(dissenting).
The only issue in this case is whether the evidence constitutionally supports a jury verdict that defendant published a false and defamatory news story concerning plaintiff “with reckless disregard of whether it was false or not.” No claim is made that the trial court’s instructions under which the jury deliberated were constitutionally deficient, and no claim is made that the news story was published “with knowledge that it was false.” 1
The majority opinion, in concluding that the verdict is constitutionally sustainable, has considered the following elements: (1) That, although it is a fact that a prominent priest made a serious charge against plaintiff and although the priest was quoted with complete accuracy, the facts asserted by the priest were false, defamatory, and damaging to the professional reputation of plaintiff as a police official; (2) that, although the damage to plaintiff was the more serious because the charge emanated from a person of such acknowledged high repute in the community, the defendant newspaper acted with reckless disregard of truth when it relied upon the priest’s factual statements; (3) that, because it was reason*353ably apparent to defendant that the priest had no independent and first-hand knowledge of all the facts upon which he based his charge and because defendant acknowledged it would have been preferable to have made a prepublication inquiry of plaintiff or other principals involved in the underlying events, its unverified publication of the priest’s statements was an extreme departure from accepted standards of investigation and reporting; (4) that, although asserting that it had undertaken to reach plaintiff for comment prior to the deadline for publication of its “Sunset Edition,” defendant had not in fact done so; (5) that, instead of admitting the factual errors contained in the priest’s charge, defendant undertook at trial to prove that the facts were true; and (6) that, although plaintiff had demanded that defendant publish a retraction of the news story, defendant had refused to do so.
The decision in the instant case calls into consideration two of the several United States Supreme Court decisions on the new law of libel: New York Times Co. v. Sullivan, 376 U. S. 254, 84 S. Ct. 710, 11 L. ed. (2d) 686, 95 A. L. R. (2d) 1412, and Curtis Pub. Co. v. Butts, 388 U. S. 130, 87 S. Ct. 1975, 18 L. ed. (2d) 1094. The majority opinion places great reliance on the Butts decision both on the ground that the facts in that case and this are “parallel” and on the ground that it provides the constitutional definition of “reckless disregard” of truth. I disagree. It is necessary, therefore, to consider those cases in some depth before undertaking to measure the constitutional sufficiency of the evidence in the instant case.
New York Times Co. v. Sullivan, supra, like the instant case but unlike the Butts case, involved defamation of a public official. Plaintiff was one of three elected commissioners of the city of Montgomery, Alabama, with principal authority over the city’s police department. The “Committee to Defend Martin Luther King and the Struggle for Freedom in the South” sponsored a full-page advertisement in the New York Times, which was tendered through an advertising agency.2 A. Philip Ran*354dolph, a labor leader of national stature, was chairman of the committee and a number of citizens of high repute were members of it, including prominent clergymen of Catholic, Jewish, and Protestant faith. The thrust of the advertisement soliciting funds for the defense of the late Dr. King was that “thousands of Southern Negro students are engaged in wider spread non-violent demonstration in positive affirmation of the right to live in human dignity as guaranteed by the U. S. Constitution and the Bill of Rights,” but that “[i]n their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom.” Implication of any person in a wave of terror, and to such end, would rightly evoke feelings of revulsion against such person. Succeeding paragraphs purported to illustrate the “wave of terror” by describing certain alleged events including the following paragraphs, which referred, as the jury found, to plaintiff:
“In Montgomery, Alabama, after students sang ‘My Country, ’Tis of Thee’ on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.
^ H*
“Again and again the Southern violators have answered Dr. [Martin Luther] King’s peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times — for ‘speeding,’ *355‘loitering’ and similar ‘offenses.’ And now they have charged him with ‘perjury’ — a felony under which they could imprison him for ten years”
The defamatory statements were false in that, although substantial numbers of armed police were at the Alabama campus, they did not “ring” the campus and they did not “padlock” the dining hall to starve the students into submission. If the advertisement were read to charge that plaintiff had committed or condoned bombing, assaults, or baseless arrests as to Dr. King and his family, that too was untrue. The point is it could be found there, as the jury found here, that the advertisement’s charges were based upon false and defamatory statements of fact.
The New York Times had established “advertising acceptability standards,” for the purpose of rejecting advertisements that were “fraudulent or deceptive” or that contained “attacks of a personal character.” Yet, relying on their knowledge of the good reputation of those who had sponsored the advertisement and deeming it unobjectionable under acceptability standards, the Times made no other investigation. Although it apparently had several contemporaneous news stories in its files relating to certain of the events and occurrences referred to in the advertisement, it did not check its own files.3 376 U. S. 261, 84 S. Ct. 716, 11 L. ed. (2d) 695, 95 A. L. R. (2d) 1425. The United States Supreme Court held that this evidence “supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice.” 376 U. S. 288, 84 S. Ct. 730, 11 L. ed. (2d) 711, 95 A. L. R. (2d) 1439.
