Colleen Conway Cooney, Judge.

{¶ 1} Plaintiff-appellant, Jeffrey R. Wilson, appeals the trial court’s decision directing a verdict in favor of defendants-appellees, Alexander Harvey, Yixing Chen, and Michael Marcello. Finding no merit to the appeal, we affirm.

{¶ 2} In April 2004, Wilson filed an action against appellees for defamation, invasion of privacy, and civil conspiracy. The matter proceeded before a jury, where the following evidence was presented.

{¶ 3} In March 2004, the parties were students at Case Western Reserve University (“Case”) and resided on the same floor of a campus dormitory. On a weekend when Wilson was away, appellees created computer-generated flyers depicting Wilson as a homosexual. The flyers were entitled “[I]n Search of Male Companion” and included a picture of Wilson that appellees had downloaded from Case’s website. The flyer also provided Wilson’s name, university e-mail address, and campus phone number. The text of the flyer included the following *283 statements: “Looking for non-smoking GWM 1 who enjoys dominating” and “Interests include: Biology, kissing, crying at movies, picking flowers and dreaming of that special someguy * * *” After appellees created the flyers, they displayed approximately 20 to 25 of them on the north side of the Case campus.

{¶4} Wilson testified that he was not a homosexual and that he received numerous phone calls and e-mails inquiring about the flyers. He also testified that he was embarrassed, humiliated, and ridiculed because of the creation and publication of the flyers. According to Wilson, he suffered a loss of reputation, a loss of time, and a lower grade point average (“GPA”) and also incurred additional expenses due to his commuting from home during a nine-day period in April 2004.

{¶ 5} Harvey and Marcello testified that they created the flyers as a joke to get even with Wilson for incidents that occurred in the dorm. They also testified that they did not like Wilson. Chen testified that although he was aware of the flyers, he did not participate in creating or posting them.

{¶ 6} At the close of Wilson’s case, appellees moved for a directed verdict. The trial court granted the motion and dismissed the case. Wilson appeals this decision, raising two assignments of error, which will be addressed together.

{¶ 7} In his first assignment of error, Wilson argues that the trial court erred in granting a directed verdict in favor of the appellees. In his second assignment of error, Wilson claims that the trial court erred in finding that the flyer was not libel per se in its July 2004 entry denying appellees’ motion to dismiss. 2

{¶ 8} The applicable standard of review for a directed verdict is set forth in Civ.R. 50(A)(4), which provides:

When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.

{¶ 9} A motion for a directed verdict tests the legal sufficiency of the evidence presented; accordingly, neither the weight of the evidence nor the credibility of witnesses may be considered. Cater v. Cleveland (1998), 88 Ohio St.3d 24, 33, 697 N.E.2d 610, citing Strother v. Hutchinson (1981), 67 Ohio St.2d *284 282, 21 O.O.3d 177, 423 N.E.2d 467. In addition, all reasonable inferences that may be drawn from the evidence must be made in favor of the nonmoving party. Rinehart v. Toledo Blade Co. (1985), 21 Ohio App.3d 274, 21 OBR 345, 487 N.E.2d 920. If substantial, competent evidence has been presented from which reasonable minds could draw different conclusions, then the motion must be denied. Wagner v. Roche Laboratories (1996), 77 Ohio St.3d 116, 119, 671 N.E.2d 252.

{¶ 10} Because a directed verdict presents a question of law, we review the trial court’s judgment de novo. Hardy v. Gen. Motors Corp. (1998), 126 Ohio App.3d 455, 462, 710 N.E.2d 764, citing Howell v. Dayton Power & Light Co. (1995), 102 Ohio App.3d 6, 13, 656 N.E.2d 957.

{¶ 11} Before addressing the merits of the appeal, we address the effect of the stipulations to which the parties agreed prior to trial.

{¶ 12} A stipulation is a voluntary agreement entered into between opposing parties concerning the disposition of some relevant point in order to ‘avoid the necessity for proof on an issue. In re All Kelley & Ferraro Asbestos Cases, Cuyahoga App. Nos. 83348 and 83628, 2005-Ohio-2608, 2005 WL 1245639, citing Rice v. Rice (Nov. 8, 2001), Cuyahoga App. No. 78682, 2001 WL 1400012. A stipulation may also be defined as a voluntary agreement, admission, or concession made by the parties or their attorneys concerning disposition of some relevant point in order to eliminate the need for proof or to narrow the range of issues to be litigated. State v. Small, 162 Ohio App.3d 375, 2005-Ohio-3813, 833 N.E.2d 774; Baum v. Baum (Nov. 26, 1997), Wayne App. No. 97CA0022, 1997 WL 775770.

{¶ 13} In the instant case, Wilson filed undisputed fact stipulations. When trial commenced, defense counsel agreed with these stipulations. However, the trial court did not accept stipulations 29, 30, 32, and 33 because they were conclusions of law. The court stated that it did not allow parties to reach and stipulate to conclusions of law.

{¶ 14} We find that two stipulations that were accepted by the court also involve legal conclusions. Stipulations 23 and 24 provide:

23. The Posters contained false and defamatory statements about Plaintiff reflecting his character by bringing him into ridicule, embarrassment[,] and humiliation.

24. The creation and publication of the Posters was malicious and intended to injure Plaintiffs reputation and cause damage.

{¶ 15} “Although litigants may stipulate to facts, they may not stipulate as to what the law requires.” Crow v. Nationwide Mut. Ins. Co., 159 Ohio App.3d 417, 2004-Ohio-7117, 824 N.E.2d 127, citing Diversified Capping Equip., *285 Inc. v. Clinton Pattern Works Inc. (Apr. 12, 2002), Wood App. No. WD-01-035, 2002 WL 537998. Therefore, stipulations of law or as to legal conclusions are not binding on the court. Id. at 421, 2004-Ohio-7117, 824 N.E.2d 127, citing Diversified, supra. “ ‘[Stipulations involving legal conclusions do not relieve a trial court of its duty to determine matters “upon its own analysis of the pertinent facts and legal theories.” ’ ” Id. at 421, 2004-Ohio-7117, 824 N.E.2d 127, quoting Burdge v. Franklin Cty. Bd. of Commrs. (1982), 7 Ohio App.3d 356, 357-358, 7 OBR 454, 455 N.E.2d 1055.

{¶ 16} Therefore, we find that stipulations 23 and 24 involve legal conclusions and thus were not binding on the court. These stipulations had no effect on the trial and have no effect on the merits of this appeal.

Defamation

{¶ 17} “Defamation is the unprivileged publication of a false and defamatory matter about another.” McCartney v. Oblates of St. Francis deSales (1992), 80 Ohio App.3d 345, 353, 609 N.E.2d 216. A defamatory statement is one that tends to cause injury to a person’s reputation or exposes him to public hatred, contempt, ridicule, shame, or disgrace or affects him in his trade or business. Id., citing Matalka v. Lagemann (1985), 21 Ohio App.3d 134, 136, 21 OBR 143, 486 N.E.2d 1220. A defamatory statement expressed in a writing, a picture, a sign, or an electronic broadcast is considered libel. Garner, Black’s Law Dictionary (7th Ed.1999) 927. Therefore, Ohio generally defines “libel” as a “ ‘false written publication, made with some degree of fault, reflecting injuriously on a person’s reputation, or exposing a person to public hatred, contempt, ridicule, shame[,] or disgrace or affecting a person adversely in his trade, business or profession.’ ” Stokes v. Meimaris (1996), 111 Ohio App.3d 176, 184, 675 N.E.2d 1289, quoting A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council (1995), 73 Ohio St.3d 1, 7, 651 N.E.2d 1283.

{¶ 18} Ohio recognizes two actionable types of libel: libel per se and libel per quod. Stokes, supra, quoting Thomas H. Maloney & Sons, Inc., v. E.W. Scripps Co. (1974), 43 Ohio App.2d 105, 108, 72 O.O.2d 313, 334 N.E.2d 494. Determining whether a statement is libel per se or per quod is a question of law for the trial court. Id., citing Fish v. Heatherdowns Country Club Assoc. (June 7,1991), Lucas App. No. L-90-072, 1991 WL 97324.

Libel per se

{¶ 19} “Libel per se” is defined as something actionable in itself, i.e., it is libel by the very meaning of the words used. Stokes, supra, 111 Ohio App.3d 176, 675 N.E.2d 1289; Kanjuka v. MetroHealth Med. Ctr., 151 Ohio App.3d 183, 191, 2002-Ohio-6803, 783 N.E.2d 920. Actual malice and damages are presumed *286 in an action for libel per se and thus need not be proven. McCartney, supra, 80 Ohio App.3d at 354, 609 N.E.2d 216.

{¶ 20} In order to be considered libel per se, the words used in the publication must fall into one of three categories: “(1) the imputation of a charge of an indictable offense involving moral turpitude or infamous punishment, (2) the imputation of some offensive or contagious diseases calculated to deprive the person of society, or (3) having the tendency to injure the plaintiff in his trade or occupation.” Williams v. Gannett Satellite Information Network, Inc., 162 Ohio App.3d 596, 2005-Ohio-4141, 834 N.E.2d 397, at ¶ 8, citing Schoedler v. Motometer Gauge & Equip. Corp. (1938), 134 Ohio St. 78, 84, 11 O.O. 487, 15 N.E.2d 958.

{¶ 21} In the instant case, publicizing that someone is a homosexual is not libel per se, because homosexuality is not a crime, nor is it a disease. Additionally, being a homosexual would not tend to injure a person in his trade or occupation. Therefore, the trial court did not err in its July 2004 ruling that Wilson could not maintain a cause of action for libel per se. Moreover, the court did not err in reaffirming this holding by directing a verdict in favor of appellees on this issue.

Libel per quod

{¶ 22} Even though a statement may not be libel per se, it may be libel per quod. “Libel per quod” is defined as a statement with an apparently innocent meaning that may become defamatory through interpretation or innuendo. Stokes, supra, 111 Ohio App.3d at 184, 675 N.E.2d 1289; Kanjuka, supra, 151 Ohio App.3d at 191, 783 N.E.2d 920. Whereas actual malice and damages are presumed in libel per se, a plaintiff must plead and prove special damages in an action for libel per quod. McCartney, supra, 80 Ohio App.3d at 354, 609 N.E.2d 216.

{¶ 23} In the instant case, the flyer stated that Wilson was in search of a male companion. It further stated that he was looking for a nonsmoking, gay, white male who enjoyed dominating and that his interests included biology, kissing, crying at movies, picking flowers, and “dreaming of that special some-guy.” Although this flyer may be facially innocent, it might become defamatory through interpretation or innuendo if used to'imply that someone is a homosexual, when in fact he is not. Therefore, we And that falsely publicizing that someone is a homosexual may be libel per quod, but only if special damages are pleaded and proven.

{¶ 24} “Special damages” have been defined as those “ ‘of such a nature that they do not necessarily follow from a defamatory remark.’ ” Stokes, supra, 111 Ohio App.3d at 185, 675 N.E.2d 1289, quoting King v. Bogner (1993), 88 Ohio *287 App.3d 564, 568, 624 N.E.2d 364; Gennari v. Andres-Tucker Funeral Home (1986), 21 Ohio St.3d 102, 106, 21 OBR 395, 488 N.E.2d 174. The Ohio Supreme Court has held that special damages are damages that “ ‘result from conduct of a person other than the defamer or the one defamed.’ ” Id., quoting Bigelow v. Brumley (1941), 138 Ohio St. 574, 594, 21 O.O. 471, 37 N.E.2d 584.

{¶ 25} Wilson claims that his special damages include humiliation, embarrassment, mental anguish, harassment, annoyance, ridicule, and loss of reputation. He further claims that he had to commute two hours, round trip, from his parents’ home to Case for approximately nine days, during which he incurred additional travel expenses and lost time. At trial, he also testified that his GPA had suffered due to this incident.

{¶ 26} Wilson urges us to follow our holding in Stokes, supra, 111 Ohio App.3d 176, 675 N.E.2d 1289. The Stokes case involved an incident in which the ex-husband/defendant told police that his ex-wife/plaintiff was a lesbian. He also wrote a letter to the territorial commission of the Salvation Army, stating that his ex-wife and another woman were “inappropriately affectionate” and had engaged in “inappropriate physical contact.” His letter suggested that this relationship was damaging to the reputation of the Salvation Army. The plaintiff was a member of the local Salvation Army board and was also a faculty member at Mount Union College. Her friend was a Salvation Army major who was in charge of the local Salvation Army office. As a result of the letter, the Salvation Army conducted an investigation to determine whether the two women were in a lesbian relationship.

{¶ 27} In filing an action for defamation, the plaintiff in Stokes claimed that the statements and the investigation caused her mental anguish, humiliation, and embarrassment and that she was treated differently by her colleagues, claims that were supported by her trial testimony. This court held that the testimony was sufficient to prove special damages, thus meeting the elements of a prima facie case for libel per quod. In so holding, this court found that plaintiffs damages were the result of the investigation conducted by the Salvation Army. Stokes, supra, 111 Ohio App.3d at 185, 675 N.E.2d 1289.

{¶ 28} We find Stokes distinguishable from the instant case. Although Wilson testified that he was humiliated and embarrassed, there was no specific evidence that linked his embarrassment to what others said or did or how they reacted. Wilson testified that some people laughed when he was confronted about the truth of the flyers and they learned that he was not a homosexual. However, he could not determine whether they were laughing because they considered the posting of the flyers to be a practical joke or a prank or because they were being insensitive and laughing at him.

*288 {¶ 29} Although we agree that finding one’s photo displayed on campus with allegations about one’s sexual orientation may be embarrassing, we cannot say that the evidence showed that Wilson was adversely affected in society by these postings, a showing required as proof of special damages. There was no specific evidence that he was threatened with violence or ill will or that he was publicly ridiculed. Wilson testified that he had received several e-mails and phone calls from persons responding to the flyer and claiming to be nonsmoking, gay, white males. There was no testimony as to whether these were genuine or prank calls. However, Wilson stated, “because [he] had also been receiving calls, probably around at least a half dozen and if not more including — of real solicitations but not — but more of the fact of, you know, [they’re] looking for a non-smoking guy, white male.”

{¶ 30} Wilson also claimed that the communications were derogatory and offensive because he is not a homosexual. However, he testified that being thought to be a homosexual was not the offensive part of the communications. He was offended because the communications were unwanted and involved something that was not true. He testified that he found the e-mails and phone calls annoying. We find that these communications were more inquisitive and annoying than derogatory or offensive.

{¶ 31} We further find that Wilson did not prove that he had suffered a loss of reputation or social standing. Wilson testified that he had and his current girlfriend began dating one week after the flyers were displayed, and thus, his social standing and reputation did not appear to be diminished. Moreover, Wilson continued to attend Case after the flyers were posted. The flyers did not prompt him to transfer to another school or to drop out of school.

{¶ 32} Wilson argues that he also incurred automobile and parking expenses while commuting for nine days. These damages are not the result of the conduct of a person other than the one defamed or the defamer. See Bigelow, supra, 138 Ohio St. 574, 21 O.O. 471, 37 N.E.2d 584. Moreover, loss of study time is purely speculative.

{¶ 33} Finally, we find no merit to Wilson’s argument that his GPA suffered due to the flyers. A drop in his GPA could be attributed to having a new girlfriend or to spending more time studying for the Medical College Admission Test. Furthermore, Wilson achieved the same GPA the following semester.

{¶ 34} Therefore, we find that special damages were not proven, and therefore, Wilson is unable to maintain an action for libel per quod. A directed verdict in favor of appellees was properly granted on this issue.

*289 Invasion of Privacy

{¶ 35} Ohio recognizes three actionable types of invasion of privacy claims: (1) the unwarranted appropriation or exploitation of one’s personality, (2) the publication of one’s private affairs with which the public has no legitimate concern, and (3) the wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities. Davis v. Cleveland, Cuyahoga App. No. 83665, 2004-Ohio-6621, 2004 WL 2829027, at ¶ 50, citing Housh v. Peth (1956), 165 Ohio St. 35, 59 O.O. 60, 133 N.E.2d 340, paragraph two of the syllabus.

{¶ 36} In the instant case, Wilson alleges the second type of invasion-ofprivaey claim, the publication of his private affairs. He argues that the flyers publicized his private contact information, including his university e-mail address and campus phone number.

{¶ 37} To prevail on such a claim, Wilson must establish that the publication (1) was a public disclosure, (2) disclosed facts concerning his private life, (3) publicized a matter that would be highly offensive and objectionable to a reasonable person of ordinary sensibilities, (4) was intentional, and (5) is not a legitimate concern to the public. Davis, Cuyahoga App. No. 83665 at ¶ 52, citing Patrolman “X” v. Toledo (1999), 132 Ohio App.3d 374, 396, 725 N.E.2d 291.

{¶ 38} Wilson was unable to establish that the publicátion of his e-mail address and phone number constituted a disclosure of facts about his private life. “To recover under this theory, the plaintiff must prove the disclosure of a clearly private fact, a matter truly of private concern only.” Pollock v. Rashid (1996), 117 Ohio App.3d 361, 369, 690 N.E.2d 903.

. {¶ 39} Wilson testified that his picture was obtained from the Case website, which is accessible to all students and faculty at the university. He also testified that his e-mail address and phone number are both issued by the university and can be found on the Case Internet data bank, which is also accessible to all students and faculty, and that his e-mail and phone number are published in the university directory. Moreover, Wilson admitted that his phone number was not a private number.

{¶ 40} Therefore, we find that Wilson had no reasonable expectation of privacy involving this information because it was published in various forms obtainable by university students and faculty. The court properly directed a verdict in favor of the appellees on this issue.

Civil Conspiracy, Punitive Damages, Attorney Fees

{¶ 41} Wilson also alleged claims for civil conspiracy, punitive damages, and attorney fees. An action for civil conspiracy cannot be maintained *290 unless an underlying unlawful act is committed. Gosden v. Louis (1996), 116 Ohio App.3d 195, 219, 687 N.E.2d 481, citing Minarik v. Nagy (1963), 8 Ohio App.2d 194, 195, 26 O.O.2d 359, 193 N.E.2d 280. Additionally, a civil action cannot be maintained simply for punitive damages, and without punitive damages, there can be no award of attorney fees. Bishop v. Grdina (1985), 20 Ohio St.3d 26, 28, 20 OBR 213, 485 N.E.2d 704, 705, citing Richard v. Hunter 151 Ohio St. 185, 187, 39 O.O. 24, 85 N.E.2d 109; Spalding v. Coulson (1995), 104 Ohio App.3d 62, 78, 661 N.E.2d 197, citing Digital & Analog Design Corp. v. N. Supply Co. (1992), 63 Ohio St.3d 657, 662, 590 N.E.2d 737.

{¶ 42} Therefore, because Wilson has not established an underlying unlawful act, an action for civil conspiracy, punitive damages, or attorney fees cannot be maintained.

Conclusion

{¶ 43} We find that the trial court did not err in directing a verdict in favor of appellees, because reasonable minds could only conclude that the evidence did not support an actionable cause for defamation or invasion of privacy.

{¶ 44} Accordingly, the assignments of error are overruled.

Judgment affirmed.

PRICE, Judge.

Appellant Janet Nazeri appeals the dismissal of her third amended petition for damages for failure to state a claim upon which relief can be granted. We reverse the dismissal of Counts I and II, alleging slander per quod and slander per se, and remand. We affirm the dismissals of Count III, prima facie tort; Count IV, intentional infliction of emotional distress; Count V, intentional interference with a business relationship; and Count VI, invasion of privacy (false light).

I

A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiffs petition. It assumes that all of plaintiffs averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo. banc 1993). No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that ease.

With this in mind, we turn to appellant’s petition. In general, it alleges that appellant was employed as Director of Teacher Education in the Missouri Department of Elementary and Secondary Education. Her duties included chairing the Department’s teacher evaluation teams and visiting college campuses to conduct such evaluations. The respondents are the Missouri Valley College, a private religious college located in Marshall, Missouri, and Dennis Spellmann, who was Vice-President of the college at the time the acts complained of took place.

*307 In October 1989, Spellman (hereafter “respondent”) spoke to a reporter for the Marshall Democrat-News about appellant’s adverse evaluation of the college’s teacher education program. Respondent stated that he was speaking on behalf of the college as its Vice-President. He described appellant as incompetent, out to get the college, prejudiced against the college, and opposed to church schools having education programs. He also asserted that “Janet Nazeri lives with S_A_, who is a well known homosexual and has lived with her for years”, and that “You know Ms. Nazeri left her husband and children to live with S_A_”

Some time later respondent met with the same reporter and a second reporter for the Marshall Democrat-News. At this meeting, respondent stated that appellant was incompetent, “out to get” Missouri Valley College and “out to close private colleges,” and that he “would not tolerate fags on campus.” He also accused appellant of being involved in a conspiracy with S_A_to use her professional position to effect a bad educational program evaluation of the college, in furtherance of these purported objectives. Although none of these statements was published by the newspaper, appellant asserts that they have become “public knowledge.”

Respondent then met with the Administrative Assistant to the Commissioner of Education and informed him that he did not want appellant to head an evaluation team. In August 1990, respondent told faculty members at Lindenwood College that he had “taken care of’ appellant and that she would no longer be on campus.

Appellant avers that these statements have injured her personal and professional reputation and have adversely affected her employment. After these events transpired, appellant was relieved of certain responsibilities as chair of the evaluation teams. She was prevented from completing the evaluation of Missouri Valley College and from performing the preliminary work for an evaluation of Lindenwood College. She stopped receiving requests for teacher education and testing from Drury College. In December 1989, another official was assigned to deliver a presentation to the Board of Education in her place.

Appellant further avers that because of respondent’s actions she has suffered public ridicule and loss of reputation, respect, professional standing, and business contacts. Professional peers have asked her about the truth of the comments. Fellow employees have informed her that she is too controversial to associate with. Communications she would normally receive have been routed around her. This situation has caused appellant emotional distress and sleep and appetite disturbances, for which she has had to seek medical treatment.

II

A.

An analysis of plaintiffs slander claims and defendants’ objections thereto reveals the complexity in actions of this sort. Some are inherent in all defamation actions. Others, however, focus on the peculiar distinctions between the theories of slander per se and slander per quod.

Appellant’s slander claim in both counts is grounded upon the remarks made by respondent to the newspaper reporters. Appellant asserts that all of these statements were and are false, that they were made concerning her, and that they were made willfully and maliciously, in an effort to discredit and destroy her personal and professional reputation. She further avers that the statements were made with knowledge that they were false, or with reckless disregard for their truth or falsity. Count II pleads slander per se, based upon the allegation that respondent’s remarks impute unchastity, adultery, homosexuality, and criminal conduct. Count I pleads slander per quod, further alleging injury to appellant’s reputation, employment, professional standing, and emotional harm.

Respondents counter with a barrage of objections. They argue that appellant did not plead the objectionable language with specificity; that there is no nexus with the damages claimed by appellant because the newspaper did not report the comments; that the comments are privileged, both as expressions of opinion and as commentary *308 upon the motives of a public official; that appellant did not plead special damages; that the statements pleaded are not defamatory on their face and are not accompanied by any innuendo that would render them defamatory; and that any references to homosexuality do not allude to appellant and do not impute unchastity or the crime of deviate sexual intercourse.

B.

*»— At common law, slander per se encompassed false statements that the plaintiff was guilty of a crime, afflicted with a loathsome disease, or unchaste, as well as false statements that concerned the plaintiffs ability to engage in his or her occupation or business. In such cases the plaintiff was not required to plead damages, as damages were presumed from the nature of the defamation. Where the words were not actionable as slander per se, the tort was referred to as slander per quod and the plaintiff was required to plead and prove, in addition, “special damages.” Special damages in this sense meant a loss of money or of some advantage capable of being assessed in monetary value, such as the loss of a marriage, employment, income, profits, or even gratuitous hospitality. Carter v. Willert Home Products, Inc., 714 S.W.2d 506, 509 (Mo. banc 1986).

These classifications do not correspond exactly to those found in libel law. There, per se referred to a statement whose defamatory nature was apparent upon the face of the publication, whereas per quod indicated a statement that required resort to extrinsic facts in order to become defamatory. Carter, 714 S.W.2d at 509 n. 1. Libel per se was actionable without proof of damages. Libel per quod, by analogy to slander per quod, required proof of special damages. Capobianco v . Pulitzer Publishing Co., 812 S.W.2d 852, 855 (Mo.App.1991). Adding to the confusion was the fact that many courts permitted libel per quod to be actionable without proof of special damages if it imputed a matter that would constitute slander per se if the statement had been spoken. Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456, 471 (1984).

The distinction between per se and per quod causes of action derived from the ancient conflict of jurisdiction between the royal and ecclesiastical courts of England. Initially, slander was the province of the ecclesiastical courts. The royal courts had jurisdiction only over those claims that could be shown to have resulted in “temporal,” as opposed to “spiritual,” injury. This is the origin of the requirement to prove “special damages” in the form of an actual out-of-pocket loss in all cases where such damages cannot be conclusively presumed. Carter, 714 S.W.2d at 509; Agriss, 483 A.2d at 469-70. With the demise of the ecclesiastical courts, the rationale for this distinction evaporated — and so did the venue for defamation claims that did not result in direct economic losses. Nonetheless, by this time the presumed damages/special damages duality was entrenched in the very definition of the tort. As a result, even though libel and slander have evolved to the point where modern law combines them as the generic tort of defamation, the causes of action themselves have retained both the per se/per quod designation and many of the characteristics of the old common law torts.

The consequences of this anachronism were of more than academic interest. The presumed damages/special damages distinction controlled the right of plaintiffs to bring a defamation claim, even though it bore little relationship to either the magnitude of a plaintiffs injury or the wrongfulness of a defendant’s conduct. It also exposed some defendants to liability that might be far in excess of the actual injury caused. Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 3011, 41 L.Ed.2d 789 (1974).

The situation was made more egregious by the nature 'of the injury usually inflicted by a defamation. As noted by the United States Supreme' Court in Gertz, “the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.” Id. at 350, 94 S.Ct. at 3012. Consequently, the particular type of harm demanded by courts in per quod cases was often impossible to document.

*309 The law of defamation, however, has been the subject of substantial re-examination and reformation during the past thirty years. The primary cause of this re-examination was a series of United States Supreme Court decisions attempting to reconcile federal constitutional principles of freedom of speech with state-developed defamation law.

In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Court held that the First Amendment precluded a public official’s recovery of defamatory damages unless proof was made of “actual malice” 1 regarding the false statements. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 3011, 41 L.Ed.2d 789 (1974), the Court focused on the nature of recovery allowed to a private defamation plaintiff. There the Court noted:

The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury.

Gertz went on to hold that a “private defamation plaintiff’ is constitutionally precluded from recovery of presumed or punitive damages absent a showing of malice. Absent malice, a private plaintiff is limited to recovery of damages for “actual injury” as to which the Court stated:

We need not define “actual injury,” as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.

Id. at 349, 94 S.Ct. at 3012.

The Supreme Court in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1984), again addressed this issue. Justice Powell issued a plurality opinion restricting the Gertz decision to matters of public concern and holding that as to private individuals and private matters the constitutional value of speech is reduced and “the states’ interest adequately supports awards of presumed and punitive damages even absent a showing of “actual malice.” 472 U.S. at 761, 105 S.Ct. at 2946. 2

Prior to the decision in Dun & Bradstreet, Inc., many courts believed that Gertz had eliminated the distinction between defamation per se and per quod. For example, in Memphis Publishing Co. v. Nichols, 569 S.W.2d 412 (Tenn.1978), the Tennessee Supreme Court stated:

Since Gertz has held that presumed damages are no longer permissible, the per se/per quod distinction no longer has any practical meaning. “A uniform requirement for proof of actual damages obliterates these often illogical distinctions, most of them relics from centuries past.” Eaton, The American Law of Defamation Through Gertz v. Robert Welch and Beyond, 61 Va.L.Rev. 1349, 1434 (1975). We hold, therefore, that the per se/per quod distinction is no longer a viable one. The *310 plaintiff must plead and prove injury from the alleged defamatory words, whether their defamatory meaning be obvious or not.

569 S.W.2d at 419. See also Metromedia, Inc. v. Hillman, 285 Md. 161, 400 A.2d 1117 (Md.1979); Gobin v. Globe Publishing Co., 282 Kan. 1, 649 P.2d 1239 (1982); Lent v. Huntoon, 143 Vt. 539, 470 A.2d 1162 (1983); Agriss v. Broadway Exp., Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984).

Similarly, Missouri revised its MAI instructions for libel and slander in 1980. Pri- or to that time, MAI 23.09 was the verdict director for “Slander Not Per Se” and 23.10 was the verdict director for “Slander Per Se”. The new instructions did not retain the per se/per quod distinction. Instead, 23.10(1) was titled “Verdict Directing — Slander— Plaintiff not a Public Official or Public Figure” and 23.10(2) “Verdict Directing — Slander — Plaintiff A Public Official or Public Figure.” While no committee comment explicitly states the reason for or desired result of this change, it is nonetheless apparent that this was an attempt to comply with the newly imposed constitutional limitation on defamation claims and perhaps an attempt to simplify an area of law otherwise unduly complicated by anachronisms of the past. The instructions result in shifting the historic slander per se/per quod duality to a duality that distinguishes between comments regarding public matters that are constitutionally protected and comments regarding private matters.

Thus, it is necessary for us to re-examine whether we retain the MAI approach to slander which has abandoned the per se/per quod distinctions or, as allowed by Dun & Bradstreet, Inc., return to the former technicalities of defamation law. 3 An examination of plaintiffs claims is helpful in this regard.

C.

(i)

Counts I and II rest upon the same alleged defamatory remarks. Paragraph 41 of Count II maintains that the statements portray plaintiff:

... as an unchaste woman, a woman engaged in illegal and immoral acts, and a person who abandoned her home, spouse and family, as well as portraying plaintiff as one engaged in adulterous and criminal conduct. All such statements being slander per se.

The various additional paragraphs of Count I appear to plead that the same statements constitute slander per quod and have damaged plaintiff in her career, thus constituting “special damages”. Because appellant may only recover once for her alleged injuries, it is assumed that the per quod claim in Count I is really an alternative pleading in the event that plaintiff cannot recover on her Count II per se claim.

Respondents contend that appellant has pleaded neither defamation per se nor per quod. It is their contention that because words must be construed in their most innocent sense that the statements alleged do not constitute slander per se and because special damages have not been sufficiently pleaded, slander per quod also fails. We first address respondents’ challenge to the slander per se claim.

(ii)

The alleged defamatory remarks can be fairly divided into two categories. Appellant has alleged statements attacking her professional competence and integrity and statements attacking her sexual activities. As to statements attacking .plaintiffs professional competence, it is alleged that:

... defendant Spellman stated:

a) That plaintiff was incompetent;

b) That plaintiff was “out to get” Missouri Valley College;

c) That plaintiff was “out to close private colleges;”

d) That plaintiff was involved in a conspiracy with S_A__ to use plaintiffs professional position to effect a bad educational program evaluation in further- *311 anee of the objectives set forth under subsections (b) and (c) above; ...

An allegation that tends to harm a person in his or her business, trade, profession, or office is one of the traditional categories of slander per se. Carter, 714 S.W.2d at 509. The words used must impute a lack of knowledge, skill, capacity, or fitness to perform one’s duties; or fraud, want of integrity, or misconduct in the line of one’s calling. Brown v. Kitterman, 443 S.W.2d 146, 154 (Mo.1969). More specifically, to be actionable the allegation must strike at a person’s professional competence. Capobianco, 812 S.W.2d at 856.

Respondent’s alleged remarks accuse appellant outright of a lack of skill and fitness to perform her official duties. They portray her as incompetent and prejudiced. Moreover, the accusation that appellant was involved in a conspiracy to “effect a bad education program evaluation” of the College questions her integrity and imputes misconduct in the line of her calling, by suggesting that she is willing to abuse her official position in order to advance her own personal agenda. Under traditional defamation law such statements are slanderous per se.

As to the remarks attacking plaintiffs sexual activities, it is alleged that Spellmann stated that “Janet Nazeri lives with S_A_, who is a well known homosexual and has lived with her for years”, and that “You know Ms. Nazeri left her husband and children to live with S_A_”, and that he “would not tolerate fags on campus.”

Respondents contend that the remarks pleaded in the petition do not insinuate that appellant is a homosexual, an adulteress, or an unchaste person; that she left her husband and family; or that she was involved in criminal activities, as the petition alleges. They also assert any references to homosexuality allude only to appellant’s roommate, and therefore they are not defamatory of appellant personally. See Brown v. Kitterman, 443 S.W.2d at 154.

As support for these contentions they cite cases which hold that in determining whether a statement of fact is defamatory per se, the words must be stripped of any pleaded innuendo, Langworthy v. Pulitzer Pub. Co., 368 S.W.2d 385, 388 (Mo.1963), and construed in their most innocent sense, Walker v. Kansas City Star Co., 406 S.W.2d 44, 51 (Mo.1966). But other precedents hold that the alleged defamatory words must be considered in context, giving them their plain and ordinarily understood meaning. Brown v. Kitterman, 443 S.W.2d at 151; Otto v. Kansas City Star Co., 368 S.W.2d 494, 497 (Mo.1963). In Kirk v. Ebenhoch, 191 S.W.2d 643, 645 (Mo.1945), it was stated that in a defamation action the words alleged “are to be taken in the sense which is most obvious and natural and according to [the] ideas they are calculated to convey to those to whom they are addressed.”

While these standards are not absolutely consistent, we believe they should be read together. Although respondents’ argument has technical merit, an objective reading simply does not allow these words an innocent sense. Respondent’s comments clearly insinuate that appellant is a homosexual and an adulteress. In our vernacular, “living with” somebody is a common euphemism for a sexual relationship. The allegation that appellant “left” her husband and children to live with a “well known homosexual” would most obviously and naturally be interpreted to mean that appellant abandoned her family for the purpose of engaging in an adulterous and unchaste relationship with a lesbian woman. Moreover, the comments refer to appellant by name. See Balderre v. Beeman, 837 S.W.2d 309, 324 (Mo.App.1992) (allegation that plaintiff had “propositioned” business acquaintances, taken in its vernacular meaning, was slanderous per se because it branded the plaintiff as a woman willing to barter sexual favors for business gains).

An allegation of unchastity is one of the four traditional categories of slander per se. Carter, 714 S.W.2d at 509. In addition, we have a statute that makes it actionable “to publish falsely and maliciously, in any manner whatsoever, that any person has been guilty of fornication or adultery.” § 537.110, RSMo 1986. Thus, the statements pleaded are actionable insofar as they impute adultery and unchastity.

*312 The parties disagree as to whether a false imputation of homosexuality is slanderous per se. The few courts that have considered this issue are sharply divided. Some have held that an allegation of homosexuality is defamatory per se, in that it implies immorality, unchastity, or criminal conduct. See, e.g., Schomer v. Smidt, 113 Cal.App.3d 828, 170 Cal.Rptr. 662, 666 (1980), disapproved on other grounds, Miller v. Nestande, 192 Cal.App.3d 191, 237 Cal.Rptr. 359 (1987); Wetherby v. Retail Credit Co., 235 Md. 237, 201 A.2d 344, 346 (1964); Dally v. Orange County Publications, 117 A.D.2d 577, 497 N.Y.S.2d 947, 948 (1986); Head v. Newton, 596 S.W.2d 209, 210 (Tex.Civ.App.1980).

Other courts, citing the ongoing evolution of our social mores, have come to the contrary conclusion and require proof of damages as a condition of recovery. See, e.g., Hayes v. Smith, 832 P.2d 1022, 1025 (Colo.Ct.App.1991); Boehm v. American Bankers Ins. Group, Inc., 557 So.2d 91, 94 (Fla.Dist.Ct.App.1990); Moricoli v. Schwartz, 46 Ill.App.3d 481, 5 Ill.Dec. 74, 77, 361 N.E.2d 74, 76 (1977); Key v. Ohio Dept. of Rehabilitation & Corrections, 62 Ohio Misc.2d 242, 598 N.E.2d 207, 209 (Ohio Ct.Cl.1990). It is undisputed, however, that an imputation of homosexuality is “at least reasonably susceptible of a defamatory meaning.” Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 907 (Minn.Ct.App.1987).

The harm inflicted by defamation is particularly sensitive to the characteristics and situation of the injured party and of the society that surrounds him or her. Attitudes change slowly and unevenly among different groups. Despite the efforts of many homosexual groups to foster greater tolerance and acceptance, homosexuality is still viewed with disfavor, if not outright contempt, by a sizea-ble proportion of our population. Moreover, engaging in deviant sexual intercourse with another person of the same sex is still a class A misdemeanor in this state. § 566.090, RSMo 1986. State v. Walsh, 713 S.W.2d 508, 510-12 (Mo. banc 1986). We hold that a false allegation of homosexuality is defamatory in Missouri.

Furthermore, the “unchastity” category of slander per se has been generalized by our court of appeals to make actionable any false allegation of “serious sexual misconduct.” See Balderre v. Beeman, 837 S.W.2d at 323. We agree with this approach. Matters of sexuality and sexual conduct are intensely private, intensely sensitive, and a false public statement concerning them is particularly harmful. In this society, an untruthful declaration concerning homosexual orientation must be considered as damaging to reputation as one concerning adulterous conduct.

Respondents have also argued that appellant has failed to plead slander per quod because she has failed to allege “special damages”. The nature of “special damages” was extensively discussed in Carter v. Willert Home Products, Inc., 714 S.W.2d 506, 509 (Mo. banc 1986). Generally, Carter held that the special damages element of slander per quod required a showing of the loss of something of economic or pecuniary value, notwithstanding the difficulty of placing a value on such a loss.

Admittedly, appellant has not quantified any such loss in her petition. However, she has alleged injury to her “business contacts and standing as a professional”, the changing of various job duties, and a loss of reputation and respect resulting in a risk to her employment. Granting to plaintiff the reasonable inferences from these averments, we cannot say that she has failed to plead “special damages” so as to warrant dismissal. Although these averments may well be difficult to value and prove at trial, they are sufficient to withstand an attack on the pleadings.

D.

While the attacks of respondents upon appellant’s allegations of slander per se and slander per quod have not persuaded us that appellant failed to state a claim thereunder, they do reveal the undue difficulty of use of the traditional per se and per quod requirements. Although it is clear that respondent’s remarks were defamatory, attempts to characterize them as per se or per quod appear more artificial than real. Unfortunately, the *313 result of the classifications may have a very real impact more far-reaching than justified. In one case the jury is free to presume damages. In the other the jury is precluded from awarding actual damages unless special damages are proven.

Accordingly, while Dun & Bradstreet, Inc. would allow us to maintain the per se/per quod distinction, we believe the abandonment of this distinction as evidenced . by our MAI instructions was and still is ' correct. By allowing presumed damages for certain words but precluding actual damages . for other words without the additional proofs of special damages, we believe this rule of, the past creates unjustifiable inequities for plaintiffs and defendants alike. We hold that' in defamation cases the old rules of per se ’ and per quod do not apply and plaintiff need only to plead and prove the unified defamation elements set out in MAI 23.01(1) and 23.01(2). 4 In short, plaintiffs need not concern themselves with whether the defamation was per se or per quod, nor with whether special damages exist, but must prove actual damages in all cases.

E.

Respondents also attack plaintiffs petition on grounds applicable regardless of whether the per se/per quod distinction applies. They attack the lack of specificity of appellant’s allegations, the failure of plaintiff to establish causation, and they argue that plaintiff has pleaded only protected opinion and not fact. Respondents fail in these attacks.

(i)

Respondents object to the lack of specificity of appellant’s allegations. They assert that in order to state a cause of action for slander, the plaintiff must make her allegations in haec verba, or in the exact words alleged to be defamatory. Brown v. Adams, 715 S.W.2d 940, 941 (Mo.App.1986). This rule, however, is strictly applicable only to libel and not to slander. Lorenz v. Towntalk Publishing Co., 261 S.W.2d 952, 953 (Mo.1953). The reason is obvious with a little reflection on the nature of each cause. Libel is usually published through easily reproducible means such as a writing, printing, broadcast, or electronic communication. Thus, in a libel case it is not unreasonable to expect a verbatim reproduction of the offending statement to assist the court in determining whether it is capable of defamatory meaning.

■ Slander, on the other hand, consists by definition of mere fleeting speech. The accuracy with which it is pleaded must depend upon the recollection of the original hearer, who might not even be the plaintiff. In such circumstances it is pointless to demand absolute precision. All that is required is that there “be certainty as to what is charged” as the slander. Id. at 954; see also Hester v. Barnett, 723 S.W.2d 544, 557 (Mo.App.1987).

Appellant’s petition sets out some statements or portions of statements attributed to respondent in quotes; others are pleaded without quotation marks. We assume that the phrases enclosed in quotes are purported to be reproduced verbatim, or at least closely paraphrased. Conversely, we assume that the unadorned statements are more loosely paraphrased. As set forth in the petition, these statements adequately inform the respondents and the court of the substance of the utterances alleged to be defamatory. Therefore, we find that they are pleaded with enough particularity to state a claim for slander.

(¾

Respondents argue that the petition establishes no nexus between the statements complained of and the damages claimed, because appellant does not allege that those statements were overheard by her superiors, reported in the newspaper, repeated, or “published” in any form. Respondents misunderstand the nature of the publication element in slander. A publication is simply the communication of defamatory matter to a third person. Dvorak v. O’Flynn, 808 S.W.2d 912, 916 (Mo.App.1991). As to the subject matter of Counts I and II, publication occurred at the moment respon *314 •dent uttered the allegedly false statements about appellant to each newspaper reporter.

Respondents are correct in pointing out that the causal relationship between that communication to the reporters, and the damage to appellant’s reputation and working conditions, is not explicitly spelled out in the petition. However, mindful of the Court’s obligation to grant appellant all inferences that may be reasonably drawn from the facts pleaded, Sullivan v. Carlisle, 851 S.W.2d at 512, we conclude that the petition taken as a whole sufficiently pleads causation. Appellant asserts that her eoworkers and her professional peers have reacted to the content of respondent’s remarks. The inescapable inference is that the remarks, or at least their subject matter, have become known among her acquaintances. That inference is sufficient to overcome the motions to dismiss. Whether or not appellant can meet her burden of proof is a question of fact to be tested by summary judgment or trial, and not by motion to dismiss.

(iii)

Respondents assert that all of the objectionable remarks are constitutionally protected expressions of opinion. The First Amendment’s guarantee of freedom of speech makes expressions of opinion absolutely privileged. Whether an alleged statement is capable of being treated as an opinion or as an assertion of fact is a question of law for the trial court.

The United States Supreme Court, however, has rejected the notion that there is “a wholesale defamation exemption for anything that might be labeled ‘opinion’ ”, noting that “expressions of ‘opinion’ may often imply an assertion of objective fact.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 110 S.Ct. 2695, 2705, 111 L.Ed.2d 1 (1990). The test to be applied to an ostensible “opinion” is whether a reasonable factfin-der could conclude that the statement implies an assertion of objective fact. Id. at 21, 110 S.Ct. at 2707; see also Benner v. Johnson Controls, Inc., 813 S.W.2d 16, 20 (Mo.App.1991). The issue of falsity relates to the defamatory facts implied by a statement — in other words, whether the underlying statement about the plaintiff is demonstrably false. Whether the speaker himself subjectively believed the statement is ordinarily not a factor in establishing the defamatory character of the statement, although proof of subjective falsity may serve to establish malice where that is required for recovery. Milkovich, 497 U.S. at 20 n. 7, 110 S.Ct. at 2706 n. 7. But neither “imaginative expression” nor “rhetorical hyperbole” is actionable as defamation. 5 Id. at 20, 110 S.Ct. at 2706.

