libelous per se, is ample proof that there were serious doubts in the minds of some of the jurors whether the article was in fact libelous per se. In my opinion, the giving of an instruction that the article was libelous per se was error which was extremely prejudicial.

(3) Defenses of privilege. The defense of qualified or conditional privilege applies only to defamatory statements of fact in a publication. The defense of fair comment or privileged criticism applies only to the comments or opinions of the writer of an article. Since facts and opinions are commonly intermingled through publications, the two defenses mesh with each other and frequently courts fail to make any distinction between these defenses.

In the case at bar, the trial court failed to make any distinction between the two defenses, covering them both *688in instruction No. 21 without pointing out that one defense applied to the facts and the other to comments or opinions.

Respondents requested the trial court to give their proposed instruction No. 10, which stated:

“I shall define for you in this instruction the defense of privileged criticism which is available to the defendants. As to factual statements which are true and affect matters of public concern, the defendants have the privilege of stating their opinion based thereon by comment and criticism if such criticism represents the writer’s actual opinion and is not made solely for the purpose of causing harm to the plaintiff. If thus privileged, the criticism need not express an opinion with which any person of reasonable intelligence and judgment could possibly agree.
“It need not be reasonably warranted by the facts upon which it is based, and may be prejudiced, fantastic, or extravagant in form and still be thus privileged.
“You are instructed that the activities of the plaintiff, Owens, as director of the school board were matters of public concern within this rule at the time the editorial in question was published.”

The proposed instruction is based upon 3 Restatement, Torts, 275-278, § 606, comments c.' and d., and is a correct statement of the law as far as it goes. However, § 606, which sets out the principles governing the defense of privileged criticism has a dual aspect and is in effect two rules. The first rule, contained in subsection (1), has to do with defamatory criticism of “so much of another’s activities as are matters of public concern. . . . ” The second rule, in subsection (2), applies to defamatory criticism of the “private conduct or character of another who is engaged in activities of public concern, in so far as his private conduct or character affects his public conduct.”

Under subsection 1 of § 606 the criticism or comments upon a public official’s activities which are a matter of public concern need not be “reasonable” comment or criticism in order to be privileged (or protected as fair comment). Under subsection 2 of § 606, however, the criticism of, or comments upon a public official’s private conduct or character (in so far as his private conduct or character affects his public conduct) must be-only such criticism or *689comments as “a man of reasonable intelligence and judgment might make.”

The reason why the law of libel allows even unreasonable comments or criticism upon true or privileged statements of fact about the public conduct of public officials (though not about their private conduct or character) is set out with clarity in 3 Restatement, Torts, 280-281, § 607, comment c., as follows:

“The concern which all citizens have in the proper conduct of public affairs by public officials requires that they have a wide freedom to discuss among themselves the public conduct of their officers and the qualifications of those who seek public office. Those who hold such offices and those who offer themselves as candidates therefor, by so doing subject their public acts to honest criticism even though it be extravagant and unjustified. To make the critic’s protection depend not only upon the sincerity of his criticism but also upon its being such as a reasonable man might make would tend to prevent the public from knowing much essential criticism. The advantages gained by the freedom of discussion stated in this Section are therefore sufficient to outweigh the danger that the reputation of public officers or candidates may suffer thereby.” (Italics mine.)

This rule means that a critic is entitled even to make comments or express opinions which the public can see are ridiculous, extravagant, foolish or unreasonable if he confines his comments or criticism to true or privileged statements of fact about the public conduct of a public official.

Prosser on Torts, pp. 843-844, uses the term “fair comment” instead of “privileged criticism,” and puts the rule this way:

“The comment must be ‘fair’—not in the sense that the opinion must be one with which any person of reasonable intelligence or judgment could agree, since freedom of discussion means that foolish and prejudiced opinions must be equally privileged: and not in the sense that it must be moderate, since denunciation, ridicule, and exaggeration for literary effect may be the fittest weapons to employ against error. It must rather be directed and confined to the facts which are a matter of public concern, and not go beyond them, as by attacking the personal character of the author of a book; and it must represent the critic’s *690honest opinion, and be published, in part at least, for the bona fide purpose of giving the public the benefit of comment which it is entitled to have, rather than for any ulterior motive of harm to the plaintiff.”