The Times did not admit the untruth of the advertisement at trial but, instead, the corporate secretary of the company asserted that, except for the statement concerning “padlocking,” the statements in the advertisement were “substantially correct.” The Alabama Supreme Court in New York Times Co. v. Sullivan, 273 Ala. 656, 144 So. (2d) 25, 51, concluded that this was a “cavalier ignoring of the falsity of the advertisement [from which] the jury could not have but been impressed with the bad faith of The Times, and its maliciousness inferable there*356from.” The United States Supreme Court concluded, on the contrary, that such assertion “does not indicate malice at the time of the publication” and further, that “there was no evidence to impeach the [Times’] good faith in holding it.” 376 U. S. 286, 84 S. Ct. 729, 11 L. ed. (2d) 710, 95 A. L. R. (2d) 1438.
Plaintiff Sullivan, like plaintiff in the instant case, demanded that the New York Times publish a retraction of the advertisement. So, also, did the governor of Alabama. The demands, as appears in the briefs of the parties, quoted the foregoing paragraphs of the advertisement and asserted that those “and the publication as a whole charge me with grave misconduct and of [sic] improper actions and omissions as an official.” Although the Times published the retraction as demanded by the governor,4 it did not do so for Sullivan. It instead wrote him a letter, stating in part:
“We have been investigating the matter and are somewhat puzzled as to how you think the statements in any way reflect on you. So far, our investigation would seem to indicate that the statements are substantially correct with the sole exception that we find no justification for the statement that the dining hall in the State College was ‘padlocked in an attempt to starve them into submission.’
iH s}: sji Hí ‡
*357“In the meanwhile you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you.”
The United States Supreme Court said as to this (376 U. S. 286, 84 S. Ct. 729, 11 L. ed. [2d] 729, 95 A. L. R. [2d] 1438):
“* * * jhe Times’ failure to retract upon respondent’s demand, although it later retracted upon the demand of Governor Patterson, is likewise not adequate evidence of malice for constitutional purposes. Whether or not a failure to retract may ever constitute such evidence, there are two reasons why it does not here. First, the letter written by the Times reflected a reasonable doubt on its part as to whether the advertisement could reasonably be taken to refer to respondent at all. Second, it was not a final refusal, since it asked for an explanation on this point — a request that respondent chose to ignore. Nor does the retraction upon the demand of the Governor supply the necessary proof. It may be doubted that a failure to retract which is not itself evidence of malice can retroactively become such by virtue of a retraction subsequently made to another party.” (Italics supplied.)
The judgment for plaintiff was reversed both on the ground that the trial court’s instruction was constitutionally deficient and on the ground that the evidence was constitutionally insufficient (376 U. S. 264, 84 S. Ct. 717, 11 L. ed. [2d] 697, 95 A. L. R. [2d] 1426):
“* * * We hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct. We further hold that under the proper safeguards the evidence presented in this case is constitutionally insufficient to support the judgment for respondent.”
The now-familiar New York Times rule upon which judgment was reversed is (376 U. S. 279, 84 S. Ct. 726, 11 L. ed. [2d] 706, 95 A. L. R. [2d] 1435):
“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory false*358hood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”5
Curtis Pub. Co. v. Butts, supra, must be considered in two separate aspects to determine whether it is of persuasive application to the instant case: (a) Whether it is factually parallel to the instant case or at least more nearly parallel than in New York Times; and (b) whether in affirming judgment for Butts, the decision afforded definition to the “reckless disregard” of truth element in the rule of New York Times. I think, on this analysis, it does not support the decision in the instant case.
First, as to the facts, the Saturday Evening Post, one of defendant’s magazines, published a false and defamatory article concerning Wallace Butts, the athletic director and a former head football coach of the University of Georgia. He was, as such, a “public figure.” He was not, however, a “public official” for he was employed by the Georgia Athletic Association, a private organization and not a state agency. The Post published an “exposé” concerning his “fixing” a forthcoming football game between the University of Georgia and its rival, the University of Alabama. It was, unlike either the instant case or New York Times, completely false. Its damaging and defamatory character was beyond doubt; its only purpose was consistent with a deliberate policy of “so*359phisticated muckraking” to promote circulation and advertising revenue, and the Post itself concluded that “careers will be ruined, that is sure.” The Post relied for its story upon the questionable affidavit of a stranger who, known to be on probation in connection with bad check charges, was not known for probable reliability — a distinction from New York Times and this case too obvious to belabor. Nevertheless, and to that extent like New York Times and the instant case, the Post made no attempt to pursue numerous avenues of verification available to it. Because the story was a magazine article, moreover, it was not “hot news” having a daily deadline, so there was more time available for investigation — a distinguishing fact emphasized by the court itself in its companion case, Associated Press v. Walker, 388 U. S. 130, 87 S. Ct. 1975, 18 L. ed. (2d) 1094. Worse still, and to me plainly distinguishable from a post-publication refusal to retract, the Post published its article, without verification, in the face of a prepublication notice from Butts himself that the forthcoming article was absolutely untrue.