When tested under this standard, none of the statements attributed to respondent comes clearly under the protection of the First Amendment. The remarks pleaded in the petition consist of outright expressions of fact and ostensible expressions of opinion which very strongly imply underlying facts. Moreover, the statements do more than merely suggest to the ordinary reader that respondent disagrees with appellant’s conduct, and they are not too imprecise to be actionable. See Halliburton, 690 S.W.2d at 788-89. To a large degree, these are highly specific statements that declare or imply objective facts. Accordingly, the petition is not subject to dismissal on grounds of the opinion privilege.

This is not to imply that respondent is categorically precluded from ever proving the applicability of the privilege. Respondent may be able to adduce sufficient evidence to reveal the factual support, if any, for his remarks. See, e.g., Diez v. Pearson, 834 S.W.2d 250, 253 (Mo.App.1992). 6 Further, “where a statement of ‘opinion’ on a matter of public concern reasonably implies false and defamatory facts regarding public *315 figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of them truth.” Milkovich, 497 U.S. at 20, 110 S.Ct. at 2707. All we are able to determine at this point is that appellant’s petition can survive a facial challenge based upon the opinion privilege.

Respondents contend that the allegations dealing with appellant’s performance of her job are constitutionally protected as comments upon the motives and conduct of a public official. Halliburton, 690 S.W.2d at 780. Criticism of official conduct is protected by the requirement to plead and prove actual malice. New York Times, 376 U.S. at 273, 279-80, 84 S.Ct. at 725-26. It is not, however, immune from liability.

In conclusion, we find Counts I and II plead a claim for slander. 7

Ill

Appellant’s third count is sounded in prima facie tort. This count incorporates the allegations contained in the prior two slander counts, and avers that if appellant has “not stated a claim under her other Counts then Defendant’s actions were lawful and done under proper authority.” It also pleads respondent’s remarks to the Lindenwood College faculty.

Appellant here, as many others before her, misunderstands the nature of a prima facie tort claim. It is not a duplicative remedy for claims that can be sounded in other traditionally recognized tort theories, or a catchall remedy of last resort for claims that are not otherwise salvageable under traditional causes of action. Instead, it is a particular and limited theory of recovery with specific elements, as any other tort. 8 The elements of a prima facie tort claim are: (1) an intentional lawful act by defendant; (2) defendant’s intent to injure the plaintiff; (3) injury to the plaintiff; and (4) an absence of or insufficient justification for defendant’s act. Bandag, 662 S.W.2d at 552; Porter v. Crawford & Co., 611 S.W.2d 265, 268 (Mo.App.1980).

A careful reading of appellant’s Count III indicates that she has not pleaded facts that establish the above elements, either as to the allegations incorporated from the prior two counts or as to the newly alleged statements. Counts I and II alleged defamation, an injury to appellant on account of specific untrue statements. Recovery for untrue statements should be in defamation. Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291, 296 (1942). At no point does appellant allege, even in the alternative, that the complained of statements are true. The mere conclusory allegation that appellant might not have “stated a claim under her other counts” does not necessarily establish the subsequent conclusory allegation that respondent’s actions “were lawful and done under proper authority.” Neither do these two allegations together state facts establishing the requisite elements of a prima facie tort claim. See ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 383-84 (Mo. banc 1993).

In short, prima facie tort is not a duplicative cause of action established either by the failure to prove a recognized tort claim, or by the failure of such a claim on account of a particular defense. Appellant’s cause pleaded in Counts I and II is for defamation. While it may be possible for a plaintiff to plead facts that could establish a *316 count in prima facie tort as an alternative to a separate recognized claim, appellant has not done so here. 9

Count III also asserts that respondent told faculty members at Lindenwood College that he had “taken care of’ appellant and that she would no longer be on campus. This remark, however, is simply not actionable. It neither imputes misconduct to appellant nor does it question her integrity. Therefore, it could hardly have caused the damages alleged to her reputation and job. Instead, it refers solely to the conduct and prior acts of the respondent himself. While this statement may well be admissible as evidence in support of appellant’s other claims, it cannot support a prima facie tort claim in and of itself. Accordingly, we affirm the dismissal of Count III.

IV

The fourth count of appellant’s petition seeks damages for intentional infliction of emotional distress, predicated upon the statements to the reporters and to the faculty members already pleaded in Counts I through III. In order to state an emotional distress claim, the plaintiff must plead extreme and outrageous conduct by a defendant who intentionally or recklessly causes severe emotional distress that results in bodily harm. Pretsky v. Southwestern Bell Tel. Co., 396 S.W.2d 566, 568 (Mo.1965).

This tort, like the prima facie tort, does not lie when the offending conduct consists only of a defamation. Hester v. Barnett, 723 S.W.2d 544, 561 (Mo.App.1987); accord Flynn v. Higham, 149 Cal.App.3d 677, 197 Cal.Rptr. 145, 148 (1983); Boyles v. Mid-Florida Television Corp., 431 So.2d 627, 636 (Fla.Dist.Ct.App.1983), approved 467 So.2d 282 (Fla.1985). Damages for mental suffering are recoverable in a slander action. Carter, 714 S.W.2d at 510-11. Thus, any recovery for emotional distress as an inde: pendent tort would duplicate part of the recovery for a slander claim arising out of the same conduct. Hester, 723 S.W.2d at 561. A separate emotional distress claim could be supported by pleading some additional wanton and outrageous act of the defendant, other than an attendant defamatory expression. However, appellant has not done so in her petition.

In the case at bar, all the statements to the two reporters concerning appellant are alleged to be false. Accordingly, none of these statements will support an independent claim for infliction of emotional distress. The sole allegation left under this count, then, is respondent’s boast to the faculty members that he had “taken care of’ appellant. As stated before, this comment is not inherently wrongful and cannot support appellant’s claim. Count IV was properly dismissed.

V

Appellant’s fifth count claims intentional interference with a business relationship. Tortious interference with a contract or business expectancy requires proof of: (1) a contract or valid business expectancy; (2) defendant’s knowledge of the contract or relationship; (3) a breach induced or caused by defendant’s intentional interference; (4) absence of justification; and (5) damages. Community Title v. Roosevelt Fed. Sav. & Loan, 796 S.W.2d 369, 372 (Mo. banc 1990). Count V does not plead any facts that would constitute a breach of appellant’s employment relationship (which is itself not explicitly pleaded either). It also fails to make even a cursory allegation of lack of justification. It is apparent, however, that appellant could not state a claim for tortious interference even if she had formally pleaded all the elements of the tort.

A plaintiff has the burden of producing substantial evidence to establish a *317 lack of justification. If the defendant has a legitimate interest, economic or otherwise, in the contract or expectancy sought to be protected, then the plaintiff must show that the defendant employed improper means in seeking to further only his own interests. Id. In the context of this tort, improper means are those that are independently wrongful, such as threats, violence, trespass, defamation, misrepresentation of fact, restraint of trade, or any other wrongful act recognized by statute or the common law. Id. at 373. Conversely, no liability arises if the defendant had an unqualified legal right to do the act complained of. Id. at 372.

Count V focuses on respondent’s complaint to appellant’s superior at the Department of Education, which allegedly led to her removal as chair of the Lindenwood College evaluation team. But respondent, in his capacity as an administrative officer of an institution that is subject to evaluations conducted by appellant’s employer, had a legitimate interest in appellant’s performance of her job, at least insofar as it applied to the College.

Accordingly, appellant was required to plead facts tending to show that respondent committed some independently wrongful act in the process of protecting his legitimate interest in her job performance as it affected the college, and of exercising his constitutionally protected right to criticize her work. See New York Times, 376 U.S. at 273, 84 S.Ct. at 722. This she failed to do. Absent any evidence of impropriety, respondent’s complaint is not in itself actionable as tor-tious interference. 10

Count V also attempts to incorporate by reference all the allegations found in the earlier counts. However, appellant does not explain how those remarks to the reporters and the faculty members actually caused or induced any breach in her employment relationship. As noted by our court of appeals, on a motion to dismiss a court is not required “to shape extraneous recitations in other counts into a cause of action to match the rubric for remedy the pleader attributes.” Hester, 723 S.W.2d at 561. A cursory reference to facts pleaded in disparate counts, without any attempt to discuss how those facts prove the elements of the specified cause of action, does not state a legally cognizable claim. Thus, the dismissal of Count V was not in error.

VI

Appellant’s sixth and final count alleges “false light” invasion of privacy, based upon the assertions made to the reporters. This Court has declined to recognize a cause of action for invasion of privacy when recovery is sought for untrue statements. See Sullivan v. Pulitzer Broadcasting, 709 S.W.2d 475, 478 (Mo.1986). As we noted in Sullivan, “The case at bar is nothing more than the classic defamation action where one party alleges that the other published a false accusation concerning a statement of fact”. Id. at 481. Recovery for untrue statements that cause injury to reputation should be in defamation. Id. at 478, citing Barber, 159 S.W.2d at 296. Appellant’s petition presents no facts that would merit a reconsideration of this ruling. Count VI was properly dismissed.

VII

We affirm the trial court’s judgment dismissing Counts III through VI of plaintiffs petition. The trial court’s judgment dismissing Counts I and II is reversed and the cause is remanded.

OPINION OF THE COURT

Mercure, J.P

This appeal presents the issue of whether statements falsely describing a person as lesbian, gay or bisexual constitute slander per se. Given this state’s well-defined public policy of protection and respect for the civil rights of people who are lesbian, gay or bisexual, we now overrule our prior case to the contrary and hold that such statements are not defamatory per se.

After a nonparty allegedly told defendant that plaintiff was gay or bisexual, defendant relayed that information to third-party defendant, a close family friend of plaintiff’s long-time girlfriend, with the hope that the girlfriend would be told. Plaintiff maintains that defendant’s actions caused the deterioration and ultimate termination of his relationship with his girlfriend. He commenced this action against defendant, alleging slander, intentional infliction of emotional distress and prima facie tort. Defendant then commenced the third-party action, seeking indemnification based upon the republication of the statements.

Supreme Court subsequently denied third-party defendant’s motion for summary judgment dismissing the third-party *143complaint, and partially granted defendant’s motion for summary judgment by dismissing plaintiffs claims of intentional infliction of emotional distress and prima facie tort. The court denied defendant’s motion insofar as she sought dismissal of plaintiffs slander claim. As relevant here, the court concluded that it was bound to follow prior appellate case law holding that statements falsely imputing homosexuality constitute defamation per se and, thus, plaintiff’s slander claim need not be dismissed despite his failure to allege special damages. The parties cross-appeal, and we now modify by dismissing the complaint and third-party complaint in their entirety.

Whether particular statements are susceptible of a defamatory meaning — and therefore actionable — presents a question of law (see Golub v Enquirer/Star Group, 89 NY2d 1074, 1076 [1997]; Aronson v Wiersma, 65 NY2d 592, 593 [1985]). Only “[i]f the contested statements are reasonably susceptible of a defamatory connotation [does] it become[ ] the jury’s function to say whether that was the sense in which the words were likely to be understood by the ordinary and average [person]” (James v Gannett Co., 40 NY2d 415, 419 [1976] [internal quotation marks and citation omitted]). A statement has defamatory connotations if it tends to expose a person to “public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace, or to induce an evil opinion of [a person] in the minds of right-thinking persons” (Kimmerle v New York Evening Journal, Inc., 262 NY 99, 102 [1933]; accord Bytner v Capital Newspaper, Div. of Hearst Corp., 112 AD2d 666, 667 [1985], affd 67 NY2d 914 [1986]; see Golub v Enquirer Star Group, 89 NY2d at 1076). Because the defamatory tendency of a statement depends “upon the temper of the times [and] the current of contemporary public opinion,” a statement that is “harmless in one age . . . may be highly damaging to reputation at another time” (Mencher v Chesley, 297 NY 94, 100 [1947]).

Generally, a plaintiff asserting a cause of action sounding in slander must allege special damages contemplating “the loss of something having economic or pecuniary value” (Liberman v Gelstein, 80 NY2d 429, 434-435 [1992] [internal quotation marks and citation omitted]; accord Wadsworth v Beaudet, 267 AD2d 727, 728 [1999]). Plaintiff has not done so and, thus, he cannot maintain his slander claim unless the challenged statements constitute “slander per se” — those categories of statements that are commonly recognized as injurious by their *144nature, and so noxious that the law presumes that pecuniary damages will result (see Liberman v Gelstein, 80 NY2d at 435). The four established “per se” categories recognized by the Court of Appeals are “statements (i) charging [a] plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that [a] plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman” (id.). As Supreme Court noted, the Appellate Division Departments, including this Court in dicta, have recognized statements falsely imputing homosexuality as a fifth per se category (see Klepetko v Reisman, 41 AD3d 551, 552 [2d Dept 2007]; Tourge v City of Albany 285 AD2d 785, 786 [3d Dept 2001]; Nacinovich v Tullet & Tokyo Forex, 257 AD2d 523, 524 [1st Dept 1999]; Matherson v Marchello, 100 AD2d 233, 241-242 [2d Dept 1984]; Privitera v Town of Phelps, 79 AD2d 1, 3 [4th Dept 1981], lv dismissed 53 NY2d 796 [1981]).

We agree with defendant and amici* that these Appellate Division decisions are inconsistent with current public policy and should no longer be followed. Defamation “necessarily . . . involves the idea of disgrace” (Bytner v Capital Newspaper, Div. of Hearst Corp., 112 AD2d at 667). Defendant and amici argue— correctly, in our view — that the prior cases categorizing statements that falsely impute homosexuality as defamatory per se are based upon the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual. In fact, such a rule necessarily equates individuals who are lesbian, gay or bisexual with those who have committed a “serious crime”— one of the four established per se categories (see Liberman v Gelstein, 80 NY2d at 435).

That premise is inconsistent with the reasoning underlying the decision of the Supreme Court of the United States in Lawrence v Texas (539 US 558 [2003]), in which the Court held that laws criminalizing homosexual conduct violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution (id. at 578). The Court stated that people who are homosexual “are entitled to respect for their private lives” (id. [emphasis added]), but “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres” (id. at 575). These statements of the Supreme Court simply cannot be reconciled *145with the prior line of Appellate Division cases concluding that being described as lesbian, gay or bisexual is so self-evidently injurious that the law will presume that pecuniary damages have resulted.

In regard to New York in particular, we locate “the public policy of [this] state in the law as expressed in statute and judicial decision and also [by] consider [ing] the prevailing attitudes of the community” (Debra H. v Janice R., 14 NY3d 576, 600 [2010], cert denied 562 US —, 131 S Ct 908 [2011] [internal quotation marks and citations omitted]; see Dickerson v Thompson, 73 AD3d 52, 54 [2010]). Rather than countenancing the view that homosexuality is disgraceful, the Human Rights Law, since 2002, has expressly prohibited discrimination based on sexual orientation in employment, public accommodations, credit, education and housing (Executive Law § 296). Most revealing of the respect that the people of this state currently extend to lesbians, gays and bisexuals, the Legislature passed the Marriage Equality Act (Domestic Relations Law § 10-a, as amended by L 2011, ch 95, § 3) in June 2011, which was strongly supported by the Governor and gave same-sex couples the right to marry in New York, thereby granting them all the benefits of marriage, including “the symbolic benefit, or moral satisfaction, of seeing their relationships recognized by the State” (Hernandez v Robles, 7 NY3d 338, 358 [2006]). Even prior to the Marriage Equality Act, this Court had previously explained that “the public policy of our state protects same-sex couples in a myriad of ways” — including numerous statutory benefits and judicial decisions expressing a policy of acceptance (Dickerson v Thompson, 73 AD3d at 54). Similarly “evidencing] a clear commitment to respect, uphold and protect parties to same-sex relationships [,] executive and local orders extend[ ] recognition to same-sex couples and grant[ ] benefits accordingly” (id.; see Godfrey v Spano, 13 NY3d 358, 380-381 [2009] [Ciparick, J., concurring] [detailing the many statutes and court decisions reflecting a public policy of acceptance of lesbians, gays and bisexuals]).

We note that the most recent Appellate Division decision considering the issue in depth was decided nearly 30 years ago (Matherson v Marchello, 100 AD2d 233, 241-242 [2d Dept 1984], supra). In that case, the Second Department concluded that it was “constrained . . . at this point in time” to hold that a statement imputing homosexuality was defamatory per se in light of the then-existing “social opprobrium of homosexuality” and *146“[l]egal sanctions imposed upon homosexuals in areas ranging from immigration to military service” (id. at 241 [emphasis added and citation omitted]). Ultimately, the Court held that “the potential and probable harm of a false charge of homosexuality, in terms of social and economic impact, cannot be ignored” (id. at 242). In light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of the legal sanctions that troubled the Second Department in 1984 and the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals, it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease (see Stern v Cosby, 645 F Supp 2d 258, 273-275 [SD NY 2009]; Albright v Morton, 321 F Supp 2d 130, 136-139 [D Mass 2004], affd on other grounds 410 F3d 69 [2005]; Donovan v Fiumara, 114 NC App 524, 528-531, 442 SE2d 572, 575-577 [1994]; Hayes v Smith, 832 P2d 1022, 1023-1025 [Colo 1991]; Boehm v American Bankers Ins. Group, Inc., 557 So 2d 91, 94 and n 1 [Fla 1990], review denied 564 So 2d 1085 [Fla 1990]; but see Gallo v Alitalia-Linee Aeree Italiane-S.p.A., 585 F Supp 2d 520, 549-550 [2008] [relying, in part, on our decision in Tourge v City of Albany (285 AD2d 785 [2001], supra) in concluding that statements imputing homosexuality remain slanderous per se under New York law]). While lesbians, gays and bisexuals have historically faced discrimination and such prejudice has not been completely eradicated, “the fact of such prejudice on the part of some does not warrant a judicial holding that gays and lesbians [and bisexuals], merely because of their sexual orientation, belong in the same class as criminals” (Stern v Cosby, 645 F Supp 2d at 275).

In short, the disputed statements in this case are not slanderous per se and, thus, plaintiffs failure to allege special damages requires that the remaining cause of action for slander be dismissed. Inasmuch as the complaint did not adequately allege extreme and outrageous conduct sufficient to support plaintiffs claim of intentional infliction of emotional distress or special damages to support a prima facie tort claim (see Howell v New York Post Co., 81 NY2d 115, 121-122 [1993], mod 82 NY2d 690 [1993]; Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985]), Supreme Court properly dismissed those causes of action. Accordingly, the complaint and third-party complaint should be dismissed in their entirety.

*147Stein, Garry and Egan Jr., JJ., concur.

Ordered that the order is modified, on the law, without costs, by reversing so much thereof as partially denied defendant’s motion for summary judgment dismissing the complaint and denied third-party defendant’s motion for summary judgment dismissing the third-party complaint; motions granted in their entirety and complaint and third-party complaint dismissed; and, as so modified, affirmed.

LaROCQUE, J.

Randolph Tatur, Raymond Kramer, Eugene Dusell, Melvin Wedwick, Robert Mar-tindale, Donald Molstad, Gerald Booth and Phillip J. Schneider, candidates running for reelection to the Rusk County Board, appeal a summary judgment in favor of David J. Solsrud and John Christman, sued for defamation because they allegedly misrepresented the candidates' voting records in letters they sent out to electors during the election race.1 The trial court held that misrepresenting how the candidates had voted on specific issues is not defamatory as a matter of law. We agree and affirm.

We apply the summary judgment statute, sec. 802.08(2), Stats., in the same manner as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987). Because that methodology is well known, it need not be repeated here. Paape v. Northern Assur. Co., 142 Wis. 2d 45, 50, 416 N.W.2d 665, 667 (Ct. App. 1987).

The issue on appeal is whether the alleged misrepresentations concerning the candidates' voting records are capable of a defamatory meaning. "A communication is defamatory if it tends so to harm the reputation of *269another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Ranous v. Hughes, 30 Wis. 2d 452, 460, 141 N.W.2d 251, 254 (1966) (quoting 3 Restatement of Torts § 559 (1938)). In determining whether language is defamatory, "the words must be construed in the plain and popular sense in which they would naturally be understood." Meier v. Meurer, 8 Wis. 2d 24, 29, 98 N.W.2d 411, 414 (1959) (quoting Leuch v. Berger, 161 Wis. 564, 571, 155 N.W. 148, 151 (1915)). It is the function of the court as a matter of law to determine whether a communication is capable of a defamatory meaning. Lathan v. Journal Co., 30 Wis. 2d 146, 153, 140 N.W.2d 417, 421 (1966).

The candidates allege that the letters sent by Sol-srud and Christman to electors contained false statements and misrepresentations regarding how they voted on specific resolutions, the effect of their vote and the procedural and factual backgrounds of the resolutions. The candidates, however, never specifically state in either their complaint or their amended complaint what particular statements in the two- to three-page letters they find objectionable. Rather, they merely attached the letters to the complaint. We note that this is not in accordance with sec. 802.03(6), Stats., which requires that "[i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint . . .." However, because this issue was not raised on appeal, we deem it abandoned.2 Young v. Young, 124 Wis. 2d 306, 317, 369 N.W.2d 178, 182 (Ct. App. 1985). For the purposes of this appeal, we will assume that all *270the statements concerning the candidates' voting records are false. Most of the statements concern how the candidates voted on issues regarding expenditures or taxes. Examples of the statements contained in the letters are as follows:

My opponent,

Voted against "Elimination of New Hiring & Replacements" in an effort made to curb more spending and higher taxes. Positions would not have been filled without the full approval of the County Board.

Voted against the repeal of the 6% double penalty on delinquent real estate taxes. There already was a 12% interest rate and the penalty put that much more burden on the taxpayer who could not pay his taxes on time.

Voted to pay $6,184.00 for back retirement tax to State of Wisconsin. This was on top of $16,808.00 payments and interest to the State which have accumulated since 1980 because of a County management oversight.

The candidates contend that Christman and Sol-srud, by intentionally misleading the public as to their voting records, attempted to lower the candidates in the estimation of the community and attempted to deter electors from voting for them. While we do not condone such illegal campaign tactics3 as allegedly used by *271Christman and Solsrud, misrepresenting how someone votes on an issue is not defamatory as a matter of law because it does not assault a person's character such that it would lower a person's esteem in a community. The situation presented here is analogous to Frinzi v. Hanson, 30 Wis. 2d 271, 140 N.W.2d 259 (1966).

Frinzi argued that the statement "Dominic Frinzi, by stating that he is considering running as an independent has thrown away all pretense at being a Democrat," id. at 277, 140 N.W.2d at 262, was defamatory because it characterized him as "a deceiver, a man unworthy of public confidence, a man having a pretended character and a man who is a premeditated liar." Id. The court held that running as an independent is not disgraceful as to hold a person up to public ridicule or contempt. Id. at 278, 140 N.W.2d at 262. The court further held that the thrust of the statement implying that Frinzi was not a good Democrat was also not libelous even though it might cause some Democrats not to vote for him. Id. Likewise, how elected officials vote on issues is not disgraceful so that it would lower their esteem in the community even though it might cause some electors not to vote for them. The candidates attempt to distinguish Frinzi on the basis that here false factual statements were intentionally made four days before the election in order to persuade voters not to vote for them. However, the fact that the alleged misrepresentations were intended does not render a nondefamatory statement defamatory. See Converters Equip. Corp. v. Condes Corp., 80 Wis. 2d 257, 262-64, 258 N.W.2d 712, 714-15 (1977); see also 53 C.J.S. Libel and Slander § 10 (1987).

The candidates further argue that the violation of sec. 12.05, Stats., which makes it a criminal offense to *272publish false representations pertaining to a candidate, should constitute defamation per se. They argue that the relationship between sec. 12.05 and the law of defamation may be analogized to the relationship between safety statutes and the common-law of negligence where, generally, violation of a safety statute will constitute negligence per se. See Locicero v. Interpace Corp., 83 Wis. 2d 876, 884, 266 N.W.2d 423, 427 (1978). However, statutes are not to be construed as changing the common-law unless the purpose to effect such a change is clearly expressed therein and such purpose is demonstrated by language that is clear, unambiguous and peremptory. Leahy v. Kenosha Mem'l Hosp., 118 Wis. 2d 441, 449, 348 N.W.2d 607, 612 (Ct. App. 1984). Because there is nothing in ch. 12 or sec. 12.05 suggesting that it was intended to change the common-law of defamation, we conclude that a violation of sec. 12.05 does not constitute defamation per se.4 Because we conclude that the statements concerning the candidates' voting records were not defamatory as a matter of law, we affirm.

The dissent would hold that the letters are defamatory because it makes the plaintiffs "appear as spendthrifts and not caring how taxpayer money was spent." Because the plaintiffs are public officials, such a holding would require a further analysis of the first amendment issues as established in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). As was the case in Frinzi, we do not *273reach these issues because we hold that the letters are not defamatory. Id. at 276, 140 N.W.2d at 261.

By the Court. — Judgment affirmed.

CANE, P.J.

(dissenting). I dissent from the majority's opinion concluding that the intentional misrepresentations on how the plaintiffs had voted on various financial issues before them while members of the Rusk County Board are not defamatory as a matter of law. In Frinzi v. Hanson, 30 Wis. 2d 271, 275, 140 N.W.2d 259, 261 (1966), the Wisconsin Supreme Court held that a complaint alleging defamation should be dismissed if the language complained of is incapable under the circumstances pleaded of harming the reputation of the plaintiff so "as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." I think it is important to note that the court continued to state that, " [i]n determining whether language is defamatory, the words must be reasonably interpreted and must be construed in the plain and popular sense in which they would naturally be understood in the context in which they were used and under the circumstances they were uttered." Id. at 276, 140 N.W.2d at 261.

The plaintiffs' complaint alleges that the defendants had intentionally misrepresented their voting record on numerous financial issues before them while members of the Rusk County Board. If believed, the letters would make the plaintiffs appear as spendthrifts and not caring how taxpayer money was spent. Frinzi tells us that in determining whether the language is defamatory, the alleged false statements must be considered in the context in which they were used and under the circumstances they were uttered. Here, letters containing these intentional misrepresentations were distributed to the *274public four days before the election and for the purpose of lowering the public's perception of these candidates and to defeat them at the voting booths. Whether these false letters caused their defeat is unknown, but the plaintiffs, all incumbents, were in fact defeated. Although not perfect, a public election does tell us something about the community's estimation of a candidate. However, when the estimation is influenced by lies, the candidate's standing in the community has been lowered.

Obviously, the only purpose of these intentionally false letters in the context used and uttered was to cast these plaintiffs as individuals who waste taxpayers' money in order to lower their estimation in the community and lessen their chances for re-election. If we believe the complaint, which we must at this stage of the action, the defendants succeeded. This type of activity must not be condoned anywhere in a democratic society. I recognize, that in elections we must allow rough and coarse comments concerning a candidate's qualifications, but the line must be drawn when those comments are intentionally false representations made to influence the election and defeat the candidate. A candidate for any public office should never have to accept intentionally false statements about his character that lower him in the community's eye. Making intentional false statements has never been protected under the first amendment, nor should it be.

Wisconsin has recognized this and made it a crime for one to make false representations pertaining to a candidate that is intended to affect voting at an election. See sec. 12.05, Stats. Similarly, one should be liable in a defamation action for damages when making to the public intentionally false representations about a candidate *275when those false representations are made to influence the voter's estimation of that candidate.

Therefore, I would reverse the summary judgment and allow this action to go to trial on the merits of the complaint.

L. HAND, Circuit Judge.

This appeal arises upon a judgment dismissing a complaint for libel upon the pleadings. The complaint alleged that the defendant had published an advertisement —annexed and incorporated by reference —made up of text‘and photographs; that one of the photographs was “susceptible of being regarded as representing plaintiff as guilty of indecent .exposure and as being a person physically deformed and mentally perverted”; that some of the text, read with the offending photograph, was “susceptible of being regarded as falsely representing plaintiff as an utterer of salacious and obscene language”; and finally that ‘“by reason of the premises plaintiff has been subjected to frequent and conspicuous ridicule, scandal, reproach, sc.orn, and indignity.” The advertisement was of “Camel” cigarettes; the plaintiff was a widely known gentleman steeple-chaser, and the text quoted him as declaring that “Camel” cigarettes “restored” him after “a crowded business day.” Two photographs were inserted; the larger, a picture of the plaintiff in riding shirt and breeches, seated apparently outside a paddock with a cigarette in one hand and a cap and whip in the other. This contained the legend, “Get a lift with a Camel”; neither it, nor the photograph, is charged as part of the libel, except as the legend may be read upon the other and offending photograph. That represented him coming from a race to be weighed in; he is carrying his saddle in front of him with his right hand under the pommel and his left under the cantle; the line of the seat is about twelve inches below his waist. Over the pommel hangs a stirrup; over the seat at his middle a white girth falls loosely in such a way that it seems to be attached to the plaintiff and not to the saddle. So regarded, the photograph becomes grotesque, monstrous, and obscene; and the legends, which without undue violence can be made to match, reinforce the ribald interpretation. That is the libel. The answer alleged that the plaintiff had posed for the photographs and been paid for their use as an advertisement; a reply, that they had never been shown to the plaintiff after they were taken. On this showing the judge held that the advertisement did not hold the plaintiff up to the hatred, ridicule, or contempt of fair-minded peo *155 pie, and that in any event he consented to its use and might not complain.

We dismiss at once so much of the complaint as alleged that the advertisement might be read to say that the plaintiff was deformed, or that he had indecently exposed himself, or was making obscene jokes by means of the legends. Nobody could he fatuous enough to believe any of these things; ' everybody would at once see that it was the camera, and the camera alone, that had made the unfortunate mistake. If the advertisement is a libel, it is such in spite of the fact that it asserts nothing whatever about the plaintiff, even by the remotest implications. It does not profess to depict him as he is; it does not exaggerate any part of his person so as to suggest that he is deformed; it is patently an optical illusion, and carries its correction on its face as much as though it were a verbal utterance which expressly declared that it was false. It would be hard for words so guarded to carry atiy sting, hut the same is not true of caricatures, and this is an example; for, notwithstanding all we have just said, it exposed the plaintiff to overwhelming ridicule. The contrast between the drawn and serious face and the accompanying fantastic and lewd deformity was so extravagant that, though utterly unfair, it in fact made of the plaintiff a preposterously ridiculous spectacle; and the obvious mistake only added to the amusement. Had such a picture been deliberately produced, surely every right-minded person would agree that he would have had a genuine grievance; and the effect is the same whether it is deliberate or not. Such a caricature affects a man’s reputation, if by that is meant his position in the minds of others; the association so established may be beyond repair; he may become known indefinitely as the absurd victim of this unhappy mischance. Literally, therefore, the injury falls within the accepted rubric; it exposes the sufferer to “ridicule” and “contempt.” Nevertheless, we have not been able to find very much in the books that is in point, for although it has long been recognized that pictures may be libels, and in some cases they have been caricatures, in nearly all they have impugned the plaintiff at least by implication, directly or indirectly uttering some falsehood. about him. 5 Coke, 125 a & b; Cropp v. Tilney, 11 Mod. 99 (semble); DuBost v. Beresford, 2 Camp. 511; Austin v. Culpepper, 2 Shower, 313; Ellis v. Kimball, 16 Pick. (33 Mass.) 132; Brown v. Harrington, 208 Mass. 600, 95 N.E. 655; Merle v. Sociological, etc., Co., 166 App.Div. 376, 152 N.Y.S. 829.

The defendant answers that every libel must affect the plaintiff’s character; but if by “character” is meant those moral qualities which the word ordinarily includes, the statement is certainly untrue, for there are many libels which do not affect the reputation of the victim in any such way. Thus, it is a libel to say that a man is insane (Totten v. Sun Printing & Pub. Co. [C.C.] 109 F. 289; Southwick v. Stevens, 10 Johns. [N.Y.] 443; Belknap v. Ball, 83 Mich. 583, 47 N.W. 674, 11 L.R.A. 72, 21 Am.St.Rep. 622); or that he has negro blood if he professes to be white (Stultz v. Cousins [C.C.A.6] 242 F. 794); or is too educated to earn his living (Martin v. Press Pub. Co., 93 App.Div. 531, 87 N.Y.S. 859); or is desperately poor (Moffatt v. Cauldwell, 3 Hun [N.Y.] 26) ; or that he is a eunuch (Eckert v. Van Pelt, 69 Kan. 357, 76 P. 909, 66 L.R.A. 266); or that he has an infectious disease, even though not venereal (Villers v. Monsley, 2 Wils. 403; Simpson v. Press Pub. Co., 33 Misc. 228, 67 N.Y.S. 401); or that he is illegitimate (Shelby v. Sun P. & P. Ass’n, 38 Hun [N.Y.] 474, affirmed on opinion below, 109 N.Y. 611, 15 N.E. 895); or that his near relatives have committed a crime (Van Wiginton v. Pulitzer Pub. Co., 218 F. 795 [C.C.A.8]; Merrill v. Post Pub. Co., 197 Mass. 185, 83 N.E. 419); or that he was mistaken for Jack Ketch (Cook v. Ward, 6 Bing. 409); or that a woman was served with process in her bathtub (Snyder v. New York Press Co., 137 App.Div. 291, 121 N.Y.S. 944); It is indeed not true that all ridicule (Lamberti v. Sun P. & P. Ass’n, 111 App.Div. 437, 97 N.Y.S. 694), or all disagreeable comment (Kimmerle v. New York Evening Journal, Inc., 262 N.Y. 99, 186 N.E. 217; Cohen v. New York Times Co., 153 App.Div. 242, 138 N.Y.S. 206), is actionable; a man must not he too thin-skinned or a self-important prig; but this advertisement was more than what only a morbid person would not laugh off; the mortification, however ill-deserved, was a very substantial grievance.

*156 A more plausible challenge is that a libel -must be something that can be true or false, since truth is always a defense. It would follow that if, as we agree, the picture was a mistake on its face and declared nothing about the plaintiff, it was not a libel. We have been able to find very little on the point. In Dunlop v. Dunlop Rubber Co. (1920) 1 Irish Ch.&Ld.Com. 280, 290-292, the picture represented the plaintiff in foppish clothes, and the opinion seems to rely merely upon the contempt which that alone might have aroused, but those who saw it might have taken it to imply that the plaintiff was in fact a fop. In Zbyszko v. New York American, 228 App.Div. 277, 239 N.Y.S. 411, however, though the decision certainly went far, nobody could possibly have read the picture as asserting anything which was in fact untrue; it was the mere association of the plaintiff with a gorilla that was thought to lower him in others’ esteem. Nevertheless, although the question is almost tabula rasa, it seems to us that in principle there should be no doubt. The gravamen of the wrong in defamation is not so much the injury to reputation, measured by the opinions of others, as the feelings, that is, the repulsion or the light esteem, which those opinions engender. We are sensitive to the charge of murder only because our fellows deprecate it in most forms; but a head-hunter, or an aboriginal American Indian, or a gangster, would regard such an accusation as a distinction, and during the Great War an “ace,” a man who had killed five others, was held in high regard. Usually it is difficult to arouse feelings without expressing an opinion, or asserting a fact; and the common law has so much regard for truth that it excuses the utterance of anything that is true. But it is a non sequitur to argue that whenever truth is not a defense, there can be no libel; that would invert the proper approach to the whole subject. In all wrongs we must first ascertain whether the interest invaded is one which the law will protect at all; that is indeed especially important in defamation, for the common law did not recognize all injuries to reputation, especially when the utterance was oral. But the interest here is by hypothesis one which the law does protect; the plaintiff has been substantially enough ridiculed to be in a position to complain. .The defendant must therefore find some excuse, and truth would be an excuse if it could be pleaded. The only reason why the law makes truth a defense is not because a libel must be false, but because the utterance of truth is in all circumstances an interest paramount to reputation; it is like a privileged communication, which is privileged only because the law prefers it conditionally to reputation. When there is no such countervailing interest, there is no excuse; and that is the situation here. In conclusion therefore we hold that because the picture taken with the legends was calculated to expose the plaintiff to more than trivial ridicule, it was prima facie actionable; that the fact that it did not assume to state a fact or an opinion is irrelevant; and that in consequence the publication is actionable.

Finally, the plaintiff’s' consent to the use of the photographs for which he posed as an advertisement was not a consent to the use of the offending photograph; he had no reason to anticipate that the lens would so distort his appearance. If the defendant wished to fix him with responsibility for whatever the camera might turn out, the result should have been shown him before publication. Possibly any one who chooses to stir such a controversy in a court cannot have been very sensitive originally, but that is a consideration for the jury, which, if ever justified, is justified in actions for defamation.

Judgment reversed; cause remanded for trial.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Defendant is a member of the limited liability company that operates St. Johnsville Hardware and Gifts in the Village of St. Johnsville, Montgomery County. Plaintiff, Lenz Hardware, is a local competitor. Defendant placed an advertisement in the Mohawk Valley “My Shopper” comparing its prices with those of Lenz Hardware. In large print, the advertisement invites customers to “Compare & Save.” In considerably smaller print, it lists both stores’ prices for a number of household items and then recites:

“No Coupon Necessary at St. Johnsville Hardware.

“We have friendly, fast service.

“We Speak English, Plumbing, Farming and Dabble in Pig

Latin.”

Lenz Hardware brought this defamation action asserting that the phrase, “We Speak English,” falsely implied that Lenz Hardware’s vice-president, an American citizen of Korean origin, is not conversant in English.

The Appellate Division majority properly upheld Supreme Court’s dismissal of the complaint. Giving the phrase a natural reading in the context presented, we conclude that it is not “reasonably susceptible of a defamatory connotation” (see, Weiner v Doubleday & Co., 74 NY2d 586, 593).

Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.

Order affirmed, with costs, in a memorandum.

Owens, J.

This court is asked to decide whether the Court of Appeals correctly reversed a bench trial judgment for petitioner Linda Robel on her claims for disability harassment, retaliation for filing a workers’ compensation claim, negligent and intentional infliction of emotional distress, and defamation. We hold that Washington’s Law Against Discrimination, chapter 49.60 RCW (the antidis-crimination statute), supports an employee’s disability based hostile work environment claim, and conclude that the trial court’s unchallenged findings of fact satisfy the elements of such a claim. We likewise conclude that the trial court’s unchallenged findings support Robel’s claim that Fred Meyer retaliated against her for filing a workers’ compensation claim. Regarding Robel’s claim for inten*40tional infliction of emotional distress, we reject the conclusion of the Court of Appeals that the claim should not have gone to the trier of fact. Because the trial court’s findings on the elements of outrage went unchallenged, we reinstate the trial court’s decision in Robel’s favor on her outrage claim and, consequently, will not reach the claim for negligent infliction of emotional distress. However, because we agree with the Court of Appeals that the allegedly defamatory communications cited in the trial court’s findings of fact were not capable of defamatory meaning, we affirm the reversal of the trial court’s judgment on the defamation claim. We deny Robel’s request for costs and reasonable attorney fees on appeal.

FACTS

The suit arises out of Linda Robel’s employment from May 31, 1995, to September 12, 1996, in the service deli at the Francis Avenue Fred Meyer store in Spokane. On July 14, 1996, Robel sustained a workplace injury and timely filed a workers’ compensation claim. In late July, Robel was given a light-duty assignment, “a four-hour shift” during which she stood “at a display table outside the deli area offering samples of food items to customers.” Clerk’s Papers (CP) at 1333 (Finding of Fact 22). On August 1, 1996, as Robel worked at the display table, two deli workers “laughed” and “acted out a slip and fall,” as “one of them yelled ‘Oh, I hurt my back, L&I, L&I!’ ” Id. (Finding of Fact 23); see also Joint Ex. 201, at 30. They “audibly called [Robel] a ‘bitch’ and ‘cunt.’ ” Id. They also “told customers she had lied about her back and was being punished by Fred Meyer by ‘demoing’ pizzas.” Id. In journal entries for August 2, 3, 10, and 11, Robel wrote that assistant deli manager Amy Smith and others made fun of her, laughed, pointed, and gave her “dirty looks.” Joint Ex. 201, at 30-33. Robel also noted that on August 13, Smith and other deli workers would “stare at [her], whisper out loud, & laugh, pretend to hurt their backs & laugh.” Id. at 34.

*41Robel reported the incidents to her union representative, Ron Banka. According to Robel’s journal, Banka came in on August 14, 1996, and set up a meeting with Steve Wissink, the store director, for Friday, August 16. After the brief meeting, Banka stopped by the deli and told Robel that Wissink was convening a meeting of all deli employees on August 19, 1996. At that meeting, Wissink warned the employees that future harassment could result in termination. On August 22, 1996, deli workers “laughed and audibly admonished each other not to harass Robel.” CP at 1333 (Finding of Fact 25); Joint Ex. 201, at 35. On August 28 and 30, Robel noted in her journal that co-workers were talking about her and laughing at her, and she recorded that, on September 2, Smith and other workers “had a great time making fun of [her], calling [her] names[,] pretending to hurt their backs & yelling L&I.” Joint Ex. 201, at 35-36, 38. On September 13, 1996, Robel secured a two-week work release from her doctor and gave it to Smith that same day. Before Robel left the deli, she overheard Smith comment to other deli employees, “ ‘Can you believe it, Linda’s gonna sit on her big ass and get paid.’ ” CP at 1333 (Finding of Fact 27); see also Joint Ex. 201, at 40.

Robel again contacted Banka, who in turn contacted Wissink on September 20, 1996.1 On September 24, Wissink telephoned Robel to confirm the allegations. Robel “told him about the C word and Bitch [,] the little plays they were doing about [her] back.” Joint Ex. 201, at 40. On September 28, 1996, Wissink terminated one employee. Robel never returned to work at Fred Meyer.

On February 13, 1998, Robel filed suit against Fred Meyer stating claims for disability discrimination (RCW 49.60.180(3)), retaliation for filing a workers’ compensation claim (RCW 51.48.025(1)), negligent and intentional infliction of emotional distress, and defamation. The trial court denied Fred Meyer’s motion for summary judgment. At the close of a three-day nonjury trial in September 1999, the *42court entered 69 findings of fact and 8 conclusions of law. Finding for Robel on all five causes of action, the court awarded Robel $1,902.50 in special damages and $50,000.00 in general damages, along with her reasonable attorney fees and costs.

Fred Meyer appealed. The Court of Appeals reversed the trial court’s judgment on all claims. Robel v. Roundup Corp., 103 Wn. App. 75, 10 P.3d 1104 (2000). We granted Robel’s petition for review.

ISSUES

(1) Does the antidiscrimination statute support an employee’s disability-based hostile work environment claim? If so, did the trial court’s unchallenged findings of fact support its conclusion of law that Fred Meyer discriminated against Robel based upon her physical disability?

(2) Did the trial court’s unchallenged findings of fact support the conclusion that Fred Meyer, in violation of RCW 51.48.025(1), retaliated against Robel for filing a workers’ compensation claim?

(3) Did the Court of Appeals properly hold as a matter of law that Robel’s claim for intentional infliction of emotional distress should not go to the trier of fact?

(4) Were the allegedly defamatory communications cited in the trial court’s findings of fact capable of defamatory meaning?