I think the foregoing rule correctly states the law in respect to comments upon matters of public interest, including comments upon the public conduct of public officials. An almost identical rule is now the law in England, where Parliament enacted the Defamation Act in 1952 to govern libel and slander actions. Gatley on Libel and Slander, 4th ed. pp. 354-356.

In the case at bar, respondents were entitled to have their proposed instruction No. 10 given since the instruction on fair comment given by the trial court was insufficient. It was, in my opinion, reversible error for the trial court to refuse to give it.

The remaining instruction requested by respondents and refused by the court was No. 8, which would have told the jury that truth is not the only defense to a publication libelous per se and that the verdict should be for respondents if the jury found that they published the article without malice after a fair and impartial investigation and with reasonable grounds for believing the statements of fact in the article to be true.

This proposed instruction raises the legal issue of whether a newspaper is the insurer of the truth of the facts it publishes about public officials regarding matters of public concern.

The majority opinion apparently considers that question no problem at all, and assumes that this court has adopted the rule of strict liability (heretofore mentioned) which places the publisher of news in the same legal category as the keeper of dangerous animals or explosives as far as the law of damages is concerned. Prosser on Torts, 817. In support of that position appellant refers to the legal catchphrase “Privilege ends when falsity begins,” which was first used by this court in Graham v. Star Publishing Co., 133 Wash. 387, 233 Pac. 625, and repeated in several subsequent decisions.

*691In the case at bar, the question of whether the truth of all facts is the only defense available to a defendant in a civil libel action brought by a public official is squarely raised. Consequently, I have read all the decisions of this court relating to civil libel or slander—both those cited by the parties and a number of additional such cases found as a result of my own research. There appear to be more than sixty cases in our reports relating to this subject. After reading and attempting to reconcile them, I am convinced of two things: first, that the law of civil libel in this state is confused, conflicting and badly in need of re-examination and restatement, and second, that this court has never before directly passed upon the question of whether truth of the facts is the only defense to a civil libel action based upon a news article or an editorial written about the public acts of a public official regarding matters of public concern.

The former decisions of this court which purport to lay down the rule that truth is the only defense in such an action fall into several categories:

(1) Cases decided on demurrers. Invariably the demurrers have admitted either (a) actual malice, which destroys any privilege, Newell, Slander and Libel, 382, § 343; 3 Restatement, Torts, 268-269, § 603, comment a.; 53 C. J. S., Libel and Slander, 158, § 100, or (b) have admitted the truth of allegations which affirmatively showed that the publication did not arise out of a privileged occasion, which likewise destroys any privilege. 3 Restatement, Torts, 241, § 593 (a); Newell, Slander and Libel, 382, § 343; p. 387, § 349; 53 C. J. S., Libel and Slander, 139, § 87. Some of our cases fall in both (a) and (b) classifications, as, for example, Graham v. Star Publishing Co., supra; McKillip v. Grays Harbor Publishing Co., 100 Wash. 657, 171 Pac. 1026; and Gaffney v. Scott Publishing Co., 35 Wn. (2d) 272,-212 P. (2d) 817. One of our cases in classification (b) is Hollenbeck v. Post-Intelligencer Co., 162 Wash. 14, 297 Pac. 793.

(2) Cases in which the admitted facts or the facts found by the court or jury disclosed that, if there was a privileged *692occasion, the privilege was so abused that it was lost. Byrne v. Funk, 38 Wash. 506, 80 Pac. 772, is an outstanding example, since the holding was that the privilege was exceeded but the court discussed truth and falsity, which were not issues in the case, and laid down rules in regard thereto which have been cited ever since.

I have not undertaken to review all our previous decisions relating to civil libel as to do so would extend this opinion beyond any reasonable length and probably would not result in reconciling those decisions in view of the confused state of legal concept existing in this field of law. A part of the apparent confusion in our cases is traceable to the fact that different terms have been used by different writers to mean the same thing, as for instance, “fair comment” and “privileged criticism.” Further confusion has resulted from our failure to observe the distinction between “facts” and “comments or opinions” in libelous writings.

Facts may be proven true or false. Opinions, properly speaking, cannot be proven true or false, as the dissent in Gaffney v. Scott Publishing Co., 41 Wn. (2d) 191, 248 P. (2d) 390, pointed out. Whether an opinion is the honest belief of a writer, or is published because of ill will, spite or ulterior motives, is susceptible of being proven true or false. 3 Restatement, Torts, 278, § 606, comment d.