Second, the decision was nevertheless that of a divided court. The main opinion, written by Mr. Justice Harlan for only four members of the court, espoused a new rule (388 U. S. 155, 87 S. Ct. 1991, 18 L. ed. [2d]1111):
“* * * [A] ‘public figure’ who is not a public official may * * * recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. * * *
“Nothing in this opinion [however] is meant to affect the holdings in New York Times and its progeny, including our recent decision in Time, Inc. v. Hill.”
It is most important to note two things, however: (a) The rule espoused by the four justices did not purport to apply to public officials, as distinguished from public figures who are not public officials, and (b) it did not, in any event, purport to define “reckless disregard” of truth. This *360was made crystal clear in the concurring opinion of Mr. Chief Justice Warren (388 U. S. 163, 87 S. Ct. 1995, 18 L. ed. [2d] 1115):
«* * * Mr. Justice Harlan’s opinion departs from the standard of New York Times and substitutes in cases involving ‘public figures’ a standard that is based on ‘highly unreasonable conduct’ and is phrased in terms of ‘extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers’ ***.***
“To me, differentiation between ‘public figures’ and ‘public officials’ and adoption of separate standards of proof for each has no basis in law, logic, or First Amendment policy.”
Only Mr. Chief Justice Warren, it appears, would have held that both the instructions and the evidence measured up to the standards of New York Times. It is true that Mr. Justice Brennan, joined by Mr. Justice White in dissent, acknowledged that the evidence might be constitutionally sufficient to sustain the judgment, dissenting only on the ground that the instruction was constitutionally deficient. It is equally true that the four justices subscribing the main opinion intended to increase the exposure of the press to liability for defamation, but, even so, that intent was manifested only as to public figures.6 We concluded in Rose v. Koch, 278 Minn. 235, 262, 154 N. W. (2d) 409, 428, that:
*361“* * * It would seem, therefore, that the justices advocating that standard, as well as the justices who announced adherence to New York Times for both public figures and public officials, would agree that malice is not less than such ‘highly unreasonable’ conduct.” **7
A more recent decision of the United States Supreme Court, Beckley Newspapers Corp. v. Hanks, 389 U. S. 81, 88 S. Ct. 197, 19 L. ed. (2d) 248, sheds additional light on the application of the two prior decisions. There plaintiff, a public official, recovered damages upon a jury verdict for defendant’s editorial comment which among other things asserted that plaintiff had threatened and intimidated another public official, a woman, in the course of a public controversy over fluoridation of the local water supply. The threats and intimidation were denied by both plaintiff and the woman public official. Defendant admitted at trial that it had made no “special investigation” before publishing the article's but, instead, “[felt] there was that possibility.” The court reversed, holding (389 U. S. 84, 88 S. Ct. 200, 19 L. ed. [2d] 252)—
“* * * it cannot be said on this record that any failure of petitioner to make a prior investigation constituted proof sufficient to present a jury question whether the statements were published with reckless disregard of whether they were false or not. Cf. New York Times v. Sullivan, supra, at 287-288 [84 S. Ct. 730, 11 L. ed. (2d) 710-711, 95 A. L. R. (2d) 1439]; Time, Inc. v. Hill, 385 U. S. 374, 388-389 [87 S. Ct. 534, 542-543, 17 L. ed. (2d) 456, 467] (1967). See also Curtis Publishing Co. v. Butts, supra, at 153-154 [87 S. Ct. 1990, 18 L. ed. (2d) 1110] (opinion of Mr. Justice Harlan).”
The most recent decision of the United States Supreme Court, decided since the initial writing of the instant opinions, explicates the meaning of “reckless disregard” yet more narrowly. St. Amant v. Thompson, *362390 U. S. 727, 88 S. Ct. 1323, 20 L. ed. (2d) 262, reiterated the rule that “[f]ailure to investigate does not in itself establish bad faith” and added the touchstone of “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” 390 U. S. 731, 733, 88 S. Ct. 1325, 1326, 20 L. ed. (2d) 267, 268. Because, as Mr. Justice White wrote for the majority, there can be no “one infallible definition” and “its outer limits will be marked out through case-by-case adjudication,” we must again consider the factual analogue. 390 U. S. 730, 88 S. Ct. 1325, 20 L. ed. (2d) 267.
