(dissenting).
I am in disagreement with all factual and legal conclusions of the majority opinion save one — that is, that plaintiff, Thomp,son, is a public official whose activities ■come within the rule laid down by the Supreme Court of the United States in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
In the first place, it is my view that the evidence in this case clearly discloses that the facts related in the sworn affidavit of J. D. Albin (which affidavit was read by St. Amant on television) are substantially true. Thompson admits in his testimony that he was a good friend of the labor leader, Partin (he called him Ed and Partin called him Herman), and was a rather frequent visitor at the Union Flail. He says that he regularly visited the Flail once a week or every ten days to pass the time of day and talk to the two lady secretaries, also to use the phone and “different things like that”. He received contributions from Partin for the Baton Rouge Kids’ Baseball Clinic but insists that he was given checks, vehemently denying that any payments were made in cash. At first, he denied that these checks were delivered in envelopes but later admitted that, on one or two occasions, the contribution had been placed in an envelope. He said: “Once or twice there has been an envelope but I never opened it. I would bring it in and give it to Polly”.1 He *427testified further that he never received anything other than the contributions from Partin and that, when he graduated from the F.B.I. School and had successfully cleared certain burglaries at the Union Hall, Partin sought to reward him by offering him a suit of clothes and a check as a present. However, he says he rejected the offer and reported the matter to the sheriff.
It is thus seen from Thompson’s testimony that Albin’s statement in his affidavit- — that “We also knew of money that had passed hands between Ed and Herman Thompson * * * from Ed to Herman” was true unless it be that there is a technically factual difference in payment by check or by cash.2
True, the affidavit states that "money had passed hands” but in usual parlance the term is broad enough to cover payment by check as well as cash. Yet the majority opinion attaches much significance to the evidence on this score. The opinion relies heavily on the statement of Thompson, an interested witness, and rejects as false and unreliable, the testimony of Mrs. Marjorie Ann Smith, one of the secretaries at the Teamsters’ Hall, an apparently disinterested witness, who stated' unequivocally that Partin had placed five-$20.00 bills (which she saw) in an envelope which was delivered by the other secretary, Jeanette Fletcher, to Thompson under Partin’s instructions.
For my part, I perceive no valid reason for the rejection of Mrs. Smith’s evidence. The deduction that her testimony is unworthy of belief seems to be founded in part on the failure of St. Amant to call Jeanette Fletcher, the other secretary, who Mrs. Smith says also observed the $20.00 bills in the envelope, to corroborate Mrs. Smith’s statement. But I know of no law placing such burden on St. Amant. It is not shown that he was acquainted with or had any control over Miss Fletcher who, as the record shows, was acquainted with Thompson and presumably available to him as a witness. Actually, since this phase of the case reduces itself to the affirmative statement of Mrs. Smith that cash was passed and the denial of Thompson that he received cash (the payment being made by check) it is to be wondered why Thompson did not call his friend, Partin, to the stand to verify his statement. Also, he could have called Mrs. Coxe to whom he alleg*429■edly delivered all checks from the 'Teamsters, but no cash, according to Thompson and the sheriff.
Moreover, I note that the majority opinion states that “The trial judge and the Court of Appeal rejected the Smith woman’s testimony and accepted Thompson’s version that no money passed from Partin to him, other than checks representing donations by the union to charitable and civic organizations”. I have carefully examined the opinions of the trial judge and the Court of Appeal (see 184 So.2d 314) and find no ruling by either court rejecting the verity of Mrs. Smith’s evidence.3
But, be this as it may, it makes no essential difference whether the payment was made in cash or by check. In either case the affidavit that money had passed between Partin and Thompson is an admitted fact. The only suggested difference is that Albin, the author of the affidavit, after relating that Partin withdrew money from the Union funds for his own use and later assertedly arranged for the disappearance of the safe containing the Union records (the accuracy of this part of Albin’s affidavit is not challenged), expressed the opinion that, because of Par-tin’s connection with a certain State Trooper, there would be no help obtained from the state police office for an investigation of the irregularities and that probably no assistance would come from the sheriff’s office, in view of the close relationship between Partin and the plaintiff, Thompson. If Albin was incorrect in this deduction, this, under the New York Times Co. v. Sullivan rule, would not have warranted recovery even as to Albin (who, of course, is not a party defendant in this case) because the First Amendment to the Federal Constitution, which delimits by operation of the 14th Amendment the State’s right to award damages for civil libels in matters involving public officials, applies only to those matters in which the injured official proves actual malice, i. c., that the publication is made with knowledge that it is false or in reckless disregard of whether it was false or true.