Because our prior cases do not answer the question of whether truth is the only defense to a libelous article written about a public official, I will refer to the authorities from other jurisdictions.

There are two distinct lines of cases on this subject. One line of cases, rated the majority rule, holds that fair comment on, or criticism of, the acts and conduct of a public official or candidate for public office, about matters of public concern, are privileged in the absence of malice, but the privilege is forfeited if the comment or criticism is based upon a false statement of fact, regardless of whether or not the publisher had reasonable grounds for believing the statement of fact to be true. Burt v. Advertiser Newspaper Co., (1891) 154 Mass. 238, 28 N. E. 1, an opinion by Judge (later U. S. Justice) Holmes, is usually considered the foremost *693example of this view. See annotations in 110 A. L. R. 412-441, and 150 A. L. R. 358-365. This state is classified as following the majority view as a result of the dictum in Byrne v. Funk, supra, reiterated in later cases. One writer has recently stated that Washington has been classified as supporting both rules. See 30 Wash. L. Rev. 36, at page 44.

There is a strong minority view to the effect that even a misstatement of fact about a public official, in connection with matters of public concern, is privileged, and a complete defense to a civil libel action is established if the statement is made for the benefit of the public, without malice and in the honest belief that it is true. Perhaps the leading case in support of the minority doctrine is Coleman v. MacLennan (1908), 78 Kan. 711, 98 Pac. 281. The minority view is the one approved by the great majority of the legal writers (especially in recent years), and there are “indications of a tendency to adopt it in decisions departing from earlier cases.” Prosser on Torts, 840; 1 Belli, Modern Trials, 512-513.

To those who wish to delve into the historical background and legal philosophy resulting in the adoption of the majority rule of strict liability for any publication concerning the acts of public officials, I cite these authorities: Blackstone’s Commentaries (1768), Vol. 3, 123-125; Hallen, Fair Comment (1929), 8 Tex. L. Rev. 41; Noel, Defamation of Public Officers and Candidates (1949), 49 Columbia L. Rev. 875; Spring, Risks & Rights in Publishing, Television, Radio, Motion Pictures, Advertising and the Theatre (Great Britain, 1952) 44-45; Encyclopedia Americana, Vol. 25, 489 (Star Chamber Court).

It is enough to say here that the historical and philosophical reasons for the strict rule appear to me to now have no basis whatever under our modern conditions. The one reason now given by courts which continue to follow the strict rule is that to do otherwise would drive honorable men out of public life since honest men would not offer themselves as candidates for office if the strict rule were relaxed. Burt v. Advertiser Newspaper Co., 154 Mass. 238, 28 N. E. 1.

Those states which have adopted the liberal or minority *694rule reply that experience has proven that the single reason given for still adhering to the strict rule is not valid because the candidates and public officers in the “liberal rule” states are as honorable as their counterparts in other states. Coleman v. MacLennan, supra.

The minority or so-called “liberal” rule has been adopted in Arizona, California, Georgia, Iowa, Kansas, Minnesota, New Hampshire, North Carolina, Pennsylvania, South Dakota, Utah, Vermont and West Virginia. The District of Columbia has adopted a partial version of the liberal rule. Sweeney v. Patterson, 76 U. S. App. D. C. 23, 128 F. (2d) 457. (Cert. denied 317 U. S. 678, 87 L. Ed. 544, 63 S. Ct. 160). The supreme court of Colorado in Knapp v. Post Printing & Publishing Co., 111 Colo. 492, 144 P. (2d) 981, held that a newspaper article written about plaintiff, a candidate for governor, was not libelous per se. Though it was not necessary to the decision, the court went out of its way to add as dictum that it approved the liberal rule of Coleman v. MacLennan, supra, and so it undoubtedly must be classed as now ready to follow that rule.

The supreme court of Texas in 1949 in Fitzjarrald v. Panhandle Publishing Co., 149 Tex. 87, 228 S. W. (2d) 499, adopted a modified form of the liberal rule but refused to sanction as privileged misstatements of fact about a public officer which, if true, would be grounds for his removal from office. The court said that the state had by statute (Art. 5432 R C. S.) adopted a more liberal rule to “soften the harsh rule that had subjected newspapers to damages for publishing certain matters [about public officials]” but that the liberal rule relating to newspapers “does not apply to the publication of an article not true which would subject a public official to removal from office.”