Thompson, defamed by St. Amant, was a deputy sheriff in East Baton Rouge Parish, Louisiana. St. Amant, a candidate for public office, made a televised speech in which, quoting one Albin, a dissident member of a local Teamsters Union, he in substance falsely charged Thompson with gross misconduct in the performance of his public duties in connection with the allegedly nefarious activities of one Partin, the local union president. The Louisiana Supreme Court concluded that St. Amant had acted in reckless disregard of the truth, based upon certain considerations summarized in the opinion of Mr. Justice White (390 U. S. 730, 88 S. Ct. 1325, 20 L. ed. [2d] 266):
“* * * St. Amant had no personal knowledge of Thompson’s activities; he relied solely on Albin’s affidavit although the record was silent as to Albin’s reputation for veracity; he failed to verify the information with those in the union office who might have known the facts; he gave no consideration to whether or not the statements defamed Thompson and went ahead heedless of the consequences; and he mistakenly believed he had no responsibility for the broadcast because he was merely quoting Albin’s words.”
Mr. Justice White observed that, of those stated considerations, “the failure of Thompson’s evidence to demonstrate a low community assessment of Albin’s trustworthiness” was “[c]loser to the mark” for properly testing “reckless disregard.” He noted that this evidence in the record indicated that Albin was sufficiently reliable to refute the claim that St. Amant had recklessly relied upon the information from Albin: St. Amant had known Albin for about 8 months; he had verified “other aspects” *363of Albin’s information and “had affidavits from others”; Albin “seemed to St. Amant” to incur personal danger by such public disclosure of dispute within the union; “[according to Albin, he was prepared to substantiate his charges”; and Albin had first sworn to his answers in writing and later “in the presence of newsmen.” 390 U. S. 733, 88 S. Ct. 1326, 20 L. ed. (2d) 268. The decision of the Louisiana Supreme Court affirming the libel judgment against St. Amant was, on this evidence, reversed and remanded.8
We turn, then, to the constitutional sufficiency of the evidence supporting the jury’s verdict in the instant case. The St. Paul Dispatch, defendant’s evening newspaper, contained a story concerning a priest’s charge against plaintiff, a police officer, on January 21, 1960. Defendant published a follow-up story in the St. Paul Pioneer Press, its morning newspaper, on January 22, 1960. Plaintiff’s claim of libel is based only upon the story in the Dispatch, not that in the Pioneer Press. Captain Mahnke was, while on duty, in charge of the Detective Bureau of the Minneapolis Police Department, outranked only by the inspector of detectives, the inspector of police, and the chief of police. He was, without question, a public official, so that the test of defendant’s constitutional privilege is to be judged under the rule of New York Times.9
The news story published by defendant, as the jury could find upon disputed evidence, was in part false and defamatory. The first paragraph *364of a news story, as I understand it, customarily contains the essence of a news story, and in this case it read:
“A Minneapolis Catholic priest today demanded an official reprimand for one of that city’s detective captains because he said the police official had refused to arrest á man involved in a serious child-molesting case.”
Even under the rule viewing the facts most favorably to support a jury verdict, I have difficulty in concluding that this statement was either false or defamatory. It seems clear to me from the evidence that plaintiff (for perfectly proper reasons) had at the outset declined to make an outright arrest as demanded by the complainant. The only basis upon which he was prepared to make an arrest was either after an interrogation of the suspect father at his home or on the basis of arranging the next day to arrest him for an entirely different charge of driving after revocation of license. The word “decline” might be more felicitous than the word “refuse,” but they are synonymous.
The second paragraph identified plaintiff by name and official capacity as the person subject to the priest’s charge, together with the priest’s accurately quoted statement that he would carry his complaint “to the governor if necessary.” There is nothing either false or defamatory about this paragraph, although identification, direct or indirect, is an essential element of a defamation action.10
*365The third paragraph indicated how the priest, Father Thomas F. Meagher, had come by his knowledge of the child-molesting offense. The fourth paragraph quoted Father Meagher’s characterization of the offense of the father as “the worst case of incest ever to come to my attention.” It was not itself false or defamatory to plaintiff as a recital of the situation out of which it arose; it did give “sting” to the story, but was contextually not distinguishable from the situation in New York Times.