ANALYSIS

Standard of Review. Fred Meyer assigned error to all of the trial court’s conclusions of law but challenged none of its findings of fact. Br. of Appellant at 1-2. Unchallenged findings are verities on appeal. State v. Stenson, 132 Wn.2d 668, 697, 940 P.2d 1239 (1997); State v. Hill, 123 Wn.2d 641, 644, 647, 870 P.2d 313 (1994). This court reviews de novo Fred Meyer’s challenges to the trial court’s conclusions of law. State v. Johnson, 128 Wn.2d 431, 443, *43909 P.2d 293 (1996). Because “[a] conclusion of law is a conclusion of law wherever it appears,” any conclusion of law erroneously denominated a finding of fact will be subject to de novo review. Kane v. Klos, 50 Wn.2d 778, 788, 314 P.2d 672 (1957); see also Local Union 1296, Int’l Ass’n of Firefighters v. City of Kennewick, 86 Wn.2d 156, 161-62, 542 P.2d 1252 (1975).

Disability Discrimination. Under the antidiscrimination statute, “Kit is an unfair practice for any employer . . . [t]o discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability.” RCW 49.60.180(3) (emphasis added). This court has recognized that the antidiscrimination statute prohibits sexual harassment in employment, with such claims being “generally categorized as ‘quid pro quo harassment’ claims or ‘hostile work environment’ claims.” DeWater v. State, 130 Wn.2d 128, 134-35, 921 P.2d 1059 (1996) (quoting Payne v. Children’s Home Soc’y of Wash., Inc., 77 Wn. App. 507, 511 n.2, 892 P.2d 1102, review denied, 127 Wn.2d 1012 (1995)). Whether the antidiscrimination statute supports a disability-based hostile work environment claim is an issue of first impression in this state. In reviewing Robel’s claim below, Division Three of the Court of Appeals assumed arguendo that the antidiscrimination statute “encompassefd] a hostile environment claim based on a disability” but concluded that the findings of fact did not support such a claim. Robel, 103 Wn. App. at 86-87. We hold that the antidiscrimination statute supports a disability-based hostile work environment claim, and conclude that the trial court’s unchallenged findings of fact satisfied each element of the claim.

To determine whether the antidiscrimination statute supports a disability claim based on a hostile work environment, we may look to federal cases construing analogous federal statutes. Fahn v. Cowlitz County, 93 Wn.2d 368, 376, 610 P.2d 857, 621 P.2d 1293 (1980). A number of federal *44courts have considered whether the Americans with Disabilities Act of 1990 (the ADA, 42 U.S.C. § 12101) supports a disability claim based on the employer’s creation of a hostile work environment.2 The ADA forbids discrimination that impacts a disabled person’s “terms, conditions, and privileges of employment,” a phrase likewise found in Title VII of the Civil Rights Act, which forbids discrimination based on an employee’s race, color, religion, sex, or national origin. 42 U.S.C. § 12112(a), § 2000e-2(a)(l). The United States Supreme Court has interpreted the language in Title VII to prohibit harassment that is so “severe or pervasive” as to alter the conditions of employment and create a hostile work environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986). When asked to extend to ADA plaintiffs this same protection afforded under Title VII, most federal courts have recognized a hostile work environment claim under the ADA and have applied the Title VII standards to those claims.3

The antidiscrimination statute, which applies with equal force to sex-based and disability-based employment discrimination, is analogous to Title VII and the ADA. Setting forth the elements that a plaintiff must prove “[t]o establish a work environment sexual harassment case” under the antidiscrimination statute, this court noted that, although federal cases interpreting Title VII were “not binding on this court,” they were “instructive” and “support [ive].” Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 406 & n.2, 693 P.2d 708 (1985). In Glasgow, we determined that a *45sexual harassment plaintiff must prove (1) that “[t]he harassment was unwelcome,” (2) that it “was because of sex,” (3) that it “affected the terms or conditions of employment,” and (4) that it was “imputed to the employer.” Id. at 406-07; see also Fisher v. Tacoma Sch. Dist. No. 10, 53 Wn. App. 591, 769 P.2d 318 (applying Glasgow factors to race based discrimination), review denied, 112 Wn.2d 1027 (1989). Just as the federal cases extended the Title VII hostile work environment claim (and its standards of proof) to the ADA, we may extend the reasoning in Glasgow to disability claims and conclude that, under the antidiscrimi-nation statute, a plaintiff in a disability-based hostile work environment case must prove (1) that he or she was disabled within the meaning of the antidiscrimination statute, (2) that the harassment was unwelcome, (3) that it was because of the disability, (4) that it affected the terms or conditions of employment, and (5) that it was imputable to the employer. The finder of fact must determine whether the plaintiff has met his or her burden as to each of these elements. See 6A Washington Pattern Jury Instructions: Civil 330.23, at 240 (1997) (WPI).

The question thus before us is whether the trial court’s findings of fact establish all five elements of Robel’s disability based hostile work environment claim. The only applicable findings are those pertaining to employee conduct occurring after Robel’s workplace injury on July 14, 1996. The first element, that Robel’s injury was a disability under RCW 49.60.180(3), was not contested. To satisfy the second element, proof that the conduct was “unwelcome,” the plaintiff must show that he or she “did not solicit or incite it” and viewed it as “undesirable or offensive.” Glasgow, 103 Wn.2d at 406; cf. 6A WPI 330.23, at 240 (requiring jury to find that plaintiff proved “[t]hat this language or conduct was unwelcome in the sense that the plaintiff regarded the conduct as undesirable and offensive, and did not solicit or incite it”). This element is fully met in the findings. No findings suggested that Robel solicited or incited the remarks made about her workplace injury. That she viewed it *46as undesirable and offensive was at least implicit in her reporting the conduct to Banka, but the trial court explicitly found that “[t]he harassment of Robel in the work setting was unwelcomed” and “offensive.” CP at 1335-36 (findings of fact 41, 44).

The third element, that the harassment occurred “because of” the workplace injury, “requires that the [disability] of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Glasgow, 103 Wn.2d at 406. This element thus requires a nexus between the specific harassing conduct and the particular injury or disability. Satisfying the element that the conduct “occurred because of [the plaintiff’s disability],” the trial court found that “[t]he verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996, was directly or proximately related to her disability and/or Fred Meyer’s perception of Robel as disabled.” CP at 1334 (finding of fact 31) (emphasis added). For us to conclude that this unchallenged finding failed to satisfy the third factor, we would have to make the very fine-grained distinction that the finding’s description of the harassment as “directly or proximately related to” the disability did not mean that the harassment was “because of” the disability. We decline to split that hair. Because this clear factual finding was not challenged on appeal, we are not at liberty to substitute our judgment for that of the trial court.

Of the fourth element, whether the conduct affected the terms and conditions of employment, the Glasgow court explained that “[t]he harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” 103 Wn.2d at 406. As indicated in the pattern jury instruction, based on RCW 49.60.180(3) and Glasgow, a satisfactory finding on this element should indicate “[t]hat the conduct or language complained of was so offensive or pervasive that it could reasonably be expected to alter the conditions of plaintiff’s employment.” 6A WPI 330.23, at 240. The trial court found that “Fred Meyer created a hostile and abusive work *47environment” and that the environment “was offensive to Robel.” CP at 1335-36 (findings of fact 43-44). Another finding states that “Fred Meyer discriminated against Robel in the terms or conditions of employment when it participated in and/or failed to bring to an end. . . the verbal and non-verbal harassment of Robel in the work setting.” CP at 1336 (finding of fact 48). Describing the employer’s conduct as “offensive” enough to affect Robel’s “terms or conditions of employment” and “create G a hostile and abusive work environment,” these findings echo the critical language from Glasgow and the pattern jury instruction. We cannot pretend that the trial court failed to make the necessary findings on this element of the disability-based hostile work environment claim. Because no error was assigned to these findings, we accept them as verities and forgo any reweighing of the evidence supporting them.4

The fifth element, whether the postinjury conduct must be imputed to the employer, was explained in Glasgow as follows:

Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof. To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action.

103 Wn.2d at 407. Applying this passage, the jury must find either that (1) “an owner, manager, partner or corporate officer personally participate [d] in the harassment” or that (2) “the employer. . . authorized, knew, or should have known of the harassment and . . . failed to take reasonably prompt and adequate corrective action.” Id. (emphasis added); see also 6A WPI 330.23, at 240-41.

*48The trial court found that “Fred Meyer, through the acts of its managers, participated, authorized, knew and/or should have known of the verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996.” CP at 1335 (finding of fact 38) (emphasis added); see also CP at 1336 (finding of fact 46) (stating that “Fred Meyer’s management personnel improperly participated in and/or allowed the verbal and non-verbal harassment in the work setting”). The trial court clarified in its oral review of the findings that deli manager Potts and assistant deli manager Smith were management personnel for purposes of employer liability.5 The court also found that “Fred Meyer’s remedial action. . . was not of such a nature to have been reasonably calculated to end the harassment” and that “[i]ts investigations and termination of [one coworker] without farther management corrections were inadequate.” CP at 1335 (finding of fact 40). Moreover, the court specifically found that the postinjury harassment was “imputed to Fred Meyer.” Id. (finding of fact 39) (emphasis added). These uncontested findings of fact satisfy both options derived from Glasgow.

We therefore conclude that RCW 49.60.180(3) supports a disability-based hostile work environment claim and that the Court of Appeals erred when it ignored the trial court’s unchallenged findings of fact on the five essential elements of the claim. We reverse the Court of Appeals and reinstate the trial court’s judgment in Robel’s favor on this claim.

Retaliation for Filing Workers’ Compensation Claim. Washington’s Industrial Insurance Act provides that “[n]o employer may discharge or in any manner discriminate *49against any employee because such employee has filed or communicated to the employer an intent to file a claim for compensation or exercises any rights provided under this title.” RCW 51.48.025(1) (emphasis added). Robel asserts that, although Fred Meyer did not discharge her for filing her workers’ compensation claim, the company did “in [some] manner discriminate against” her “because” she filed her workers’ compensation claim. Id.; see City of Seattle v. Williams, 128 Wn.2d 341, 349, 908 P.2d 359 (1995) (courts “are duty-bound to give meaning to every word that the Legislature chose to include in a statute and to avoid rendering any language superfluous”). The trial court made the following unchallenged findings:

34. Fred Meyer has a policy that retaliation by supervisors against employees is precluded when complaints are raised by employees. Fred Meyer failed and/or refused to enforce this policy in response to the verbal and non-verbal harassment of Robel in the work setting.

35. Fred Meyer’s actions and/or inactions in regard to the verbal and non-verbal harassment of Robel in the work setting subsequent to July 14,1996, was an unlawful act of retaliation in response to her filing and/or pursuing an industrial insurance claim under RCW 51, et seq., a statutorily protected activity.

36. The verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996, constituted an unlawful and adverse employment action against her.

37. There exists a direct causal connection between Robel’s protected activity and the adverse employment action.

CP at 1334-35 (findings of fact 34-37) (emphasis added).

Without commenting on these unchallenged findings, which respond directly to the antidiscrimination statute, the Court of Appeals determined that Robel would have to provide “ ‘either (a) proof of a policy or practice of the employer, known to the employee, by which the employer retaliates against employees who exercise their rights under the workers’ compensation law; or (b) [proof! that the employee sustains an on-the-job injury, and is directly *50threatened with retaliation if the employee claims benefits under the workers’ compensation law for the injury.’ ” Robel, 103 Wn. App. at 88 (quoting Johnson v. Safeway Stores, Inc., 67 Wn. App. 10, 13, 833 P.2d 388 (1992)).

The reliance on Johnson is insupportable. At issue there was the employer’s conduct in preventing an employee from filing a claim, a circumstance not presented here. In fact, no prior cases have applied the antidiscrimination statute to the present situation—that of an employer who has allegedly discriminated in some way, short of discharge, against an employee because she filed a workers’ compensation claim. By analogy with Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 68, 821 P.2d 18 (1991), which required proof of a causal connection between the filing of a claim and the allegedly retaliatory termination, Robel was required to prove that she had filed a claim, that Fred Meyer thereafter discriminated against her in some way,6 and that the claim and the discrimination were causally connected. Because the findings of fact satisfy these elements and were not challenged on appeal, we reverse the Court of Appeals on the retaliation claim and reinstate the trial court’s judgment in Robel’s favor.

Intentional Infliction of Emotional Distress. Robel’s complaint stated causes of action for both negligent and intentional emotional distress, basing those claims on the same averments. In the trial court’s oral review of its findings, it stated that, “[w]ith regard to the negligence and intentional infliction claim, [it] would recognize [that the] conduct rises to the level of being intentional, particularly as it relates to management of [sic] employee Smith and conduct that took place in the direct presence of management employee Potts.” Report of Proceedings (RP) at 553. The trial court *51entered judgment in Robel’s favor on both, claims, but the Court of Appeals reversed.

To prevail on a claim for outrage, a plaintiff must prove three elements: “(1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) severe emotional distress on the part of the plaintiff.”7 The first element requires proof that the conduct was “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989) (quoting Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975)). Although the three elements are fact questions for the jury, this first element of the test goes to the jury only after the court “determine [s] if reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability.” Id. Here, the trial court entered factual findings in Robel’s favor on the three elements, CP at 1336-37 (findings of fact 51, 52, 57, 59, 60), but the Court of Appeals reversed, determining as a matter of law that “reasonable minds could not differ on whether the conduct was so extreme as to result in liability.” Robel, 103 Wn. App. at 90.

While the standard for an outrage claim is admittedly very high (by which we mean that the conduct supporting the claim must be appallingly low), we disagree with the Court of Appeals on the threshold legal question and conclude that reasonable persons could deem the employer’s conduct, as set forth in the unchallenged findings, sufficiently outrageous to trigger liability. In some contexts, perhaps the language directed at Robel could be dismissed as merely “rough” and “insulting,” as the Court of Appeals characterized it, Robel, 103 Wn. App. at 90, but we believe that reasonable minds (such as the one exercised by *52the trial judge) could conclude that, in light of the severity and context of the conduct, it was “ ‘beyond, all possible bounds of decency, . . . atrocious, and utterly intolerable in a civilized community.’ ” Dicomes, 113 Wn.2d at 630 (quoting Grimsby, 85 Wn.2d at 59). This court has recognized that in an outrage claim “[t]he relationship between the parties is a significant factor in determining whether liability should be imposed.” Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977). The Contreras court emphasized that “added impetus” is given to an outrage claim “[w]hen one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments.” Id.; see also White v. Monsanto Co., 585 So. 2d 1205, 1210 (La. 1991) (stating that “plaintiff’s status as an employee may entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if he were a stranger”). Robel was called in her workplace names so vulgar that they have acquired nicknames, such as “the C word,” for example. Joint Ex. 201, at 40; cf. Taylor v. Metzger, 152 N.J. 490, 706 A.2d 685, 695-96 (1998) (holding that, in light of “power dynamics of the workplace,” jury could reasonably find “extreme and outrageous” a sheriff’s utterance of a single racial slur about subordinate officer). Thus, on the threshold question of law, we conclude that reasonable minds could differ on whether the conduct was sufficiently extreme to warrant the imposition of liability on the employer. The claim was properly before the finder of fact, and the trial court’s unchallenged factual findings on the elements of intentional infliction of emotional distress are verities on appeal.

Fred Meyer argued to the Court of Appeals that, “[i]n Washington, an employer is generally not, as a matter of law, liable for an intentional tort committed by an employee.” Opening Br. of Appellant at 33 (citing Kuehn v. White, 24 Wn. App. 274, 278, 600 P.2d 679 (1979)). This point of view gravely distorts the law of vicarious liability in this state. Our case law makes clear that, once an employ*53ee’s underling tort is established, the employer will be held vicariously liable if “the employee was acting within the scope of his employment.” Dickinson v. Edwards, 105 Wn.2d 457, 469, 716 P.2d 814 (1986). An employer can defeat a claim of vicarious liability by showing that the employee’s conduct was (1) “intentional or criminal” and (2) “outside the scope of employment.” Niece v. Elmview Group Home, 131 Wn.2d 39, 56, 929 P.2d 420 (1997) (emphasis added), quoted with approval in Snyder v. Med. Serv. Corp. of E. Wash., 145 Wn.2d 233, 242-43, 35 P.3d 1158 (2001). Niece and, by extension, Snyder simply do not stand for the proposition that intentional or criminal conduct is per se outside the scope of employment.8

An employee’s conduct will be outside the scope of employment if it “is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.” Restatement (Second) of Agency § 228(2) (1958); see also Restatement, supra, § 228(1). This is not to say that an employer will be vicariously liable only where it has specifically authorized an employee to act in an intentionally harmful or negligent manner; likewise, an employer may not insulate itself from vicarious liability merely by adopting a general policy proscribing bad behavior that would otherwise be actionable. The proper inquiry is whether the employee was fulfilling his or her job functions at the time he or she engaged in the injurious conduct. For example, in Kuehn, *54the employee, a truck driver, stepped outside the scope of his employment when, following an exchange of obscene gestures, he ran the plaintiff’s car off the road and, after both vehicles had stopped, assaulted the plaintiff with a pipe. The Kuehn court observed that, when a servant “steps aside from the master’s business in order to effect some purpose of his own, the master is not liable.” 24 Wn. App. at 277. Similarly, this court has also determined that, where an employee’s acts are directed toward personal sexual gratification, the employee’s conduct falls outside the scope of his or her employment. For example, in Thompson v. Everett Clinic, 71 Wn. App. 548, 860 P.2d 1054 (1993), the court held that the actions of a doctor who, for his own personal sexual gratification, had manually obtained sperm samples from his male patients during examination were not within the scope of the doctor’s employment.9

Here, Fred Meyer was vicariously liable for the offending conduct of its deli employees. First, unlike the employee in Kuehn, who left his post and effectively ceased to be an employee, the Fred Meyer deli workers tormented Robel on company property during working hours, as they interacted with co-workers and customers and performed the duties they were hired to perform. Nothing in the record suggests that the abusive employees left their job stations or neglected their assigned duties to launch the verbal attacks on Robel. Nor was the employees’ conduct in this case directed toward deriving personal sexual gratification, an exceptional circumstance that could have taken the conduct outside the scope of their employment.

In sum, we conclude that Fred Meyer is vicariously liable, that reasonable minds could find the complained-of conduct *55outrageous, and that the uncontested findings satisfied the three elements of outrage. Consequently, we reverse the Court of Appeals and reinstate the trial court’s judgment for Robel on her claim for intentional infliction of emotional distress. Robel’s success on this claim makes unnecessary our consideration of Robel’s companion claim for negligent infliction of emotional distress.

Defamation. A plaintiff bringing a defamation action must prove “four essential elements: falsity, an unprivileged communication, fault, and damages.” Mark v. Seattle Times, 96 Wn.2d 473, 486, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124 (1982). Before the truth or falsity of an allegedly defamatory statement can be assessed, a plaintiff must prove that the words constituted a statement of fact, not an opinion. Because “expressions of opinion are protected under the First Amendment,” they “are not actionable.” Camer v. Seattle Post-Intelligencer, 45 Wn.App. 29, 39, 723 P.2d 1195 (1986) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974) (observing that “[u]nder the First Amendment there is no such thing as a false idea”)). Whether the allegedly defamatory words were intended as a statement of fact or an expression of opinion is a threshold question of law for the court. Id.

The trial court found that “[t]he defamatory communications by Fred Meyer’s employees included that Robel was a ‘bitch,’ a ‘cunt,’ a ‘fucking bitch,’ a ‘fucking cunt,’ a ‘snitch,’ a ‘squealer,’ and/or a ‘liar,’ and the comment that ‘only idiots demo.’ ” CP at 1337 (finding of fact 63). The Court of Appeals reasonably rejected as nonactionable opinions the vulgar names Robel’s co-workers called her. Robel, 103 Wn. App. at 92 (noting that “some statements . . . cannot reasonably be understood to be meant literally and seriously and are obviously mere vituperation and abuse” (quoting Restatement (Second) of Torts § 566 cmt. e (1977))). The Court of Appeals concluded that the remaining words—“snitch,” “squealer,” “liar,” and “idiot”—were arguably defamatory statements of fact but that Robel’s *56claim failed because the trial court had made no finding of damages arising from the defamation claim.

We conclude, however, that none of the allegedly defamatory words could carry defamatory meaning in this case. The vulgarisms, along with the word “idiot,” were plainly abusive words not intended to be taken literally as statements of fact. To determine whether the words “snitch,” “squealer,” and “liar” should likewise be viewed as nonactionable opinions, we consider the “totality of the circumstances” surrounding those statements: “To determine whether a statement is nonactionable, a court should consider at least (1) the medium and context in which the statement was published, (2) the audience to whom it was published, and (3) whether the statement implies undisclosed facts.” Dunlap v. Wayne, 105 Wn.2d 529, 539, 716 P.2d 842 (1986) (regarding as a nonactionable opinion, not a statement of fact, opposing counsel’s statement to plaintiff’s employer that plaintiff had been soliciting a kickback).

Applying the Dunlap court’s three-factor test and its reasoning, we hold as a matter of law that, as with the vulgarisms and the word “idiot,” the words “snitch,” “squealer,” and “liar” likewise constituted nonactionable opinions. Regarding the first factor, medium and context, at issue here were oral statements made in circumstances and places that invited exaggeration and personal opinion. Those engaging in the name-calling were Robel’s co-workers and superiors—individuals who were potentially interested in discrediting her complaints to management about questionable food handling practices in the deli or who were personally interested in ostracizing Robel in the workplace.

The second Dunlap factor, the audience, likewise suggests that the remarks are to be regarded as nonactionable opinions. According to the trial court’s finding, “[t]he defamatory communications were published to Fred Meyer’s customers and/or Robel’s co-workers and/or Robel’s *57management personnel.”10 As an audience, Robel’s coworkers and managers were certainly “prepared for mis-characterization and exaggeration.” Dunlap, 105 Wn.2d at 541. They would have been aware of the animosity between Robel and other co-workers. Such words as “snitch,” “squealer,” and “liar” would have registered, if at all, as expressions of personal opinion, not as statements of fact. Likewise, customers hearing the comments would reasonably perceive that the speaker was an antagonistic or resentful co-worker.

Analysis of the third factor, whether the words implied undisclosed defamatory facts, yields the same result—an unsurprising result since the context and audience often ensure that any implicit facts will be perceived as “merely a characterization of those facts.” Ollman v. Evans, 750 F.2d 970, 985 (D.C. Cir. 1984). To the extent the words were published to deli workers, that audience would have known the facts ostensibly underlying the epithets “snitch,” “squealer,” and “liar”—that Robel had been recording in her journal what she believed were questionable practices in the deli and that she had voiced her complaints to management. Likewise, the remark made to customers—that Robel was “ ‘demoing’ pizzas” because she had “lied about her back”—implies no undisclosed defamatory facts; rather, the remark overtly explains why the resentful, unprofessional co-worker regarded Robel as a “liar.” CP at 1333 (finding of fact 23).

Because we conclude that all of the utterances identified in the finding were nonactionable opinions, we affirm the reversal of the trial court’s judgment on Robel’s defamation claim.

Robel’s Request for Attorney Fees on Appeal. In a supplemental brief filed with this court, Robel requested *58costs and a reasonable attorney fee. Because no fee request was made in her petition for review, the issue was not properly raised before this court. See RAP 13.7(b). We also note that Robel based the fee request made in the supplemental brief on RCW 51.52.130, a statute that she did not cite below as a basis for a fee award. While RAP 12.1(b) gives this court the latitude to consider an issue not properly raised, the rule pertains to issues that, in our view, “should be considered to properly decide a case.” Because Robel’s fee request is not such an issue, we deny the request.

CONCLUSION

On Robel’s claims of disability discrimination, retaliation for filing a workers’ compensation claim, and intentional infliction of emotional distress, we reverse the Court of Appeals and reinstate the trial court’s judgment in Robel’s favor. We affirm the reversal of the trial court’s judgment for Robel on her defamation claim and deny Robel’s request for attorney fees on appeal.

The Court of Appeals decision is affirmed in part and reversed in part.

Alexander, C.J., and Johnson, Ireland, and Chambers, JJ., concur.

Bridge, J.

(dissenting in part) —The incidence of harassment and discrimination in the workplace is terrifying and real. Its occurrence is remediable at law. The remedy, however, must be applied against those truly culpable for the injury caused. Our case law precedent is clear that an employer is not responsible for resolving issues between employees in conflict—no matter how hurtful to the putative victim of the conflict. An employer becomes liable when he or she participates through an identifiable agent or takes no action in the face of repeated harassment which is attributable to a protected classification, and which is committed in the furtherance of the perpetrator’s employ*59ment. If these conditions are not present, the culprit at law must be the offending employee, “deep-pocket” considerations aside. Empathy for those for whom going to work becomes a nightmare is insufficient to hold otherwise noncomplicit employers liable for the harm done by rogue employees. With these considerations in mind, I turn to the case at bar.

Linda Robel began work at Fred Meyer11 in the deli department in December 1995. The following month, Robel and co-worker Tiffany Ware had a falling out over Ware’s relationship with Robel’s son. Unfortunately for Robel, Ware was a close friend of the deli’s assistant manager, Amy Smith. The unhappy result of this situation was that the mutual animosity between Robel and Ware inevitably spilled over into the workplace, subjecting Robel to various verbal taunts and tricks by her co-workers. Robel was distressed by her co-workers’ abusive behavior, but that behavior was clearly the result of a personality conflict, not action by or on behalf of her employers. Nor, as Robel claims, was the behavior caused by her back injury or her filing a workers’ compensation claim—in fact, much of the offensive behavior predated both of these events. This clash, no matter how distasteful, is insufficient to support a claim for outrage or negligent infliction of emotional distress against Robel’s employer. In fact, once the responsible agent of her employer became aware of the situation, action was taken. Ultimately, Robel’s “harasser” was fired. Therefore, I respectfully dissent from the majority’s holdings as to disability discrimination, retaliation, and outrage. I concur with the majority’s holding that a defamation claim is not actionable on these facts.

STANDARD OF REVIEW

The majority asserts that because Fred Meyer has failed to challenge the trial court’s findings of fact, we must accept *60them as verities on appeal. State v. Stenson, 132 Wn.2d 668, 697, 940 P.2d 1239 (1997). However, a conclusion of law is a conclusion of law wherever it appears, even if it is erroneously labeled a finding of fact. Kane v. Klos, 50 Wn.2d 778, 788, 314 P.2d 672 (1957); Local Union 1296, Int’l Ass’n of Firefighters v. City of Kennewick, 86 Wn.2d 156, 161-62, 542 P.2d 1252 (1975). Conclusions of law are reviewed de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996). Furthermore, mixed questions of law and fact are subject to review despite a party’s failure to assign error to the finding. State v. Niedergang, 43 Wn. App. 656, 660-61, 719 P.2d 576 (1986).

We have stated that a “ £ “finding of fact is the assertion that a phenomenon has happened or is or will be happening independent of or anterior to any assertion as to its legal effect.” ’ ” Leschi Improvement Council v. State Highway Comm’n, 84 Wn.2d 271, 283, 525 P.2d 774, 804 P.2d 1 (1974) (quoting NLRB v. Marcus Trucking Co., 286 F.2d 583, 590-91 (2d Cir. 1961) (quoting Louis L. Jaffee, Judicial Review: Question of Law, 69 Harv. L. Rev. 239, 241 (1955))). See also State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981) (“Where findings necessarily imply one conclusion of law the question still remains whether the evidence justified that conclusion.”) (citing Cline v. Altose, 158 Wash. 119, 126, 290 P. 809 (1930)). In contrast, a conclusion of law is a “determination [that] is made by a process of legal reasoning from facts in evidence.” Niedergang, 43 Wn. App. at 658-59.

This court has had several opportunities to evaluate whether findings of fact were, in actuality, conclusions of law. In Ridgeview Properties v. Starbuck, 96 Wn.2d 716, 719, 638 P.2d 1231 (1982), we held that a trial court’s finding of fact that “[a] dual agency relationship was not established at any time during [the] transaction” was actually a conclusion of law. In Woodruff v. McClellan, 95 Wn.2d 394, 396, 622 P.2d 1268 (1980), we held that a trial court’s finding of fact that defendants properly rescinded the earnest money agreement was actually a conclusion of *61law because the term “rescission” carried a legal implication. See also Cline, 158 Wash, at 126 (in landlord-tenant action, finding of fact that actions of parties adequately established respondent’s right to a damage award was actually a conclusion of law because it necessarily implied that there was a constructive eviction); Niedergang, 43 Wn. App. at 660 (holding that trial court’s finding of fact that defendant’s automobile was parked outside curtilage of his house was at least mixed question of law and fact because “curtilage” could be determined only by examining facts of case); Moulden & Sons v. Osaka Landscaping & Nursery, Inc., 21 Wn. App. 194, 197, 584 P.2d 968 (1978) (holding trial court’s finding of fact that plaintiff had cured the breach was actually a conclusion of law).

Applying the above definitions, I agree with Fred Meyer that many of the trial court’s findings of fact are truly conclusions of law and are as such subject to review. I will address the erroneously labeled findings as they are relevant.

DISABILITY DISCRIMINATION

Although I agree with the majority that Washington’s antidiscrimination statute supports a disability-based hostile work environment claim, I disagree that the findings of fact in this case support such a claim.

Adopting the framework established in Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985), the majority holds that a “plaintiff in a disability-based hostile work environment case must prove (1) that he or she was disabled within the meaning of the antidiscrimi-nation statute, (2) that the harassment was unwelcome, (3) that it was because of the disability, (4) that it affected the terms or conditions of employment, and (5) that it was imputable to the employer.” Majority at 45.

The uncontested findings of fact do not support the majority’s conclusion that Robel was harassed because of her disability. The trial court found that “[t]he verbal and *62non-verbal harassment of Robel in the work setting subsequent to July 14, 1996, was directly or proximately related to her disability and/or Fred Meyer’s perception of Robel as disabled.”12 The majority, however, was unwilling to draw a distinction between “ ‘directly or proximately related to’ ” and “ ‘because of’ ” the disability. Majority at 46. Under current Washington law, this distinction must be made.

In Glasgow, this court indicated that to satisfy the “because of’ prong, the prohibited classification must be the “motivating factor for the unlawful discrimination.” 103 Wn.2d at 406 (emphasis added). In the context of disability harassment, the question the court must ask is whether “the employee [would] have been singled out and caused to suffer the harassment if the employee had” not been disabled? Id. In Robel’s case, the answer is clearly yes.

Because the trial court’s findings of fact were not challenged, we must accept its finding that the harassment after Robel’s injury was “directly or proximately related to her disability.”13 However, this finding alone is insufficient to support the conclusion that the harassment was “because of’ Robel’s disability. The harassment suffered by Robel began long before she became disabled. As early as January 1996, Robel began to experience hostility from her coworkers. This hostility continued and worsened in the months that followed, and included a particularly nasty confrontation with Tiffany Ware. At that time, Robel was not disabled. After Robel suffered a lower back injury, requiring that she work only a light duty shift, only one incident referenced Robel’s disability. These facts clearly indicate that Robel would have been harassed even if she had remained able-bodied. Given the ongoing pattern of harassment and its genesis in significant personality differences, had Robel not suffered her back injury, it is unfortunate but likely that the adverse treatment would have endured in another form.

*63In John Doe v. Department of Transportation, 85 Wn. App. 143, 149, 931 P.2d 196 (1997), the Court of Appeals held that the plaintiff had failed to establish that his supervisor’s comments, although sexual in nature, were motivated by the plaintiff’s gender. The court found that the supervisor had instead singled out people “who appeared to be particularly offended by his conduct regardless of the victims’ sex.” Id.

In evaluating hostile work environment claims under the federal Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, several circuit courts have similarly held that isolated incidents of harassment were not motivated by plaintiffs’ disabilities, even though at least some of the harassing conduct may have been related to the plaintiffs’ disabilities. See Wallin v. Minn. Dep’t of Corr., 153 F.3d 681, 688 (8th Cir. 1998) (holding that plaintiff failed to establish that harassment was due to his disabilities even though three incidents were related to his disability); Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723, 725-26 (8th Cir. 1999) (holding that plaintiff failed to establish that alleged harassment was “because of’ his disability even though two isolated incidents may have been connected to his mental condition; “[i]nsensitivity alone does not amount to harassment”).

Where federal courts have upheld disability discrimination claims based on a hostile work environment, the harassment did not begin until after the employee suffered the disability or the employer became aware of it. See, e.g., Fox v. Gen. Motors Corp., 247 F.3d 169, 172-73 (4th Cir. 2001) (plaintiff, who had worked for defendant for many years, did not suffer harassment until after he received light work load due to his back injury); Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 236 (5th Cir. 2001) (finding that plaintiff and her supervisor had been good friends prior to supervisor’s discovery that plaintiff was HIV (human immunodeficiency virus) positive and that harassing treatment of plaintiff did not begin until thereafter). Plainly, such was not the case for Robel.

*64Therefore, I would hold that Robel failed to establish that she was harassed because of her disability, an essential element of her disability discrimination claim.14

OUTRAGE

The tort of outrage requires the plaintiff to show: (1) extreme or outrageous conduct by the defendant, (2) that the conduct was intentional or reckless, and (3) that the plaintiff actually suffered severe emotional distress as a result. Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989) (citing Rice v. Janovich, 109 Wn.2d 48, 61, 742 P.2d 1230 (1987)). The conduct at issue must be “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Id. at 630 (emphasis omitted) (quoting Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975)).

Although whether the defendant’s conduct is sufficiently outrageous is a question of fact for the jury, before a claim of outrage can go to the jury, the court must first determine “if reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability.” Id. at 630. In deciding this threshold question, the majority reversed the Court of Appeals concluding that on these facts “reasonable persons could deem the employer’s conduct. . . sufficiently outrageous to trigger liability.” Majority at 51. The majority applied this standard to the wrong set of facts, relying on the conduct of Robel’s co-workers. However, Robel’s action *65is against Fred Meyer, not her co-workers. Thus, the correct inquiry is whether Fred Meyer’s conduct in responding to the co-workers’ behavior was “sufficiently extreme [as] to result in liability?” I believe that it was not.

First, when the findings of fact are taken as a whole, Fred Meyer’s direct action and/or inaction was not sufficient to result in liability. Although the trial court found that “Fred Meyer through its action and/or inaction allowed and/or fostered the verbal and non-verbal harassment in the work setting,”15 it also found that when Robel chose to complain about the harassment or other problems in her department, Fred Meyer generally responded to her concerns. For example, when Robel first complained about the food handling problems in the deli to the store’s director, Steve Wissink, Wissink undertook an investigation and found that the problems were insubstantial. Similarly, when Tiffany Ware was awarded a 40-hour position in the deli, the United Food and Commercial Workers Union successfully challenged the action on behalf of Robel. After her injury, Robel, through her union representative again reported incidents of harassment to Wissink, who then met with the deli employees and informed them that harassment would not be tolerated. When Wissink was informed that the harassment had continued, he conducted another investigation and eventually fired Ware.

Fred Meyer’s responses certainly were not “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Dicomes, 113 Wn.2d at 630 (emphasis omitted) (quoting Grimsby, 85 Wn.2d at 59). Fred Meyer’s actions were in no way as severe as those of Robel’s co-workers, which the majority admitted was a “close call” in terms of creating the requisite level of outrageousness. Majority at 51.

It is not for this court to second-guess what actions should have been taken. In examining the applicability of the tort *66of negligent infliction of emotional distress in the workplace, we have observed that “ ‘employers, not the courts, are in the best position to determine whether such disputes should be resolved by employee counseling, discipline, transfers, terminations or no action at all’ ” Snyder v. Med. Serv. Corp., 145 Wn.2d 233, 245, 35 P.3d 1158 (2001) (emphasis added) (quoting Bishop v. State, 77 Wn. App. 228, 234, 889 P.2d 959 (1995)). There seems to be no reason why the same latitude should not be given to employers in the context of the tort of outrage.

Second, in answering the threshold question of whether Fred Meyer’s conduct was “sufficiently extreme” as to result in liability, Robel’s co-workers’ actions should not be imputed to Fred Meyer. Although the trial court found that “[t]he verbal and non-verbal harassment of Robel in the work setting is imputed to Fred Meyer and causally related to her emotional distress,”16 this “finding of fact” is actually a conclusion of law and thus subject to review. Whether an action may be imputed to another party can be determined only by applying the relevant facts to the law. Cf. Niedergang, 43 Wn. App. at 658-59. Therefore, whether an act of an employee may be imputed to an employer is ultimately a question of whether the employer may be held vicariously liable for the acts of its employees acting outside the scope of their employment. We have already answered this question in the negative. Snyder, 145 Wn.2d at 242. See also Niece v. Elmview Group Home, 79 Wn. App. 660, 664, 904 P.2d 784 (1995) (“When an employee’s intentionally tortious or criminal acts are not in furtherance of the employer’s business, the employer is not liable as a matter of law . . . .” (emphasis added)), aff’d, 131 Wn.2d 39, 929 P.2d 420 (1997).

In Niece, we held that “current Washington law clearly rejects vicarious liability for intentional or criminal conduct outside the scope of employment.” Niece v. Elmview Group Home, 131 Wn.2d 39, 56, 929 P.2d 420 (1997). Again, in *67Snyder, we stated that “ ‘[w]hen an employee’s intentionally tortious or criminal acts are not in furtherance of the employer’s business, the employer is not liable as a matter of law, even if the employment situation provided the opportunity or means for the employee’s wrongful acts.’ ” 145 Wn.2d at 242 (emphasis added) (quoting Niece, 79 Wn. App. at 664). See also McGrail v. Dep’t of Labor & Indus., 190 Wash. 272, 277, 67 P.2d 851 (1937) (under traditional agency principles, principal may be liable for acts of its agents only if agent was “engaged in the performance of the duties required of him by his contract of employment or by the specific direction of his employer, or, as sometimes stated, whether he was engaged at the time in the furtherance of the employer’s interests”) (emphasis added).

In Snyder, the plaintiff claimed outrage based solely on the acts of her immediate supervisor, Hall. 145 Wn.2d at 242. Hall’s behavior toward the plaintiff and other employees was described as “authoritarian,” “belligerent,” and “harassing-type supervisor” and was severe enough as to cause some employees to quit. Id. at 236-37. Hall specifically threatened Snyder17 and, on one occasion, “poked” Snyder in the chest. Id. at 237. Snyder and Hall’s employer, Medical Service Corporation (MSC), did nothing to stop Hall’s offensive behavior even though MSC was aware of it. Id. at 236-37. Because MSC had a policy forbidding “its supervisors to use physical force or threats of physical force,” we concluded that Hall’s actions were outside the scope of her employment, and thus, MSC could not be vicariously liable for Hall’s actions. Id. at 243.

Here, the actions by Robel’s co-workers18 were clearly outside the scope of their employment. Like the employer in *68Snyder, Fred Meyer had a policy forbidding “harassment, threats, and intimidation involving one employee versus another.”19 Furthermore, it did not direct its employees to harass Robel.20 Although these comments and actions may have been offensive to Robel, they were not “in furtherance of” Fred Meyer’s business. In fact, unlike the actions by Hall in Snyder which tended to involve “work-related topics—pay and unpaid overtime work,” Snyder v. Medical Services Corp., 98 Wn. App. 315, 324, 988 P.2d 1023 (1999), the actions and comments by Robel’s co-workers were largely unrelated to the workplace.

Despite the majority’s assertion, merely because an employee is “on duty” does not mean that the employee was acting within the scope of his or her employment. See majority at 52-54. Washington courts have generally required more than the fact that an employee was “on duty” in order to hold his or her employer vicariously liable for the employee’s intentionally tortious acts. “When an employee’s intentionally tortious or criminal acts are not in furtherance of the employer’s business, the employer is not liable as a matter of law, even if the employment situation provided the opportunity or means for the employee’s wrongful acts.” Niece, 79 Wn. App. at 664 (emphasis added). See also 16 David K. Dewolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 3.7, at 89 (2d ed. 2000) (“intentional torts of servants are not, generally as a matter of law, *69considered within the scope of employment or in furtherance of a master’s business”); Hein v. Chrysler Corp., 45 Wn.2d 586, 600, 277 P.2d 708 (1954) (“An employee who willfully and for his own purposes violates the property rights of another ... is not acting in the furtherance of his employer’s business.”).

Numerous Washington cases have refused to impose liability on an employer for the intentional torts committed by their employees even though the employee was “on duty” at the time of the tort. See, e.g., Hein, 45 Wn.2d at 598-600 (holding employer not vicariously liable for employees malicious inducement of a breach of contract even though employees used employer’s business to induce breach because employees not acting within scope of employment); Niece, 79 Wn. App. at 664 (group home employee not acting within scope of employment when he sexually assaulted a patient); Kuehn v. White, 24 Wn. App. 274, 277-79, 600 P.2d 679 (1979) (employer not liable for employee truck driver who assaulted another motorist in a roadside argument even though truck driver’s employment technically created the opportunity for the conflict). Under the majority’s reasoning, an employer would essentially be strictly liable for all intentionally tortious actions committed by an employee who was “on duty” regardless of whether the actions were in furtherance of the employer’s business. This position is clearly not supported by Washington law. See Niece, 131 Wn.2d at 54-56 (rejecting nondelegable theory of employer liability for intentional acts of its employers acting outside the scope of their employment).

Because we have declined to hold employers vicariously liable as a matter of law in exactly this type of situation, Robel’s co-workers’ actions cannot be imputed to Fred Meyer. The circumstances here are virtually indistinguishable from our recent decision in Snyder except insofar as the employee’s actions in that case were arguably more egregious and the employer’s actions less responsive. Yet, there was no liability for the employer in Snyder. The actions of Robel’s co-workers may not be used to determine *70that reasonable minds could differ as to whether Fred Meyer’s actions were sufficiently extreme as to warrant liability.

RETALIATION

Without justification, the majority extends the tort of wrongful discharge recognized in Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984) to encompass an act by an employer short of actual or constructive discharge. The majority merely substitutes the word “discrimination” for “discharge.” However, the majority fails to define any limitation to the tort or to provide any justification expanding the tort beyond acts of discharge. I would continue to limit successful wrongful discharge claims to those that can show actual or constructive discharge.

In Thompson, we emphasized that the wrongful discharge exception to the employment at will doctrine was narrow and required balancing the interest of the employer to be protected against frivolous lawsuits with the interest of the employee to be protected against employer actions that contravene a clear public policy. Id. at 223, 232-33. Wrongful discharge claims have generally been allowed in four circumstances: “ ‘(1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or obligation, such as serving jury duty; (3) where employees are fired for exercising a legal right or privilege, such as filing workers’ compensation claims; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistleblowing.’ ” Warnek v. ABB Combustion Eng’g Servs., Inc., 137 Wn.2d 450, 461, 972 P.2d 453 (1999) (emphasis added) (quoting Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 936, 913 P.2d 377 (1996)).

Although RCW 51.48.025(1) states that “[n]o employer may discharge or in any manner discriminate against any employee because such employee has filed or communicated to the employer any intent to file a claim for compensation *71or exercises any rights provided under this title,” the statute does not provide a direct cause of action for an aggrieved employee.21 It does, however, provide the requisite public policy used by this court to establish an action for wrongful discharge in Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 821 P.2d 18 (1991). In Wilmot, we held that a plaintiff could make out a prima facie case for retaliatory discharge by showing “(1) that he or she exercised the statutory right to pursue workers’ benefits under RCW Title 51 or communicated to the employer an intent to do so or exercised any other right under RCW Title 51; (2) that he or she was discharged; and (3) that there is a causal connection between the exercise of the legal right and the discharge.” Id. at 68. In determining whether our common law tort of wrongful discharge is broad enough to cover adverse employer actions less than actual discharge, we must look at the purpose of the public policy issue, as well as the tort itself.