The New York Times rule, as I understand it, authorizes civil libel recovery by *431public officials for defamatory remarks based on facts known to be false. It does not extend this right of redress to the free expression of opinion, no matter how erroneous, when such conclusion is drawn from true statements of fact. In other words, in view of the fact that the statement that money had passed from Partin to Thompson is true, the circumstance that Albin might have been mistaken, in implying that the money or check was given for Partin’s or the Union’s protection by the sheriff’s office, would not afford a legal ground for holding the publication actionable. For this was fair comment, however erroneous, based on substantially true facts and to hold otherwise, according to the New York Times case, would unconstitutionally trench upon the right of free speech. As was stated in Beauhornais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919, and many times repeated, “ * * * public men are, as it were, public property” and, in the absence of actual malice, an action for libel may not be maintained. See also Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) and discussion in Time v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967).
What I have heretofore said would apply only if Albin, the author of the affidavit, was the defendant in this case. But this suit is not against Albin but against St. Amant for publishing the alleged libelous affidavit. Insofar as St. Amant is concerned, the case is exactly parallel with the New York Times decision. Surely St. Amant, having secured an affidavit to the facts set forth therein, can hardly be said to have been actuated by malice toward Thompson. Indeed no proof is. shown here that St. Amant knew that any fact stated in the affidavit was false or that any conclusion drawn from a true fact stated in the affidavit was false.
However the majority opinion, in holding St. Amant liable for damages, deduces, that the alleged defamatory remarks concerning Thompson were uttered by St. Amant with “ * * * a reckless disregard as to whether the statements concerning Thompson were true or not”. In reaching this conclusion the majority feels that St. Amant could not rely on the verity of the statements of fact contained in the affidavit; that it was incumbent on him to make an investigation of the truth of the statements before publication and that his failure to do so renders him liable as he necessarily utters the defamatory statement with reckless disregard of its truth or falsity. This pronouncement effectually implies malice for it places ignorance of falsity on a parity with knowledge of falsity and in the same category with actual malice by holding that failure to. make an independent investigation of truth constitutes a reckless disregard of truth or falsity. But this is exactly contrary to. *433the view of the United States Supreme Court in the New York Times case.
Under the Times doctrine a qualified privilege extends to misstatements of facts in a publication relating to a public offi•cer if other conditions of a qualified privilege (absence of actual malice) exists. 'There, it was held that a statement attacking the official conduct of a public officer does not forfeit the protection of the constitutional guaranty of free speech by the falsity of some of its factual statements and by the alleged defamation of the public official or by a combination of these two elements and that a defense must be allowed for erroneous statements honestly made. The court found that actual malice had not been shown on the part of the signers or sponsors of a newspaper advertisement describing the maltreatment in Alabama of negro students protesting segregation, where there was no evidence whatever that they were aware of any erroneous statements or were in any way reckless in that regard.4 With respect to the newspaper, it was held that a statement by its secretary that he thought the advertisement was substantially correct afforded no constitutional warrant for inferring actual malice from his ignoring the falsity of the advertisement, where his opinion was at least a reasonable one, and actual malice on the part of the newspaper was not shown by its failure to retract, upon plaintiff’s demand, even though it later retracted upon the demand of the Governor of Alabama. It was found that there was no duty on the part of the newspaper to check the accuracy of the defamatory statement against the news stories in its own files which would have shown its falsity. This dereliction on the part of the newspaper was regarded as mere negligence and constitutionally insufficient to show the recklessness that is required for a finding of actual malice.
In the case at bar, the majority opinion places a much greater burden on St. Amant — for the Court implies actual malice, contrary to the New York Times case, by concluding that, because he testified that he gave no thought to Thompson, this “ * * * was reckless error for him to take this position * * * a faulty assumption * * * in utter disregard of whether the remarks about Thompson were true or false.”
In my view, St. Amant was justified in regarding the affidavit of Albin to be accurate. Further inquiry was not essential; the most that can be said is that, perhaps, he was negligent but negligence alone will not support a finding of actual malice.
The judgment of the Court of Appeal should be affirmed.
. Indeed, Thompson indicates that he did not know whether the payments enclosed in envelopes were made by check or cash, for he testified in rebuttal that, when the payment was in an envelope, “ * * * I just brought the envelope in and gave it to Polly and didn’t bother to open it.”
. The trial judge rested his original opinion on tile predicate that the affidavit of Albin was libelous per se. His only reference to Mrs. Smith’s testimony is that she stated that money “ * * * was loft in an envelope from Mr. Partin to Mr. Thompson and that he picked up the same.” As to this, the judge ruled, in effect, that it was immaterial whether the payments were made in cash or by check since all money paid was received “ * * * purely in connection with drives put on by some charitable institution * * * ”; as avouched by the sheriff and Thompson.
The Court of Appeal recited the substance of Mrs. Smith’s testimony but made no finding as to her credibility. Indeed, such a finding would have been superfluous, in view of the court’s conclusion that Thompson could not recover under the rulings in the New York Times and Garrison cases.
. This holding clearly supports the view I have above stated with regard to the author of the affidavit.