The fifth paragraph identified Father Meagher’s own capacity as a chaplain for the Hennepin County District Court and the Minneapolis municipal court and recited that statements had been taken from the complainants. This part of the paragraph was neither false nor defamatory. The paragraph contained the additional statement that “Detective William Quady then sought permission from Captain Mahnke to arrest the father,” which the jury apparently found to be false and conceivably defamatory. I have some difficulty, notwithstanding the jury’s verdict, in considering it defamatory.
It is the sixth and seventh paragraphs which could most reasonably be considered defamatory:
“Rev; Meagher said Mahnke ‘flew into a rage’ when he learned the woman had discussed the case with her parish priest before coming to police and accused her of ‘trying to get even with her husband.’
“ ‘Mahnke told her there was no case and refused to send out detectives to make the arrest,’ Father Meagher said today. T don’t believe police officials should be allowed to set themselves up as judges and juries in the face of such evidence.’ ”
Of these two statements, the description of plaintiff acting in an unprofessional manner, raging at the complainant and impugning her motives, seems to me to be the more defamatory. It has a close parallel to the situation in New York Times, where a police official was charged with the unprofessional and shocking conduct of padlocking the university dining hall to starve dissenting students into submission, heedless of the rising voice of the Negro in the South. It is much less similar, in my opinion, to the defamatory statement in Curtis Pub. Co. v. Butts, supra, that an athletic director had set out to betray his own football team by fixing the game.
*366The eighth paragraph stated that Father Meagher had subsequently complained to Captain Calvin Hawkinson (who was subsequently on duty in charge of the detective bureau); that Hawkinson had had the man arrested; that the father had admitted the molestation; and that the father was being held in jail pending the filing of charges. The ninth paragraph factually recited that Father Meagher had carried the complaint to the chief of police, the mayor, and the city’s civil service commission. The tenth paragraph reiterated Father Meagher’s intent that Mahnke “is going to get an official reprimand if I have to carry the matter to the governor.” No claim was made that any of these statements were either false or defamatory.
The eleventh and twelfth paragraphs recited that the chief of police had commented to the priest that the affair was only a “misunderstanding or error of judgment” and that the priest had refused to participate in a meeting scheduled by the chief with plaintiff and the complainant. No claim is made that any of these statements were false or defamatory. The paragraphs were, if anything, favorable to plaintiff and gave notice to the reader that Father Meagher may have misunderstood the situation. I would agree that a sophisticated reader might treat the quoted language of “misunderstanding” as time-honored officialese — not having the purpose of denying the statements but merely of calming irate citizens or protecting errant officials. But, unlike the majority, I cannot credit it at face value as a “warning” to the defendant that it must check out the factual allegations before publishing the news story. It is in no sense a prepublication denial of truth in the sense of the Butts case.
The final paragraph stated:
“Mahnke could not be reached for comment.”
The jury found, upon disputed evidence, that this was false — that Mahnke was indeed available for comment and that the writer had not in fact attempted to contact him. The fact that it is false, however, does not make it defamatory.11
*367Measured by the New York Times rule and its application there and in such later cases as Beckley Newspapers Corp. v. Hanks, supra, and St. Amant v. Thompson, supra, I would hold as a matter of law that the reliance of defendant upon the report from Father Meagher was not so unreasonable as to constitute reckless disregard of whether the priest’s report was true or false. The writer of the news story may have been imperceptive to the fact that Father Meagher was not an eyewitness to the event upon which he based his charge and to that extent might be said to be negligent. The situation, however, has no parallel to the reckless reliance of the Saturday Evening Post in writing a ruinous article on the basis of an affidavit from an unreliable person who purported to report a conversation to which he was not privy but had allegedly and accidentally overheard, the setting in the Butts case.
Measured by the rule and its application in New York Times, defendant’s failure of investigation was not more serious than in New York Times. The article concerning the priest’s charge was “hot news” as much as in Associated Press v. Walker, supra, and there was a deadline to meet. The events which caused Father Meagher to make his charge were several days old, but the charge itself was made the same day that defendant published it.
Defendant’s executive editor admitted at trial that it would have been “preferable” to have contacted the other persons involved in the story before publishing it, thereby in a sense admitting that such action would represent a reasonable standard of investigation and reporting. Although the New York Times might well have withheld inserting an advertisement until it could check its own files or query its own correspondents in *368Alabama (as it subsequently did when confronted with a demand for retraction), in accordance with its standards of advertising acceptability, it was held that its failure evinced no more than ordinary negligence, not a reckless disregard of truth. Here, defendant withheld the story until the final deadline for its Sunset Edition. Even assuming that “reckless disregard” of truth were the equivalent of “an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers,” the rule espoused in Butts in relation to defamation of public figures (388 U. S. 155, 87 S. Ct. 1991, 18 L. ed. [2d] 1111), I cannot agree that defendant’s negligence was that great. Defendant’s conduct has no parallel to the conduct of Saturday Evening Post in that case.