In White v. State, 131 Wn.2d 1, 18, 929 P.2d 396 (1997), we addressed for the first time whether an adverse employer action less than actual discharge is actionable where the action violates a clear mandate of public policy. There, we were asked to adopt a cause of action for wrongful transfer in violation of public policy where the transfer did not result in a loss of pay, rank, job classification, or benefits. Id. at 7, 18. In declining to adopt such an action, we stated that recognizing a cause of action for employer actions short of actual discharge would open “a floodgate to frivolous litigation and substantially interfer[e] with an employer’s discretion to make personnel decisions.” Id. at 19 (citing White v. State, 78 Wn. App. 824, 839-40, 898 P.2d 331 (1995)).

*72In Warnek, we addressed the related issue of whether wrongful discharge encompassed an action for wrongful refusal to rehire. 137 Wn.2d at 461-62. The plaintiffs in Warnek alleged that the defendant had refused to rehire them after they had been laid off because they had filed workers’ compensation claims in another state. Id. at 453. We held that prior Washington case law did not provide a cause of action for a former employee who had previously filed a workers’ compensation grievance. Id. at 458. We emphasized that the plaintiffs had failed to establish the requisite element that they be “fired” or “discharged.” Id. at 461.

Other jurisdictions have been similarly reluctant to expand the tort of wrongful discharge to include lesser disciplinary actions. See Ludwig v. C&A Wallcoverings, Inc., 960 F.2d 40, 42-43 (7th Cir. 1992) (rejecting tort of retaliatory demotion); Sanchez v. Philip Morris Inc., 992 F.2d 244, 249 (10th Cir. 1993) (refusing to adopt tort of wrongful failure to hire); LaFriniere v. Group W Cable, Inc., 670 F. Supp. 897, 898 (D. Mont. 1987) (finding no cause of action for wrongful demotion under Montana law); Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 645 N.E.2d 877, 206 Ill. Dec. 625 (1994) (refusing to extend tort of wrongful discharge to include demotions or discrimination for employee pursuing workers’ compensation claim); Mintz v. Bell Atl. Sys. Leasing Int'l, 183 Ariz. 550, 553, 905 P.2d 559 (1995) (rejecting tort of wrongful failure to promote in violation of public policy); Burris v. City of Phoenix, 179 Ariz. 35, 43, 875 P.2d 1340 (1993) (rejecting new tort of wrongful failure to hire); Williams v. Dub Ross Co., 1995 OK. Civ. App. 9, 895 P.2d 1344, 1347 (refusing to expand public policy doctrine to include wrongful failure to hire).22 In the few jurisdictions to extend the wrongful discharge action, the plaintiffs all suffered actual adverse employment actions. See Brigham *73v. Dillon Cos., 262 Kan. 12, 20, 935 P.2d 1054, 1059-60 (1997) (recognizing cause of action for retaliatory demotion); Powers v. Springfield City Sch., No. 98-CA-10, 1998 Ohio App. LEXIS 2827, 1998 WL 336782, at *5-6 (Ohio Ct. App. June 26, 1998) (recognizing cause of action for wrongful denial of promotion).23

In Zimmerman, the Illinois Supreme Court addressed the identical question presented in this case: whether the statutory prohibition on employers discriminating against an employee who files a workers’ compensation claim gives rise to a common law cause of action. 164 Ill. 2d at 31. Although the Illinois court had recognized a wrongful discharge action in such situations, it refused to adopt a cause of action for lesser disciplinary actions, holding that to do so would “replace the well-developed element of discharge with a new, ill-defined, and potentially all-encompassing concept of retaliatory conduct or discrimination.” Id. at 39.

The basic premise behind the wrongful discharge claim as related to the workers’ compensation statute is to ensure that employees are able to utilize the benefits offered by that statute. When an employee successfully files for workers’ compensation and retains his or her position, this purpose is effectuated. However, when an employee is wrongfully discharged for filing or expressing an intent to file a workers’ compensation claim, the purpose is frustrated. Without the claim for retaliatory discharge, the employee would be placed in the position of choosing between his or her job and seeking the remedies afforded under the workers’ compensation statute. See Zimmerman, 164 Ill. 2d at 33. The same choice would not arise to an employee who faces a lesser disciplinary action. Extending the wrongful discharge cause of action to lesser disciplinary actions would allow an employee to obtain greater rights *74than the workers’ compensation statute otherwise allows. This would upset both the balance struck by the workers’ compensation statute and by the tort of wrongful discharge generally.

But even if I agreed that wrongful discharge should be extended to lesser employer actions, I cannot agree that the conduct here meets the majority’s test. Robel has simply not met her burden to prove that Fred Meyer discriminated against her in some way or that the discrimination was causally connected to her workers’ compensation claim. See majority at 50.

The findings of fact do not support the conclusion that Fred Meyer “discriminated” against Robel24 because she filed a workers’ compensation claim.25 After suffering a back injury at work, Robel successfully filed for workers’ compensation. There is no indication that Fred Meyer attempted to prevent her from filing this claim or that she was in any way denied benefits. The record also clearly shows that Fred Meyer accommodated her injury by giving her a light duty shift. In fact, only the “slip and fall” incident is even related to Robel’s filing of a workers’ compensation claim.26

Finally, to satisfy the third prong of the Wilmot test adopted by the majority, Robel must show that the discharge was motivated by the plaintiff’s protected activity. Wilmot, 118 Wn.2d at 68. Although tracking the language of the Wilmot test, the trial court’s finding that there was “a direct causal connection between Robel’s protected activity *75and the adverse employment action,”27 does not clearly establish that the workers’ compensation claim motivated the adverse actions of Robel’s co-workers. Taken as a whole, the record shows a pattern of negative treatment by Robel’s co-workers that began nearly six months before she filed her claim and involved many statements completely unrelated to her claim 28 Therefore, I disagree with the majority that Robel satisfied her burden to prove the second two elements of her retaliation claim.

CONCLUSION

Although Robel was treated horribly by her fellow Fred Meyer employees, the adverse treatment was attributable to personality conflicts among these employees and not to management action or inaction. Thus, I do not believe that such treatment gives rise to any sustainable claim against her employer under Washington law. I therefore respectfully dissent from the majority’s opinion to the contrary.

Smith, Madsen, and Sanders, JJ., concur with Bridge, J.

Motions for reconsideration denied March 24, 2003.

DENNIS JACOBS, Chief Judge:

Shemtov Michtavi, pro se, alleges defamation and intentional infliction of emotional distress based on news reports, published by the New York Daily News and the Polish Daily News, that Michtavi, who is incarcerated, planned to cooperate with prosecutors. Michtavi appeals from the judgment of the United States District Court for the Southern District of New York (Sand, J.) dismissing the complaint for failure to state a claim on which relief could be granted, under Fed.R.Civ.P. 12(b)(6). Michtavi v. New York Daily News, No. 06-Civ-8260, 2008 WL 754694, at **1-2, 2008 U.S. Dist. LEXIS 24997, *2-5 (S.D.N.Y. Mar. 12, 2008). The district court held that the reports could not be defamatory under New York law, and we agree.

*552 I

Michtavi is serving a twenty-year prison sentence for narcotics offenses. In March 2006, the defendant newspapers reported [i] that he was a “key lieutenant” of Ze’ev Rosenstein, an organized crime figure, and [ii] that Michtavi planned to cooperate with prosecutors and testify against Rosenstein. Id. at *1, 2008 U.S. Dist. LEXIS 24997, at *1-2.

Michtavi, a citizen of Israel, invoked diversity jurisdiction. This matter is governed by New York law.

Michtavi does not contest on appeal the dismissal of any claim stemming from the statement that he was a “key lieutenant” of Rosenstein. Any such claim is waived. Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998). Michtavi’s remaining claim, stemming from the report that he planned to cooperate with the authorities, fails on the ground that the statement is, as a matter of law, not defamatory.

II

“Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance.” See Aronson v. Wiersma, 65 N.Y.2d 592, 594, 493 N.Y.S.2d 1006, 483 N.E.2d 1138 (N.Y.1985). Under New York law, a statement is defamatory only if it would expose an individual to shame “in the minds of right-thinking persons.” Kimmerle v. New York Evening Journal, Inc., 262 N.Y. 99, 186 N.E. 217, 218 (1933); see also Celle v. Filipino Reporter Enters., 209 F.3d 163, 177 (2d Cir.2000). It is becoming increasingly hard to ascertain as a matter of law what a right-thinking person would think, and the line of cases has drawn some scholarly criticism. See, e.g., Lyrissa Barnett Lidsky, Defamation, Reputation, and the Myth of Community, 71 Wash. L.Rev. 1, 20-28 (1996).

To test for defamation, courts construe the words “as they would be read and understood by the public to which they are addressed.” November v. Time, Inc., 13 N.Y.2d 175, 244 N.Y.S.2d 309, 194 N.E.2d 126, 128 (1963). The newspapers may not have been addressed specifically to the prison population, but that is clearly the group whose good opinion matters to Michtavi. However, “[t]he fact that a communication tends to prejudice another in the eyes of even a substantial group is not enough [to make the statement defamatory] if the group is one whose standards are so anti-social that it is not proper for the courts to recognize them.” Restatement (Second) of Torts § 559, cmt. e (1977).

The population of right-thinking persons unambiguously excludes “those who would think ill of one who legitimately cooperates with law enforcement.” Agnant v. Shakur, 30 F.Supp.2d 420, 424 (S.D.N.Y.1998) (Mukasey, J.) (noting that every American court surveyed has held that identifying someone as a government informant is not defamatory as a matter of law); see also Connelly v. McKay, 176 Misc. 685, 28 N.Y.S.2d 327, 329-30 (1941) (“At most the language claimed to have been used accuses the plaintiff of giving information of violations of the law to the proper authorities. Are such acts reprehensible? Is such language defamatory? This court thinks not.”).

We therefore agree with the district court that as a matter of law the defendants’ reports were not defamatory. Michtavi’s other arguments are likewise without merit. For the foregoing reasons, we affirm.

MEMORANDUM

■ McHUGH, District Judge.

This civil action raises claims of employment discrimination. Plaintiff is a 59-year-old female attorney who worked for defendant Allstate Insurance Company for close to 24 years. According to her complaint, she had a stellar employment record until she began to receive unfounded criticism from a new managing attorney in 2011. In October, 2012, plaintiff was confronted by Allstate’s security department in connection with her use of Allstate’s postage meter for personal reasons, which was claimed to be a violation of Allstate’s Code of Ethics. The amount of usage in question was $9.55. Plaintiff was ultimately terminated for “dishonesty” in the nature of embezzlement. She does not dispute that she used that amount of postage. However, she contends that the reason offered for her termination was inconsistent with Allstate’s internal policies and procedures and a pretext for discrimination. An initial Motion to Dismiss led to an Amended Complaint, and defendants now return with a Motion to Dismiss Counts Five and Six of the Complaint.

First, defendants seek to dismiss plaintiffs state law claim for breach of contract, arguing that Ms. Frank was an at-will employee who had no contractual rights preventing her termination. They further contend that her state law claims are preempted in that they are subsumed within the claims plaintiff makes under various discrimination laws. Second, defendants contend that Frank’s claims of defamation must be dismissed because Pennsylvania employers have an absolute privilege to communicate honestly with employees about the reasons for termination. Having reviewed the record and having heard oral argument from counsel, defendants’ motion with respect to the contract claims is denied, and their motion with respect to the defamation claim is granted.

A. State Law Contractual Claims

The first issue presented by Defendant’s motion is fact-specific. Plaintiff was hired by Allstate in 1989 and given an Employee Handbook published the year before entitled: “This is Allstate — Where Commitment is a Way of Life. ” The Handbook contained a section entitled “Review” which states in relevant part: “either you or Allstate may terminate the employer-employee relationship at any time; however, Allstate will not terminate your employment for unsatisfactory work unless you have been advised that your performance/behavior is below acceptable standards and that your job is in jeopardy. Before performance deteriorates, we make every effort to help resolve the problem.” Plaintiff contends that if permitted to conduct discovery, she expects to prove the type of handbook-based agreement formed an implied contract. See Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 511 A.2d 830, 841 (1986), allocatur denied, 514 Pa. 643, 523 A.2d 1132 (1987) (indicating an employee handbook can form an implied contract that replaces an employee’s pre-existing at-will status if the handbook “evidences an intent that it becomes a legally binding contract”).

*571Ms. Frank buttresses this argument with the contention that when she was hired by Allstate, she made a promise of faithful service to the company, which she maintained for 24 years. She characterizes her service as sufficient consideration to give rise to an implied contract. Plaintiff further argues that Allstate failed to follow its own rules regarding use of company property. She was fired for her purported theft of a company resource, but was allowed to continue practicing law for five weeks after Allstate first learned of her personal use of the postage meter. There was no written or explicit policy that governed such conduct, and in Allstate’s Code of Ethics, 2012 edition, page 38, there was an allowance for personal use of company resources, so long as it was “infrequent and incidental.”

In response, defendants argue that the language forming the basis for the contractual claim is at best equivocal, and that in subsequent editions of the Employee Handbook, there was more explicit language disclaiming any intent on Allstate’s part to give rise to a contract of employment. Defendants cite to substantial precedent from both Pennsylvania and federal courts emphasizing the exceedingly narrow scope of any exceptions to Pennsylvania’s employment at-will doctrine. E.g. Weaver v. Harpster, 601 Pa. 488, 975 A.2d 555 (2009); Richardson v. Charles Cole Meml. Hosp., 320 Pa.Super. 106, 466 A.2d 1084 (1983); Schoch v. First Fidelity Bancorp., 912 F.2d 654 (3d Cir.1990). Finally, defendants argue that even if a contract existed, it did not confer life tenure.

The summary above does not address the many subtleties and nuances in counsel’s respective arguments, but sets forth their positions in broad terms. The defense is correct that Ms. Frank faces significant challenges with respect to her contract claims. However, I find three aspects of plaintiffs position noteworthy. First, there is language in the Employee Handbook that could reasonably be interpreted to provide an employee with notice and a chance to correct any deficiency before termination. Second, the disclaimer in the 1988 Handbook is equivocal, and to the extent that it is present, seemingly modified by reference to a “second chance” before termination. Third, the qualifying statements in Allstate’s Code of Ethics, defining what constitutes misuse of company resources, when coupled with the language of the Employee Handbook, gives the plaintiff here a more tenable foothold than exists in many of the reported cases where contractual claims were dismissed early in the litigation.

I reject defendants’ contention that the state law contractual claims merely restate plaintiffs discrimination claims in different form. Rather, I interpret the Amended Complaint as setting forth a distinct, alternative theory of liability. Although it is true that there might be some logical inconsistency between plaintiffs breach of contract claim and her claims of intentional discrimination, she is not required to choose between competing theories of liability at this stage of the litigation. See Fed.R.Civ.P. 8(d).

In reaching this result, I am mindful of the admonition given by the Court of Appeals that where there is a factual dispute as to the existence of an employment contract, district courts hesitate to dismiss without permitting discovery. E.g., Novosel v. Nationwide Ins. Co., 721 F.2d 894 (3d Cir.1983); Wolk v. Saks Fifth Avenue Inc., 728 F.2d 221 (3d Cir.1984).

In sum, although plaintiff needs to climb a daunting mountain of adverse precedent in order to prevail with her contract claims, at this juncture I am persuaded that she has earned the right to set up a *572base camp from which to attempt the ascent.

B. State Law Defamation Claims

The second prong of defendants’ motion presents a pure issue of law. The reason for plaintiffs termination was never communicated to her in writing, but she was told verbally that it was for “dishonesty” in connection with her use of Allstate’s postage meter. Allstate opposed her application for unemployment benefits on the basis of misconduct. Plaintiff concedes that any statements made to the Pennsylvania Unemployment Compensation Bureau, or other state agencies conducting quasi-judicial proceedings, are protected by an absolute privilege, and will not give rise to damages for defamation. There is no suggestion that Allstate communicated the reasons for plaintiffs dismissal to any third party, and publication of a defamatory statement is by statute in Pennsylvania a required element of the tort of defamation. See 42 Pa. Con. Stat. Ann. § 8343(a)(2). To meet her burden of proving publication, plaintiff directs the court’s attention to the realities of the job-seeking process, and the fact that in connection with her attempts to secure employment, she must necessarily reveal why, after nearly 24 years, she was terminated by Allstate, even though she contests the reasons for her termination. Courts in some jurisdictions, recognizing that a plaintiff under these circumstances is effectively forced to repeat the defamation while interviewing for jobs, recognize the concept of “compelled self-publication” as one avenue for meeting the legal requirement. See e.g., McKinney v. Cnty. of Santa Clara, 110 Cal.App.3d 787, 798, 168 Cal. Rptr. 89, 94 (1980); Colonial Stores, Inc. v. Barrett, 73 Ga.App. 839, 840-841, 38 S.E.2d 306, 308 (Ga.Ct.App.1946); Lems v. Equitable Life Assurance Soc’y of the United States, 389 N.W.2d 876, 888 (Minn. 1986). Citing to that doctrine, plaintiff here asks the court to accept every instance where she discussed her firing as a separate occurrence of defamation.

There is only one appellate case in Pennsylvania that addresses the doctrine of “compelled self-publication.” Yetter v. Ward Trucking Corp., 401 Pa.Super. 467, 585 A.2d 1022 (1991).1 In Yetter, plaintiff was discharged from his job for reasons that were defamatory in nature. His employer had not communicated those reasons to anyone other than the plaintiff, but he argued that he was effectively forced to repeat the defamation each time he applied for a new position. The Court declined to adopt “compelled self-publication” as the law of Pennsylvania, concluding that to do so would undermine what has been held to be an absolute privilege on the part of employers to communicate plainly the reasons for dismissal to an employee. Id. at 1025.

The Superior Court’s decision in Yetter would seem to definitively exclude “self-compelled publication” as an avenue for plaintiff here, except that immediately following its specific holding the Court added this cryptic statement:

We express no view as to whether under a different set of circumstances, compelled self-publication of the defamatory material by the defamed person, rather than by the defendant to a third-party, will suffice. Id.

*573Seizing upon this statement, plaintiff argues that her case represents the kind of exception to the rule that the Superior Court meant to hold open in Yetter. Her argument is grounded in the fiduciary na-. ture of the attorney-client relationship and a lawyer’s duty of candor. As an example, plaintiff cites to former Disciplinary Rule 1-102(A)(4), which provided: “A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” 2 In plaintiffs view, the unique professional obligations of the legal profession require recognition of compelled self-publication in employment claims brought by attorneys.

The problem with plaintiffs argument is that it proves too much. If such an exception is recognized for attorneys, then why not brokers or accountants? And the importance of honest dealing extends well beyond professionals. When a valet at a parking lot takes a car for safekeeping, is not honesty an essential requirement of the job? When a personal care attendant is being hired as live-in help for a senior citizen, the patient’s children certainly care about the issue of character. In actuality, honesty and forthrightness are critical ele-, ments of every employment relationship, and therefore an appropriate subject for discussion during the interview process. Although plaintiff is correct that failure to be candid with prospective employers about her history with Allstate would be poorly received and likely fatal to her chances of obtaining, or subsequently retaining, employment, the same would be true as to virtually any job applicant who misrepresented the terms of departure from their last job. Given the stated policy rationale of the Superior Court in Yet-ter, namely, the importance of the absolute privilege Pennsylvania employers have to be candid with terminated employees, So-bel v. Wingard, 366 Pa.Super. 482, 531 A.2d 520, 522 (1987); Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984), I am convinced that the statement in the opinion on which plaintiff relies was meant only to communicate the willingness of the Superior Court to consider adoption of the rule of compelled self-publication outside the context of employment cases.

Since Yetter, no court applying Pennsylvania law has endorsed the principle in an employment case, and numerous decisions have rejected it. See Byars v. Sch. Dist. of Phila., 942 F.Supp.2d 552 (E.D.Pa. 2013); Pilkington v. CGU Ins. Co., Inc., 2000 WL 33159253 (E.D.Pa.2001); Walker v. IMS Amer., Ltd., 1994 WL 719611 (E.D.Pa.1994). Of particular note is Mollick v. Beverly Enterprises-Pa. Inc., 1997 WL 634496 (E.D.Pa.1997). There, plaintiff was also a professional, specifically a registered nurse, who argued that the code of conduct applicable to her practice ethically required her to disclose defamatory reasons given by her employer for discharging her when she was interviewing for future positions. Judge Van Antwerpen, now on the Third Circuit Court of Appeals, while recognizing the “difficult situation” in which the plaintiff was placed, nonetheless concluded that the claim was barred by the rule adopted in Yetter.

In a case where a discharged employee is ultimately proven correct, and was in fact defamed by false accusations made in connection with a firing, there is undeniably an inherent unfairness in having been forced to repeat the defamation during the search for employment. However, matters of privilege typically involve a trade*574off between competing values. With evi-dentiary privileges, relevant information is withheld to serve the greater good of preserving confidential relationships or marital harmony. With executive privilege, information that would otherwise properly be the subject of public disclosure and debate is withheld to preserve unfettered decision-making. In the context of this case, Pennsylvania deems the goals of transparency and candor more important than allowing a remedy for an aggrieved employee. That balance, struck by Pennsylvania’s Superior Court as a matter of policy, is not one that a federal district court should disturb, absent some indicia that its Supreme Court would rule differently.

In conclusion, I see no indication that Pennsylvania would apply principles of “compelled self-publication” in an employment case. Therefore, I grant the Motion to Dismiss in defendants’ favor as to all of the defamation claims set forth in Count Six of the Amended Complaint. An appropriate order follows.

ORDER

This 15th day of July, 2014, it is hereby ORDERED as follows:

Defendant’s Motion to Dismiss Count Five of the Complaint is DENIED;

Defendant’s Motion to Miss Count Six of the Complaint is GRANTED, with prejudice.

Loring, J.

We do not find it necessary to decide whether the two statements relied on by the plaintiff could have been found to be accusations of larceny. If it be assumed that such a finding could have been made, the judge was right in directing the jury to find a verdict for the defendant because there was no evidence of publication of either of them. See Downs v. Hawley, 112 Mass. 237; Rumney v. Worthley, 186 Mass. 144. There was no evidence that anybody but the plaintiff was present when Carrier spoke to the plaintiff in English. There was no publication of this statement made in English, because on the evidence the words could not have been heard by any one but the plaintiff. Sheffill v. Van Deusen, 13 Gray, 304.

*297Nor was there any evidence of publication of the Greek words spoken by Míralos. For, although there was evidence that they were spoken in the presence of others, there was no evidence that any one could understand them but the plaintiff. Sheffill v. Van Deusen, ubi supra, at page 305, and cases cited.

Under these circumstances we do not have to consider the question whether Carrier and Míralos could have been found to be acting within the scope of their employment by the defendant in making the two statements relied upon, as to which see Kane v. Boston Mutual Life Ins. Co. 200 Mass. 265, 269.

Exceptions overruled.

VAN DYKE, J.

Appellant brought this action against respondents, seeking to recover damages for a libelous publication. At the trial she made proof as follows: Respondents were the proprietors of a public tavern and for the convenience of patrons maintained a toilet room for men on the wall of which there appeared on May 4, 1950, libelous matter indicating that appellant was an unchaste woman who indulged in illicit amatory ventures. The writer recommended that anyone interested should call a stated telephone number, which was the number of the telephone in appellant’s home, and “ask for Isabelle,” that being appellant’s given name. At about 9 o’clock on the evening of that day a man, unknown to appellant, called the number and appellant answered. The caller requested permission to visit her and when in the course of the conversation it developed that a meeting could not be arranged he told her “there is some of the most terrible writing over here on the wall of the men’s toilet about you, that is where I got your telephone number and your name.” He suggested that she look into it and told her he was calling from respondents’ tavern. Appellant informed her husband of the conversation and he called the tavern and talked with the bartender who was shown to have been in charge of the tavern during the absence of respondents. He told the bartender that his attention had been called to some writing on the walls of the *426 men’s toilet regarding his wife, that he would give the bartender just 30 minutes to take it off the wall and that he was coming out to investigate. The bartender replied that he was busy and alone and would remove the writing when he got around to it. Appellant’s husband thereupon called a constable and after some delay arrived at the tavern where, in company with several people, including the bartender, he went to the toilet and found the libelous matter still on the wall. Falsity of the libel was shown and its defamatory nature is conceded. In fact it was shocking. The husband, constable and other persons present when the group went to the toilet and found the defamatory writing still upon the wall were shown to have understood the appellant was the person referred to in the writing and the writing itself was sufficient to be understood by anyone knowing about it that it was written concerning her. (Peterson v. Rasmussen, 47 Cal.App. 694, 698 [191 P. 30].) After introduction of the foregoing proof, appellant rested her case and upon motion of the defendants was nonsuited. She appeals from the judgment thereafter entered and based upon the order of nonsuit.

Appellant contends that from the facts shown publication by respondents could be sufficiently inferred and therefore that the nonsuit was improper. “Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed.” (Restatement of the Law of Torts, § 577.) Persons who invite the public to their premises owe a duty to others not to knowingly permit their walls to be occupied with defamatory matter. See Burns v. Dean, 1 King’s Bench 818, wherein it was held that the proprietors of a club were liable for allowing a defamatory statement to be put upon their walls in a position in which it could be read by anyone who came into the club. The theory is that by knowingly permitting such matter to remain after reasonable opportunity to remove the same the owner of the wall or his lessee is guilty of republication of the libel. Respondents urge that there is no proof that they knew of the existence of the libelous matter and therefore that appellant failed to make proof sufficient to warrant submission of her cause to the jury for its determination. With this contention we do not agree. It is of course the rule that in reviewing a judgment based upon a non-suit the plaintiff is entitled to the benefit of all favorable evidence and all reasonable inferences which may be drawn *427 therefrom. The defamatory matter was placed upon, the wall by a person or persons unknown and it was therefore necessary for appellant to introduce evidence tending to show that respondents adopted the defamatory matter or republished it. Republication occurs when the proprietor has knowledge of the defamatory matter and allows it to remain after a reasonable opportunity to remove it. While there is in the record no evidence of actual knowledge on the part of the defendants the knowledge of an agent, while acting in the scope of his authority is imputed to the principal. (Civ. Code, §2332; 2 Cal.Jur.2d 855; Dressel v. Parr Cement Co., 80 Cal.App.2d 536, 540 [181 P.2d 962]; Westmam, v. Clifton’s Brookdale, Inc., 89 Cal. App.2d 307, 311 [200 P.2d 814]; Hale v. Depaoli, 33 Cal.2d 228, 231 [201 P.2d 1, 13 A.L.R.2d 183].) Prom the testimony given the jury could have found that the bartender, to whom appellant’s husband imparted knowledge of the existence of the slanderous matter and of its location was in general control of the establishment, with the duty of supervising the premises, including the rest rooms. While he was not told of the exact terminology of the writing, undoubtedly because neither appellant nor her husband had been given that terminology by the stranger who called appellant on the phone, yet the bartender was told enough about the defamatory nature of it to put him upon inquiry and to charge him with the duty of removing the writing from respondents’ wall. This knowledge of the bartender, acquired within the scope of his authority, is chargeable to the respondents. It was also a question for the jury whether, after knowledge of its existence, respondents negligently allowed the defamatory matter to remain for so long a time as to be chargeable with its republieation, occurring when the husband and the group with him visited the rest room and saw the writing.

The judgment appealed from is reversed.

Adams, P. J., and Peek, J., concurred.

A petition for a rehearing was denied June 26, 1952.

Mr. JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiffs, Thomas and Daphne Beresky brought suit against defendant, J. Peter Teschner, d/b/a “The Doings”, a weekly newspaper, following the publication of a series of articles in “The Doings” of which Teschner is the owner and publisher. Plaintiffs’ amended complaint was in four counts: count I, libel; count II, intentional infliction of mental distress; count III, negligent infliction of mental distress; and count IV, invasion of privacy. The trial court dismissed all four counts and denied plaintiffs leave to file any amended counts to their amended complaint. Plaintiffs appeal the dismissal of counts I, II and IV of their amended complaint, and the denial of leave to amend those counts. Plaintiffs have not appealed the dismissal of count III.

The initial article of the series which forms the basis of this suit appeared in the October 23, 1975, issue of “The Doings.” The article reported the death of Cary Beresky, the 18-year-old son of the plaintiffs, from an apparent drug overdose. According to the article, Cary was a fugitive from the law having failed to appear in court on a charge of unlawful possession of a hypodermic needle allegedly used for shooting up heroin and that since his 18th birthday he had been arrested on charges ranging from traffic violations to burglary. The article also stated that a reliable source had told “The Doings” that Cary was reportedly a major seller and user of heroin in Hinsdale.

The October 30, 1975, issue of “The Doings” carried four letters to the editor, all highly critical of the newspaper for publishing such an article and expressing sympathy towards plaintiffs and their family. The November 6, 1975, issue carried another letter to the editor, again critical of the newspaper and expressing sympathy for plaintiffs; this letter mentioned Mrs. Beresky by name and stated that she had recently undergone extensive surgery for cancer. That issue also carried an editorial responding to the criticisms expressed in the letters to the editor. The issue of November 13, 1975, carried an editorial again responding to the criticism leveled at the newspaper for publishing the October 23, 1975, article. Finally, the January 1,1976, issue contained a synopsis of the news events which had occurred in the community in 1975; one of those mentioned was Cary Beresky’s death from an apparent drug overdose.

Plaintiffs contend on appeal that the trial court erred in dismissing counts I, II, and IV of their amended complaint; that the trial court deprived plaintiffs of their right to have a jury determination of whether the facts supported the allegations of each count; and that the trial court abused its discretion in denying plaintiffs leave to file amended counts to their amended complaint.

In dismissing count I (libel), the trial court found that the plaintiffs had failed to allege that any false and defamatory words were written “of and concerning plaintiffs.” The plaintiffs contend that the original article, the letters to the editor and the editorial responses referred to the family of Cary Beresky and thereby to plaintiffs and that the members of the community understood the articles to refer to plaintiffs — one of the letters to the editor referred to Mrs. Beresky by name. Plaintiffs also contend that third parties understood the words of the articles to mean that plaintiffs knew or had knowledge of, condoned or participated in the illegal drug activities of their son, and that the trial court erred in denying plaintiffs the opportunity to present proof of their contentions to the jury.

We agree with plaintiffs that under Illinois law a publication may constitute a libel against an individual without mentioning him by name so long as it appears that some third party reasonably understood the writing to have referred to that individual. (Algozino v. Welch Fruit Products Co. (1951), 345 Ill. App. 135, 102 N.E.2d 555.) However, whether an article was in fact understood by readers to refer to plaintiffs might ultimately be a question for the jury, the preliminary determination whether the article is capable of being so understood is a question of law. Troman v. Wood (1975), 62 Ill. 2d 184, 189, 340 N.E.2d 292, 294.

In Troman, a newspaper article appeared related to a series of burglaries and other criminal activities by a gang of youths in an area of Chicago. One edition of the newspaper carried a photograph of the plaintiff’s home with a caption “Home of Mrs. Mary Troman at [address], Thomas Troman testified that he is a member of the gang.” Further, the article quoted a local resident as referring to plaintiff’s house as the gang headquarters and that his stolen TV set was in the basement. Plaintiff contended that the article and picture, when taken together, were understood by readers as meaning that plaintiff’s house served as headquarters for the gang and that plaintiff was in some manner associated with the gang. Our supreme court held that if the article were read as meaning that plaintiff allowed her house to be used as a headquarters for persons engaging in criminal acts or for storage of stolen goods, it could hardly be doubted that her reputation would be injured. Whether the article was in fact so understood was a question for the jury.

Plaintiffs here submit that because the article, letters and editorial published by the defendant gave the address of plaintiffs’ home as Cary’s place of residence and referred to plaintiffs’ family, particularly Mrs. Beresky, by name, their reputations have been injured by the imputation that certain illicit drug activities occurred at plaintiffs’ home and that plaintiffs were associated with the alleged criminal activity of their son, either by having knowledge of, condoning or actually participating in such activity.

As expressed in its written memorandum in this case, the trial court was of the opinion that the facts of the present case are clearly distinguishable from those in Troman. First, the allegations clearly show that the alleged defamatory words, i.e., the alleged drug activity, referred only to Cary Beresky and not to the plaintiffs. Secondly, a review of the facts in Troman reveal that the innuendo there clearly referred to activities at and inside the plaintiff’s home, while no such innuendo as to plaintiffs or their home is apparent in this case. By no stretch of the imagination does the mere mention of plaintiffs’ address and the references to plaintiffs’ family in the letters to the editor (not the article) conjure up visions of plaintiffs’ residence being used as the headquarters of a “family drug business” or even condonation of Cary Beresky’s alleged involvement with drugs.

Since the preliminary determination whether the articles are capable of being understood as referring to plaintiffs was properly resolved in defendant’s favor by the trial court, no question remains for the jury to decide on this issue. (Troman v. Wood.) We therefore affirm the trial court’s dismissal of count I. In passing, we note that the briefs of both parties contain arguments on the issue of “actual malice.” However, in view of our disposition of count I, we need not discuss those arguments.

Turning to count II, while agreeing with plaintiffs that Illinois recognizes a cause of action under the theory of intentional infliction of mental distress (see Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157), the trial court concluded that the amended complaint in this case failed to contain any allegations of facts to support such a cause of action.

In Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 360 N.E.2d 765, our supreme court recently delineated the conduct which gives rise to a cause of action on this theory, stating as follows:

“First, the conduct must be extreme and outrageous. The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions or trivialities. ° Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency 8 8 V [Citation.]

Second, infliction of emotional distress alone is not sufficient to give rise to a cause of action. The emotional distress must be severe. Although fright, horror, grief, shame, humiliation, worry, etc. may fall within the ambit of the term ‘emotional distress,’ these mental conditions alone are not actionable. ‘The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.’ [Citation.]

Third, reckless conduct which will support a cause of action under the rules stated is conduct from which the actor knows severe emotional distress is certain or substantially certain to result. 8 8 8 Liability extends to situations in which there is a high degree of probability that severe emotional distress will follow and the actor goes ahead in conscious disregard of it. [Citation.]

Fourth, 8 8 8 the extreme and outrageous character of the conduct may arise from an abuse of a position or a relation with another which gives the actor actual or apparent authority over the other or power to affect his interests.” (66 Ill. 2d 85, 89-90, 360 N.E.2d 765, 767.)

In Public Finance, the defendant had brought a counterclaim alleging intentional infliction of mental distress, caused by agents of the plaintiff in attempting to collect a debt. The acts of the agents included calling defendant repeatedly; calling defendant at a hospital where defendant’s daughter was hospitalized and defendant herself was “sick and nervous”; inducing defendant to write a “bad” check, promising that the check would not be processed, and then telephoning an acquaintance of defendant’s informing her defendant was writing bad checks; visiting defendant’s home and upon being informed that defendant had no money, using defendant’s telephone to call plaintiff and describe defendant’s household goods; and refusing to leave defendant’s home until her son came into the room.

In that case, the supreme court found that the conduct alleged in Public Finance was not of such an extreme and outrageous nature as to constitute a basis for recovery under the theory alleged. The court pointed out that a creditor is not liable where he does no more than insist on his legal rights and must be given some latitude though such insistence is certain to cause emotional distress. The debtor is protected only from oppressive or outrageous conduct which was not present there.

It is a legal question for the court to determine whether a complaint states a cause of action for an intentional infliction of mental distress. (See Rabens v. Jackson Park Hospital Foundation (1976), 40 Ill. App. 3d 113, 351 N.E.2d 276.) We agree with the trial court that the facts pleaded by plaintiffs here, stripped of all conclusions, can not be regarded ás so extreme and outrageous as to state a cause of action under this theory.

The trial court further found that the complaint did not contain any allegations of facts showing substantial or severe mental distress. Plaintiffs alleged in count II of their amended complaint,

“16. That the willful and intentional publication of the aforesaid articles by the Defendant has caused and continues to cause the Plaintiffs severe emotional disturbance, great mental anguish, and severe nervous exhaustion.”

As was quoted from the Public Finance case, the intensity and the duration of the distress are factors to be considered in determining its severity. The initial article appeared in late October 1975, followed by letters of sympathy to plaintiffs, two editorials, and finally, a brief notation of Cary Beresky’s death in the January 1, 1976, issue of the newspaper. The material was spread over a period of approximately two months .nd contained much that was in sympathy with plaintiffs. Considering the contents of the material published and the publishing time span, the trial court was correct in its finding. Therefore we affirm the trial court’s dismissal of count II.

Plaintiffs contend that the trial court erred in dismissing count IV of their amended complaint (invasion of privacy). Plaintiffs point out that the trial court admitted that the published matter concerning plaintiffs and their family could be interpreted as being highly offensive to a reasonable person, but that it erred when it found the published matters of legitimate concern to the public.

The right of privacy was first recognized in Illinois in the case of Eick v. Perk Dog Food Co. (1952), 347 Ill. App. 293, 106 N.E.2d 742, where a blind girl’s photograph was used in promoting the sale of dog food; the court held that the allegations of these facts stated a good cause of action for violation of the right of privacy. The court observed though, that the right of privacy is a limited one in areas of legitimate public interest, as where there is a legitimate news interest in one’s photograph or likeness as a public figure.

In the case of Leopold v. Levin (1970), 45 Ill. 2d 434, 259 N.E.2d 250, our supreme court agreed that there should be recognition of a right to privacy or the right “to be let alone.” However, the supreme court refused to extend that right to the plaintiff who more than 40 years before had pleaded guilty to the murder of a young boy. The supreme court stated:

“Privacy is one of the sensitive and necessary human values and undeniably there are circumstances under which it should enjoy the protection of law. However, we must hold here that the plaintiff did not have a legally protected right of privacy. Considerations which in our judgment require this conclusion include: the liberty of expression constitutionally assured in a matter of public interest, as the one here; the enduring public attention to the plaintiff’s crime and prosecution, which remain an American cause celebre; and the plaintiff’s consequent and continuing status as a public figure.” (45 Ill. 2d 434, 440-41, 259 N.E.2d 250, 254.)

Further on in its opinion the supreme court stated:

“In Time, Inc. v. Hill [(1967), 385 U.S. 374, 17 L. Ed. 2d 456, 87 S. Ct. 534], the Supreme Court for the first time had occasion to consider directly the effect of the constitutional guarantees for speech and press upon the rights of privacy. There, as will be seen, the right of privacy when involved with the publication of a matter of public interest was viewed narrowly and cautiously by the court. That decisional attitude toward publication is consistent with other first amendment holdings of the court in recent years, especially in the areas of libel and obscenity, where the announced objective was to insure uninhibited, robust and wide-open’ discussion of legitimate public issues or to protect published materials unless they are utterly without redeeming social value.’ ” 45 Ill. 2d 434, 442, 259 N.E.2d 250, 255.

It is not necessary for an individual to actively seek publicity in order to be found to be in the “public eye.” In Metter v. Los Angeles Examiner (Cal. App. 1939), 95 P.2d 491, in rejecting a husband’s theory that the newspaper publication of a picture of his wife who had committed suicide invaded his right to privacy, the reviewing court stated:

“It is also recognized that the right of privacy does not prohibit any publication of matter which is of public or general concern; and while the general object in view is to protect the privacy of private life, nevertheless, “to whatever degree and in whatever connection a person’s life has ceased to be private, before the publication under consideration has been made, to that extent the protection is to be withdrawn.” Brandeis — Warren Essay, 4 Harvard L. Rev. 193, p. 214. * 0 (95 P.2d 491, 496.)

In Rozhon v. Triangle Productions (7th Cir. 1956), 230 F.2d 359, the reviewing court held that a father, whose son had died of narcotic poisoning, had been catapulted into an area of legitimate public interest.

Plaintiffs charge that defendant did not confine itself to merely reporting the fact of their son’s death and the alleged cause thereof, but embarked on a campaign to publish unfounded charges of illegal drug activity and to expose to the public the grief, humiliation and shame experienced by plaintiffs at the death of their son and at these charges.

While the trial court did find that the published matter could be interpreted as being highly offensive to a reasonable person, based upon the case law both from our own and other jurisdictions we can not agree with plaintiffs that the trial court erred in finding that the published matter was of legitimate concern to the public. The family’s grief at the loss of a loved one, particularly that of a teenager, is understandably great; however, the concern of the community of which this young man was and his family still is a part, over the drug activity which allegedly brought about his death is also great. No one, not even plaintiffs we think, would deny that the subject of drug use is a matter of great controversy and of great public concern no matter which side is being argued. While plaintiffs categorize the material published here as a campaign on the part of defendant to expose plaintiffs’ grief and humiliation to the public, the initial article published inspired several readers to write letters to the newspaper both supportive and sympathetic towards plaintiffs and their family. Indeed, the mention of Mrs. Beresky by name and her surgery for cancer was made in a letter to the editor, criticizing the newspaper and extending sympathy to plaintiffs. We are of the opinion that the trial court was correct in finding that the published matter was of legitimate concern to the public. We therefore affirm the trial court’s dismissal of count IV.

Finally plaintiffs contend that the trial court abused its discretion in denying plaintiffs leave to file amendments to their amended complaint. The power to allow amendments should be freely used so that a party may fully present his cause; however, despite this extensive freedom, a party has no absolute right to amend his pleadings. It is for the trial court to decide, in the exercise of sound discretion, whether to allow the proposed amendments. (Banks v. United Insurance Company of America (1975), 28 Ill. App. 3d 60, 328 N.E.2d 167.) The test to be applied in determining whether such discretion was properly exercised is whether it furthers the ends of justice, and in such regard, the court may properly consider the efficacy of a claim in passing on a motion for leave to amend. Sapp v. Johnston (1973), 15 Ill. App. 3d 119, 303 N.E.2d 429.

Here, the plaintiff had already filed an amended complaint; the record contains extensive briefs filed in the trial court with the plaintiff filing a responsive brief to the last one filed by the defendant. The trial judge rendered a detailed written opinion which sustained defendant’s motion to dismiss and specifically denied the motion of the plaintiffs seeking leave to further amend the complaint. Since we find nothing in the record evidencing an abuse of discretion, we hold that the trial judge’s denial of plaintiffs’ motion to amend the complaint should not be disturbed.

On the basis of the foregoing reasons the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

SEIDENFELD, P. J., and BOYLE, J., concur.

*834 LAVENDER, Justice:

Petition for Certiorari to review a certified interlocutory order of the District Court of Tulsa County overruling Petitioner, Defendant below, Cities Service Company’s demurrer to the petition of Respondent, Robert D. McCullough, II, Plaintiff below, said review being sought pursuant to 12 O.S.1981 § 952(b)(3), and Rules 1.50 through 1.56 of the Rules of Appellate Procedure in Civil Cases. We determine that the Order affects a substantial part of the merits of the controversy and that an immediate appeal from the Order may materially advance the ultimate termination of the litigation, as certified by the trial court, and grant Certiorari. 1

For the purpose of testing the sufficiency of a petition to withstand a demurrer, a demurrer admits the truth of all facts well pleaded together with all inferences which may be legally drawn therefrom. On appeal from an order sustaining a demurrer, the petition must be liberally construed and all of its allegations of fact must be taken as true, together with all reasonable inferences therefrom. 2

The Order of Certification in part states:

“In his Petition, the plaintiff alleges in pertinent part that he was libeled by a publication of the defendant; that the action is brought as a class action, pursuant to 12 Okla.Stat., §§ 13-18, and that the proposed class consists of some 19,-686 Doctors of Osteopathy (D.O.’s) located throughout the United States; and that plaintiff’s libel claim is typical of the claims of the other members of the proposed class. The allegedly defamatory language from the publication is set forth below:

“In general, a well person should make contact with a family doctor, one who can advise and treat the common illnesses. He should be an M.D. (Medical Doctor), not a D.O. (Doctor of Osteopathy) or a chiropractor. This statement is made so that you will choose the best available when there is a choice.