Although the supreme court of Nevada has never passed upon the relative merits of the strict and liberal rules, the U. S. District Court for the district of Nevada, in Reynolds v. Arentz, 119 F. Supp. 82, decided February 12, 1954, held that the liberal rule should be applied in that state, after discussing the previous Nevada libel cases.

*695As far as I have been able to ascertain, with very few exceptions those courts which have had occasion to reexamine the question during recent years have decided that the harsh rule of strict liability imposed upon those who publish articles about public officials is not justified by the realities of the present day. In many instances it creates liability without fault. To follow it now will result, in some cases, in the public’s being deprived of information concerning the public acts of public officials because newspapers cannot afford to assume the risk of being unable to prove at any time within the period of limitations the truth of every fact stated in such publication. The basis of legal liability for almost all other torts is negligence on the part of the actor. According to the majority opinion, the publisher is an insurer of the accuracy of all facts stated regardless of the degree of care exercised in gathering and investigating them and regardless of the publisher’s reasonable grounds for believing the truth of such facts. This standard is impractical in the light of present-day conditions relating to the operation of the newspaper business for the reasons hereinafter stated.

In the case at bar, respondents’ proposed instruction No. 8 does not go as far in relaxing the rule of strict liability as the Kansas court did in Coleman v. MacLennan, supra.

The instruction would have told the jury that the article would be privileged if the jury found that respondents published the article without malice after a fair and impartial investigation and with reasonable grounds for believing the statements of fact in the article to be true. Essentially, the basis for recovery under this rule is negligence on the part of the publisher, or failure to have reasonable grounds for believing the facts published to be true. The ground for recovery under the rule in Coleman v. MacLennan, supra, is proof of actual bad faith or malice on the part of the publisher.

This court has previously stated that, much as we respect the principle of stare decisis, we cannot yield to it when to do so will perpetuate the error of earlier cases, and especially so when no property rights would be affected by *696overruling prior decisions. Schramm v. Steele, 97 Wash. 309, 166 Pac. 634; State ex rel. Bloedel-Donovan Lbr. Mills v. Savidge, 144 Wash. 302, 258 Pac. 1; Hutton v. Martin, 41 Wn. (2d) 780, 252 P. (2d) 581. Consequently, if it can be said that, by repeating the dictum from Byrne v. Funk, supra; McKillip v. Grays Harbor Publishing Co., supra; and Graham v. Star Publishing Co., supra, in our later cases, this court has held that truth is the only defense in' civil libel suits involving publications about public officials,' I would expressly overrule the language in cases holding that “privilege ends when falsity begins,” or other words of like import. (It should be noted that this would not overrule the result in any of the cases since, under the facts found by court or jury, or the facts admitted by demurrer or motion in each of the prior cases, the result would have been the same whether tried under the “strict” or the “liberal” rule.) In my opinion, the following cases (in addition to the three mentioned above) should be overruled: Quinn v. Review Publishing Co., 55 Wash. 69, 104 Pac. 181; Miles v. Louis Wasmer, Inc., 172 Wash. 466, 20 P. (2d) 847; Ziebell v. Lumbermens Printing Co., 14 Wn. (2d) 261, 127 P. (2d) 677, and Gaffney v. Scott Publishing Co., 35 Wn. (2d) 272, 212 P. (2d) 817. In my opinion, the second decision in Gaffney v. Scott Publishing Co., 41 Wn. (2d) 191, 248 P. (2d) 390, would not be affected since it was decided on the narrow ground that the court was foreclosed by the law of the case doctrine from considering the issue discussed in the present case.

It might be noted here that the late Judge L. B. Schwellenbach in Holden v. American News Co., 52 F. Supp. 24, a well-reasoned case analyzing many of this court’s previous civil libel decisions, reached the same basic conclusion that I have, namely, that this court’s earlier opinions on the subject of libel are “sharply conflicting.” Because we had never done so, he sought to reconcile our cases, and, based on the premise that the dictum in Graham v: Star Publishing Co., supra, was to be taken as the law in this state (an assumption which he was, of course, compelled to make), his analysis undoubtedly is correct. He concluded, *697however, just as I have, that the legal catch-phrase “privilege ends when falsity begins” is “attractive but dangerous because of its very attractiveness,” quoting Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 68, 87 L. Ed. 610, 618, 63 S. Ct. 444, 452, 143 A. L. R. 967.