One aspect of the majority’s opinion in this case gives me additional pause. It is suggested that, had any of the detectives or police officials present at the hearing or concerned with the reported events been interrogated, it could “well have resulted in the story being shorn of any value as a news item.” This is a journalistic judgment, not a judicial one. Had those officials been contacted, their version of the events' would have been made public. This would not necessarily have excluded the same report of Father Meagher’s version. It is not the constitutional responsibility of the newspaper, in my opinion, to weigh the competing versions, make its own determination of ultimate fact, and then vouch for the facts it thus reports. If it were, there would cease to be a “debate on public issues” or the “unfettered interchange of ideas” which, as stated in New York Times, is the very thing the First Amendment was intended to protect.
The majority opinion finds support for the jury verdict in the fact that defendant undertook to prove the truth of Father Meagher’s statements rather than admit their untruth. This, of course, is not the teaching of New York Times. It is contrary even to our own recent decision in Rose v. Koch, where we held (278 Minn. 264, 154 N. W. [2d] 428):
“The unsuccessful attempt to prove the truth of the defamatory, statement cannot itself, in our opinion, establish actual malice.”
The last, and most difficult, aspect in this case is the failure of de*369fendant to retract. Plaintiff, through his attorneys, wrote defendant on January 28, 1960, stating in part:
“We hereby give notice that your article printed on the first page of your January 21, 1960, issue of the St. Paul Dispatch included false, scandalous, defamatory, and libelous charges against our client, Captain Mahnke. All charges published therein concerning the conduct, advice, or actions of Mr. Mahnke are noted as matters in this complaint. A photostatic copy of this article is enclosed herewith as ‘Exhibit A.’
“It is hereby demanded that you retract in the future the false, scandalous, defamatory, and libelous charges made against Mr. Mahnke in this article.”
Thereafter, on February 4, 1960, defendant, by its attorneys, replied, in a manner somewhat analogous to the newspaper’s response in New York Times, stating in part:
“* * * We are unable at this time to determine what portion or portions of the article should be retracted. We feel, and have advised the newspaper that no action can be taken on your demand until and unless you specify the slanderous material in the article.”
We held in Mahnke v. Northwest Publications, Inc. 266 Minn. 515, 124 N. W. (2d) 411, that plaintiff’s notice of retraction sufficiently specified the particular part of the published article containing false and defamatory matter and held it a sufficient compliance with the statute. New York Times considered a similar demand for retraction and held under the circumstances of that case that the failure to retract would not support a finding of malice. The situations are by no means completely analogous, of course, because in New York Times the newspaper had “a reasonable doubt * * * as to whether the advertisement could reasonably be taken to refer to plaintiff at all.” 376 U. S. 286, 84 S. Ct. 729, 11 L. ed. (2d) 710, 95 A. L. R. (2d) 1439.
We said in Rose v. Koch, 278 Minn. 263, 154 N. W. (2d) 428:
“Whether a failure to make a retraction of a libelous statement is evidence of malice is as yet uncertain. Although the making of a demand for retraction is prerequisite for an award of punitive damages against *370a newspaper under Minnesota statute, this state law is not determinative. New York Times expressly reserved the question of ‘[w]hether or not a failure to retract may ever constitute such evidence.’ * * * It would otherwise have been our opinion, as it was that of the trial court, that such circumstances would be of real relevance on the issue.”
The question is admittedly still an open one, for our comment in Rose was our dictum based upon a prefatory statement of Mr. Justice Brennan that might be deemed dictum. It seems to me now that, if the evidence rather clearly establishes that the action of the publisher at the time of publication was no more than ordinary negligence, the postpublication action of the publisher in refusing to retract cannot logically relate back to change the quality of the original act. It may evince no more than the publisher’s honest belief that the defamatory statements were true, which we have held he may rightfully undertake to prove at trial. I can conceive of situations, however, where the publisher’s conduct at the time of publication may strongly suggest an intent to injure through calculated falsehood or reckless disregard of truth, to which the postpub-lication conduct may relevantly relate back and give “convincing clarity.” I do not believe that this is such a case, and I believe that whether or not the jury considered the fact that defendant had refused to retract, the case falls short of establishing constitutional malice with the convincing clarity required by the rule of New York Times.12
*371I would therefore reverse and direct the entry of judgment for defendant notwithstanding the verdict.