“M.D. doctors have a medical education and post-graduate training superi- or to that of D.O.’s. Chiropractors have no standard medical training at all; their theory of what causes disease is based on assumptions that are not scentifically [sic] proven. A D.O.’s training is similar to that of an M.D.’s, but in most of their schools and hospitals the standard of training is still below that of the M.D. institutions.”

The Petition contains no allegations that the publication refers with any particularity to the Plaintiff. Any opprobrium attributable to the publication, therefore, is directed to Doctors of Osteopathy generally, and plaintiff’s^right of recovery depends upon plaintiff’s individual right to bring the action as a member of the categorical group.

Actions for libel are statutorily defined in Oklahoma. Title 12 O.S.1981 § 1441 provides, in pertinent part: “Libel is a false or malicious unprivileged publication by writing, ... which ... tends ... to injure (any person) in his occupation,_” There being no allegations of inducement or averment, colloquium or innuendo, we are here concerned only with whether the petition states a cause of action for libel per se. 3

In Kee v. Armstrong, Byrd & Co., 4 we said (Syllabus 3, by the Court):

“In order that words shall be libelous per se as disparaging a person in his trade or business, they must have been spoken of plaintiff in relation thereto, and be of such a character as would prejudice him by impeaching either his skill or knowledge, or attacking his conduct in such business.”

*835 Here the publication does not disparage the Plaintiffs standing within his profession or business. It is the Plaintiffs profession or business itself which is assailed. In other words, Plaintiff’s standing or reputation as a D.O. is not impugned by the publication, nor is a group of D.O.’s of which sub-group the plaintiff is a member impugned. Instead, it is the prerequisite medical and post-graduate training of D.O.’s as compared with that of M.D.’s which is said to make M.D.’s the “best available when there is a choice.” We therefore conclude that the publication does not “tend” to injure plaintiff “in his occupation” within the meaning of § 1441.

Petitioner avers that the publication contains only opinions, and that opinions cannot form a basis of a libel action, being protected under the First Amendment to the United States Constitution and Art. 2, Sec. 22 of the Oklahoma Constitution as an exercise of the right of freedom of speech, citing Miskovsky v. Oklahoma Publishing Co. 5

While we agree that expressions of opinion are thus constitutionally protected, the publication before us does not give underlying facts on the basis of which an opinion is expressed. Rather, it is in the form of a factual imperative which is either based upon no facts or which implies undisclosed factual basis for the categorical statements. Thus, it falls within the rubric summarized in Restatement, Torts (2nd Ed.) § 566, Illustrations, (4), p. 175:

“If the defendant expresses a derogatory opinion without disclosing the facts on which it is based, he is subject to liability if the comment creates the reasonable inference that the opinion is justified by the existence of unexpressed defamatory facts.”

Not being an expression of opinion, but rather the assertion of a categorical fact, the publication is removed from the constitutionally protective mantle of the First Amendment and Art. 2, Sec. 22 of the Oklahoma Constitution.

Finally, plaintiff alleges that the trial court misconstrued our holding in Fawcett Publications, Inc. v. Morris, 6 or, in the alternative, that Fawcett should be overruled as a minority view, in the trial court’s determination that the Plaintiff’s petition states a cause of action for group libel maintainable by the plaintiff individually.

We are not here concerned with whether the cause should be certified as a class action, the cause not having advanced to the point of addressing a class action issue, but only with whether the plaintiff has stated a cause of action for group libel.

In Fawcett, the plaintiff brought a libel action in his own name and on his own personal behalf against defendant publishing company which published an article stating that the entire 1956 University of Oklahoma football team ingested amphetamines illegally during football games. There were sixty or seventy members of the 1956 team and the libelous publication made no personal reference to any particular member of the team. Thus, as in the case before us, the action was one for group libel where the opprobrium attributable to the plaintiff was confined to plaintiff’s membership in the group. In Fawcett, the group consisted of sixty to seventy members; in the case before us, the group consists of 19,686 members.

In Fawcett we said (pp. 51, 52):

“While there is substantial precedent from other jurisdictions to the effect that a member of a ‘larger group’ may not recover in an individual action for a libelous publication unless he is referred to personally, we have found no substantial reason why size alone should be conclusive. We are not inclined to follow such a rule where, as here, the complaining member of the group is as well known and identified in connection with the *836 group as was the plaintiff in this case. In 34 Columbia Law Review 1322, supra, in considering group libel, it said, with good reason:

‘ * * * the primary consideration would properly seem to be whether the plaintiff was in fact defamed, although not specifically designated. Considerations adduced in support of the absolute denial of recovery are inconclusive, as against the desirability of providing a remedy for actual injury.

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‘A more realistic approach would recognize that even a general derogatory reference to a group does affect the reputation of every member, and would adopt as its test the intensity of the suspicion cast upon the plaintiff.’ ”

A careful review of the reported cases before and after Fawcett has furnished no enlightenment which impels us to retreat from the two principles therein enunciated with reference to group libel actions wherein the opprobrium of the publication attributable to the individual plaintiff arises solely by reason of his membership in the group: (1) Size of the group alone is not conclusive although the size of the group is to be considered, and (2) the intensity of suspicion cast upon the plaintiff is the true test in determining a plaintiffs right to maintain a personal action for group libel.

The so-called “majority rule” is tersely summarized in Restatement, Torts, 2nd § 564A in the following language:

“Defamation of a Group or Class

“One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it, but only if,

“(a) the group or class is so small that the matter can reasonably be understood to refer to the member, or

“(b) the circumstances of publication reasonably give rise to the conclusion that there is a particular reference to the member.” 7

The failure in every reported case which has come to our attention to announce the precise numerical dividing line between groups which are “too large” and groups which are “small” enough to permit a plaintiff to recover, demonstrates the weakness of slavish reliance upon the general rule which relies upon numbers alone. Indeed, the Restatement, Torts 2nd Ed. § 564A (p. 168) states:

“It is not possible to set definite limits as to the size of the group or class, but the cases in which recovery has been allowed usually involved numbers of 25 or fewer.”

Yet no reported case has undertaken to announce that 26 is “too large” to permit an individual plaintiff to recover, and in Fawcett the number was sixty to seventy, a group determined not to be “too large” to permit recovery.

In the case of Brady v. Ottaway Newspapers, Inc., 8 the New York Supreme Court, Appellate Division, critically analyzed our holding in Fawcett, rejected the “majority rule” as solely determinative, adopted and applied the “intensity of suspicion” test and concluded that under the facts then before the Court, a cause of action by one of a group of at least 53 was legally maintainable.

From the teaching of Brady, we glean the following principles to which we subscribe:

1. The “of and concerning” element in defamation actions requires that the allegedly defamatory comment refer to the plaintiff.

2. Generally, an impersonal reproach of an indeterminate class is not actionable. The underlying premise of this principle is that the larger the collectivity named in the libel, the less likely it is that a reader would understand it to refer to a particular individual. The rule was designed to encourage frank discussions of matters of *837 public concern under the First Amendment guarantees. Thus the incidental and occasional injury to the individual resulting from the defamation of large groups is balanced against the public’s right to know.

3. In contrast to the treatment of an individual in a large group which has been defamed, an individual belonging to a small group may maintain an action for individual injury resulting from a defamatory comment about the group, by showing that he is a member of the group. Because the group is small and includes few individuals, reference to the individual plaintiff reasonably follows from the statement and the question of reference is left for the jury.

4. Size alone is too narrow a focus to determine the issue of individual application in group defamation.

5. The intensity of suspicion test recognizes that even a general derogatory reference to a group may affect the reputation of every member. In order to determine personal application it requires that a factual inquiry be made to determine the degree that the group accusation focuses on each individual member of the group. The numerical size of the group is a consideration, but is not the only factor to be considered. One element to be considered is the prominence of the group and the prominence of the individual within the group.

In applying the above principles to the case before us, we hold that plaintiff’s action is not maintainable.

The publication constitutes an impersonal reproach of an indeterminate class. There are some 19,686 D.O.’s in the United States. Since it is conceded no particular or personal reference is made to the plaintiff, there can be no intensity of suspicion cast upon the plaintiff. Whatever aspersions are cast by the publication fall upon the profession of osteopathy, and not upon a small or identifiable group within the class of osteopaths.

The Order of the trial court overruling Defendant’s demurrer to plaintiff’s petition is reversed.

COFFIN, Chief Judge.

This appeal raises the question whether defendants’ allegedly defamatory newspaper column comment made sufficient reference to plaintiffs-appellants to withstand a motion to dismiss the complaint. The case belongs in the ancient but not overpopulated genre of group libel. 1

Plaintiffs are the twenty-one members of the Bellingham, Massachusetts, Police Department. Defendants are, severally, the Rhode Island writer, editor, and newspaper responsible for the circulation of a column *1164 in the Woonsocket Call and Evening Reporter which closed with the provocative question: “Is it true that a Bellingham cop locked himself and a female companion in the back of a cruiser in a town sandpit and had to radio for help?” Each of the plaintiffs claimed grievous professional and personal damage in the sum of $525,000.

The district court, while discounting the defamatory nature of the statement, acknowledged that it was probably libelous if it could be held to refer to a particular individual. But it granted defendants’ motion to dismiss on the basis of what it termed “the Prosser principle”. 2 It reasoned: “If you say 11 out of 12 people are corrupt, or if you said 20 out of 21 police officers or maybe even 12 out of 21 are corrupt, or even one out of six is corrupt, I think you would have a different situation .. I think it is a combination of the question of numbers and what was said, and I think that as a matter of law, the Court would be obliged to direct an acquittal at the trial of a case of this nature.” We affirm. 3

In this diversity case we look to the substantive law of the appropriate state. We think it clear that the law of Massachusetts, the state of publication, which is also the state of plaintiffs’ domicile and occupation, controls. Restatement, Second, Conflict of Laws, § 149. This does not advance us very far for we have found no pertinent statute or case law. 4 We shall proceed on the assumption that Massachusetts law would be in accord with the current state of the authorities, i. e., would not occupy an eccentric minority position.

Over the years several guiding principles have emerged. One is that “Defamation of a large group gives rise to no civil action on the part of an individual member of the group unless he can show special application of the defamatory matter to himself.” Tanenhaus, Group Libel, 35 Cornell L.Q. 261, 263 (1950); Restatement, Torts, Second, § 564A, Comment a, Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y. 1952) (complaint that a group of 382 saleswomen had been generally called prostitutes was dismissed because group was too large to infer defamation of a member thereof).

A second principle recognizes a civil action if a defamatory statement applies to all members of a small group. 35 Cornell L.Q. 261, 263, supra; Neiman-Marcus v. Lait, supra (defamation of all of group of 9 models and 25 salesmen); Fawcett Publications, Inc. v. Morris, supra, 377 P.2d at 42 (statement covering all members of Oklahoma University football team); Harper and James, The Law of Torts, Vol. 1, p. 367 (1956); Restatement, Torts, Second, § 564A, Comment b.

A third principle is that defamation of part of a group can give rise to a cause of action. As the Restatement puts it, “In general, there can be recovery only if a high degree of suspicion is indicated by the particular statement. Thus the assertion that one man out of a group of 25 has stolen an automobile may not sufficiently defame any member of the group, while the statement that all but one of a group of 25 are thieves may cast a reflection upon each of them.” Restatement, Torts, Second, § 564A, Comment c; Neiman-Marcus v. *1165 Lait, supra, 13 F.R.D. at 315; Riesman, Democracy and Defamation: Control of Group Libel, 42 Colum.L.Rev. 727, 768 (1942).

As might be expected, courts have differed in their allowance of suits involving the defamation of fewer than all members of small groups. Plaintiffs cite Farrell v. Triangle Publications, Inc., 399 Pa. 102, 159 A.2d 734 (1960) (defamation of “a number of township commissioners”, of whom there were 13; individual commissioner allowed to sue). On the other hand, as recently as 1950, the catalogue of cases in this category could be reported as follows: “Actions by individuals were unsuccessful against publications alleging that most of the persons at a donation party were there for the liquor, part of a named association consisted of a gang of blackmailers, some members of a particular hose company had committed a theft, one of a man’s sons was a thief, and that several of a group of six witnesses would be indicted for perjury. The courts did, on the other hand, find that ‘subordinate engineers of a construction company or some of them,’ and ‘all radio editors save one’ were sufficiently narrow categories to permit suits.” [Citations omitted.] 35 Cornell L.Q. at 264-65. 5

Our case would be different if we were confronted with a statement defaming a number of members of a small group. In such an instance, there would seem to be sufficient doubt as to whether the statement could refer to any single member of the group as to justify invoking the aid of a jury. That is, the defamation, encompassing a considerable proportion of the group, can be seen as a blanket slur, reaching all. But here we deal with a defamatory statement aimed at only one unidentified member of a group of 21. By no stretch of imagination can it be thought to suggest that the conduct of the one is typical of all. Noting the individual’s membership in the group does not suggest a common determinant of character so much as simply a practical reference point.

This is not to say that each member of a small group does not feel some unease whenever a co-member comes in for criticism, shame, or obloquy. But to predicate liability to all members of a group on such an associational attitude would chill communication to the marrow. Under plaintiffs’ theory, statements that a member of the X baseball team was disciplined for brawling,- that one of the judges of Y court fell asleep, that a member of the Z band was drunk would be fair game for group libel suits.

We need not decide whether, as appellants argue, the march of law has made obsolete some of the old cases barring suit when fewer than an entire group are defamed. But we have discovered no case where a group libel, justifying suit by all members, was held to arise from a slur against one unidentified member. Particularly where the ratio of the defamed to the total group is 1 to 21, dismissal must be justified. Both Prosser and the Restatement, as we have noted, have cited hypothetical examples almost identical to this case as warranting dismissal. Were dismissal in such cases not justified, virtually every complaint of group libel would present a jury issue. We therefore hold that the district court properly held as a matter of law that a statement defaming ohe unidentified member of a twenty-one man police group does not give rise to a cause of action in favor of the members of the group.

Affirmed.

JUSTICE LUND

delivered the opinion of the court:

Plaintiff appeals an order of the circuit court of McLean County dismissing his action for libel. Plaintiff had been arrested, charged, and convicted on a number of charges arising out of an attempt to shoplift goods from a department store. A local newspaper, The Pantagraph, published three articles regarding these occurrences by which plaintiff claims to have been defamed. Two issues are presented on appeal: (1) whether the trial court erred in denying plaintiff’s motion for default; and (2) whether the trial court erred in dismissing the action. We affirm.

On December 20, 1989, two employees of a Target store in Normal, Illinois, saw plaintiff conceal merchandise and leave the store without paying for it. When they attempted to stop him, he pulled out a pocketknife and slashed at the arm of one of the employees. The knife cut through Ronald Barnett’s shirt and caused a minor wound on his arm. The other employee, David Campbell, also suffered a minor cut on his hand when he grabbed the blade while trying to take the knife away from plaintiff. Plaintiff was indicted and charged with four offenses: retail theft, armed violence against Barnett, and aggravated battery against both Campbell and Barnett. A jury convicted plaintiff of retail theft, armed violence against Barnett, and aggravated battery against Barnett, but acquitted him of the second count of aggravated battery against Campbell. Plaintiff was sentenced to a 15-year term of imprisonment.

The Pantagraph’s first article regarding this incident, published December 21, 1989, described plaintiff’s arrest and stated he was charged with cutting two employees of a department store. The article went on to state that plaintiff had “stabbed” Barnett in the arm and Campbell in the hand. The article explained the cuts were small and that neither man required hospital treatment.

The second article, published May 10, 1990, reported plaintiff’s conviction, stating in the headline that he had been found guilty of stabbings. The article stated he was found guilty of stabbing two “security guards.” The article also explained that the “guards” received only minor wounds, one in the arm and the other in the hand.

The third article, published June 20, 1990, had as its headline that plaintiff received a 15-year sentence for knifing guards. The first paragraph stated that he received the sentence for cutting store security guards with a knife during his arrest for shoplifting. Plaintiff was described as having stabbed Barnett in the arm and Campbell in the hand, with neither wound being serious.

Plaintiff contends the articles were inaccurate and false because (1) the employees were not “stabbed,” but merely scratched with the knife; (2) they falsely described the employees as “security guards” instead of managerial employees, which gave the impression of a much more serious crime against the “badge”; (3) they suggested that plaintiff was convicted on all charges when, in fact, he had only been convicted of three out of the four charges against him; and (4) they stated that plaintiff stabbed two people, when evidence indicated that Campbell cut his own hand when he grabbed the blade. Plaintiff was found not guilty of the aggravated battery charge involving Campbell.

Truth is a defense to a defamation action and, to establish this defense, defendant need only demonstrate the truth of the “gist” or “sting” of the defamatory material. Only “substantial truth” is required for this defense, which may be raised by a motion to dismiss. American International Hospital v. Chicago Tribune Co. (1985), 136 Ill. App. 3d 1019, 1022-23, 483 N.E.2d 965, 968.

We agree with defendant’s assertion that each of The Paragraph articles conveys the message that plaintiff was convicted of multiple crimes involving violent armed resistance to the persons who apprehended him in the act of shoplifting. That the newspaper chose to use the word “stab” adequately conveys the message that plaintiff caused injury to another with a knife. The fact that the article stated only minor injuries were involved clearly conveyed to the public the nature of the events leading to plaintiff’s arrest. We also find no substance to plaintiff’s contention that he was somehow cast in a false light by the article’s description of Barnett and Campbell as security guards. Regardless of their title, these employees took responsibility for store security in apprehending plaintiff. Their description as security guards is a substantially true statement.

Similarly, we find The Pantagraph’s error in failing to report defendant’s acquittal on the charge of aggravated battery against Campbell was not a serious error, in light of the fact that he was convicted on three other charges, including armed violence. (See Wilson v. United Press Associations (1951), 343 Ill. App. 238, 98 N.E.2d 391.) The gist or sting of the article is that plaintiff was involved in a serious crime involving armed violence, which resulted in minor injuries to two store employees:

“ ‘The gravamen of an action for defamation is not the injury to plaintiff’s feelings, but damage to his reputation in the eyes of other persons.’ (33A Ill. L. & Prac. Slander & Libel ch. 2, sec. 11, at 23 (1970), citing Cowper v. Vannier (1959), 20 Ill. App. 2d 499, 156 N.E.2d 761; Voris v. Street & Smith Publications (1947), 330 Ill. App. 409, 71 N.E.2d 338.) ‘A statement is defamatory if it impeaches a person’s integrity, virtue, human decency, respect for others, or reputation and thereby lowers that person in the estimation of the community or deters third parties from dealing with that person.’ (Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 741, 415 N.E.2d 434, 440.)” (Berkos v. National Broadcasting Co. (1987), 161 Ill. App. 3d 476, 485, 515 N.E.2d 668, 672-73.)

We find The Pantagraph articles were substantially true. Moreover, the fact that plaintiff was only convicted of armed violence against one person instead of two as reported in The Pantagraph did not impeach plaintiff’s integrity, virtue, or human decency. The dismissal of a cause of action rests within the sound discretion of the trial court. American International Hospital, 136 Ill. App. 3d at 1023, 483 N.E.2d at 968.

Finally, plaintiff contends the trial court erred in denying his motion for default. Defendants had made a timely special and limited appearance for the purpose of objecting to the sufficiency of service. On May 23, 1992, the trial court denied this objection, but failed to direct the time period for a further response. On May 28, 1992, plaintiff filed his motion for default, based upon the fact that defendants had failed to answer the complaint within 30 days after being properly served. The trial court held that the motion should be allowed, unless defendants filed a motion or answer to the complaint within 21 days. Defendants filed their motion to dismiss within this 21-day period.

Supreme Court Rule 181(a) (134 Ill. 2d R. 181(a)) states that when a motion is filed in answer to a complaint, the trial court, in disposing of this motion, shall direct the time period in which an answer or other appropriate motion shall be filed. In this case, the trial judge failed to set the time limit when he disposed of defendants’ motion. The error was the trial court’s, not defendants’. Allowing defendants to file their motion within 21 days was within the sound discretion of the trial court. Uretsky v. Baschen (1977), 47 Ill. App. 3d 169, 361 N.E.2d 875.

Affirmed.

STEIGMANN, P.J., and GREEN, J., concur.

OPINION

BROCK, Justice.

On June 5,1971, the following news article appeared in the Memphis Press-Scimitar :

“WOMAN HURT BY GUNSHOT

“Mrs. Ruth A. Nichols, 164 Eastview, was treated at St. Joseph Hospital for a bullet wound in her arm after a shooting at her home, police said.

“A 40-year-old woman was held by police in connection with the shooting with a .22 rifle. Police said a shot was also fired at the suspect’s husband.

“Officers said the incident took place Thursday night after the suspect arrived at the Nichols home and found her husband there with Mrs. Nichols.

“Witnesses said the suspect first fired a shot at her husband and then at Mrs. Nichols, striking her in the arm, police reported.

“No charges had been placed.”

Ruth Ann Nichols and her husband, Bobby Lee Nichols, filed separate actions, which were consolidated for trial, charging defamation and an invasion of privacy. The crux of plaintiffs’ charge is that the article published by the defendant falsely implied that Mrs. Nichols and Mr. Newton, the assailant’s husband, were having an adulterous affair, and were “caught” by Mrs. Newton. Plaintiffs charged that “at the time of the publication of the said article the defendant knew, or could have known had it exercised reasonable care, and could have ascertained that the said matters were untrue.”

The undisputed proof showed that not only were Mrs. Nichols and Mr. Newton at the Nichols’ home but so, also, were Mr. Nichols and two neighbors, all of whom were sitting in the living room, talking, when Mrs. Newton arrived around three o’clock in the afternoon. Hearing a commotion, Mr. Newton went outside to investigate and there his wife fired several shots at him. Mr. Newton then ran behind the Nichols’ home whereupon Mrs. Newton entered the house and shot Mrs. Nichols.

A Memphis Press-Scimitar reporter, Men-no Duerksen, testified that he had written the article in question two days before it was published and that it was his practice to go to the police station about 4:30 a. m. each day to read through the reports in search of a story. Two police reports were written regarding the shooting incident at the Nichols’ home although the availability of both reports at the time Mr. Duerksen wrote his story was disputed. The arrest report made no mention of any individuals at the scene of the shooting other than Mrs. Nichols, Mr. Newton and Mrs. Newton. The offense report included information that Mr. Nichols and two neighbors were also at the house when Mrs. Newton arrived. Both reports indicated that the incident took place in the middle of the afternoon.

Mr. Duerksen testified that “police said” and “police reported,” terms he had used in his story, were commonly used by reporters to indicate either that the source of quoted information was a direct quote from a police officer or that the information was gathered from official police reports. Police officers testified that they had not given an oral interview regarding the incident.

The proof showed that the defendant newspaper printed a follow-up of the incident on July 2,1971, stating that an assault charge against Mrs. Newton had been dismissed and that the newspaper’s original *415 account of the incident had regrettably failed to state that Mr. Nichols was present and had tried to prevent the shooting.

Mrs. Nichols testified at trial that “[t]he article in the paper has tore up my home and has tore up my children. We had to move. It’s tore up my reputation. My friends has turned down on me. People has talked about me. They’ve talked about my husband. They’ve talked about my children.” She testified that she had changed her telephone number four times because of harassing phone calls she received. “They would call me and say, ‘Oh, you finally got caught.’ Said, ‘How much did they charge — how much did it cost your husband to get the re-writeup in the paper or get the retraction wrote up? ’ ”

One of Mr. Nichols’ friends and fellow workers testified that people would talk about Mrs. Nichols. In response to the question of what people said about Mr. Nichols’ wife, the witness stated “They said she was a whore.”

At the close of all the proof the trial court granted the defendant’s motion for a directed verdict on grounds that (1) the matter was not “libel by innuendo,” (2) no “fault” had been shown, and (3) that no special damages had been proved. The court indicated uncertainty respecting the correct standard of liability for a newspaper alleged to have defamed a “private” person, in light of the United States Supreme Court’s decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

The Court of Appeals reversed and remanded for a new trial, holding (1) that T.C.A. § 23-2601 had obviated the need for special damages where the defendant had published an imputation of adultery, (2) that the determination of whether the article was “libelous per se by innuendo” was a question for the jury, (3) that the standard of liability was ordinary care and (4) that there was evidence adduced at the trial from which a jury could find that the defendant did not act with reasonable care under the circumstances. The case was remanded for a new trial.

We granted certiorari to consider the effect of the Gertz decision upon the law of libel in this state and its application to this case.

I

Before the decision in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), libelous statements were considered to be undeserving of first amendment protection. The libel laws of the individual states traditionally had consisted of common-law principles. In New York Times, however, the Court departed from the common law, holding that the first amendment protected good-faith critics of the official conduct of public officials from defamation suits:

“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood 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.” Id. at 279, 84 S.Ct. at 726.

In Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) the New York Times doctrine was extended to defamation of “public figures” involved in “public issues.” In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), the Court, in a plurality opinion, concluded that the New York Times standard of liability also applied in libel actions by “private” individuals against publishers of defamatory statements relating to matters of “public or general concern.”

However, in Gertz v. Robert Welch, Inc., supra, a majority of the Court concluded that the Rosenbloom plurality had extended the constitutional privilege too far and had failed to strike a proper balance between the reputation interests of private individuals and the interests protected by the first amendment. Although the Court did not mandate that the states must abandon the *416 “actual malice” requirement in actions by private individuals, it did hold that

.so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods injurious to a private individual.” 418 U.S. at 347, 94 S.Ct. at 3010.

The Court reasoned that “[t]his approach provides a more equitable boundary between the competing concerns involved,” and “recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation.” Id. at 347-48, 94 S.Ct. at 3011. The effect of the Court’s holding is to approve an ordinary negligence standard of liability in such cases as one that complies with the requirements of the first and fourteenth amendments.

Moreover, the Court concluded that common-law rules which permit recovery of presumed damages to reputation and the award of punitive damages unduly infringed upon first amendment freedoms.

Concerning presumed damages the Court said:

“For the reasons stated below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.

“The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury. ... It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We need not define ‘actual injury,’ as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.” 418 U.S. at 349-50, 94 S.Ct. at 3011.

Likewise, the Court banned recovery of punitive damages unless actual malice is shown:

“We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily *417 exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury.” 418 U.S. at 350, 94 S.Ct. at 3012.

In Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), the Court further clarified the applicability of the Gertz damage principles. In Firestone the Court allowed recovery for mental pain and anguish as the result of the publication of a false statement even though plaintiff had withdrawn her claim for damages to reputation.

II

The Gertz decision permits each of the states to fashion a rule of liability based upon fault that is less than actual malice, so long as it does not impose liability without fault, to govern actions of libel by “private” individuals against media defendants. 1 Some states have continued to apply the actual malice test, 2 while others have adopted an ordinary negligence test, 3 and still others appear to have chosen some kind of middle ground. 4

The overwhelming response to Gertz, however, has been to adopt the test settled upon by the Court of Appeals in this case, i. e., an ordinary negligence standard. As the Kansas Supreme Court said in Gobin v. Globe Pub. Co., 216 Kan. 223, 232, 531 P.2d 76, 83 (1975):

“[Pjersons are generally held accountable for their negligence — the lack of ordinary care either in the doing of an act or in the failure to do something. The whole theory of negligence presupposes some uniform standard of behavior for the protection of others from harm. The norm usually is the conduct of the reasonably careful person under the circumstances.”

See also Restatement (Second) of Torts § 580B (1977).

In our opinion, there are manifold reasons for adopting the negligence standard. Among these is the fact that the Gertz decision points to this result. In Gertz, emphasis is placed upon the need to balance freedom of the press with the private individual’s right to protection of his reputation. The New York Times test of actual malice strikes this balance where public officials or figures are concerned. This conclusion is based on the Court’s characterization of public figures as persons who are uniquely able to protect themselves through public rebuttal, and as persons who knowingly expose themselves to an increased risk of defamation. Private individuals, in the *418 opinion of the Supreme Court, “are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.” 418 U.S. at 345, 94 S.Ct. at 3010.

In drawing this distinction, Gertz makes it clear that the actual malice test would weight this balance too heavily in favor of the press:

“[W]e believe that the New York Times rule states an accommodation between this concern and the limited state interest present in the context of libel actions brought by public persons. For the reasons stated below, we conclude that the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them.” 418 U.S. at 343, 94 S.Ct. at 3008-09.

One of the arguments used by opponents of the negligence test is that it will subject editors and publishers to such exacting self-scrutiny that it will have a chilling effect upon the constitutional interest in a free, robust flow of information to the public. E. g., AAFCO Heating and Air Conditioning Co. v. Northwest Publishing, supra. Obviously, this conclusion is contrary to that reached in Gertz, i. e., that a standard more stringent for the publisher than actual malice is entirely proper to protect both competing interests. Troman v. Wood, supra, 340 N.E.2d at 297. Moreover, the overwhelming majority of state courts considering this issue have concluded that no undue chilling effect or self-censorship would result. As was said in Taskett v. King Broadcasting Co., supra, 546 P.2d at 86:

“It is true that greater caution must now be exercised where the subject of a publication is a private person, yet such a rule is totally justifiable in light of the state’s overriding interest in providing a realistic remedy to an otherwise helpless private citizen. It cannot be gainsaid that any social value derived through a defamatory falsehood pertaining to a truly private individual is ‘clearly outweighed by the social interest in order and morality.’ ”

It is our conclusion that the ordinary negligence standard permitted by Gertz for all defamation actions brought by private persons against media defendants, is the only standard of liability that achieves the desired accommodation of first amendment guarantees and the interest in protecting individual reputation. Only this standard “recognizes that the special needs of the private plaintiff require a more stringent standard of liability than is imposed when the plaintiff is a public figure or official who has ready media access and has voluntarily assumed the risk of defamatory comment by placing himself in the public eye.” Note, State Court Reactions to Gertz v. Robert Welch, Inc., 29 Vand.L.Rev. 1431, 1444 (1976).

In determining the issue of liability the conduct of the defendant is to be measured against what a reasonably prudent person would, or would not, have done under the same or similar circumstances. This is the ordinary negligence test that we adopt, not a “journalistic malpractice” test whereby liability is based upon a departure from supposed standards of care set by publishers themselves. See Troman v. Wood, supra.

In our opinion, the appropriate question to be determined from a preponderance of the evidence is whether the defendant exercised reasonable care and caution in checking on the truth or falsity and the defamatory character of the communication before publishing it. In answering the question, the jury may rely on its own experience and instincts to determine whether an ordinarily prudent person would have behaved as the defendant did.

Ill

Under the common law as applied in this state prior to the Gertz decision, defama-tions were classified as either actionable per se or per quod. The primary distinction between libel per se and libel per quod lay in the nineteenth-century development requiring special damages to be plead and proved in libel actions unless the defamatory meaning of the words was apparent on *419 their face. 5 See Fry v. McCord Bros., 95 Tenn. 678, 33 S.W. 568 (1895); Continental National Bank of Memphis v. Bowdre Bros., 92 Tenn. 723, 23 S.W. 131 (1893); Note, Libel Per Se and Special Damages, 13 Vand.L.Rev. 730 (1960). Any libel which was defamatory on its face, i. e., the danger of injury to reputation was apparent from the mere words themselves, has been held to be actionable per se. In such cases actual injury has been conclusively presumed by the court.

Words which were defamatory only in the light of certain extrinsic facts 6 were said to be libelous per quod. See Fry v. McCord Bros., supra, 95 Tenn. at 685, 33 S.W. 568. In the classic case of libel per quod the defendant’s newspaper falsely published a report that the plaintiff had given birth to twins. Such publication was defamatory in light of the fact that the plaintiff had been married only one month. Morrison v. Ritchie & Co., 39 Scot.L.Rep. 432 (1902).

Since Gertz has held that presumed damages are no longer permissible, the per se/per quod distinction no longer has any practical meaning. “A uniform requirement for proof of actual damages obliterates these often illogical distinctions, most of them relics from centuries past.” Eaton, The American Law of Defamation Through Gertz v. Robert Welch and Beyond, 61 Va.L.Rev. 1349, 1434 (1975). We hold, therefore, that the per se/per quod distinction is no longer a viable one. The plaintiff must plead and prove injury from the alleged defamatory words, whether their defamatory meaning be obvious or not.

IY

Whether the news article published by the defendant newspaper concerning the shooting episode at the Nichols’ home was, in fact, understood by readers in its defamatory sense is ultimately a question for the jury. But preliminary determination of whether the article is capable of being so understood is a question of law to be determined by the court. See Restatement (Second) of Torts § 614 (1977); Williams v. McKee, 98 Tenn. 139, 38 S.W. 730 (1897); Langford v. Vanderbilt Univ., 44 Tenn.App. 694, 318 S.W.2d 568 (1959); 50 Am.Jur.2d Libel and Slander § 22 (1970). In our opinion, defendant-newspaper’s motion for a directed verdict in this case must be resolved in favor of Mrs. Nichols. When read and construed in the sense in which the reader would ordinarily understand it, the clear implication of the article is that Mrs. Nichols and Mr. Newton had an adulterous relationship and were discovered by Mrs. Newton, thus precipitating the shooting incident. If so read, it can hardly be doubted that Mrs. Nichols’ reputation would be injured. 7

*420 In libel actions the burden of proof rests upon the plaintiff to show defamation and prove damages. He need not show, however, that the statement is false. There is a legal presumption of falsity which the defendant may rebut by proving truth as a defense.

In this case, the defendant newspaper does not assert that Mrs. Nichols and Mr. Newton in truth had an adulterous relationship. Nevertheless, the defendant’s principal defense is that all material facts stated in the news article were substantially true, emphasizing in its brief:

“IT IS OF CRUCIAL IMPORTANCE TO NOTE THAT THE RECORD REFLECTS THAT EVERY MATERIAL FACT IN THE ARTICLE QUOTED ABOVE WAS TRUE.

“Mrs. Nichols was in fact treated at St. Joseph Hospital for a bullet wound in her arm after the shooting. A 40-year old woman was in fact held by police in connection with the shooting. A shot was in fact fired at the suspect’s husband. The suspect did in fact find her husband at the Nichols’ home with Mrs. Nichols. The suspect did in fact fire a shot at her husband and then at Mrs. Nichols and did in fact strike her in the arm. No charges had in fact been placed at the time of the writing of the article.”

In our opinion, the defendant’s reliance on the truth of the facts stated in the article in question is misplaced. The proper question is whether the meaning reasonably conveyed by the published words is defamatory, “whether the libel as published would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Fleckenstein v. Friedman, 266 N.Y. 19, 23, 193 N.E. 537, 538 (1937). See Lawlor v. Gallagher Presidents Report, Inc., 394 F.Supp. 721 (S.D.N.Y.1975). The publication of the complete facts could not conceivably have led the reader to conclude that Mrs. Nichols and Mr. Newton had an adulterous relationship. The published statement, therefore, so distorted the truth as to make the entire article false and defamatory. It is no defense whatever that individual statements within the article were literally true. Truth is available as an absolute defense only when the defamatory meaning conveyed by the words is true. See Brown v. First National Bank, 193 N.W.2d 547, 553 (Iowa 1972).

V

Under the common law not only was published defamatory matter “presumed” to be untrue but, in many cases, it was “presumed” that the plaintiff suffered damage, even though he proved none and though in fact none may have existed. See W. Pros-ser, The Law of Torts §§ 113, 116 (4th ed. 1971).

Before the Gertz decision, our common law provided that if the plaintiff prevailed in a libel per se action, the jury could award “general” damages to compensate the defamed plaintiff for any proven injury to his reputation, or, in the absence of proof of actual injury, could award compensation for the presumed injury (including general injury to reputation, personal humiliation, and actual pecuniary loss that could not be specifically proven) which normally would be expected to result from the publication of the statement. See Fry v. McCord Bros., supra, 95 Tenn. at 684, 33 S.W. at 570. If proven, “special damages,” 8 such as specific economic or material loss resulting from the *421 defamatory statement could also be awarded to a plaintiff entitled to general damages. And, upon a finding that the statement was published with actual malice, punitive damages could be assessed. See generally, D. Dobbs, The Law of Remedies § 7.2 (1973).

T.C.A., § 23-2605, requires a plaintiff in a libel action to notify a defendant newspaper or periodical of the alleged defamatory statements and provides:

“If it appears upon the trial that said article was published in good faith, that its falsity was due to an honest mistake of facts, and that there were reasonable grounds for believing that the statements in said article were true, and that . a full and fair correction, apology, or retraction was published . . . then the plaintiff shall recover only actual, and not punitive, damages . . . .”

Now, however, as we have noted, supra, Gertz restricts damages to compensation for “actual injury,” and unless “actual malice” is shown, punitive damages are not to be permitted and compensatory damages must be proved, not presumed.

In light of the conclusions we have reached, Mrs. Nichols’ libel suit is remanded to the trial court for a new trial. Mr. Nichols’ suit for libel is dismissed. Both invasion of privacy actions are dismissed as being without merit. See Note, The Invasion of Privacy by Defamation, 23 Stan.L. Rev. 547 (1971). Costs are taxed against petitioner.

DENECKE, J.

The plaintiff teacher brought this defamation action against the defendants who are school officials and school board members. The trial court granted defendants’ motion for an involuntary nonsuit upon the ground that the publication was absolutely privileged.

The plaintiff was a nontenured teacher. He was notified his contract was not going to be renewed. Plaintiff’s attorney wrote the school district’s attorney asking to be provided with the specific reasons for the nonrenewal of the contract and for a public hearing. The district’s attorney replied by letter furnishing the specific reasons. He further stated that no evidence would be provided by the district at the hear *105 ing and no school officials or board member could be questioned. Plaintiff read this letter.

At the public hearing or meeting the plaintiff’s attorney requested that the reasons, as contained in the letter sent to him, be stated by the board. The statements were made and this publication is charged as ^defamation. We will assume for the purposes of this decision that the publication is defamatory.

The eases and scholars agree that there is an absolute privilege for publications that are consented to. § 583 of the Restatement of Torts provides: “Except as stated in § 584, the publication of false and defamatory matter of another is absolutely privileged if the other consents thereto.”

It should be remembered that usually the question of whether or not a defamatory statement is privileged, either absolutely or conditionally, depends upon the balance that the court strikes between competing interests. In Ramstead v. Morgan, 219 Or 383, 387, 347 P2d 594 (1959), we held the communication involved was absolutely privileged because the relationship occasioning the communication was so important that the law freed the publishing party from liability regardless of the fact that the publishing party might use the occasion to publish defamatory and malicious statements. The important interest in Ramstead was having citizens communicate with the organized Bar concerning possible misconduct of attorneys. We were of the opinion that this interest was so important that the communication should be absolutely privileged.

1 Harper and James, The Law of Torts 400, § 5.17 (1956), observed that this balancing of interests is not present in cases in which absolute privilege is revoked because the plaintiff consents to or requests the publication.

*106 “It will be noted that the * *■* privilege in these cases [consent] is outside the usual rationale of the doctrine of privilege in other situations where a fine balancing of interest and/or duty supports the immunity. The fact that he was brought within the orbit of defamation by the plaintiff’s contrivance does not give to the recipient any interest he did not otherwise have.”

In the consent cases Harper and James point out that no public interest is being served by encouraging publication which is free from the threat of being the subject of a defamation suit.

The reason for the imposition of the privilege when the plaintiff consents or requests the publication “is based upon the unwillingness of the courts to let the plaintiff day the foundation of a lawsuit for his own pecuniary gain.’ ” Harper and James, supra, at 400, quoting from Richardson v. Gunby, 88 Kan 47, 54, 127 P 533 (1912).

Prosser states:

“One who has himself invited or instigated the publication of defamatory words cannot be heard to complain of the resulting damage to his reputation; * * Prosser, Torts 784 § 114 (4th Ed 1971)

Shinglemeyer v. Wright, 124 Mich 230, 82 NW 887, 890 (1900), illustrates this rationale. In a private conversation between the parties the defendant charged the plaintiff with stealing his wheel. Plaintiff called a policeman. 'When he came she told him that the defendant had accused her of stealing his wheel and, in effect, asked him to hear the defendant’s version. Defendant told the officer that the plaintiff had stolen his wheel. Plaintiff brought a slander action based upon the defendant’s statement to the officer.

The court held for defendant, stating:

“In regard to the statement by defendant in *107 the presence of the officer Henry, it was not a publication for which the law gives a remedy. She herself solicited the statement, and sent for the officer for the express purpose of having the defendant repeat the statement in his presence. It would not have been stated to him except by her invitation.” Shinglemeyer v. Wright, supra, at p. 890, starting at 3.

We emphasize that in both the present case and Shinglemeyer v. Wright, supra, when the plaintiff requested the publication he or she knew the exact language that would be used in the publication. This knowledge is essential in order for the publication to be absolutely privileged except in the circumstances present in Christensen v. Marvin, decided this date.

Comment d. to § 583 of the Restatement of Torts states that the eomnranication is absolutely privileged if “he know[s] the exact language of the publication * * *.”

Nelson v. Whitten, 272 F 135 (ED NY 1921), illustrates the opposite circumstances. The plaintiff had been employed by the defendant as master of a vessel. Plaintiff asked defendant for a letter respecting his services. The defendant wrote in part:

“As to your qualifications as a captain I can say you were an excellent housekeeper — Your knowledge of navigation is exceedingly meager.

“I am so much in doubt as to your loyalty and integrity that I could not conscientiously give a recommendation to any one desiring to employ you.” 272 F at 136.

The letter was published to a third party and plaintiff brought a libel action. The defendant defended upon the ground that the plaintiff had consented. The court held for plaintiff, stating, “Because of a request for such statement, plaintiff did not invite defendant to *108 make public anything false and defamatory.” 272 F at 136.

In the present case the plaintiff did invite, the defendant to make public a statement which plaintiff believed was false and defamatory. Defendants are absolutely privileged unless the publication falls within an exception to the rule that consent to publication creates an absolute privilege.

Plaintiff claims his case does fall within the exception stated in § 584, Restatement of Torts.

“The republication of false and defamatory matter of another by one who has previously published it is not privileged although the person defamed in an honest effort to ascertain the source of the original defamatory publication procures the republication.”

The drafters of the Restatement (Second) have recommended that the section be broadened to read:

“An honest inquiry or investigation by the person defamed to ascertain the existence, source, content or meaning of a defamatory publication is not a defense to an action for its republication by the defamer.” Restatement (Second), Torts, Tentative Draft No. 20 (1974) § 584,. p 158.

Assuming that the recommendation made in the Tentative Draft No. 20 correctly states the law, the plaintiff1’s case does not fall within the exception.

Cases cited by the reporter in Tentative Draft No. 20 in support of § 584 illustrate the intent of the section.

In Thorn v. Moser, 1 Denio (NY) 488 (1845), plaintiff’s agent had “heard that the defendant had charged this crime upon the plaintiff.” 1 Denio (NY), supra, at 488. He went to the defendant to inquire and defendant repeated the charge. In affirming a judgment *109 for the plaintiff, the court commented: “An attempt by a person who deems himself injured to ascertain truly what slanderous imputations had already been cast upon him, could hardly be allowed to justify their renewal.” 1 Denio (NY), supra, at 494. The agent’s inquiry was to verify the existence and learn the content of a defamatory publication.

