(concurring)—I am constrained to concur with the result reached by the majority.
The state and federal constitutions protect nonreckless publication of facts which later prove to be false so that legitimate expression is not suppressed. But,
it is quite a different thing, not involving the same danger of self-censorship, to immunize professional communicators from liability for their use of ambiguous language and their failure to guard against the possibility that words known to carry two meanings, one of which imputes commission of a crime, might seriously damage the object of their comment in the eyes of the average reader.
Greenbelt Coop. Pub'g Ass'n v. Bresler, 398 U.S. 6, 23, 26 L. Ed. 2d 6, 90 S. Ct. 1537 (1970) (White, J., concurring). I believe, as Mr. Justice White suggested, that "members of a skilled calling should ... be held to the standard of their craft and assume the risk of being misunderstood—if they are—by the ordinary reader of their publications." Bresler, at 23.
On this jury, at least 10 of 12 ordinary readers of Mr. Peck's article found, on instructions prepared by recognized libel lawyers, that the article was not the expression of an opinion. Instead, they concluded that Mr. Peck was charging Mr. Benjamin with a criminal offense or "an act . . . deserving the contempt of all right minded people". Burns v. Denver Post, Inc., 43 Colo. App. 325, 328, 606 P.2d 1310, 1311 (1979) (Ruland, J., dissenting) (quoting Smith v. Smith, 73 Mich. 445, 41 N.W. 499 (1889)). They were not persuaded he was making a critical judgment or voicing an opinion about the shoplifting statute. To the contrary, they believed that with a stroke of his pen and the ink of the presses, he had harmed Mr. Benjamin to the extent of $200,000.
Mr. Peck's ability to write in an interesting, informative and sometimes challenging way is obvious. Yet, in this instance, he, as a professional journalist, knew or should have known his article, although based entirely upon *925admitted facts, was structured in such a way that the last sentence, "The question is, who is stealing from whom?", could leave a significant segment of the public with the conclusion Mr. Benjamin was a thief. The jury verdict, reached after proper instruction on the law, bears this out. But the view of reasonable readers is not the sole test. The law requires a scrupulous, maybe even technical, study of the entire article—more, perhaps than an ordinary reader would give.
Inherent in freedom of expression are some of our most important rights. Commensurate with these important rights is an equal responsibility—in this case, the responsibility of writing in a way that does not unnecessarily hurt someone.
Journalists, as do all other professionals, owe a standard of care when exercising their constitutionally protected freedom to express a view.
Judicial notice may be taken that in this day of mass communication and the economic availability of voluminous reading materials, the reasonable person may not scrutinize every word in an article in search of the writer's message. Obviously, the jury did not. What in yesteryear's scarce reading materials became quickly discernable rhetoric, today may easily become misleading innuendo.
Although I must concur in this decision, in my opinion, the care exercised by this experienced journalist, as reflected by the jury's verdict, left much to be desired. The damage to Mr. Benjamin easily could have been avoided without lessening the impact of the article.
Review denied by Supreme Court October 5, 1984.