The issue, then, is different than confronted us in Rose v. Koch, 278 Minn. 235, 154 N. W. (2d) 409. There we held that the evidence might have been sufficient to sustain a jury finding that a false and defamatory publication was made “with knowledge that it was false or with reckless disregard of whether it was false or not” but reversed a judgment for plaintiff because the trial court’s instructions were constitutionally deficient. What we held in Rose v. Koch is applicable, however, to so much of the majority opinion in the instant case as would permit, for purposes of establishing constitutional malice, consideration of the fact that the publisher undertook to prove the truth of the alleged false statements and its refusal to publish a retraction.
The fact that the defamatory statements were contained in a newspaper advertisement, the court held (376 U. S. 266, 84 S. Ct. 718, 11 L. ed. [2d] 698, 95 A. L. R. [2d] 1427), did not distinguish it from a regular newspaper article: “It communicated information, expressed opinion, recited griev-*354anees, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern. * * * That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold * * *. Any other conclusion would discourage newspapers from carrying ‘editorial advertisements’ of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities — who wish to exercise their freedom of speech even though they are not members of the press.”
It is apparent, too, that the Times did not check with any of the 60 persons whose names, appeared on the advertisement as sponsors, nor, so far as it appears, did it solicit comment from any official of Montgomery.
As disclosed in the briefs of the parties in New York Times, the retraction reported the governor’s protest, quoted his letter and the specific language of the advertisement of which he complained, and followed with a “Statement by the New York Times,” stating in part: “The publication of an advertisement does not constitute a factual news report by The Times nor does it reflect the judgment or the opinion of the editors of The Times. Since publication of the advertisement, The Times made an investigation and consistent with its policy of retracting and correcting any errors or misstatements which may appear in its columns, herewith retracts the two paragraphs complained of by the Governor.” The Times justified the granting of a retraction to him and not to plaintiff Sullivan on the ground it felt that, since the governor apparently believed he had been libeled by said advertisement, it should apologize. The Times did not think that “any of the language in there referred to Mr. Sullivan.” 376 U. S. 262, 84 S. Ct. 716, 11 L. ed. (2d) 696, 95 A. L. R. (2d) 1425. Neither, of course, did it think it referred to the governor.
Our own decision in Friedell v. Blakely Printing Co. 163 Minn. 226, 203 N. W. 974, adds no weight to decision in this case for the same reasons we noted in Rose v. Koch, 278 Minn. 235, 154 N. W. (2d) 409. New York Times noted it by footnote as constituting a “like rule.” That reference originated in a footnote citation in the briefs of New York Times and the American Civil Liberties Union to identify those courts that “have shown solicitude for the freedom to criticize the conduct of officials by requiring that the aggrieved official prove the critic’s malice, abrogating the presumptions and strict liability that otherwise obtain.” Similar to the New York Times rule, moreover, it does make reference to acting “causelessly and wantonly to the injury of the plaintiff,” or making a publication notwithstanding the fact that “knowledge of the falsity is brought home to the person making it.” 163 Minn. 230, 203 N. W. 975. To the extent, however, that it undertakes to define wanton conduct differently than in the New York Times line of cases, it has no continued authority.
Time, Inc. v. Hill, 385 U. S. 374, 87 S. Ct. 534, 17 L. ed. (2d) 456, involving an invasion of privacy of a public “personality” in a magazine article, lends some additional insight. Mr. Justice Harlan had there concurred in part with the majority opinion, but dissented to the “sweeping extension of the principles of New York Times v. Sullivan,” stating that the majority opinion, written by Mr. Justice Brennan, “would seem to grant a ‘talismanic immunity’ to all unintentional errors.” 385 U. S. 405, 407, 87 S. Ct. 551, 552, 17 L. ed. (2d) 477. Mr. Justice Fortas, joined by Mr. Justice Clark and Mr. Chief Justice Warren, dissented, stating (385 U. S. 411, 87 S. Ct. 554, 17 L. ed. [2d] 480): “Perhaps the purpose of the decision here is to indicate that this Court will place insuperable obstacles in the way of recovery by persons who are injured by reckless and heedless assaults provided they are in print, and even though they are totally divorced from fact.” He added, significantly only in a dissenting opinion: “An error in the course of investigation might be mere negligent misstatement. Failure to make a reasonable investigation is something else. The standard of a ‘reasonable investigation’ is certainly a *361minimum yardstick by which to measure the liability of publishers.” 385 U. S. 417, 87 S. Ct. 557, 17 L. ed. (2d) 484.
In Garrison v. Louisiana, 379 U. S. 64, 74, 85 S. Ct. 209, 216, 13 L. ed. (2d) 125, 133, which did involve a public official, the New York Times rule was refined to mean a “high degree of awareness of * * * probable falsity.”