In Smith v. Dunlop Tire & Rubber Co., 186 SC 456, 458, 196 SE 174 (1938), one of the defendants stated to the plaintiff and his manager, “By God, I thought you birds were down here getting fat off of Dunlop. Now I know it.” The plaintiff said he did not understand. The defendant replied, “you have been stealing.” The court held the statement was not privileged. Plaintiff’s inquiry was to determine the meaning of a possible defamatory publication.

In the present case, the request to the defendants to read the reasons for failure to renew, as stated in the defendants’ letter previously sent plaintiff’s attorney, was not “to ascertain the existence, source, content or meaning of a defamatory publication.” Tent Draft No. 20 at 158.

Plaintiff contends one purpose in having the reasons read was to get a clarification of the reason, “Unprofessional conduct toward children.” That contention cannot be substantiated. The school district’s attorney informed the plaintiff and his attorney well before the meeting that the defendants and other school officials would not be open to questioning or offer any further explanation.

It must be remembered that the plaintiff is contending that this reading of the reasons for the defendants’ refusal to renew plaintiff, which plaintiff requested, damaged his reputation.

The trial court commented, in regard to plain *110 tiff’s attorney requesting the reading of the statement, “you had no thought of setting up for entrapment in a libel suit.” As we stated, the reason behind the rule that consent creates an absolute privilege is to prevent a plaintiff from “setting up” a lawsuit. However, it is not essential that the plaintiff in a particular case have that subjective intent. Mick v. American Dental Assn., 49 NJ Super 262, 139 A2d 570, 577 (1958), so held: “While we are satisfied that, resolving doubts from the evidence in favor of the plaintiff [citation] the issue as to whether plaintiff caused the Teats letter to be sent in order to elicit a basis for the present action is for the jury, we nevertheless conclude that' the action is barred on the theory of invitation or consent.”

Affirmed.

OPINION

CORNELIA A. CLARK, J„

delivered the opinion of the court, in which

We accepted a question of law certified by the United States District Court for the Middle District of Tennessee to determine whether the absolute litigation privilege applies to what may be defamatory communications made by an attorney prior to a proposed judicial proceeding when the communications are directed at recipients unconnected with the proposed proceeding. We hold that an attorney is privileged to publish what may be defamatory information prior to a proposed judicial proceeding even when the communication is directed at recipients unconnected with the proposed proceeding. In order for the privilege to apply, (1) the communication must be made by an attorney acting in the capacity of counsel, (2) the communication must be related to the subject matter of the proposed litigation, (3) the proposed proceeding must be under serious consideration by the attorney acting in good faith, and (4) the attorney must have a client or identifiable prospective client at the time the communication is published.

Factual and Procedural Background

This case involves the scope of the absolute litigation privilege applicable to attorneys. Specifically, pursuant to Rule 23 of the Tennessee Rules of the Supreme Court, the United States District Court for the Middle District of Tennessee has certified a question of law to this Court concerning the applicability of the absolute litigation privilege to attorney solicitations directed at recipients who are, at the time of the allegedly defamatory communication, unconnected with the attorney’s proposed lawsuit. The question has arisen in the context of a defamation action brought by the plaintiff, Simpson Strong-Tie Company, Inc., a manufacturer of building materials, against the defendant, Stewart, Estes & Donnell, a law firm located in Nashville, Tennessee.

The plaintiff, a California corporation with a manufacturing facility in Gallatin, Tennessee, is in the business of designing, manufacturing, and selling metal connectors and other hardware for use in wood-frame construction. The plaintiff also manufactures and sells screw fasteners for use with its connectors, including screws specifically designed for use in outdoor wood deck construction.

In an apparent effort to solicit business, the defendant law firm announced in a newspaper and on an Internet website that it was investigating the screws manufactured by the plaintiff. Specifically, in January 2006, the defendant placed an advertisement in the Tennessean newspaper which stated:

ATTENTION:

WOOD DECK OWNERS

If your deck was built after January 1, 2004 with galvanized screws manufactured by Phillips Fastener Products, Simpson Strong-Tie or Grip-Rite, you may have certain legal rights and be entitled to monetary compensation, and repair or replacement of your deck. Please call if you would like an attorney to investigate whether you have a potential claim.

*21 Joyce Cope

424 Church Street, Suite 1401

Nashville, Tennessee 37219-2392

Phone (615) 244-6538

In addition to the newspaper solicitation, the defendant placed an announcement on the firm’s Internet website which stated:

Class Action Investigations

Phillips Screws and Fasteners and/or Simpson’s Screws and Fasteners-We are investigating the accelerated corrosion due to defectively manufactured screws and fasteners caused by pressure treated wood.

On February 7, 2006, the plaintiff filed a complaint against Stewart, Estes & Donnell in the United States District Court for the Middle District of Tennessee. The complaint asserted a cause of action for defamation based on the law firm’s newspaper advertisement and website announcement which, according to the complaint, falsely communicated that the plaintiffs products were defective. The complaint also alleged that an individual who had a wood deck constructed with screws manufactured by the plaintiff made a telephone call to the defendant in response to the newspaper solicitation. According to the complaint, this individual was told by the defendant that the plaintiffs screws were defective and would “rust and break and that the deck boards would come up.” In addition to the cause of action for defamation, the complaint asserted causes of action for trade libel, tortious interference with business relationships, and violation of the Tennessee Consumer Protection Act.

The defendant moved for a judgment on the pleadings, contending that even if its communications concerning the plaintiffs products were defamatory, it was protected from liability by the absolute litigation privilege. 1 Relying upon Section 586 of the Restatement (Second) of Torts, the defendant asserted in the federal court that an attorney’s defamatory communications made preliminary to a proposed judicial proceeding are privileged even when the communications are not targeted at individuals related to the proposed case. In response, the plaintiff argued that the litigation privilege does not extend to defamatory communications where the attorney is merely “trolling for business” and has not yet secured a client on whose behalf the attorney plans to bring suit.

On November 13, 2006, an order was filed by the United States District Court for the Middle District of Tennessee certifying to this Court the following question: “Does the absolute litigation privilege apply to communications made preliminary to a proposed judicial proceeding, where such communications are directed at recipients unconnected with the proceeding in hopes of soliciting them to become parties to it?” The federal court’s order observes that Tennessee law is unclear as to whether the litigation privilege encompasses communications made to a “wide world of recipients,” such as readers of a newspaper or viewers of a website unconnected with the proposed lawsuit, but who are being solicited to join it as parties. On February 26, 2007, we entered an order accepting certification of the question posed.

*22 Analysis

I. Development of the Litigation Privilege

There are two types of privileges that can be raised as a defense in a defamation case, absolute and qualified. See Jones v. Trice, 210 Tenn. 535, 360 S.W.2d 48, 51 (Tenn.1962). A privilege is described as absolute when it is not defeated by the defendant’s malice, ill-will, or improper purpose in publishing the defamatory communication. 2 See Dan B. Dobbs, The Law of Torts 1153 (2000). Thus, an absolute privilege is, in effect, a complete immunity. Id. See also Restatement (Second) of Torts 243 (1977) (“the privilege, or immunity, is absolute and the protection that it affords is complete”).

By contrast, a qualified or conditional privilege is one that may be defeated if the defamatory publication was made with malice, ill-will, or for an improper purpose. See Pate v. Serv. Merch. Co., 959 S.W.2d 569, 576-77 (Tenn.Ct.App.1996); Dobbs, supra, at 1158. A qualified privilege is based upon public policy that recognizes information should be given freely when necessary to protect the actor’s own interests, the interests of another, or the interests of the public. See Restatement (Second) of Torts at 243.

The present case involves the absolute litigation privilege. This privilege is a common law creation with a 400-year history. In 1591, in one of the earliest English cases to apply the privilege, a plaintiff brought a defamation action after the defendant accused the plaintiff in a document filed with a court of being “a maintainer of pirates and murderers.” Buckley v. Wood, (1591) 76 Eng. Rep. 888 (K.B.). The English court found for the defendant, holding that “for any matter contained in the bill that was examinable in the said Court, no action lies, although the matter is merely false, because it [the defamatory publication] was in [the] course of justice.” Id. at 889. By 1818, legal commentators had observed that the privilege protected defamatory communications “necessary to the course of legal proceedings, and relevant to a matter before a court.” See Paul T. Hayden, Reconsidering the Litigator’s Absolute Privilege to Defame, 54 Ohio St. L.J. 985,1010 (1993).

Following centuries of English application, the litigation privilege gained widespread acceptance in U.S. courts, eventually finding its way to Tennessee. In the first case to apply the privilege in this jurisdiction, Lea v. White, 36 Tenn. (4 Sneed) 111 (1856), this Court observed that defamatory publications made in “the course of a judicial proceeding” are “absolutely privileged, and depend in no respect for their protection upon their bonafides.” Id. at 113 (internal quotation marks omitted). According to the Lea Court, the privilege applied if “the matter complained of was pertinent to the occasion” because “proceedings connected with the judicature of the country are so important to the public good.” Id. at 114 (internal quotation marks omitted). Similarly, another early case, Shodden v. McElwee, 86 Tenn. 146, 5 S.W. 602, 603 (Tenn.1887), observed that the privilege applied if the defamatory communication was “pertinent ... or, as it is expressed in some of the eases, the relevancy of the words complained of to the matter at issue, is the test of the privilege.” The Court in Shodden recognized the “importance, to a due adminis *23 tration of justice, of upholding the privilege accorded parties to write and speak freely in judicial proceedings.” Id. at 605.

In more recent cases, this Court has found that defamatory statements by a judge, witness, counsel, or party “made in the course of a judicial proceeding, if pertinent or relevant, are absolutely privileged, and this is true regardless of whether they are malicious, false, known to be false, or against a stranger to the proceeding.” Jones, 360 S.W.2d at 54. Like the early cases, the more recent decisions have embraced the privilege because “access to the judicial process, freedom to institute an action, or defend, or participate therein without fear of the burden of being sued for defamation is so vital and necessary to the integrity of our judicial system that it must be made paramount.” Id. at 51. See also Lambdin Funeral Serv. Inc. v. Griffith, 559 S.W.2d 791, 792 (Tenn.1978) (“It is generally recognized that statements made in the course of a judicial proceeding that are relevant and pertinent to the issues involved are absolutely privileged ... even in those situations where the statements are made maliciously”).

Thus, this Court has long accepted the litigation privilege as an important tool in the pursuit of justice. The privilege has also been adopted by most other jurisdictions. See, e.g., Finkelstein, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774 A.2d 332, 338 (D.C.Ct.App.2001) (noting that the vast majority of jurisdictions have recognized the privilege). In recent times, courts have focused less on whether to adopt the privilege and more on defining its contours. Such is our task here.

II. Solicitous Communications Made Prior to Litigation

Mindful of the public policy underlying the litigation privilege, we turn to the question certified to us in this case: does the privilege “apply to communications made preliminary to a proposed judicial proceeding, where such communications are directed at recipients unconnected with the proceeding in hopes of soliciting them to become parties to it?” The question posed asks us to consider the narrow issue of whether the privilege encompasses an attorney’s solicitous statements made prior to the filing of a lawsuit. In this case, the defendant made the allegedly defamatory publication in a newspaper and on an Internet website before the filing of a complaint.

The defendant argues that the litigation privilege should immunize attorneys from defamation claims for statements made preliminary to a proposed judicial proceeding, including attorney solicitations to individuals with whom there is no existing attorney-client relationship. In the defendant’s view, the absence of an attorney-client relationship should have no bearing on the privilege’s application because the policies underlying the privilege are equally compelling in the context of attorney solicitations as they are in the context of communications with existing clients. As a result, the defendant contends, the fact that a communication may be characterized as a solicitation, made prior to the filing of a lawsuit, should not automatically defeat the privilege.

The plaintiff responds that the litigation privilege should not apply absent a pending lawsuit in which the attorney is representing the interests of a client or at least has an identifiable prospective client at the time the defamatory communication is published. The plaintiff asserts that to adopt a contrary rule would give attorneys “unfettered license ... to troll for clients via widespread and indiscriminate advertising portraying possible defendants in *24 any defamatory light advantageous to securing new” business for the attorney.

We are persuaded that the litigation privilege applies to attorney solicitations published prior to the start of litigation. Specifically, the communication at issue is protected by the privilege if (1) the communication was made by an attorney acting in the capacity of counsel, (2) the communication was related to the subject matter of the proposed litigation, (3) the proposed proceeding must be under serious consideration by the attorney acting in good faith, and (4) the attorney must have a client or identifiable prospective client at the time the communication is published. The privilege will not apply unless each of these elements is satisfied. The privilege as we have adopted it is consistent with the Restatement view that

[a]n attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.

Restatement (Second) of Torts § 586 (1977). The comments to Section 586 indicate that the privilege is based upon “a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients.” Id. at cmt. a. Clearly, the privilege exists to protect zealous advocacy.

In addition, the comments to Section 586 provide that the privilege applies only when “made by an attorney while performing his function as such. Therefore it is available only when the defamatory matter has some reference to the subject matter of the proposed or pending litigation.” Id. at cmt. c. Thus, the privilege applies only when there is a reasonable nexus between the publication in question and the litigation under consideration. Further, the comments provide that “[a]s to communications preliminary to a proposed judicial proceeding the rule stated in this Section applies only when the communication has some relation to a proceeding that is contemplated in good faith and under serious consideration.” Id. at cmt. e. Accordingly, the “bare possibility that the proceeding might be instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not seriously considered.” Id. These requirements accurately reflect the parameters of the privilege as we have adopted it.

The rule we have adopted today is also consistent with our prior cases that have embraced the privilege on the basis that “access to the judicial process, freedom to institute an action, or defend, or participate therein without fear of the burden of being sued for defamation is so vital and necessary to the integrity of our judicial system that it must be made paramount.” Jones, 360 S.W.2d at 51. In our view, the rationale underlying the privilege — to encourage attorneys to speak freely and candidly, undeterred by the fear of an action for defamation — is just as compelling when the attorney is advising a prospective client of opportunities to pursue legal redress as it is when the attorney is conferring with an existing client. That the attorney is consulting with a prospective client prior to the filing of a case should not, by itself, defeat the privilege.

The rule we have adopted also finds support in cases from other jurisdictions. For example, in Finkelstein, Thompson & Loughran, 774 A.2d at 337, a lawyer sent an unsolicited e-mail to a shareholder of the plaintiff corporation informing the shareholder that the lawyer’s firm handled class action lawsuits and that his firm was “investigating [the plaintiff] at this time.” *25 The shareholder contacted the lawyer in response to the solicitation, at which point the lawyer allegedly made false statements about the plaintiff. The plaintiff sued the lawyer and his law firm for defamation. As in the present case, the defendants maintained that the allegedly defamatory communications were privileged as statements made preliminary to a proposed judicial proceeding. The plaintiff responded that the litigation privilege did not apply to an attorney who is merely soliciting a prospective client for a potential lawsuit. The plaintiff argued, as the plaintiff argues here, that if the rule were otherwise, a law firm “‘trolling for clients’ and motivated ... by self-interest will have ‘carte blanche authority to lie about any potential target regardless of whether it had actual or proposed clients who were even pondering, much less seriously considering litigation.’ ” Id. at 345. The court in Finkel-stein rejected these arguments and held that communications made during preliminary consultations with prospective clients, including contacts that may be characterized as solicitations, fall within the scope of the privilege. Id. The court reasoned that the rationale underlying the privilege is just as compelling when an attorney is advising a prospective client as it is when the attorney is consulting with an existing client. Id. at 344.

Courts elsewhere have likewise held that the privilege is applicable to defamatory communications made in client solicitations. See e.g., Rubin v. Green, 4 Cal.4th 1187, 17 Cal.Rptr.2d 828, 847 P.2d 1044 (Cal.1993) (soliciting clients in anticipation of litigation is privileged); Popp v. O’Neil, 313 Ill.App.3d 638, 246 Ill.Dec. 481, 730 N.E.2d 506 (Ill.App.Ct.2000) (defamatory letter to a prospective client was privileged because of the need for open communication); Kittler v. Eckberg, Lammers, Briggs, Wolff & Vierling, 535 N.W.2d 653 (Minn.Ct.App.1995) (law firm could not be liable for defamatory statements made in a solicitation letter to potential plaintiffs); Samson Inv. Co. v. Chevaillier, 988 P.2d 327 (Okla.1999) (draft complaint sent to a prospective client was protected by the litigation privilege where the document was meant to solicit clients). Although the plaintiff cites several cases in which the privilege was found to be inapplicable, such as Williams v. Kenney, 379 N.J.Super. 118, 877 A.2d 277 (N.J.Super.Ct.App.Div.2005), Chafoulias v. Peterson, No. C2-01-1617, 2003 WL 23025097 (Minn.Ct.App. Dec.30, 2003), and Kurczaba v. Pollock, 318 Ill.App.3d 686, 252 Ill. Dec. 175, 742 N.E.2d 425 (Ill.App.Ct.2000), each of these eases involved communications made during ongoing litigation, not communications made to solicit clients preliminary to litigation.

III. Scope of the Communication

Having decided that the litigation privilege applies to attorney solicitations published prior to the filing of a lawsuit, we turn to whether the privilege applies if the defamatory communication is not targeted at specific individuals having an interest in the proposed litigation. The plaintiff argues that the privilege should not apply to circumstances such as those presented here because rather than limiting the defamatory communications to persons having a potential claim against the plaintiff, the defendant “indiscriminately circulated them to the entire world.” According to the plaintiff, the defendant had not consulted with a client or potential client about any claim against the plaintiff but broadly scattered its defamatory statements to everyone with access to the Tennessean newspaper and the Internet. 3 Re *26 lying upon cases finding that a defamatory communication is protected only if it is published to persons with an interest in the proposed litigation, see, e.g., Andrews v. Elliot, 109 N.C.App. 271, 426 S.E.2d 430, 433 (N.C.Ct.App.1993), the plaintiff maintains that untargeted communications by an attorney should fall outside the permissible scope of the privilege to safeguard against abuse.

The defendant responds that communications to individuals unconnected with the proposed litigation are an unavoidable byproduct when the attorney has no feasible means of limiting the communication to those who may be interested in the litigation. According to the defendant, it lacked the ability to identify a particular group of persons having an interest in the potential litigation and, therefore, the breadth of the communication was unavoidably great. The defendant also argues that defeating the privilege by virtue of the communication being “untargeted” would chill beneficial communications related to proposed litigation and allow entities like the plaintiff to thwart meritorious lawsuits by bringing defamation suits against opposing attorneys. 4

While we are not unsympathetic with the plaintiff’s position, limiting the privilege in the manner suggested by the plaintiff could, in our view, inhibit potential parties or witnesses from coming forward and impede the investigatory ability of litigants or potential litigants, thereby undermining the reasons for the privilege. In some situations, attorneys may have no practical means of discerning in advance whether the recipients of the communication have an interest in the proposed proceeding. In that event, the attorney can only communicate with those having the ability and desire to join the proposed litigation by publishing the statement to a wider audience, which may include unconnected individuals. When the prerequisites of the privilege are satisfied, the privilege should not be lost based on this fact alone. We note, however, that unnecessary defamatory publications to recipients unconnected with the proposed proceeding would not be privileged. See Sullivan v. Birmingham, 11 Mass.App.Ct. 359, 416 N.E.2d 528, 530 (1981) (“the privilege may be lost by unnecessary or unreasonable publication to one for whom the occasion is not privileged.”). For example, if the attorney has a feasible way of discerning which recipients have an interest in the case, but nevertheless publishes the defamatory communication to those having no interest in the case, the privilege would not apply.

Moreover, mindful of the need for caution in according an absolute privilege for what may be defamatory publications made preliminary to litigation, we emphasize that attorneys do not have an unfettered license to defame their adver *27 saries. As this Court stated 120 years ago,

[w]e recognize folly the importance, to a due administration of justice, of upholding the privilege accorded parties to write and speak freely in judicial proceedings; but in so doing, we must not lose sight of the fact that it concerns the peace of society; that the good name and repute of the citizen shall not be exposed to the malice of individuals, who, under the supposed protection of an absolute privilege ... volunteer defamatory matter in utterances not pertinent. To hold such persons responsible in damages cannot fairly be said to hamper the administration of justice. The privilege ... is great, and will be protected in all proper cases, but it must not be mistaken for unbridled license.

Shadden, 5 S.W. at 605. The same observation holds true today, for the intent of the privilege is not to encourage lawyers to defame. Rather, its intent “is to free honorable lawyers to render candid and zealous advice and representation to their clients without fear of retaliatory harassment from their adversaries.” Finkelstein, 774 A.2d at 338.

We also observe that, even if the requirements of the privilege are satisfied, an attorney who exceeds the bounds of permissible conduct may face collateral consequences. For example, an attorney who makes false and defamatory statements which result in a baseless lawsuit may face a malpractice action by the client or a malicious prosecution action by the party defamed, or both. Finkelstein, 774 A.2d at 346. An attorney who institutes meritless litigation or files suit for an improper purpose may also face sanctions imposed by the courts under Rule 11 of the Tennessee Rules of Civil Procedure. In addition, an attorney may be disciplined by the Board of Professional Responsibility for violating ethical requirements which prohibit the filing of frivolous claims or soliciting employment by means of fraud or false or misleading statements. See Tenn. Sup.Ct. R. 8, RPC 3.1, 7.1, 7.3. These alternative remedies for attorney misconduct present “the risk of punishment for the errant lawyer ... real enough to require that lawyer to beware.” Finkelstein, 774 A.2d at 346. In light of these alternative remedies, coupled with the. limitations we have placed on the privilege itself, we are satisfied that the privilege cannot be exploited as an opportunity to defame with impunity.

Conclusion

For the foregoing reasons, we hold that an attorney is privileged to publish what may be defamatory information prior to a proposed judicial proceeding, even though the communication may be received by individuals who are unconnected with the proposed proceeding. In order for the privilege to apply, (1) the communication must be made by an attorney acting in the capacity of counsel, (2) the communication must be related to the subject matter of the proposed litigation, (3) the proposed proceeding must be under serious consideration by the attorney acting in good faith, and (4) the attorney must have a client or identifiable prospective client at the time the communication is published. The costs in this Court are taxed one-half to each party and their sureties, for which execution may issue if necessary.

Seinfeld, J.

Howard Moe appeals the trial court’s dismissal of his defamation action against defendant Arnold Robbins, the attorney for a business in Chapter 11. The trial court held that the “common interest” qualified privilege protected Robbins’s allegedly defamatory communication about Moe’s role in the business’s financial losses. The trial court further found no abuse of that privilege. Holding that a Chapter 11 bankruptcy debtor and its creditors share a common interest in determining the cause of the subject business’s financial failure, we uphold the ruling regarding privilege and affirm the dismissal. But we remand for recalculation of terms imposed because of Robbins’s request for a continuance.

FACTS

Moe sold his long-time business, Little Hoquiam Boat Shop, to R.O.I., Inc. (ROI), in 1988. ROI renamed the company Hoquiam Boat Shop, Inc., but retained Moe, pursuant to the sale agreement, as an employee/consultant.

Joseph Wise became the chief executive officer of Hoquiam Boat in September 1990. Because of Hoquiam Boat’s poor financial health, in late 1990 Michael Daspin, the head of ROI, hired attorney Robbins to prepare and file a Chapter 11 petition. Robbins filed that action in December 1990.

*954According to Robbins, Daspin also asked him to sue Moe for allegedly misrepresenting the business’s profit margin at the time the parties were negotiating the sale. After Robbins spoke to ROI’s accountant and reviewed his files, he believed the allegation of misrepresentation was true.

Shortly after filing bankruptcy, Wise sent a letter to trade creditors, hull owners (owners of boats under construction), and a newspaper reporter. The letter, which sought support in federal court for cancellation of the company’s boat contracts, blamed Moe for Hoquiam Boat’s bankruptcy. Specifically, the letter alleged that Moe had misrepresented Hoquiam Boat’s projected profit margin as 30 percent and had permitted the company to enter into new boat manufacturing contracts at below cost prices. The letter also stated:

The beneficiaries of Hoquiam Boat Shop’s activities over the past two years are Moe and those that have taken delivery of completed boats at below cost prices without the owner’s awareness, and those with boats in varying degrees of completion who would have us continue performing on sub-standard contracts. Those that are hurt are the skilled men and women of Hoquiam Boat Shop, and their families, whose reward for producing the best quality fishing boat available is lay-off and the unemployment line. Additionally, the trade creditors of Hoquiam Boat Shop have also sufferred [sic]. Their reward for being a loyal supplier of equipment and components, under unsecured conditions, has been late payments and broken promises.

I regret that the past effects of what the stockholders have advised me to be a failure on the part of the former owner to advise the purchasers of contracts taken at sub-standard margins, caused these steps to be taken.

Wise claimed that he and Daspin coauthored the letter with Robbins and that he had asked Robbins to investigate the allegations about Moe. But Robbins claimed that he had never talked to Daspin and that when he saw the letter, he advised Wise not to send it. However, when Wise ad*955vised Robbins that Daspin had ordered the letter sent, Robbins agreed to edit it, and he subsequently made a number of deletions and changes. Robbins testified that he had tried to “tone down” the letter because he thought the allegations against Moe would fail to accomplish the “underlying objective,” which was to enlist the trade creditors’ support for the reorganization plan. Robbins did not insist that Wise remove the allegations against Moe because he did not think such revisions were within the ambit of his authority.

Moe responded to the letter by filing a defamation suit against Wise in January 1991 and by filing an amended complaint in October 1992 that included Robbins as a co-defendant. In June 1994, the court assigned an October 10, 1995, trial date. Robbins filed his answer in April 1995. In August, Wise answered the amended complaint and filed a cross-claim against Robbins for attorney malpractice. At about the same time, Moe disclosed over 100 new witnesses for trial.

The next month, Wise and Robbins both moved for a continuance. The trial court granted the continuance, but assessed $5,000 in terms against Wise and against Robbins, telling counsel: “You can make your checks out to the Grays Harbor County Food Bank. We’re going to pay the poor.” But the trial court’s written order does not reference the food bank; the order merely directs counsel to make payment to the registry of the court.

At trial, Moe testified that the allegations in the letter were untrue and hurtful. He said that hull owners had contacted him after receiving the letter to express their disgust and unhappiness with him. And hull owners and trade creditors testified that the letter caused them to wonder whether Moe was responsible for the bankruptcy; they said it was a factor in not asking Moe to do future work.

When Moe reacquired Hoquiam Boat in 1991, he had difficulty reestablishing the business. He asserted that the defamation made it difficult for him to retain existing *956contracts, obtain financing, and win new customers. But he also acknowledged that other factors, such as restarting the company from bankruptcy, the general downward trend in the fishing industry, and changing government regulations, affected profits. Relying upon past experience, Moe attributed at least 25 percent of his lost profits, which his accountant estimated to be $3,985,754, to the defamation.

At the close of the plaintiffs case, Robbins moved for dismissal. He argued that (1) he was protected by a common interest qualified privilege, and (2) he could not be liable because he did not provide the defamatory material contained in the letter. The trial court granted Robbins’s motion, reasoning that (1) Robbins had acted under a qualified privilege, and (2) there was no showing that Robbins had abused the privilege.

The trial proceeded without Robbins. The jury found Wise liable and awarded Moe damages of $1,333,000.1

Moe appeals Robbins’s dismissal. He argues that (1) the trial court erred in finding Robbins protected by a qualified privilege; and (2) if we remand the case, the doctrine of estoppel should prevent Robbins from contesting the amount of damages. Robbins cross-appeals, arguing that: (1) he did not utter a defamatory statement and, if he did, it caused Moe no harm; (2) there was insufficient evidence to place the issue of lost profits before the jury when the trial proceeded against Wise; and (3) the trial court erred in assessing $5,000 in terms against him.2

DISCUSSION

I. Qualified Privilege

A trial court should grant a motion for a directed verdict if, as a matter of law, no evidence or reasonable inferences exist to sustain a verdict for the nonmoving *957party. Bender v. City of Seattle, 99 Wn.2d 582, 587, 664 P.2d 492 (1983). We review the evidence in the light most favorable to the nonmoving party. Id. at 587.

A defamation plaintiff must prove (1) falsity, (2) an unprivileged communication, (3) fault, and (4) damages. Caruso v. Local Union No. 690, 107 Wn.2d 524, 529, 730 P.2d 1299 (1987); Bender, 99 Wn.2d at 599. The type of fault and the quantum of evidence that the plaintiff must prove turns on whether plaintiff is a public official or a private individual. Id. A public figure plaintiff must show by clear and convincing evidence that the defendant published the defamatory matter with actual malice: with knowledge of the matter’s falsity or made with reckless disregard of its falsity. New York Times Co. v. Sullivan, 376 U.S. 254, 285-86, 84 S. Ct. 710,11 L. Ed. 2d 686, 95 A.L.R.2d 1412 (1964); Margoles v. Hubbart, 111 Wn.2d 195, 199-200, 760 P.2d 324 (1988). By contrast, a private defamation plaintiff such as Moe need establish only negligence by a preponderance of the evidence. See Bender, 99 Wn.2d at 599; Haueter v. Cowles Publ’g Co., 61 Wn. App. 572, 580-81, 811 P.2d 231 (1991).

Here, the evidence was sufficient to establish elements one, falsity, and four, damages. At issue is whether the communication was privileged, and if so, whether Robbins lost the privilege through abuse.

1. The Applicability of a Qualified Frivilege

There is a qualified privilege to make an otherwise defamatory statement under numerous circumstances. See generally Restatement (Second) of Torts §§ 593-597 (1977). The existence of the privilege is a matter of law for the court to decide. Restatement, supra, § 619(1); Liberty Bank of Seattle, Inc. v. Henderson, 75 Wn. App. 546, 563, 878 P.2d 1259 (1994); Demopolis v. Peoples Nat’l Bank, 59 Wn. App. 105, 110, 796 P.2d 426 (1990).

Here, the trial court applied the “common interest” qualified privilege. The common interest privilege applies when the declarant and the recipient have a common inter*958est in the subject matter of the communication. See Ward v. Painters’ Local Union No. 300, 41 Wn.2d 859, 865-66, 252 P.2d 253 (1953) (members of union discussing officers and members).

The rule is based on the fact that one is entitled to learn from his associates what is being done in a matter in which he has an interest in common with them. This interest in their common affairs entitles him to information as to how they are conducted, or to information that affects the common interest, even though he is not personally concerned with the information.

Restatement, supra, § 596 cmt. c. Thus, the privilege applies even if the communication’s purpose is not to protect a commonly held interest. Id.

An occasion makes a publication conditionally privileged if the circumstances lead any one of several persons having a common interest in a particular subject matter to correctly or reasonably believe that there is information that another sharing the common interest is entitled to know.

Restatement, supra, § 596; Ward, 41 Wn.2d at 865.

Washington courts have applied the common interest privilege to communications among officers of an unincorporated, nonprofit association about their members and officers’ qualifications and their participation in association activities. Ward, 41 Wn.2d at 865-66. Washington law also gives protection to communications among partners about partnership litigation to recover money owed to the partnership. Parry v. George H. Brown & Assocs., Inc., 46 Wn. App. 193, 197, 730 P.2d 95 (1986).

The comments to the Restatement suggest that the privilege is available generally for persons involved in the same organizations, partnerships, associations, or enterprises who are communicating on matters of common interest. Restatement, supra, § 596 cmts. d, e; see, e.g., Guinn v. Church of Christ, 775 P.2d 766, 784-85 (Okla. 1989) (present or prospective church members); Daywalt v. Montgom*959ery, 393 Pa. Super. 118, 573 A.2d 1116, 1118-19 (1990) (intradepartmental communications); Tibke v. McDougall, 479 N.W.2d 898, 905 (S.D. 1992) (members of a horse club); Zinda v. Louisiana Pac. Corp., 149 Wis. 2d 913, 440 N.W.2d 548, 552-53 (1989) (employer-employee); Williams v. Blount, 741 P.2d 595, 596 (Wyo. 1987) (routine business transaction in which both parties have a pecuniary interest). These authorities suggest that the privilege arises when parties need to speak freely and openly about subjects of common organizational or pecuniary interest.

The dissent, citing Demopolis, 59 Wn. App. at 115 n.10, contends that the qualified privilege is available only where the declarant and recipient are allied. Parry, 46 Wn. App. at 197. But a close scrutiny of the case law shows that the focus belongs on the declarant’s and recipient’s relationship to the subject matter, not to each other.

First, we note that the cited portion of Demopolis is dicta wherein Division One of this court “questioned” whether there was a qualified privilege because the parties were not “allied.” 59 Wn. App. at 114-15 (communicant and recipient were opponents in litigation communicating outside courtroom). Further, Demopolis cited Parry where, although the declarant and recipient happened to be allied, this fact was not the basis for the court’s holding. Parry, 46 Wn. App. at 196-97. In addition, Demopolis’s cite to Ward, 41 Wn.2d at 865, is misleading. 59 Wn. App. at 115 n.10. In Ward, the declarant and recipient did belong to the same organization but, again, the focus was on the fact that they were communicating on subject matters of common interest. 41 Wn.2d at 865-66.

Authority from other jurisdictions supports this focus on a shared interest in the subject matter rather than on allied interests. For example, in Williams, the determinative factor was that the declarant (title insurance company officer) and recipient (bank officer) shared a pecuniary interest in a routine business transaction that was the subject of the communication (title insurance application). 741 P.2d at 596. The parties in Williams were not allied; the title in*960surance company wanted the bank to guarantee the applicant’s loan because of the applicant’s alleged financial difficulties. Williams, 741 P.2d at 596. In Petrus v. Smith, 91 A.D.2d 1190, 459 N.Y.S.2d 173, 174 (1983), rejected by Demopolis, an out-of-court statement to an opposing litigant enjoyed a qualified privilege because it related to the litigation that was of interest to both parties. And in Rosen v. Brandes, 105 Misc. 2d 506, 432 N.Y.S.2d 597, 601 (1980), the parties were adversaries but the privilege applied because “the recipient of the letter had a mutuality of interest in the subject matter of the letter.”

This need for open and free communications is present in the bankruptcy context. The ultimate goal of Chapter 11 is “a reorganization plan that enables the debtor to restructure its pre-bankruptcy debts, pay its creditors, and return to active operation as a viable enterprise, free from judicial control and creditor scrutiny.” In re Great Am. Pyramid Joint Venture, 144 B.R. 780, 788 (Bankr. W.D. Tenn. 1992). The financial restructuring scheme is also designed to preserve jobs, In re Gonic Realty Trust, 909 F.2d 624, 627 (1st Cir. 1990), and to pay creditors “equitably” from available funds, In re De Laurentiis Entertainment Group Inc., 963 F.2d 1269, 1274 (9th Cir. 1992). To accomplish these goals, the code contains provisions that preserve the status quo between debtor and creditor while they reach an “amicable adjustment” under the supervision of the bankruptcy court, “thus affording an opportunity to plan reorganization without a race between creditors and maintaining at the same time a going concern value for all parties in interest.” Senfour Inv. Co. v. King County, 66 Wn.2d 644, 646, 404 P.2d 760 (1965).

Essentially, a Chapter 11 debtor and its creditors are engaged in a cooperative effort and share a common broad goal, the protection or creation of sufficient assets or profits to maintain the business and pay its debts. To this end, the bankruptcy code mandates creation of one or more creditors’ committees, 11 U.S.C. § 1102, and further empowers such committees to “investigate the acts, conduct, assets, *961liabilities, and financial condition of the debtor, the operation of the debtor’s business and the desirability of the continuance of such business, and any other matter relevant to the case or to the formulation of a plan.” 11 U.S.C. § 1103(c)(2).

The dissent points out that some creditors may have different interests than others. Clearly, there may be tactical reasons for a Chapter 11 debtor to emphasize different points in communicating with different creditors in different circumstances. Nonetheless, the Chapter 11 debtor and its creditors share one overriding interest—keeping the boat afloat. Should the debtor go under, there is a high likelihood that everyone associated with the enterprise will sustain adverse consequences. Thus, despite individual differences, a Chapter 11 debtor and its creditors share an overarching common interest in returning the business “to active operation as a viable enterprise” that will have value for all parties in interest. Great Am. Pyramid, 144 B.R. 780; see also 11 U.S.C. §§ 1102, 1103; In re Deer Park, Inc., 10 F.3d 1478, 1485 (9th Cir. 1993); De Laurentiis, 963 F.2d at 1274; Gonic Realty, 909 F.2d 624.

Consequently, to be successful under Chapter 11, both debtor and creditor must be able to communicate freely and openly on subjects pertinent to the financial health of the debtor. See Citicorp Venture Capital, Ltd. v. Committee of Creditors, 160 F.3d 982, 987-88 (3d Cir. 1998) (holding that debtor’s fiduciary breached its duty by failing to disclose transaction to debtor’s board and committee of creditors). To enlist creditor support for a Chapter 11 reorganization plan, a bankrupt debtor might reasonably provide creditors with background information on the reasons for the business’s financial difficulties. Likewise, it would be reasonable for a creditor to seek an explanation as to why the debtor needed to file for reorganization and what steps the debtor is taking to protect the creditor’s interests.

Based on the foregoing, we conclude that Chapter 11 debtor-creditors communications about the potential causes of the business’s failure satisfy the Restatement § 596 *962criteria; each party has a common interest in the subject matter and is entitled to know about the information. Ward, 41 Wn.2d at 865. Without this privilege, the potential of liability for defamation could interfere with the need for open and frank debtor-creditor communications.

Here, the success of Hoquiam Boat’s Chapter 11 plan depended upon the cooperation of trade creditors and hull owners. Under these circumstances, it was reasonable for Hoquiam Boat to explain the reasons for its financial failure to both classes of creditors. Hoquiam Boat and its creditors “had a mutuality of interest in the subject matter of the letter.” Rosen, 432 N.Y.S.2d at 601.

The challenged letter suggests that Moe’s conduct led to worker layoffs. But employee welfare is sufficiently pertinent to the bankruptcy issues to be encompassed by the privilege. Gonic Realty, 909 F.2d at 627. Further, any closer scrutiny and dissection of the letter’s language would undermine the policy supporting the privilege—the need for free and open communications. The alleged misstatements in Wise’s letter, although hurtful to Moe, do not defeat the purpose of the privilege—to facilitate free and open communication between the Chapter 11 debtor and its creditors. Thus, we find the trial court did not err in applying the “common interest” qualified privilege to Robbins’s communication.

2. The Abuse of Qualified Privilege

We next must determine whether Robbins abused the qualified privilege. Whether a speaker abused a privilege is a question of fact for the jury to decide “unless the facts are such that only one conclusion can reasonably be drawn.” Restatement, supra, § 619(2) cmt. b. Whether a party has established a prima facie case of abuse is a question of law. Wildes v. Prime Mfg. Corp., 160 Wis. 2d 443, 465 N.W.2d 835, 839 (1991). We conclude that Moe failed to establish a prima facie case of abuse.

An absolute privilege absolves the defendant of all liability for the defamatory statement. Bender, 99 Wn.2d at *963600. “A qualified privilege, on the other hand, may be lost if it can be shown that the privilege has been abused.” Bender, 99 Wn.2d at 600 (citing Gem Trading Co. v. Cudahy Corp., 92 Wn.2d 956, 960, 603 P.2d 828 (1979)). The defendant abuses the qualified privilege if he or she (1) knows the matter to be false or acts in reckless disregard as to its truth or falsity of the statement, Bender, 99 Wn.2d at 601, Restatement, supra, § 600; (2) does not act for the purpose of protecting the interest that is the reason for the existence of the privilege, Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1559 (4th Cir. 1994), Restatement, supra, § 603; (3) knowingly publishes the matter to a person to whom its publication is not otherwise privileged, Foretich, 37 F.3d at 1559, Restatement, supra, § 604; (4) does not reasonably believe the matter to be necessary to accomplish the purpose for which the privilege is given, Wildes, 465 N.W.2d at 839, Restatement, supra, § 605; or (5) publishes unprivileged as well as privileged matter, Furgason v. Clausen, 109 N.M. 331, 785 P.2d 242, 254 (1989), Restatement, supra, § 605A.

As noted earlier, a private figure defamation plaintiff need prove only the defendant’s negligence by a preponderance of the evidence to establish a prima facie case of defamation. Bender, 99 Wn.2d at 600. But once the defendant establishes a qualified privilege, to prove the abuse of that privilege even a private figure plaintiff must satisfy the higher clear and convincing standard otherwise applied only to public figure plaintiffs. Lillig v. Becton-Dickinson, 105 Wn.2d 653, 658, 717 P.2d 1371 (1986); Bender, 99 Wn.2d at 601; see also Kass v. Great Coastal Express, Inc., 152 N.J. 353, 704 A.2d 1293, 1294 (1998) (clear and convincing standard applies to all recognized forms of abuse).

The higher quantum of proof necessary to overcome a qualified privilege stems from the public policy bases supporting privileges. Here, because there is a need for the free and open exchange of information between the Chapter 11 debtor and its creditors, “the standard of proving abuse *964of the privilege must necessarily be high.” Bender, 99 Wn.2d at 601; see also Sedore v. Recorder Publ’g Co., 315 N.J. Super. 137, 716 A.2d 1196, 1210 (1998) (lesser burden of proof will not protect interests underlying privilege).

When deciding a directed verdict, “the judge must view the evidence presented through the prism of the substantive evidentiary burden.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).3 Consequently, we must determine whether a trial court could conclude, viewing the evidence favorably toward Moe, that a reasonable jury could find abuse of the qualified privilege by clear and convincing evidence. See id. at 255-56.4

a. Reckless Disregard

Here, Moe has failed to provide sufficient evidence that Robbins had knowledge of the falsity or acted in reckless disregard as to the falsity of the statement. Lillig, 105-Wn.2d at 658; Bender, 99 Wn.2d at 601; Gilman v. MacDonald, 74 Wn. App. 733, 738, 875 P.2d 697 (1994); Story v. Shelter Bay Co., 52 Wn. App. 334, 341-42, 760 P.2d 368 (1988); Hardy v. Saliva Diagnostic Sys., Inc., 995 F. Supp. 258, 267 (D. Conn. 1997) (applying Washington defamation law); Restatement § 600. This description of reckless disregard is the same as the New York Times definition of “actual malice.” Haueter, 61 Wn. App. at 588 n.5. Thus, to show abuse, Moe must overcome the same burden facing a public official plaintiff: he must prove that Robbins acted *965with actual malice. See generally Story, 52 Wn. App. 342-43 (public official fault standard applied against private plaintiff in abuse of privilege analysis).5

“The standard for finding actual malice is subjective and focuses on the declarant’s belief in or attitude toward the truth of the statement at issue.” Id. at 343 (citing Herron v. KING Broad. Co., 109 Wn.2d 514, 523, 746 P.2d 295 (1987) (Herron I); Tilton v. Cowles Publ’g Co., 76 Wn.2d 707, 722, 459 P.2d 8 (1969)). “To prove actual malice a party must establish that the speaker knew the statement was false, or acted with a high degree of awareness of its probable falsity, or in fact entertained serious doubts as to the statement’s truth.” Story, 52 Wn. App. at 343 (citing Herron I, 109 Wn.2d at 523; Tilton, 76 Wn.2d at 722).