Nothing that I have said in this opinion should be construed as implying that newspapers or other publications have any special right to assert the defenses of fair comment and qualified privilege not enjoyed by individuals or other organizations. The rule recognized everywhere, in the “liberal” rule states as well as in the “strict” rule jurisdictions, is that “the press has the same rights as an individual, and no more.” Coleman v. MacLennan, supra.

But I do believe that both the press and private citizens have a right to state what they reasonably believe to be true about the public acts of public officials and candidates for public office.

I see no logic whatsoever in the statement in Burt v. Advertiser Newspaper Co., 154 Mass. 238, 28 N. E. 1, 13 L. R. A. 97, relied on by the majority, to the effect that:

“What the interest of private citizens in public matters requires is freedom of discussion rather than of statement.”

It is inconceivable to me how the public can have any effective or worth-while “discussion” of public affairs and public officials without making some “statements” of faet on which to base expressions of opinion.

In making a deliberate choice between applying the strict rule or the liberal rule to libel cases involving public officers, I think that this court should consider the effect of such choice upon the three classes of persons affected thereby: (1) the public, who have a right to be informed about, and to criticize, the official acts of their public officers, (2) the public officers themselves, and (3) all publishers of such information concerning public officers (using the term publishers as including owners and editors of all periodicals, newspapers, radio and television broadcasting stations, and all individual citizens who either in public speeches or written articles, or in private conversation or correspondence *698may criticize the public officials regarding matters of public concern).

I am firmly of the opinion that the adoption of the liberal rule would be fair to all three classes of persons. First, it would be advantageous to the public because it encourages adequate publication and dissemination of news regarding public affairs instead of discouraging such activity by making the publisher guarantee- the truth of every fact published, regardless of the thoroughness of his investigation, the reasonableness of his belief that such fact was true, or his lack of malice.

Second, it would furnish adequate protection to public officials because the burden of proving a defense of adequate investigation of the facts, reasonable grounds for believing the facts stated are true, and lack of malice would be placed upon the publisher as soon as the plaintiff had shown that the article published was libelous per se.

The basis of liability would be the negligence of the publisher (the same as in any tort action) with the exception that in such libel cases the burden of proof would be placed upon the publisher to prove that he had not been negligent in the respects mentioned above.

Third, it would afford an adequate defense compatible with the practical operation of a newspaper or periodical (or radio or television broadcasting business) by permitting the publisher to attempt to prove his lack of malice and of negligence in connection with obtaining, evaluating, and publishing the facts, and thus be exonerated from liability if he can convince the jury of the validity of his defense.

With the present-day speedy means of communication, news is of no value to the public unless published within a few hours of the happening of an event. The rush to gather, check, investigate and evaluate news requires prompt action. If required to insure the truth of every fact published regarding the public acts of public officers, the publisher cannot be certain until the two-year statute of limitations has run whether he will be required to prove to the satisfaction of a jury the truth of every such fact he has published today. If, for example, such a libel action *699should be instituted just before the expiration of the two-year period, by the time the case could be ready for trial the sources of his news may have died, moved away, become ill, forgotten the event, or may then repudiate the statements originally made. In such circumstances the publisher, under the strict rule adopted by the majority opinion in this case, must,, at his peril, attempt to prove the truth of each fact stated in the article and, if he fail to do so, must respond in damages, although he was not guilty of any negligence whatever in connection therewith. Thus the publisher must assume the risk of not being able, several years in the future, to prove the truth of facts published today. He can only avoid such risk by declining to adequately inform the public regarding the public acts of public officers. In the event that the publisher refuses to assume this risk, it is the public and not the publisher nor the public officer whose welfare is harmed.

In this dissenting opinion (which is longer than originally intended) I have endeavored to point out both historical and practical reasons for my disagreement with the majority’s choice of the strict rule in preference to the liberal rule in this class of libel cases.

Both because there was adequate ground for the trial court’s holding that the verdict was the result of passion and prejudice, and because of the errors above noted in the giving and refusing of certain instructions, I would affirm the trial court’s order granting a new trial as to all issues.

Hamley, C. J., and Hill, J., concur with Donworth, J.