Only Mr. Justice Fortas dissented, reiterating the views he had expressed in Time, Inc. v. Hill (footnote 6, supra), and concluding that “[t]he principle of Curtis Publishing Co. v. Butts * * * should lead us to affirmance here.” 390 U. S. 734, 88 S. Ct. 1327, 20 L. ed. (2d) 269. Mr. Justice Black and Mr. Justice Douglas concurred for the reasons stated in their concurring opinions in New York Times Co. v. Sullivan, 376 U. S. 254, 84 S. Ct. 710, 11 L. ed. (2d) 686, 95 A. L. R. (2d) 1412, and Garrison v. Louisiana, footnote 7, supra.
The trial court properly instructed the jury on this point: “The Plaintiff was at the time of the printed article and still is a Captain of Detectives in the Police Department of the City of Minneapolis, and as such, he was at that time a public officer, and you are to consider him so during your deliberations. His conduct in the discharge of his official duties is a matter of public interest.” Accord, Pape v. Time, Inc. (7 Cir.) 354 F. (2d) 558.
The headline to the Dispatch story had read:
“Cop Rebuke in Tot
Molesting Urged”
The majority opinion states that this caption was “sufficiently ‘catchy’ so that it might cause persons merely glancing at the article to believe that plaintiff might have been involved in the molesting of a child.” I have no difficulty in agreeing that the headline was not only “catchy” but clumsy. Newspaper headlines often bear little similarity to the content of the article and may, if it contains identification, have a devastating effect in the eye of the casual reader. Here, however, the headline could not have had such effect until one had, read at least the first two paragraphs of the article itself, from which it would be clear that defendant was not implying that plaintiff was a child molester. The caption to the follow-up story was more appropriately worded:
“Cites Arrest Refusal —
Reprimand Cop
Priest Demands”
Although I would not read it as defamatory, I suppose it might be true that there are readers who might in some cases draw the conclusion that an official under fire had secluded himself to avoid the necessity of reply. It *367might well be fairer for a publisher to indicate, less cryptically, that the account states only one side of the issue, that an effort will be made to contact other persons involved, if not yet available, and that their views will be stated in a follow-up story. Defendant’s follow-up story did make a report of its subsequent contact with plaintiff as follows: “Capt. Mahnke said Thursday night he had discussed the matter fully with Chief Winslow and had been told a meeting was being arranged with the persons involved.
“ 7 wouldn’t want to make any comment until after we have had a chance to meet with them,’ he said, adding that all of the allegations made against him by Father Meagher would be answered at that time.”
Some question exists in my mind concerning the extent to which the jury may have based its verdict upon the fact of defendant’s refusal to retract. Plaintiff’s second amended complaint did contain allegations that he had mailed a written notice and demand for retraction to defendant, a copy of which was attached to the complaint, and that a retraction was not published in a regular issue of the newspaper within one week thereafter; and plaintiff demanded exemplary damages because “defendant’s conduct was willfully and maliciously undertaken with a reckless and wanton disregard of the rights of plaintiff.” But when plaintiff offered a copy of its written demand for retraction into evidence, defendant objected on the ground that “so far as the issues in this case are concerned it is immaterial and irrelevant.” The court sustained the objection. Immediately thereafter the following, as the only other evidence on this subject, occurred:
*371“Q. [By plaintiff’s counsel]: Was there a retraction published in the Defendant’s newspaper?
“A. [Plaintiff]: No, sir, there was not.
“Q. And did you at some point determine to commence the present action?
“A. Yes, a few weeks later I did make that decision.
Jj« sjs # jjc
“Q. Now, to clarify this, when you say that you heard nothing, you are referring to the fact that there was no retraction printed in the paper?
“A. That is correct, yes, sir.”
Plaintiff’s position, as disclosed in chambers, presents an interesting contrast both to the “retraction” in New York Times and to his own position on defendant’s failure to contact him for comment. The rewrite reporter who had authored the article offered to testify: “I told [plaintiff] that if he cared to make any comment on the events that had taken place or if he had any objections to any of the portion of the statements which Father Meagher had made in the article that we had carried the previous evening, or the past Thursday, that I would be very happy to print them with the same amount of space, the same kind of a display that had been given to Father Meagher’s article, and his answer to that was that he had turned the matter over to his attorney, that any further comment would have to come from him.” This was offered neither as proof of an offer of retraction nor for the purpose of minimizing exemplary damages, but only on “the question of rebutting evidence of malice” and showing good faith. Plaintiff had declined to so comment, however, on the ground that to do so would have the effect of repeating the original charge of Father Meagher and thereby give further currency to it. The evidence was excluded.