There is no evidence that Robbins had actual, subjective knowledge that the allegations were false. Herron v. KING Broad. Co., 112 Wn.2d 762, 775, 776 P.2d 98 (1989) (Herron II). Thus the question is whether there was evidence from which a jury could conclude that Robbins acted with reckless disregard. Id. at 775.

To prove reckless disregard, the plaintiff must show with clear and convincing evidence that the defendant in fact entertained serious doubts as to the truth of the publication. Id. (citing St. Amant v. Thompson, 390 U.S. 727, 730-31, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968)). Although Moe has presented evidence that Robbins did not ad*966equately investigate the defamatory allegations, that fact alone will not establish actual malice. Herron II, 112 Wn.2d at 777. Further, there is no evidence that Robbins acquired information that caused him to doubt the truth of the allegations. Cf. id. at 776-77 (media reporter acts in reckless disregard when his investigation does not support his false statement or brings to his attention facts that rebut the false statement). Nor does Moe’s assembled evidence show actual malice or that Robbins harbored any ill will toward Moe. Cf. Herron I, 109 Wn.2d at 525. (publisher’s repeated acts of hostility toward plaintiff probative of actual malice); see also Herron II, 112 Wn.2d at 779 (malice in the colloquial sense of hostility is relevant to malice in the legal sense). Thus, the trial court correctly concluded that Moe had failed to establish a prima facie case of abuse through knowledge of falsity or reckless disregard as to the truth.

b. Acting to Protect Interest Underlying Privilege

To show that Robbins did not act for the purpose of protecting the interest underlying and supporting the privilege, Restatement, supra, § 603, Moe needed to present evidence that Robbins had an ulterior purpose in writing to the creditors, such as damaging the business. Kass v. Great Coastal Express, Inc., 291 N.J. Super. 10, 676 A.2d 1099, 1105 (1996), aff’d in part, 152 N.J. 353, 704 A.2d 1293 (1998); Wildes, 465 N.W.2d at 840. This sort of evidence is lacking. The evidence indicates that Robbins believed the purpose of the letter was to enlist support for the reorganization plan and that he edited it in an attempt to make it more “palatable” and, thus, more effective in protecting the pecuniary interests of Hoquiam Boat and its creditors. There is no evidence that Robbins abused the qualified privilege by acting for an improper purpose.

c. Excessive Publication

Here, Moe needed to produce evidence that Robbins knowingly published the defamatory matter to a person to whom its publication was not otherwise privileged. Fore-*967tick, 37 F.3d at 1559; Restatement, supra, § 604. Moe claims that sending the letter to hull owners abused the privilege. We disagree.

The hull owners were creditors: they held contracts for uncompleted goods and had an interest in having Hoquiam Boat either complete their contracts or provide monetary or equitable relief. See 11 U.S.C. § 101(10) (defining “creditor”). Consequently, sending the letter to hull owners did not abuse the qualified privilege.6

d. Objective of Privilege

Here, Moe needed to produce sufficient evidence showing that Robbins did not reasonably believe the letter was necessary to accomplish the purpose of the privilege to facilitate free and open communication between the debtor and its creditors about the cause of the business’s failure and the plans to improve its financial health. Restatement, supra, § 605.

The dissent argues that Robbins lacked the requisite belief, relying upon his statement that the proposed letter contained language that “was not constructive” because “credit people are impressed with bottom line arguments, not with name-calling.” But, viewed in context, this statement does not show that Robbins did not believe in the need to communicate about the cause and consequences of the business failure.

The quoted statement was only a part of Robbins’s testimony; in other testimony, he explained that obtaining the hull owners’ agreement to renegotiate the contracts was “certainly very important” to the Chapter 11 reorganization. Given the circumstances, he believed that this was a “reasonable and worthy approach for the company *968management to take” and “that it was in the best interests of the boat customers for the boat shop to be reorganized and . . . getting the trade creditors more active in the bankruptcy would have—would help attain that objective.” Finally, Robbins appeared to be referring to the unedited letter, not to the mailed letter. He explained his participation as follows:

Seemed to me that the most reasonable option was to do what I had been retained to do as a bankruptcy lawyer, which is to clean the letter up from a bankruptcy perspective and also make it hopefully a little more effective in terms of its intended recipients by taking out some of the bad language.

When asked whether “the trade creditors and the hull owners [] had a common interest in the bankruptcy proceeding and the subjects that were touched on in that letter,” Robbins responded, “Absolutely.”

The dissent suggests that a publisher abuses the privilege merely by participating in disseminating information that he believed could have been worded more effectively. We disagree, reading Restatement § 605 as focusing on a publisher who intentionally includes irrelevant, defamatory matter in what might be otherwise a privileged communication. Here, if the letter had contained statements about Moe’s personal life or his involvement in matters unrelated to the subject business, it would be abusive. See Wildes, 465 N.W.2d at 840 (plaintiff who failed to show that statement describing her as a poor employee “was not related to the subject” under discussion did not meet her burden of establishing a prima facie case of abuse). But Robbins’s concerns about the efficacy of some of the letter’s specific language, viewed in context, does not show abuse. The evidence indicates that Robbins reasonably believed in the need for a discussion of the subjects touched upon in the letter. It also shows his belief that sending the letter was an appropriate way to facilitate debtor-creditor communication.

Because the letter contained no discussion of matters un*969related to the fiscal condition of the boat shop, Moe has failed to show abuse of the objective underlying the privilege. Wildes, 465 N.W.2d at 840.7

e. Publication of Unprivileged Material

Here, Moe needed to produce evidence that Robbins published unprivileged defamatory matter. Furgason, 785 P.2d at 254; Restatement, supra, § 605A. As stated above, nothing in the letter is unrelated to Hoquiam Boat’s financial situation. See Wildes, 465 N.W.2d at 840. Thus, we find no unprivileged defamatory matter.

The evidence here is inadequate for a reasonable trier of fact to find clear and convincing evidence of abuse. Cf. Bender, 99 Wn.2d at 602. Because Moe fails to establish a prima facie case of abuse, the trial court did not err in directing a verdict for Robbins. See Wildes, 465 N.W.2d at 840. Consequently, we need not discuss Robbins’s claim of absolute privilege or his challenge to the lost profits verdict.

II. Imposition of Terms

Robbins challenges the trial court’s imposition of the $5,000 terms as a condition of granting his motion for a continuance. He raised several issues and we granted discretionary review of the following two: (1) that the amount of the sanction was excessive and arbitrary and (2) that the trial court had no authority to direct payment of terms to the food bank.

We review the imposition of sanctions under the abuse of discretion standard. Washington State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 338, 858 P.2d 1054 (1993). The court abuses its discretion when it exercises it in a manifestly unreasonable way, on untenable grounds, or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

*970There should be a reasonable relationship between terms and the actual cost of a continuance or the dollar amounts in dispute. See, e.g., State v. Ralph Williams’ N.W. Chrysler Plymouth, Inc., 87 Wn.2d 298, 303, 553 P.2d 423 (1976). Such costs could include travel expenses of the opposing party, Casady v. Anderson, 90 Wash. 296, 297, 155 P. 1067 (1916); nonrecoverable costs and attorney fees of the opposing party, Sayler v. Elberfeld Mfg. Co., 30 Wn. App. 955, 965, 639 P.2d 785 (1982); payments and taxes due in a forfeiture action, Peterson v. David, 69 Wn.2d 566, 569, 419 P.2d 138 (1966); but not juror fees, Johnson v. Dahlquist, 124 Wash. 267, 272, 214 P. 157 (1923).

Because there is no indication that the trial court considered the actual cost of the continuance, it appears that the $5,000 figure was an arbitrary amount, unsupported by any legal authority. Consequently, we conclude that the trial court abused its discretion.

Nor is there authority to support the trial court’s oral comment requiring Moe to direct payment to a charitable organization. But because the court’s written order directed payment to the registry of the court, this issue is not before us.

Thus, we must remand for a recalculation of terms. In calculating terms, the trial court should first determine the total costs that Moe incurred as a result of the continuance. It should then determine and award to Moe the portion of that total that is reasonably related to Robbins’s conduct, as opposed to Wise’s.

III. Costs and Attorney Fees

Robbins argues that the trial court should have awarded him costs and statutory attorney fees as a prevailing party when it dismissed him from the suit. RCW 4.84.010; Platts v. Arney, 46 Wn.2d 122, 128, 278 P.2d 657 (1955). RCW 4.84.010 mandates an award of “certain sums by way of indemnity for the prevailing party’s expenses in the action” including statutory attorney fees. “The right to costs is not a matter of procedure but is a substantive *971right.” Platts, 46 Wn.2d at 128. But “[attorney fees may be recovered only when authorized by a private agreement of the parties, a statute, or a recognized ground of equity.” Pennsylvania Life Ins. Co. v. Employment Sec. Dep’t, 97 Wn.2d 412, 413, 645 P.2d 693 (1982).

Here, there was no agreement as to attorney fees, Robbins cites no statute specifically mandating an award of actual attorney fees in a private defamation suit, and we see no equitable principles calling for such an award. Consequently, the trial court correctly denied Robbins an award of actual attorney fees, but erred when it denied him statutory attorney fees and costs allowed under RCW 4.84.010.

Accordingly, we affirm the dismissal of Moe’s defamation action against Robbins and remand for a recalculation of terms and for an award of costs.

Hunt, J., concurs.

Armstrong, A.C.J.

(dissenting) — I respectfully dissent from the majority’s decision holding, as a matter of law, that the “common interest” qualified privilege protected Robbins’ defamatory communication and that Robbins did not abuse this qualified privilege.

A qualified privilege to make an otherwise defamatory statement arises when the statement is made to one with a common interest in a particular subject matter. Ward v. Painters’ Local Union No. 300, 41 Wn.2d 859, 865, 252 P.2d 253 (1953); Restatement (Second) of Torts, § 596. Under Washington law, however, “a common interest has been recognized only when the communication at issue is made to someone with whom the speaker is allied.” Demopolis v. Peoples Nat’l Bank, 59 Wn. App. 105, 115 n.10, 796 P.2d 426 (1990) (citing Ward, 41 Wn.2d at 865-66; Parry v. George H. Brown & Assocs. Inc., 46 Wn. App. 193, 197, 730 P.2d 95 (1986)) (emphasis added). The majority now extends this limited privilege and holds that a Chapter 11 bankruptcy debtor and its creditors share a common interest in *972the business’ future financial viability.8 But the majority position assumes that the debtor and creditors in a Chapter 11 bankruptcy proceeding share the same interests and goals. I believe this result is inconsistent with the bankruptcy code and that a jury must decide both whether the recipients of the letter shared a common interest and, if so, whether the privilege was abused.

Bankruptcy cases frequently involve parties who share common commercial interests, but whose interests in other respects may be very different. “This is especially true when the parties at issue are a debtor in possession under [Cjhapter 11 and a committee of creditors. The debtor in possession and the committee of creditors share a duty to maximize the debtor’s estate.” In re Mortgage & Realty Trust, 212 B.R. 649, 653 (Bankr. C.D. Cal. 1997) (citing In re Kaiser Steel Corp., 84 B.R. 202, 205 (Bankr. D. Colo. 1998)). But if creditors are dissatisfied, the committee may move to replace the debtor-in-possession with a Chapter 11 trustee, to convert the Chapter 11 case to one under Chapter 7, to dismiss the Chapter 11 case, or petition the court to compel the debtor-in-possession to act or to gain court permission to institute action itself. In re Curry & Sorensen, Inc., 57 B.R. 824, 828 (B.A.P. 9th Cir. 1986). Accordingly, the creditors’ committee is purposely intended to represent the necessarily different interests and concerns of the creditors it represents and must be a partisan— aiding, assisting and monitoring the debtor pursuant to its own self-interest. In re Daig Corp., 17 B.R. 41, 43 (Bankr. D. Minn. 1981).

The bankruptcy code, 11 U.S.C. § 1102, provides for the appointment of one or more committees of creditors to negotiate the formulation of the plan of reorganization. But because one class of creditors may not sufficiently represent the interests of another class of creditors, the bankruptcy code authorizes the court to appoint additional committees to ensure the adequate representation of all creditors. 11 U.S.C. § 1102(a)(2). The standard of “ade*973quate representation” for purposes of determining whether additional creditor’s committees should be appointed, lies not in the uniqueness of a single claim, but in the nature of the case and the composition of the committee. In re Drexel Burnham Lambert Group, Inc., 118 B.R. 209, 212 (Bankr. S.D.N.Y. 1990). “[T]he chief concern of adequacy of representation is whether it appears that different classes of debt and equity holders may be treated differently under a plan and need representation through appointment of additional committees.” Id. at 212.

In the case of In re Mansfield Ferrous Castings, Inc., 96 B.R. 779 (Bankr. N.D. Ohio 1988), the court considered a motion for the appointment of an additional creditor’s committee filed on behalf of debtor’s employees. In granting the employees’ motion, the court noted: “Additionally, the Committee has raised the issue of whether the Employees are in fact true equity security holders or even creditors of the debtor. This stance of the Committee hardly indicates that it is in a position adequately to represent the interests of the Employees.” Id. at 781. Thus, bankruptcy law recognizes that not all creditors have the same interest in a bankruptcy proceeding.

The record before us contains evidence that the trade creditors and hull owners did not have a common interest with regard to Hoquiam Boat’s bankruptcy action. At trial, Robbins testified that the hull owners opposed the Chapter 11 action. But Robbins also testified that he believed the hull owners and trade creditors had a common interest in the bankruptcy proceeding. The language of the letter to the trade creditors illustrates the respective positions of the parties:

At the present time, certain purchasers of boats have attempted to gain an advantage by making UCC-1 filings after Hoquiam became insolvent. We are taking steps to prevent this and I will keep you advised of the status. Our request to cancel certain of the boat contracts is being heard in Federal Court.... You may wish to be present or to have a representative present to urge the court to authorize cancellation of the contracts. . . .

*974The beneficiaries of Hoquiam Boat Shop’s activities over the past two years are Moe and those that have taken delivery of completed boats at below cost prices without the owner’s awareness, and those with boats in varying degrees of completion who would have us continue performing on sub-standard contracts. . . . Additionally, the trade creditors of Hoquiam Boat Shop have also sufferred [sic]. Their reward for being a loyal supplier of equipment and components, under unsecured conditions, has been late payments and broken promises.

Clearly, the letter blames the hull owners, in part, for the financial difficulties and accuses them of attempting to gain an advantage over the trade creditors in the bankruptcy action. The letter also urges the outside creditors to join the debtor in seeking to cancel the hull owners’ contracts. Thus, the language of the letter alone supports the inference that the trade creditors and hull owners did not have a “common interest” in the bankruptcy action. In fact, the letter suggests that as to at least one issue, the hull owners and the trade creditors were adversaries with antagonistic interests. While the outside creditors and the debtor may have shared a common interest in maximizing the boat Shop’s assets, the hull owners were interested in getting the boats they had contracted for. And the pursuit of this interest could well deplete the assets of Hoquiam Boat. The letter recognized this conflict and accordingly urged the outside creditors to support canceling the contracts.

In holding as a matter of law that the common interest privilege applies, the majority ignores this conflict in the evidence and our duty to construe the evidence in favor of Moe, the nonmoving party. See Bender v. City of Seattle, 99 Wn.2d 582, 587, 664 P.2d 492 (1983) (appellate court reviews ruling on directed verdict in the light most favorable to the nonmoving party). I would hold that the trial court erred in deciding, as a matter of law, that there was a common interest between the trade creditors and hull owners. Because of the conflicting evidence, the trial court should have submitted the issue to the jury. See Restate*975ment, supra, § 619(1) cmt. a (although the existence of a privilege is ordinarily a question for the court, if the facts are in dispute, the jury considers the evidence and passes upon the issues raised); Pate v. Tyee Motor Inn, Inc., 77 Wn.2d 819, 822-23, 467 P.2d 301 (1970) (Neill, J. concurring); Getchell v. Auto Bar Sys. Nw., Inc., 73 Wn.2d 831, 837, 440 P.2d 843 (1968).

I also disagree with the majority’s conclusion that, as a matter of law, Robbins did not abuse the common interest qualified privilege. The question of whether a speaker abused a privilege is for the jury to determine “unless the facts are such that only one conclusion can reasonably be drawn.” Restatement, supra, § 619(2) cmt. b.

Acting to Erotect Interest Underlying Frivilege

The majority concludes that there is no evidence Robbins abused the privilege by acting for an improper purpose. “The evidence indicates that Robbins believed the purpose of the letter was to enlist support for the reorganization plan and that he edited it in an attempt to make it more ‘palatable’ and, thus, more effective in protecting the pecuniary interests of Hoquiam Boat and its creditors.”9 But Robbins actually testified that the “underlying objective” of the letter was to enlist the trade creditors’ support for the reorganization plan. And when asked if there was an additional reason he advised against sending the letter, “other than [its] invective and incendiary nature,” Robbins testified that “I didn’t think that the sending of that kind of a letter was going to accomplish what the underlying objective was.”

“[F]ublication to improper persons may justify the conclusion, as a matter of fact, that the defendant has not acted for the purpose for which the privilege is given, but by reason of some other motive not within the privilege.” Restatement, supra, § 604 cmt. c. As Robbins testified that the purpose of the letter was to enlist trade creditors’ support, the publication of the letter to the hull owners clearly *976supports a finding that Robbins did not act for the purpose for which the privilege was given. Further, because the letter was sent to a newspaper reporter, a jury could reasonably infer an ulterior purpose.10

Excessive Publication

The majority summarily concludes that because the hull owners were “creditors” in the broad sense of the term, Robbins’ act of sending the letter to the hull owners did not constitute excessive publication. This reasoning cannot be reconciled with Robbins’ testimony that the purpose of the letter was to enlist trade creditors’ support for the reorganization plan. If this was in fact the purpose of the letter, the publication of the letter to the hull owners constitutes an abuse of the privilege. See Restatement, supra, § 604 cmt. c.

Further, the majority’s reasoning ignores the plain language of the letter. Although the letter blames the hull owners for the business’s financial difficulties and accuses them of attempting to gain an advantage over the trade creditors in the bankruptcy action, the majority concludes that the purpose of the letter was to enlist the support of all creditors. But the letter’s inflammatory accusations against the hull owners make it difficult to conclude that its purpose was to enlist their support. At least a jury could so conclude. Accordingly, I would hold that the issue of abuse by excessive publication should have been submitted to the jury.

In conclusion, I would remand for the submission of these issues to the jury. If the jury determines the hull owners and trade creditors shared a common interest, the qualified *977privilege would protect Robbins’ communication, assuming the jury also finds Robbins did not abuse this privilege.

Review denied at 140 Wn.2d 1025 (2000).

*256Mr. Justice Brennan

delivered the opinion of the Court.

We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.

Respondent L. B. Sullivan is one of the three elected Commissioners of the City of Montgomery, Alabama. He testified that he was “Commissioner of Public Affairs and the duties are supervision of the Police Department, Fire Department, Department of Cemetery and Department of Scales.” He brought this civil libel action against the four individual petitioners, who are Negroes and Alabama clergymen, and against petitioner the New York Times Company, a New York corporation which publishes the New York Times, a daily newspaper. A jury in the Circuit Court of Montgomery County awarded him damages of $500,000, the full amount claimed, against all the petitioners, and the Supreme Court of Alabama affirmed. 273 Ala. 656, 144 So. 2d 25.

Respondent’s complaint alleged that he had been libeled by statements in a full-page advertisement that was carried in the New York Times on March 29, I960.1 Entitled “Heed Their Rising Voices,” the advertisement began by stating that “As the whole world knows by now, thousands of Southern Negro students are engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U. S. Constitution and the Bill of Rights.” It went on to charge that “in 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. . . .” Succeeding *257paragraphs purported to illustrate the “wave of terror” by describing certain alleged events. The text concluded with an appeal for funds for three purposes: support of the student movement, “the struggle for the right-to-vote,” and the legal defense of Dr. Martin Luther King, Jr., leader of the movement, against a perjury indictment then pending in Montgomery.

The text appeared over the names of 64 persons, many widely known for their activities in public affairs, religion, trade unions, and the performing arts. Below these names, and under a line reading “We in the south who are struggling daily for dignity and freedom warmly endorse this appeal,” appeared the names of the four individual petitioners and of 16 other persons, all but two of whom were identified as clergymen in various Southern cities. The advertisement was signed at the bottom of the page by the “Committee to Defend Martin Luther King and the Struggle for Freedom in the South,” and the officers of the Committee were listed.

Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of respondent’s claim of libel. They read as follows:

Third paragraph:

“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.”

Sixth paragraph:

“Again and again the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have *258assaulted his person. They have arrested him seven times — for ‘speeding,’ ‘loitering’ and similar ‘offenses.’ And now they have charged him with ‘perjury’ — a felony under which they could imprison him for ten years. . . .”

Although neither of these statements mentions respondent by name, he contended that the word “police” in the third paragraph referred to him as the Montgomery Commissioner who supervised the Police Department, so that he was being accused of “ringing” the campus with police. He further claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking of the dining hall in order to starve the students into submission.2 As to the sixth paragraph, he contended that since arrests are ordinarily made by the police, the statement “They have arrested [Dr. King] seven times” would be read as referring to him; he further contended that the “They” who did the arresting would be equated with the “They” who committed the other described acts and with the “Southern violators.” Thus, he argued, the paragraph would be read as accusing the Montgomery police, and hence him, of answering Dr. King’s protests with “intimidation and violence,” bombing his home, assaulting his person, and charging him with perjury. Respondent and six other Montgomery residents testified that they read some or all of the statements as referring to him in his capacity as Commissioner.

It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in Montgomery. Although Negro students staged a demonstration on the State Capitol steps, they sang the National Anthem and not “My *259Country, ’Tis of Thee.” Although nine students were expelled by the State Board of Education, this was not for leading the demonstration at the Capitol, but for demanding service at a lunch counter in the Montgomery County Courthouse on another day. Not the entire student body, but most of it, had protested the expulsion, not by refusing to register, but by boycotting classes on a single day; virtually all the students did register for the ensuing semester. The campus dining hall was not padlocked on any occasion, and the only students who may have been barred from eating there were the few who had neither signed a preregistration application nor requested temporary meal tickets. Although the police were deployed near the campus in large numbers on three occasions, they did not at any time “ring” the campus, and they were not called to the campus in connection with the demonstration on the State Capitol steps, as the third paragraph implied. Dr. King had not been arrested seven times, but only four; and although he claimed to have been assaulted some years earlier in connection with his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there was such an assault.

On the premise that the charges in the sixth paragraph could be read as referring to him, respondent was allowed to prove that he had not participated in the events described. Although Dr. King’s home had in fact been bombed twice when his wife and child were there, both of these occasions antedated respondent’s tenure as Commissioner, and the police were not only not implicated in the bombings, but had made every effort to apprehend those who were. Three of Dr. King’s four arrests took place before respondent became Commissioner. Although Dr. King had in fact been indicted (he was subsequently acquitted) on two counts of perjury, each of which carried a possible five-year sentence, respondent had nothing to do with procuring the indictment.

*260Respondent made no effort to prove that he suffered actual pecuniary loss as a result of the alleged libel.3 One of his witnesses, a former employer, testified that if he had believed the statements, he doubted whether he “would want to be associated with anybody who would be a party to such things that are stated in that ad,” and that he would not re-employ respondent if he believed “that he allowed the Police Department to do the things that the paper say he did.” But neither this witness nor any of the others testified that he had actually believed the statements in their supposed reference to respondent.

The cost of the advertisement was approximately $4800, and it was published by the Times upon an order from a New York advertising agency acting for the signatory Committee. The agency submitted the advertisement with a letter from A. Philip Randolph, Chairman of the Committee, certifying that the persons whose names appeared on the advertisement had given their permission. Mr. Randolph was known to the Times’ Advertising Acceptability Department as a responsible person, and in accepting the letter as sufficient proof of authorization it followed its established practice. There was testimony that the copy of the advertisement which accompanied the letter listed only the 64 names appearing under the text, and that the statement, “We in the south . . . warmly endorse this appeal,” and the list of names thereunder, which included those of the individual petitioners, were subsequently added when the first proof of the advertisement was received. Each of the individual petitioners testified that he had not authorized the use of his name, and that he had been unaware of its use until receipt of respondent’s demand for a retraction. The manager of the Advertising Ac*261ceptability Department testified that he had approved the advertisement for publication because he knew nothing to cause him to believe that anything in it was false, and because it bore the endorsement of “a number of people who are well known and whose reputation” he “had no reason to question.” Neither he nor anyone else at the Times made an effort to confirm the accuracy of the advertisement, either by checking it against recent Times news stories relating to some of the described events or by any other means.

Alabama law denies a public officer recovery of punitive damages in a libel action brought on account of a publication concerning his official conduct unless he first makes a written demand for a public retraction and the defendant fails or refuses to comply. Alabama Code, Tit. 7, § 914. Respondent served such a demand upon each of the petitioners. None of the individual petitioners responded to the demand, primarily because each took the position that he had not authorized the use of his name on the advertisement and therefore had not published the statements that respondent alleged had libeled him. The Times did not publish a retraction in response to the demand, but wrote respondent a letter stating, among other things, that “we . . . are somewhat puzzled as to how you think the statements in any way reflect on you,” and “you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you.” Respondent filed this suit a few days later without answering the letter. The Times did, however, subsequently publish a retraction of the advertisement upon the demand of Governor John Patterson of Alabama, who asserted that the publication charged him with “grave misconduct and . . . improper actions and omissions as Governor of Alabama and Ex-Officio Chairman of the State Board of Education of Alabama.” When asked to explain why there had been a retraction for the Governor but not for respondent, the *262Secretary of the Times testified: “We did that because we didn’t want anything that was published by The Times to be a reflection on the State of Alabama and the Governor was, as far as we could see, the embodiment of the State of Alabama and the proper representative of the State and, furthermore, we had by that time learned more of the actual facts which the ad purported to recite and, finally, the ad did refer to the action of the State authorities and the Board of Education presumably of which the Governor is the ex-officio chairman . . . .” On the other hand, he testified that he did not think that “any of the language in there referred to Mr. Sullivan.”

The trial judge submitted the case to the jury under instructions that the statements in the advertisement were “libelous per se” and were not privileged, so that petitioners might be held liable if the jury found that they had published the advertisement and that the statements were made “of and concerning” respondent. The jury was instructed that, because the statements were libelous per se, “the law . . . implies legal injury from the bare fact of publication itself,” “falsity and malice are presumed,” “general damages need not be alleged or proved but are presumed,” and “punitive damages may be awarded by the jury even though the amount of actual damages is neither found nor shown.” An award of punitive damages — as distinguished from “general” damages, which are compensatory in nature — -apparently requires proof of actual malice under Alabama law, and the judge charged that “mere negligence or carelessness is not evidence of actual malice or malice in fact, and does not justify an award of exemplary or punitive damages.” He refused to charge, however, that the jury must be “convinced” of malice, in the sense of “actual intent” to harm or “gross negligence and recklessness,” to make such an award, and he also refused to require that a verdict for respondent differentiate between compensatory and punitive damages. The judge rejected petitioners’ con*263tention that his rulings abridged the freedoms of speech and of the press that are guaranteed by the First and Fourteenth Amendments.

In affirming the judgment, the Supreme Court of Alabama sustained the trial judge’s rulings and instructions in all respects. 273 Ala. 656, 144 So. 2d 25. It held that “where the words published tend to injure a person libeled by them in his reputation, profession, trade or business, or charge him with an indictable offense, or tend to bring the individual into public contempt,” they are “libelous per se”; that “the matter complained of is, under the above doctrine, libelous per se, if it was published of and concerning the plaintiff”; and that it was actionable without “proof of pecuniary injury . . . , such injury being implied.” Id., at 673, 676, 144 So. 2d, at 37, 41. It approved the trial court’s ruling that the jury could find the statements to have been made “of and concerning” respondent, stating: “We think it common knowledge that the average person knows that municipal agents, such as police and firemen, and others, are under the control and direction of the city governing body, and more particularly under the direction and control of a single commissioner. In measuring the performance or deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body.” Id., at 674-675, 144 So. 2d, at 39. In sustaining the trial court’s determination that the verdict was not excessive, the court said that malice could be inferred from the Times’ “irresponsibility” in printing the advertisement while “the Times in its own files had articles already published which would have demonstrated the falsity of the allegations in the advertisement”; from the Times’ failure to retract for respondent while retracting for the Governor, whereas the falsity of some of the allegations was then known to the Times and “the matter contained in the advertisement was equally false as to both parties” ; and from the testimony of the Times’ Secretary that, *264apart from the statement that the dining hall was padlocked, he thought the two paragraphs were “substantially correct.” Id., at 686-687, 144 So. 2d, at 50-51. The court reaffirmed a statement in an earlier opinion that “There is no legal measure of damages in cases of this character.” Id., at 686, 144 So. 2d, at 50. It rejected petitioners’ constitutional contentions with the brief statements that “The First Amendment of the U. S. Constitution does not protect libelous publications” and “The Fourteenth Amendment is directed against State action and not private action.” Id., at 676, 144 So. 2d, at 40.

Because of the importance of the constitutional issues involved, we granted the separate petitions for certiorari of the individual petitioners and of the Times. 371 U. S. 946. We reverse the judgment. 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.4 We *265further hold that under the proper safeguards the evidence presented in this case is constitutionally insufficient to support the judgment for respondent.

I.

We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama courts from constitutional scrutiny. The first is the proposition relied on by the State Supreme Court — that “The Fourteenth Amendment is directed against State action and not private action.” That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute. See, e. g., Alabama Code, Tit. 7, §§ 908-917. The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised. See Ex parte Virginia, 100 U. S. 339, 346-347; American Federation of Labor v. Swing, 312 U. S. 321.

The second contention is that the constitutional guarantees of freedom of speech and of the press are inapplicable here, at least so far as the Times is concerned, because the allegedly libelous statements were published as part of a paid, “commercial” advertisement. The argument relies on Valentine v. Chrestensen, 316 U. S. 52, where the Court held that a city ordinance forbidding street distribution of commercial and business advertising matter did not abridge the First Amendment freedoms, even as applied to a handbill having a commercial message on one side but a protest against certain official action on the other. The reliance is wholly misplaced. The Court in Chrestensen reaffirmed the constitutional protection for “the freedom of communicating *266information and disseminating opinion”; its holding was based upon the factual conclusions that the handbill was “purely commercial advertising” and that the protest against official action had been added only to evade the ordinance.

The publication here was not a “commercial” advertisement in the sense in which the word was used in Chrestensen. It communicated information, expressed opinion, recited grievances, 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. See N. A. A. C. P. v. Button, 371 U. S. 416, 435. 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. Smith v. California, 361 U. S. 147, 150; cf. Bantam Books, Inc., v. Sullivan, 372 U. S. 58, 64, n. 6. 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. Cf. Lovell v. Griffin, 303 U. S. 444, 452; Schneider v. State, 308 U. S. 147, 164. The effect would be to shackle the First Amendment in its attempt to secure “the widest possible dissemination of information from diverse and antagonistic sources.” Associated Press v. United States, 326 U. S. 1, 20. To avoid placing such a handicap upon the freedoms of expression, we hold that if the allegedly libelous statements would otherwise be constitutionally protected from the present judgment, they do not forfeit that protection because they were published in the form of a paid advertisement.5

*267II.

Under Alabama law as applied in this case, a publication is “libelous per se” if the words “tend to injure a person ... in his reputation” or to “bring [him] into public contempt”; the trial court stated that the standard was met if the words are such as to “injure him in his public office, or impute misconduct to him in his office, or want of official integrity, or want of fidelity to a public trust . . . .” The jury must find that the words were published “of and concerning” the plaintiff, but where the plaintiff is a public official his place in the governmental hierarchy is sufficient evidence to support a finding that his reputation has been affected by statements that reflect upon the agency of which he is in charge. Once “libel per se” has been established, the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars. Alabama Ride Co. v. Vance, 235 Ala. 263, 178 So. 438 (1938); Johnson Publishing Co. v. Davis, 271 Ala. 474, 494-495, 124 So. 2d 441, 457-458 (1960). His privilege of “fair comment” for expressions of opinion depends on the truth of the facts upon which the comment is based. Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 450, 61 So. 345, 350 (1913). Unless he can discharge the burden of proving truth, general damages are presumed, and may be awarded without proof of pecuniary injury. A showing of actual malice is apparently a prerequisite to recovery of punitive damages, and the defendant may in any event forestall a punitive award by a retraction meeting the statutory requirements. Good motives and belief in truth do not negate an inference of malice, but are relevant only in mitigation of punitive damages if the jury chooses to accord them weight. Johnson Publishing Co. v. Davis, supra, 271 Ala., at 495, 124 So. 2d, at 458.

*268The question before us is whether this rule of liability, as applied to an action brought by a public official against critics of his official conduct, abridges the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments.

Respondent relies heavily, as did the Alabama courts, on statements of this Court to the effect that the Constitution does not protect libelous publications.6 Those statements do not foreclose our inquiry here. None of the cases sustained the use of libel laws to impose sanctions upon expression critical of the official conduct of public officials. The dictum in Pennekamp v. Florida, 328 U. S. 331, 348-349, that “when the statements amount to defamation,-a judge has such remedy in damages for libel as do other public servants,” implied no view as to what remedy might constitutionally be afforded to public officials. In Beauharnais v. Illinois, 343 U. S. 250, the Court sustained an Illinois criminal libel statute as applied to a publication held to be both defamatory of a racial group and “liable to cause violence and disorder.” But the Court was careful to note that it “retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel” ; for “public men, are, as it were, public property,” and “discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled.” Id., at 263-264, and n. 18. In the only previous case that did present the question of constitutional limitations upon the power to award damages for libel of a public official, the Court was equally divided and the question was not decided. Schenectady Union Pub. Co. v. Sweeney, 316 U. S. 642. *269In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet “libel” than we have to other “mere labels” of state law. N. A. A. C. P. v. Button, 371 U. S. 415, 429. Like insurrection,7 contempt,8 advocacy of unlawful acts,9 breach of the peace,10 obscenity,11 solicitation of legal business,12 and the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.

The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Both v. United States, 354 U. S. 476, 484. “The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.” Stromberg v. California, 283 U. S. 359, 369. “[I]t is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions,” Bridges v. California, 314 U. S. 252, 270, and this opportunity is to be afforded for “vigorous advocacy” no less than “abstract discussion.” N. A. A. C. P. v. Button, 371 U. S. 415, 429. *270The First Amendment, said Judge Learned Hand, “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.” United States v. Associated Press, 52 F. Supp. 362, 372 (D. C. S. D. N. Y. 1943). Mr. Justice Brandéis, in his concurring opinion in Whitney v. California, 274 U. S. 357, 375-376, gave the principle its classic formulation:

“Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.”

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. See Terminiello v. Chicago, 337 U. S. 1, 4; De Jonge v. Oregon, 299 U. S. 353, *271365. The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.

Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth — whether administered by judges, juries, or administrative officials — and especially one that puts the burden of proving truth on the speaker. Cf. Speiser v. Randall, 357 U. S. 513, 525-526. The constitutional protection does not turn upon “the truth, popularity, or social utility of the ideas and beliefs which are offered.” N. A. A. C. P. v. Button, 371 U. S. 415, 445. As Madison said, “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.” 4 Elliot’s Debates on the Federal Constitution (1876), p. 571. In Cantwell v. Connecticut, 310 U. S. 296, 310, the Court declared:

“In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.”

That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of ex*272pression are to have the “breathing space” that they “need ... to survive,” N. A. A. C. P. v. Button, 371 U. S. 415, 433, was also recognized by the Court of Appeals for the District of Columbia Circuit in Sweeney v. Patterson, 76 U. S. App. D. C. 23, 24, 128 F. 2d 457, 458 (1942), cert. denied, 317 U. S. 678. Judge Edgerton spoke for a unanimous court which affirmed the dismissal of a Congressman’s libel suit based upon a newspaper article charging him with anti-Semitism in opposing a judicial appointment. He said:

“Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors. . . . The interest of the public here outweighs the interest of appellant or any other individual. The protection of the public requires not merely discussion, but information. Political conduct and views which some respectable people approve, and others condemn, are constantly imputed to Congressmen. Errors of fact, particularly in regard to a man’s mental states and processes, are inevitable. . . . Whatever is added to the field of libel is taken from the field of free debate.” 13

Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error-. Where judicial officers are involved, this Court has held that concern for the dignity and *273reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. Bridges v. California, 314 U. S. 252. This is true even though the utterance contains “half-truths” and “misinformation.” Pennekamp v. Florida, 328 U. S. 331, 342, 343, n. 5, 345. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. See also Craig v. Harney, 331 U. S. 367; Wood v. Georgia, 370 U. S. 375. If judges are to be treated as “men of fortitude, able to thrive in a hardy climate,” Craig v. Harney, supra, 331 U. S., at 376, surely the same must be true of other government officials, such as elected city commissioners.14 Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.

If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first crystallized a national awareness of the central meaning of the First Amendment. See Levy, Legacy of Suppression (1960), at 258 et seq.; Smith, Freedom’s Fetters (1956), at 426, 431, and passim. That statute made it a crime, punishable by a $5,000 fine and five years in prison, “if any person shall write, print, utter or publish . . . any false, scandalous and malicious *274writing or writings against the government of the United States, or either house of the Congress ... , or the President . . . , with intent to defame ... or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States.” The Act allowed the defendant the defense of truth, and provided that the jury were to be judges both of the law and the facts. Despite these qualifications, the Act was vigorously condemned as unconstitutional in an attack joined in by Jefferson and Madison. In the famous Virginia Resolutions of 1798, the General Assembly of Virginia resolved that it

“doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the 'Alien and Sedition Acts/ passed at the last session of Congress .... [The Sedition Act] exercises ... a power not delegated by the Constitution, but, on the contrary, expressly and positively forbidden by one of the amendments thereto — a power which, more than any other, ought to produce universal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.” 4 Elliot’s Debates, supra, pp. 553-554.

Madison prepared the Report in support of the protest. His premise was that the Constitution created a form of government under which “The people, not the government, possess the absolute sovereignty.” The structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels. This form of government was “altogether different” from the British form, under which the Crown was sovereign and the people were subjects. “Is *275it not natural and necessary, under such different circumstances,” he asked, “that a different degree of freedom in the use of the press should be contemplated?” Id., pp. 569-570. Earlier, in a debate in the House of Representatives, Madison had said: “If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people.” 4 Annals of Congress, p. 934 (1794). Of the exercise of that power by the press, his Report said: “In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this foundation it yet stands . . . .” 4 Elliot’s Debates, supra, p. 570. The right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government.15

*276Although the Sedition Act was never tested in this Court,16 the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional. See, e. g., Act of July 4, 1840, e. 45, 6 Stat. 802, accompanied by H. R. Rep. No. 86, 26th Cong., 1st Sess. (1840). Calhoun, reporting to the Senate on February 4, 1836, assumed that its invalidity was a matter “which no one now doubts.” Report with Senate bill No. 122, 24th Cong., 1st Sess., p. 3. Jefferson, as President, pardoned those who had been convicted and sentenced under the Act and remitted their fines, stating: “I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.” Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's Works (Washington ed.), pp. 555, 556. The invalidity of the Act has also been assumed by Justices of this Court. See Holmes, J., dissenting and joined by Brandéis, J., in Abrams v. United States, 250 U. S. 616, 630; Jackson, J., dissenting in Beauharnais v. Illinois, 343 U. S. 250, 288-289; Douglas, The Right of the People (1958), p. 47. See also Cooley, Constitutional Limitations(8th ed., Carrington, 1927), pp. 899-900; Chafee, Free Speech in the United States (1942), pp. 27-28. These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.

There is no force in respondent's argument that the constitutional limitations implicit in the history of the Sedition Act apply only to Congress and not to the States. It is true that the First Amendment was originally addressed only to action by the Federal Government, and *277that Jefferson, for one, while denying the power of Congress “to controul the freedom of the press,” recognized such a power in the States. See the 1804 Letter to Abigail Adams quoted in Dennis v. United States, 341 U. S. 494, 522, n. 4 (concurring opinion). But this distinction was eliminated with the adoption of the Fourteenth Amendment and the application to the States of the First Amendment’s restrictions. See, e. g., Gitlow v. New York, 268 U. S. 652, 666; Schneider v. State, 308 U. S. 147, 160; Bridges v. California, 314 U. S. 252, 268; Edwards v. South Carolina, 372 U. S. 229, 235.

What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel.17 The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute. See City of Chicago v. Tribune Co., 307 Ill. 595, 607, 139 N. E. 86, 90 (1923). Alabama, for example, has a criminal libel law which subjects to prosecution “any person who speaks, writes, or prints of and concerning another any accusation falsely and maliciously importing the commission by such person of a felony, or any other indictable offense involving moral turpitude,” and which allows as punishment upon conviction a fine not exceeding $500 and a prison sentence of six months. Alabama Code, Tit. 14, § 350. Presumably a person charged with violation of this statute enjoys ordinary criminal-law safeguards such as the requirements of an indictment and of proof beyond a reasonable doubt. These safeguards are not available to the defendant in a civil action. The judgment awarded in this case — without the need for any proof of actual pecuniary loss — was one thousand times greater than the maximum fine provided by the Alabama criminal statute, and one hundred times greater than that provided by the Sedition Act. *278And since there is no double-jeopardy limitation applicable to civil lawsuits, this is not the only judgment that may be awarded against petitioners for the same publication.18 Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive. Plainly the Alabama law of civil libel is “a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law.” Bantam Books, Inc., v. Sullivan, 372 U. S. 58, 70.

The state rule of law is not saved by its allowance of the defense of truth. A defense for erroneous statements honestly made is no less essential here than was the requirement of proof of guilty knowledge which, in Smith v. California, 361 U. S. 147, we held indispensable to a valid conviction of a bookseller for possessing obscene writings for sale. We said:

“For if the bookseller is criminally liable without knowledge of the contents, ... he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. . . . And the bookseller’s burden would become the public’s burden, for by restricting him the public’s access to reading matter would be restricted. . . . [¶] is timidity in the face of his absolute criminal liability, thus would tend to restrict the public’s access to forms of the printed word which the State could not constitu*279tionally suppress directly. The bookseller’s self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded.” (361 U. S. 147, 153-154.)

A rule compelling the critic of official conduct to guaran-teé the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount— leads to a comparable “self-censorship.” Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.19 Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. See, e. g., Post Publishing Co. v. Hallam, 59 F. 530, 540 (C. A. 6th Cir. 1893); see also Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875, 892 (1949). Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense oí having to do so. They tend to make only statements which “steer far wider of the unlawful zone.” Speiser v. Randall, supra, 357 U. S., at 526. The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made *280with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. An oft-cited statement of a like rule, which has been adopted by a number of state courts,20 is found in the Kansas case of Coleman v. MacLennan, 78 Kan. 711, 98 P. 281 (1908). The State Attorney General, a candidate for re-election and a member of the commission charged with the management and control of the state school fund, sued a newspaper publisher for alleged libel in an article purporting to state facts relating to his official conduct in connection with a school-fund transaction. The defendant pleaded privilege and the trial judge, over the plaintiff’s objection, instructed the jury that

“where an article is published and circulated among voters for the sole purpose of giving what the de*281fendant believes to be truthful information concerning a candidate for public office and for the purpose of enabling such voters to cast their ballot more intelligently, and the whole thing is done in good faith and without malice, the article is privileged, although the principal matters contained in the article may be untrue in fact and derogatory to the character of the plaintiff; and in such a case the burden is on the plaintiff to show actual malice in the publication of the article.”

In answer to a special question, the jury found that the plaintiff had not proved actual malice, and a general verdict was returned for the defendant. On appeal the Supreme Court of Kansas, in an opinion by Justice Burch, reasoned as follows (78 Kan., at 724, 98 P., at 286):

“It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged.”

The court thus sustained the trial court’s instruction as a correct statement of the law, saying:

“In such a case the occasion gives rise to a privilege, qualified to this extent: any one claiming to be defamed by the communication must show actual malice or go remediless. This privilege extends to a great variety of subjects, and includes matters of *282public concern, public men, and candidates for office.” 78 Kan., at 723, 98 P., at 285.

Such a privilege for criticism of official conduct21 is appropriately analogous to the protection accorded a public official when he is sued for libel by a private citizen. In Barr v. Matteo, 360 U. S. 564, 575, this Court held the utterance of a federal official to be absolutely privileged if made “within the outer perimeter” of his duties. The States accord the same immunity to statements of their highest officers, although some differentiate their lesser officials and qualify the privilege they enjoy.22 But all hold that all officials are protected unless actual malice can be proved. The reason for the official privilege is said to be that the threat of damage suits would otherwise “inhibit the fearless, vigorous, and effective administration of policies of government” and “dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.” Barr v. Matteo, supra, 360 U. S., at 571. Analogous considerations support the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official’s duty to administer. See Whitney v. California, 274 U. S. 357, 375 (concurring opinion of Mr. Justice Brandéis), quoted supra, p. 270. As Madison said, see supra, p. 275, “the censorial power is in the people over the Government, and not in the Government over the people.” It would give public servants an unjustified preference over the public they serve, if critics of official conduct *283did not have a fair equivalent of the immunity granted to the officials themselves.

We conclude that such a privilege is required by the First and Fourteenth Amendments.

III.

We hold today that the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct. Since this is such an action,23 the rule requiring proof of actual malice is applicable. While Alabama law apparently requires proof of actual malice for an award of punitive damages,24 where general damages are concerned malice is “presumed.” Such a presumption is inconsistent *284with the federal rule. “The power to create presumptions is not a means of escape from constitutional restrictions,” Bailey v. Alabama, 219 U. S. 219, 239; “the showing of malice required for the forfeiture of the privilege is not presumed but is a matter for proof by the plaintiff . . . .” Lawrence v. Fox, 357 Mich. 134, 146, 97 N. W. 2d 719, 725 (1959).25 Since the trial judge did not instruct the jury to differentiate between general and punitive damages, it may be that the verdict was wholly an award of one or the other. But it is impossible to know, in view of the general verdict returned. Because of this uncertainty, the judgment must be reversed and the case remanded. Stromberg v. California, 283 U. S. 359, 367-368; Williams v. North Carolina, 317 U. S. 287, 291-292; see Yates v. United States, 354 U. S. 298, 311-312; Cramer v. United States, 325 U. S. 1, 36, n. 45.

Since respondent may seek a new trial, we deem that considerations of effective judicial administration require us to review the evidence in the present record to deter*285mine whether it could constitutionally support a judgment for respondent. This Court’s duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across “the line between speech unconditionally guaranteed and speech which may legitimately be regulated.” Speiser v. Randall, 357 U. S. 513, 525. In cases where that line must be drawn, the rule is that we “examine for ourselves the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.” Penne-kamp v. Florida, 328 U. S. 331, 335; see also One, Inc., v. Olesen, 355 U. S. 371; Sunshine Book Co. v. Summerfield, 355 U. S. 372. We must “make an independent examination of the whole record,” Edwards v. South Carolina, 372 U. S. 229, 235, so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.26

Applying these standards, we consider that the proof presented to show actual malice lacks the convincing *286clarity which the constitutional standard demands, and hence that it would not constitutionally sustain the judgment for respondent under the proper rule of law. The case of the individual petitioners requires little discussion. Even assuming that they could constitutionally be found to have authorized the use of their names on the advertisement, there was no evidence whatever that they were aware of any erroneous statements or were in any way reckless in that regard. The judgment against them is thus without constitutional support.

As to the Times, we similarly conclude that the facts do not support a finding of actual malice. The statement by the Times’ Secretary that, apart from the padlocking allegation, he thought the advertisement was “substantially correct,” affords no constitutional warrant for the Alabama Supreme Court’s conclusion that it 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 therefrom.” The statement does not indicate malice at the time of the publication; even if the advertisement was not “substantially correct” — although respondent’s own proofs tend to show that it was — that opinion was at least a reasonable one, and there was no evidence to impeach the witness’ good faith in holding it. The 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 *287necessary 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. But in any event that did not happen here, since the explanation given by the Times’ Secretary for the distinction drawn between respondent and the Governor was a reasonable one, the good faith of which was not impeached.

Finally, there is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times’ own files. The mere presence of the stories in the files does not, of course, establish that the Times “knew” the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times’ organization having responsibility for the publication of the advertisement. With respect to the failure of those persons to make the check, the record shows that they relied upon their knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement, and upon the letter from A. Philip Randolph, known to them as a responsible individual, certifying that the use of the names was authorized. There was testimony that the persons handling the advertisement saw nothing in it that would render it unacceptable under the Times’ policy of rejecting advertisements containing “attacks of a personal character”;27 their failure to reject it on this ground was not unreasonable. We think *288the evidence against the Times 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. Cf. Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 618, 116 A. 2d 440, 446 (1955); Phoenix Newspapers, Inc., v. Choisser, 82 Ariz. 271, 277-278, 312 P. 2d 150, 154-155 (1957).

We also think the evidence was constitutionally defective in another respect: it was incapable of supporting the jury’s finding that the allegedly libelous statements were made “of and concerning” respondent. Respondent relies on the words of the advertisement and the testimony of six witnesses to establish a connection between it and himself. Thus, in his brief to this Court, he states:

“The reference to respondent as police commissioner is clear from the ad. In addition, the jury heard the testimony of a newspaper editor ... ; a real estate and insurance man . . . ; the sales manager of a men’s clothing store . . . ; a food equipment man ... ; a service station operator . . . ; and the operator of a truck line for whom respondent had formerly worked .... Each of these witnesses stated that he associated the statements with respondent . . . .” (Citations to record omitted.)

There was no reference to respondent in the advertisement, either by name or official position. A number of the allegedly libelous statements — the charges that the dining hall was padlocked and that Dr. King’s home was bombed, his person assaulted, and a perjury prosecution instituted against him — did not even concern the police; despite the ingenuity of the arguments which would attach this significance to the word “They,” it is plain that these statements could not reasonably be read as accusing respondent of personal involvement in the acts *289in question. The statements upon which respondent principally relies as referring to him are the two allegations that did concern the police or police functions: that “truckloads of police . . . ringed the Alabama State College Campus” after the demonstration on the State Capitol steps, and that Dr. King had been “arrested . . . seven times.” These statements were false only in that the police had been “deployed near” the campus but had not actually “ringed” it and had not gone there in connection with the State Capitol demonstration, and in that Dr. King had been arrested only four times. The ruling that these discrepancies between what was true and what was asserted were sufficient to injure respondent’s reputation may itself raise constitutional problems, but we need not consider them here. Although the statements may be taken as referring to the police, they did not on their face make even an oblique reference to respondent as an individual. Support for the asserted reference must, therefore, be sought in the testimony of respondent’s witnesses. But none of them suggested any basis for the belief that respondent himself was attacked in the advertisement beyond the bare fact that he was in overall charge of the Police Department and thus bore official responsibility for police conduct; to the extent that some of the witnesses thought respondent to have been charged with ordering or approving the conduct or otherwise being personally involved in it, they based this notion not on any statements in the advertisement, and not on any evidence that he had in fact been so involved, but solely on the unsupported assumption that, because of his official position, he must have been.28 This reliance on the-bare *290fact of respondent’s official position29 was made explicit by the Supreme Court of Alabama. That court, in holding that the trial court “did not err in overruling the demurrer [of the Times] in the aspect that the libelous *291matter was not of and concerning the [plaintiff,]” based its ruling on the proposition that:

“We think it common knowledge that the average person knows that municipal agents, such as police and firemen, and others, are under the control and direction of the city governing body, and more particularly under the direction and control of a single commissioner. In measuring the performance or deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body.” 273 Ala., at 674-675, 144 So. 2d, at 39.

This proposition has disquieting implications for criticism of governmental conduct. For good reason, “no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.” City of Chicago v. Tribune Co., 307 Ill. 595, 601,139 N. E. *29286, 88 (1923). The present proposition would sidestep this obstacle by transmuting criticism of government, however impersonal it may seem on its face, into personal criticism, and hence potential libel, of the officials of whom the government is composed. There is no legal alchemy by which a State may thus create the cause of action that would otherwise be denied for a publication which, as respondent himself said of the advertisement, “reflects not .only on me but on the other Commissioners and the community.” Raising as it does the possibility that a good-faith critic of government will be penalized for his criticism, the proposition relied on by the Alabama courts strikes at the very center of the constitutionally protected area of free expression.30 We hold that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations. Since it was relied on exclusively here, and there was no other evidence to connect the statements with respondent, the evidence was constitutionally insufficient to support a finding that the statements referred to respondent.

The judgment of the Supreme Court of Alabama is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.

Reversed and remanded,.

*0THE NEW YORK TIMES, TUESDAY, MARCH 29, 1960. L 25 [APPENDIX.] ^The growing movement of peaceful mass demonstrations by Negroes is something new in the South, something understandable.... Let Congress heed their rising voices, for they will be heard.^ —New York Times editorial Saturday, March 19, 1960 /AS the whole world knows by now, thousands of JL X Southern Negro students are engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U. S. Constitution and the Bill of Rights. In 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 modem freedom.... In Orangeburg, South Carolina, when 400 students peacefully sought to buy doughnuts and coffee at lunch counters in the business district, they were forcibly ejected, tear-gassed, soaked to the skin in freezing weather with fire hoses, arrested en masse and herded into an open barbed-wire stockade to stand for hours in the bitter cold. 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. In Tallahassee, Atlanta, Nashville, Savannah, Greensboro, Memphis, Richmond, Charlotte, and a host of other cities in the South, young American teenagers, in face of the entire weight of official state apparatus and police power, have boldly stepped forth as protagonists of democracy. Their courage and amazing restraint have inspired millions and given a new dignity to the cause of freedom. Small wonder that the Southern violators of the Constitution fear this new, non-violent brand of freedom fighter .. . even as they fear the upswelling right-to-vote movement. Small wonder that they are determined to destroy the one man who, more than any other, symbolizes the new spirit now sweeping the South — the Rev. Dr. Martin Luther King, Jr., world-famous leader of the Montgomery Bus Protest. For it is his doctrine of non-violence which has inspired and guided the students in their widening wave of sit-ins; and it this same Dr. King who founded and is president of the Southern Christian Leadership Conference — the organization which is spearheading the surging right-to-vote movement. Under Dr. King’s direction the Leadership Conference conducts Student Workshops and Seminars in the philosophy and technique of non-violent resistance. Again and again the Southern violators have answered Dr. 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.” “loitering” and similar “offenses.” And now they have charged him with “perjury” — a felony under which they could imprison him for ten years. Obviously, their real purpose is to remove him physically as the leader to whom the students and millions of others — look for guidance and support, and thereby to intimidate all leaders who may rise in the South. Their strategy is to behead this affirmative movement, and thus to demoralize Negro Americans and weaken their will to struggle. The defense of Martin Luther King, spiritual leader of the student sit-in movement, clearly, therefore, is an integral part of the total struggle for freedom in the South. Decent-minded Americans cannot help but applaud the creative daring of the students and the quiet heroism of Dr. King. But this is one of those moments in the stormy history of Freedom when men and women of good will must do more than applaud the rising-to-glory of others. The America whose good name hangs in the balance before a watchful world, the America whose heritage of Liberty these Southern Upholders of the Constitution are defending, is our America as well as theirs ... We must heed their rising voices — yes—but we must add our own. We must extend ourselves above and beyond moral support and render the material help so urgently needed by those who are taking the risks, facing jail, and even death in a glorious re-affirmation of our Constitution and its Bill of Rights. We urge you to join hands with our fellow Americans in the South by supporting, with your dollars, this Combined Appeal for all three needs — the defense of Martin Luther King — the support of the embattled students — and the struggle for the right-to-vote. Your Help Is Urgently Needed . . . NOW!! Stella Adler Raymond Pace Alexander Harry Van Andale Harry Belafonte Julie Belafonte Dr. Algernon Black Marc Blitztein William Branch Marlon Brando Mrs. Ralph Bunche Diahann Carroll Dr. Alan Knight Chalmers Richard Coe Nat King Cole Cheryl Crawford Dorothy Dandridge Ossie Davis Sammy Davis, Jr. Ruby Dee Dr. Philip Elliott Dr. Harry Emerson Fosdick Anthony Franciosa Lorraine Hansbury Rev. Donald Harrington Nat Hentoff James Hicks Mary Hinkson Van Heflin Langston Hughes Morris lushewitz Mahalia Jackson Mordecai Johnson John Killens Eartha Kitt Rabbi Edward Klein Hope Lange John Lewis Viveca Lindfors Carl Murphy Don Murray John Murray A. J. Muste Frederick O'Neal L. Joseph Overton Clarence Pickett Shad Polier Sidney Poiticr A. Philip Randolph John Raitt Elmer Rice Jackie Robinson Mrs. Eleanor Roosevelt Bayard Rustin Robert Ryan Maureen Stapleton Frank Silvera Hope Stevens George Tabori Rev. Gardner C. Taylor Norman Thomas Kenneth Tynan Charles White Shelley Winters Max Youngstein We in the south who are struggling daily for dignity and freedom warmly endorse this appeal Rev. Ralph D. Abernathy (Montgomery, Ala.) Rev. Fred L. Shuttlesworth (Birmingham, Ala.) Rev. Kelley Miller Smith (Nashville, Tenn.) Rev. W. A. Dennis (Chattanooga, Tenn.) Rev. C. K. Steele [Tallahassee, Fla.) Rev. Matthew D. McCollom [Orangeburg, S. C.) Rev. William Holmes Borders (Atlanta, Ga.) Rev. Douglas Moore (Durham, N. C.) Rev. Wyatt Tee Walker (Petersburg, Va.) Rev. Walter L. Hamilton [Norfolk, Va.) I. S. Levy (Columbia, S. C.) Rev. Martin Luther King, Sr. (Atlanta, Ga.) Rev. Henry C. Bunton (Memphis, Tenn.) Rev. S. S. Seay, Sr. (Montgomery, Ala.) Rev. Samuel W. Williams [Atlanta, Ga.) Rev. A. L. Davis (New Orleans, La.) Mrs. Katie E. Whickham (New Orleans, La.) Rev. W. H. Hall (Hattiesburg, Miss.) Rev. J. E. Lowery (Mobile, Ala.) Rev. T. J. Jemison (Baton Rouge, La.) COMMITTEE TO DEFEND MARTIN LUTHER KING AND THE STRUGGLE FOR FREEDOM IN THE SOUTH 312 West 125th Street, New York 27, N. Y. UNiversity 6-1700 Chairmen: A. Philip Randolph, Dr. Gardner C. Taylor; Chairmen of Cultural Division: Harry Belafonte, Sidney Poiticr; Treasurer: Nat King Cole; Executive Director: Bayard Rustin; Chairmen of Church Division: Father George B. Ford, Rev. Harry Emerson Fosdick, Rev. Thomas Kilgore, Jr., Rabbi Edward E. Klein; Chairman of Labor Division: Morris lushewitz Please mail this coupon TODAY! Committee To Defend Martin Luther King and The Struggle For Freedom in The South 312 West 125th Street, New York 27, N. Y. UNiversity 6-1700 / am enclosing my contribution of $_ for the work of the Committee. Nam«_ (PLEAS* PRINT) Clty_ JZone _State_ U I want to help Please send further information Please make checks payable to: Committee To Defend Martin Luther King

*293Mr. Justice Black,

with whom

I concur in reversing this half-million-dollar judgment against the New York Times Company and the four individual defendants. In reversing the Court holds that “the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct.” Ante, p. 283. I base my vote to reverse on the belief that the First and Fourteenth Amendments not merely “delimit” a State’s power to award damages to “public officials against critics of their official conduct” but completely prohibit a State from exercising such a power. The Court goes on to hold that a State can subject such critics to damages if “actual malice” can be proved against them. “Malice,” even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment. Unlike the Court, therefore, I vote to reverse exclusively on the ground that the Times and the individual defendants had an absolute, unconditional constitutional right to publish in the Times advertisement their criticisms of the Montgomery agencies and officials. I do not base my vote to reverse on any failure to prove that these individual defendants signed the advertisement or that their criticism of the Police Department was aimed at the plaintiff Sullivan, who was then the Montgomery City Commissioner having supervision of the city’s police; for present purposes I assume these things were proved. Nor is my reason for reversal the size of the half-million-dollar judgment, large as it is. If Alabama has constitutional power to use its civil libel law to impose damages on the press for criticizing the way public officials perform or fail *294to perform their duties, I know of no provision in the Federal Constitution which either expressly or impliedly bars the State from fixing the amount of damages.

The half-million-dollar verdict does give dramatic proof,- however, that state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials. The factual background of this case emphasizes the imminence and enormity of that threat; One of the acute and highly emotional issues in this country arises out of efforts of many people, even including some public officials, to continue state-commanded segregation of races in the public schools and other public places, despite our several holdings that such a state practice is forbidden by the Fourteenth Amendment. Montgomery is one of the localities in which widespread hostility to desegregation has been manifested. This hostility has sometimes extended itself to persons who favor desegregation, particularly to so-called “outside agitators,” a term which can be made to fit papers like the Times, which is published in New York. The scarcity of testimony to show that Commissioner Sullivan suffered any actual damages at all suggests that these feelings of hostility had at least as much to do with rendition of this half-million-dollar verdict as did an appraisal of damages. Viewed realistically, this record lends support to an inference that instead of being damaged Commissioner Sullivan’s political, social, and financial prestige has likely been enhanced by the Times’ publication. Moreover, a second half-million-dollar libel verdict against the Times based on the same advertisement has already been awarded to another Commissioner. There a jury again gave the full amount claimed. There is no reason to believe that there are not more such huge verdicts lurking just around the corner for the Times or any other newspaper or broadcaster which *295might dare to criticize public officials. In fact, briefs before us show that in Alabama there are now pending eleven libel suits by local and state officials against the Times seeking $5,600,000, and five such suits against the Columbia Broadcasting System seeking $1,700,000. Moreover, this technique for harassing and punishing a free press — now that it has been shown to be possible — is by no means limited to cases with racial overtones; it can be used in other fields where public feelings may make local as well as out-of-state newspapers easy prey for libel verdict seekers.

In my opinion the Federal Constitution has dealt with this deadly danger to the press in the only way possible without leaving the free press open to destruction — by granting the press an absolute immunity for criticism of the way public officials do their public duty. Compare Barr v. Matteo, 360 U. S. 564. Stopgap measures like those the Court adopts are in my judgment not enough. This record certainly does not indicate that any different verdict would have been rendered here whatever the Court had charged the jury about “malice,” “truth,” “good motives,” “justifiable ends,” or any other legal formulas which in theory would protect the press. Nor does the record indicate that any of these legalistic words would have caused the courts below to set aside or to reduce the half-million-dollar verdict in any amount.

I agree with the Court that the Fourteenth Amendment made the First applicable to the States.1 This means to me that since the adoption of the Fourteenth Amendment a State has no more power than the Federal Government to use a civil libel law or any other law to impose damages for merely discussing public affairs and criticizing public officials. The power of the United *296States to do that is, in my judgment, precisely nil. Such was the general view held when the First Amendment was adopted and ever since.2 Congress never has sought to challenge this viewpoint by passing any civil libel law. It did pass the Sedition Act in 1798,3 which made it a crime — “seditious libel” — to criticize federal officials or the Federal Government. As the Court’s opinion correctly points out, however, ante, pp. 273-276, that Act came to an ignominious end and by common consent has generally been treated as having been a wholly unjustifiable and much to be regretted violation of the First Amendment. Since the First Amendment is now made applicable to the States by the Fourteenth, it no more permits the States to impose damages for libel than it does the Federal Government.

We would, I think, more faithfully interpret the First Amendment by holding that at the very least it leaves the people and the press free to criticize officials and discuss public affairs with impunity. This Nation of ours elects many of its important officials; so do the States, the municipalities, the counties, and even many precincts. These officials are responsible to the people for the way they perform their duties. While our Court has held that some kinds of speech and writings, such as “obscenity,” Roth v. United States, 354 U. S. 476, and “fighting words,” Chaplinsky v. New Hampshire, 315 U. S. 568, are not expression within the protection of the First Amendment,4 freedom to discuss public affairs and public officials *297is unquestionably, as the Court today holds, the kind of speech the First Amendment was primarily designed to keep within the area of free discussion. To punish the exercise of this right to discuss public affairs or to penalize it through libel judgments is to abridge or shut off discussion of the very kind most needed. This Nation, I suspect, can live in peace without libel suits based on public discussions of public affairs and public officials. But I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials. “For a representative democracy ceases to exist the moment that the public functionaries are by any means absolved from their responsibility to their constituents; and this happens whenever the constituent can be restrained in any manner from speaking, writing, or publishing his opinions upon any public measure, or upon the conduct of those who may advise or execute it.” 5 An unconditional right to say what one pleases about public affairs is what I consider to be the' minimum guarantee of the First Amendment.6

I regret that the Court has stopped short of this holding indispensable to preserve our free press from destruction.

Mr. Justice Goldberg,

Douglas joins, concurring in the result.

The Court today announces a constitutional standard which prohibits “a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with *298‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Ante, at 279-280. The Court thus rules that the Constitution gives citizens and newspapers a “conditional privilege” immunizing nonmalicious misstatements of fact regarding the official conduct of a government officer. The impressive array of history1 and precedent marshaled by the Court, however, confirms my belief that the Constitution affords greater protection than that provided by the Court’s standard to citizen and press in exercising the right of public criticism.

In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses. The prized American right “to speak one’s mind,” cf. Bridges v. California, 314 U. S. 252, 270, about public officials and affairs needs “breathing space to survive,” N. A. A. C. P. v. Button, 371 U. S. 415, 433. The right should not depend upon a probing by the jury of the motivation 2 of the citizen or press. The theory *299of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious. In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized. Such criticism cannot, in my opinion, be muzzled or deterred by the courts at the instance of public officials under the label of libel.

It has been recognized that “prosecutions for libel on government have [no] place in the American system of jurisprudence.” City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N. E. 86, 88. I fully agree. Government, however, is not an abstraction; it is made, up of individuals — of governors responsible to the governed. In a democratic society where men are free by ballots to remove those in power, any statement critical of governmental action is necessarily “of and concerning” the governors and any statement critical of the governors’ official conduct is necessarily “of and concerning” the government. If the rule that libel on government has no place in our Constitution is to have real meaning, then libel on the official conduct of the governors likewise can have no place in our Constitution.

We must recognize that we are writing upon a clean slate.3 As the Court notes, although there have been *300“statements of this Court to the effect that the Constitution does not protect libelous publications . . . [n]one of the cases sustained the use of libel laws to impose sanctions upon expression critical of the official conduct of public officials.” Ante, at 268. We should be particularly careful, therefore, adequately to protect the liberties which are embodied in the First and Fourteenth Amendments. It may be urged that deliberately and maliciously false statements have no conceivable value as free speech. That argument, however, is not responsive to the real issue presented by this case, which is whether that freedom of speech which all agree is constitutionally protected can be effectively safeguarded by a rule allowing the imposition of liability upon a jury’s evaluation of the speaker’s state of mind. If individual citizens may be held liable in damages for strong words, which a jury finds false and maliciously motivated, there can be little doubt that public debate and advocacy will be constrained. And if newspapers, publishing advertisements dealing with public issues, thereby risk liability, there can also be little doubt that the ability of minority groups to secure publication of their views on public affairs and to seek support for their causes will be greatly diminished. Cf. Farmers Educational & Coop. Union v. WDAY, Inc., 360 U. S. 525, 530. The opinion of the Court conclusively demonstrates the chilling effect of the Alabama libel laws on First Amendment freedoms *301in the area of race relations. The American Colonists were not willing, nor should we be, to take the risk that “[m]en who injure and oppress the people under their administration [and] provoke them to cry out and complain” will also be empowered to “make that very complaint the foundation for new oppressions and prosecutions.” The Trial of John Peter Zenger, 17 Howell’s St. Tr. 675, 721-722 (1735) (argument of counsel to the jury). To impose liability for critical, albeit erroneous or even malicious, comments on official conduct would effectively resurrect “the obsolete doctrine that the governed must not criticize their governors.” Cf. Sweeney v. Patterson, 76 U. S. App. D. C. 23, 24, 128 F. 2d 457, 458.

Our national experience teaches that repressions breed hate and “that hate menaces stable government.” Whitney v. California, 274 U. S. 357, 375 (Brandéis, J., concurring). We should be ever mindful of the wise counsel of Chief Justice Hughes:

“[I]mperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.” De Jonge v. Oregon, 299 U. S. 353, 365.

This is not to say that the Constitution protects defamatory statements directed against the private conduct of a public official or private citizen. Freedom of press and of speech insures that government will respond to the will of the people and that changes may be obtained by peaceful means. Purely private defamation has little to do with the political ends of a self-governing society. The imposition of liability for private defamation does not *302abridge the freedom of public speech or any other freedom protected by the First Amendment.4 This, of course, cannot be said “where public officials are concerned or where public matters are involved. ... [0]ne main function of the First Amendment is to ensure ample opportunity for the people to determine and resolve public issues. Where public matters are involved, the doubts should be resolved in favor of freedom of expression rather than against it.” Douglas, The Right of the People (1958), p. 41.

In many jurisdictions, legislators, judges and executive officers are clothed with absolute immunity against liability for defamatory words uttered in the discharge of their public duties. See, e. g., Barr v. Matteo, 360 U. S. 564; City of Chicago v. Tribune Co., 307 Ill., at 610, 139 N. E., at 91. Judge Learned Hand ably summarized the policies underlying the rule:

“It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the *303case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. . . .

“The decisions have, indeed, always imposed as a limitation upon the immunity that the official’s act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment’s reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him. . . .” Gregoire v. Biddle, 177 F. 2d 579, 581.

*304If the government official should be immune from libel actions so that his ardor to serve the public will not be dampened and “fearless, vigorous, and effective administration of policies of government” not be inhibited, Barr v. Matteo, supra, at 571, then the citizen and the press should likewise be immune from libel actions for their criticism of official conduct. Their ardor as citizens will thus not be dampened and they will be free “to applaud or to criticize the way public employees do their jobs, from the least to the most important.” 5 If liability can attach to political criticism because it damages the reputation of a public official as a public official, then no critical citizen can safely utter anything but faint praise about the government or its officials. The vigorous criticism by press and citizen of the conduct of the government of the day by the officials of the day will soon yield to silence if officials in control of government agencies, instead of answering criticisms, can resort to friendly juries to forestall criticism of their official conduct.6

The conclusion that the Constitution affords the citizen and the press an absolute privilege for criticism of official conduct does not leave the public official without defenses against unsubstantiated opinions or deliberate misstatements. “Under our system of government, counterargument and education are the weapons available to expose these matters, not abridgment ... of free speech . . . .” Wood v. Georgia, 370 U. S. 375, 389. The public *305official certainly has equal if not greater access than most private citizens to media of communication. In any event, despite the possibility that some excesses and abuses may go unremedied, we must recognize that “the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, [certain] liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of & democracy.” Cantwell v. Connecticut, 310 U. S. 296, 310. As Mr. Justice Brandéis correctly observed, “sunlight is the most powerful of all disinfectants.” 7

For these reasons, I strongly believe that the Constitution accords citizens and press an unconditional freedom to criticize official conduct. It necessarily follows that in a case such as this, where all agree that the allegedly defamatory statements related to official conduct, the judgments for libel cannot constitutionally be sustained.

Mr. Justice Powell

delivered the opinion of the Court.

This Court has struggled for nearly a decade to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment. With this decision we return to that effort. We granted certiorari to reconsider the extent of a publisher’s constitutional privilege against liability for defamation of a private citizen. 410 U. S. 925 (1973).

I

In 1968 a Chicago policeman named Nuccio shot and killed a youth named Nelson. The state authorities prosecuted Nuccio for the homicide and ultimately obtained a conviction for murder in the second degree. The Nelson family retained petitioner Elmer Gertz, a reputable attorney, to represent them in civil litigation against Nuccio.

Respondent publishes American Opinion, a monthly outlet for the views of the John Birch Society. Early in the 1960’s the magazine began to warn of a nationwide conspiracy to discredit local law enforcement agencies and create in their stead a national police force capable of supporting a Communist dictatorship. As part of the continuing effort to alert the public to this assumed danger, the managing editor of American Opinion commissioned an article on the murder trial of Officer Nuccio. For this purpose he engaged a regular contributor to the magazine. In March 1969 respondent published the resulting article under the title “FRAME-UP: Richard *326Nuccio And The War On Police.” The article purports to demonstrate that the testimony against Nuccio at his criminal trial was false and that his prosecution was part of the Communist campaign against the police.

In his capacity as counsel for the Nelson family in the civil litigation, petitioner attended the coroner’s inquest into the boy’s death and initiated actions for damages,'but he neither discussed Officer Nuccio with the press nor played any part in the criminal proceeding. Notwithstanding petitioner’s remote connection with the prosecution of Nuccio, respondent’s magazine portrayed him as an architect of the “frame-up.” According to the article, the police file on petitioner took “a big, Irish cop to lift.” The article stated that petitioner had been an official of the “Marxist League for Industrial Democracy, originally known as the Intercollegiate Socialist Society, which has advocated the violent seizure of our government.” It labeled Gertz a “Leninist” and a “Communist-fronter.” It also stated that Gertz had been an officer of the National Lawyers Guild, described as a Communist organization that “probably did more than any other outfit to plan the Communist attack on the Chicago police during the 1968 Democratic Convention.”

These statements contained serious inaccuracies. The implication that petitioner had a criminal record was false. Petitioner had been a member and officer of the National Lawyers Guild some 15 years earlier, but there was no evidence that he or that organization had taken any part in planning the 1968 demonstrations in Chicago. There was also no basis for the charge that petitioner was a “Leninist” or a “Communist-fronter.” And he had never been a member of the “Marxist League for Industrial Democracy” or the “Intercollegiate Socialist Society.”

*327The managing editor of American Opinion made no effort to verify or substantiate the charges against petitioner. Instead, he appended an editorial introduction stating that the author had “conducted extensive research into the Richard Nuccio Case.” And he included in the article a photograph of petitioner and wrote the caption that appeared under it: “Elmer Gertz of Red Guild harrasses Nuccio.” Respondent placed the issue of American Opinion containing the article on sale at newsstands throughout the country and distributed reprints of the article on the streets of Chicago.

Petitioner filed a diversity action for libel in the United States District Court for the Northern District of Illinois. He claimed that the falsehoods published by respondent injured his reputation as a lawyer and a citizen. Before filing an answer, respondent moved to dismiss the complaint for failure to state a claim upon which relief could be granted, apparently on the ground that petitioner failed to allege special damages. But the court ruled that statements contained in the article constituted libel per se under Illinois law and that consequently petitioner need not plead special damages. 306 F. Supp. 310 (1969).

After answering the complaint, respondent filed a pretrial motion for summary judgment, claiming a constitutional privilege against liability for defamation.1 It asserted that petitioner was a public official or a public figure and that the article concerned an issue of public interest and concern. For these reasons, respondent argued, it was entitled to invoke the privilege enunciated in New York Times Co. v. Sullivan, 376 U. S. 254 (1964). Under this rule respondent would escape liability unless *328petitioner could prove publication of defamatory falsehood “with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 280. Respondent claimed that petitioner could not make such a showing and submitted a supporting affidavit by the magazine’s managing editor. The editor denied any knowledge of the falsity of the statements concerning petitioner and stated that he had relied on the author’s reputation and on his prior experience with the accuracy and authenticity of the author’s contributions to American Opinion.

The District Court denied respondent’s motion for summary judgment in a memorandum opinion of September 16, 1970. The court did not dispute respondent’s claim to the protection of the New York Times standard. Rather, it concluded that petitioner might overcome the constitutional privilege by making a factual showing sufficient to prove publication of defamatory falsehood in reckless disregard of the truth. During the course of the trial, however, it became clear that the trial court had not accepted all of respondent’s asserted grounds for applying the New York Times rule to this case. It thought that respondent’s claim to the protection of the constitutional privilege depended on the contention that petitioner was either a public official under the New York Times decision or a public figure under Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), apparently discounting the argument that a privilege would arise from the presence of a public issue. After all the evidence had been presented but before submission of the case to the jury, the court ruled in effect that petitioner was neither a public official nor a public figure. It added that, if he were, the resulting application of the New York Times standard would require a directed verdict for respondent. Because some statements in the article constituted libel per se *329under Illinois law, the court submitted the case to the jury under instructions that withdrew from its consideration all issues save the measure of damages. The jury awarded $50,000 to petitioner.

Following the jury verdict and on further reflection, the District Court concluded that the New York Times standard should govern this case even though petitioner was not a public official or public figure. It accepted respondent’s contention that that privilege protected discussion of any public issue without regard to the status of a person defamed therein. Accordingly, the court entered judgment for respondent notwithstanding the jury’s verdict.2 This conclusion anticipated the reason*330ing of a plurality of this Court in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971).

Petitioner appealed to contest the applicability of the New York Times standard to this case. Although the Court of Appeals for the Seventh Circuit doubted the correctness of the District Court’s determination that petitioner was not a public figure, it did not overturn that finding.3 It agreed with the District Court that respondent could assert the constitutional privilege because the article concerned a matter of public interest, citing this Court’s intervening decision in Rosenbloom v. Metromedia, Inc., supra. The Court of Appeals read Rosenbloom to require application of the New York Times standard to any publication or broadcast about an issue of significant public interest, without regard to the position, fame, or anonymity of the person defamed, and it concluded that respondent’s statements *331concerned such an issue.4 After reviewing the record, the Court of Appeals endorsed the District Court’s conclusion that petitioner had failed to show by clear and *332convincing evidence that respondent had acted with “actual malice” as defined by New York Times. There was no evidence that the managing editor of American Opinion knew of the falsity of the accusations made in the article. In fact, he knew nothing about petitioner except what he learned from the article. The court correctly noted that mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, the publisher must act with a “ 'high degree of awareness of . . . probable falsity.’ ” St. Amant v. Thompson, 390 U. S. 727, 731 (1968); accord, Beck-ley Newspapers Corp. v. Hanks, 389 U. S. 81, 84-85 (1967); Garrison v. Louisiana, 379 U. S. 64, 75-76 (1964). The evidence in this case did not reveal that respondent had cause for such an awareness. The Court of Appeals therefore affirmed, 471 F. 2d 801 (1972). For the reasons stated below, we reverse.

II

The principal issue in this case is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements. The Court considered this question on the rather different set of facts presented in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971). Rosenbloom, a distributor of nudist magazines, was arrested for selling allegedly obscene material while mak*333ing a delivery to a retail dealer. The police obtained a warrant and seized his entire inventory of 3,000 books and magazines. He sought and obtained an injunction prohibiting further police interference with his business. He then sued a local radio station for failing to note in two of its newscasts that the 3,000 items seized were only “reportedly” or “allegedly” obscene and for broadcasting references to “the smut literature racket” and to “girlie-book peddlers” in its coverage of the court proceeding for injunctive relief. He obtained a judgment against the radio station, but the Court of Appeals for the Third Circuit held the New York Times privilege applicable to the broadcast and reversed. 415 F. 2d 892 (1969).

This Court affirmed the decision below, but no majority could agree on a controlling rationale. The eight Justices5 who participated in Rosenbloom announced their views in five separate opinions, none of which commanded more than three votes. The several statements not only reveal disagreement about the appropriate result in that case, they also reflect divergent traditions of thought about the general problem of reconciling the law of defamation with the First Amendment. One approach has been to extend the New York Times test to an expanding variety of situations. Another has been to vary the level of constitutional privilege for defamatory falsehood with the status of the person defamed. And a third view would grant to the press and broadcast media absolute immunity from liability for defamation. To place our holding in the proper context, we preface our discussion of this case with a review of the several Rosenbloom opinions and their antecedents.

In affirming the trial court’s judgment in the instant case, the Court of Appeals relied on Mr. Justice Bren*334nan’s conclusion for the Rosenbloom plurality that “all discussion and communication involving matters of public or general concern,” 403 U. S., at 44, warrant the protection from liability for defamation accorded by the rule originally enunciated in New York Times Co. v. Sullivan, 376 U. S. 254 (1964). There this Court defined a constitutional privilege intended to free criticism of public officials from the restraints imposed by the common law of defamation. The Times ran a political advertisement endorsing civil rights demonstrations by black students in Alabama and impliedly condemning the performance of local law-enforcement officials. A police commissioner established in state court that certain misstatements in the advertisement referred to him and that they constituted libel per se under Alabama law. This showing left the Times with the single defense of truth, for under Alabama law neither good faith nor reasonable care would protect the newspaper from liability. This Court concluded that a “rule compelling the critic of official conduct to guarantee the truth of all his factual assertions” would deter protected speech, id., at 279, and announced the constitutional privilege designed to counter that effect:

“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood 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.” Id., at 279-280.6

*335Three years after New York Times, a majority of the Court agreed to extend the constitutional privilege to defamatory criticism of “public figures.” This extension *336was announced in Curtis Publishing Co. v. Butts and its companion, Associated Press v. Walker, 388 U. S. 130, 162 (1967). The first case involved the Saturday Evening Post’s charge that Coach Wally Butts of the University of Georgia had conspired with Coach “Bear” Bryant of the University of Alabama to fix a football game between their respective schools. Walker involved an erroneous' Associated Press account of former Major General Edwin Walker’s participation in a University of Mississippi campus riot. Because Butts was paid by a private alumni association and Walker had resigned from the Army, neither could be classified as a “public official” under New York Times. Although Mr. Justice Harlan announced the result in both cases, a majority of the Court agreed with Mr. Chief Justice Warren’s conclusion that the New York Times test should apply to criticism of “public figures” as well as “public officials.” 7 The Court extended the con*337stitutional privilege announced in that case to protect defamatory criticism of nonpublic persons who “are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” Id., at 164 (Warren, C. J., concurring in result).

In his opinion for the plurality in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), Mr. Justice Brennan took the New York Times privilege one step further. He concluded that its protection should extend to defamatory falsehoods relating to private persons if the statements concerned matters of general or public interest. He abjured the suggested distinction between public officials and public figures on the one hand and private individuals on the other. He focused instead on society's interest in learning about certain issues: “If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not ‘voluntarily’ choose to become involved.” Id., at 43. Thus, under the plurality opinion, a private citizen involuntarily associated with a matter of general interest has no recourse for injury to his reputation unless he can satisfy the demanding requirements of the New York Times test.

Two Members of the Court concurred in the result in Rosenbloom but departed from the reasoning of the plurality. Mr. Justice Black restated his view, long shared by Mr. Justice Douglas, that the First Amendment cloaks the news media with an absolute and indefeasible immunity from liability for defamation. Id., at 67. Mr Justice White concurred on a narrower ground. Ibid. He concluded that “the First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public *338servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view.” Id., at 62. He therefore declined to reach the broader questions addressed by the other Justices.

Mr. Justice Harlan dissented. Although he had joined the opinion of the Court in New York Times, in Curtis Publishing Co. he had contested the extension of the privilege to public figures. There he had argued that a public figure who held no governmental office should be allowed to recover damages for defamation “on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.” 388 U. S., at 155. In his Curtis Publishing Co. opinion Mr. Justice Harlan had distinguished New York Times primarily on the ground that defamation actions by public officials “lay close to seditious libel . . . .” Id., at 153. Recovery of damages by one who held no public office, however, could not “be viewed as a vindication of governmental policy.” Id., at 154. Additionally, he had intimated that, because most public officials enjoyed absolute immunity from liability for their own defamatory utterances under Barr v. Matteo, 360 U. S. 564 (1959), they lacked a strong claim to the protection of the courts.

In Rosenbloom Mr. Justice Harlan modified these views. He acquiesced in the application of the privilege to defamation of public figures but argued that a different rule should obtain where defamatory falsehood harmed a private individual. He noted that a' private person has less likelihood “of securing access to channels of communication sufficient to rebut falsehoods concerning him” than do public officials and public figures, 403 U. S., at 70, and has not voluntarily placed himself in the *339public spotlight. Mr. Justice Harlan concluded that the States could constitutionally allow private individuals to recover damages for defamation on the basis of any standard of care except liability without fault.

Mr. Justice Marshall

dissented in Rosenbloom in an opinion joined by Mr. Justice Stewart. Id., at 78. He thought that the plurality's “public or general interest” test for determining the applicability of the New York Times privilege would involve the courts in the dangerous business of deciding “what information is relevant to self-government.” Id., at 79. He also contended that the plurality's position inadequately served “society’s interest in protecting private individuals from being thrust into the public eye by the distorting light of defamation.” Ibid. Mr. Justice Marshall therefore reached the conclusion, also reached by Mr. Justice Harlan, that the States should be “essentially free to continue the evolution of the common law of defamation and to articulate whatever fault standard best suits the State's need,” so long as the States did not impose liability without fault. Id., at 86. The principal point of disagreement among the three dissenters concerned punitive damages. Whereas Mr. Justice Harlan thought that the States could allow punitive damages in amounts bearing “a reasonable and purposeful relationship to the actual harm done . . . ,” id., at 75, Mr. Justice Marshall concluded that the size and unpredictability of jury awards of exemplary damages unnecessarily exacerbated the problems of media self-censorship and that such damages should therefore be forbidden.

Ill

We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but *340on the competition of other ideas.8 But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in “uninhibited, robust, and wide-open” debate on public issues. New York Times Co. v. Sullivan, 376 U. S., at 270. They belong to that category of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942).

Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of 1798: “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.” 4 J. Elliot, Debates on the Federal Constitution of 1787, p. 571 (1876). And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties. As the Court stated in New York Times Co. v. Sullivan, supra, at 279: “Allowance of the defense of truth, *341with the burden of proving it on the defendant, does not mean that only false speech will be deterred.” The First Amendment requires that we protect some falsehood in order to protect speech that matters.

The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. See New York Times Co. v. Sullivan, supra, at 293 (Black, J., concurring); Garrison v. Louisiana, 379 U. S., at 80 (Douglas, J., concurring); Curtis Publishing Co. v. Butts, 388 U. S., at 170 (opinion of Black, J.). Such a rule would, indeed, obviate the fear that the prospect of civil liability for injurious falsehood might dissuade a timorous press from the effective exercise of First Amendment freedoms. Yet absolute protection for the communications media requires a total sacrifice' of the competing value served by the law of defamation.

The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose, for, as Mr. Justice Stewart has reminded us, the individual’s right to the protection of his own good name

"reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.” Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (concurring opinion).

*342Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury. As Mr. Justice Harlan stated, “some antithesis between freedom of speech and press and libel actions persists, for libel remains premised on the content of speech and limits the freedom of the publisher to express certain sentiments, at least without guaranteeing legal proof of their substantial accuracy.” Curtis Publishing Co. v. Butts, supra, at 152. In our continuing effort to define the proper accommodation between these competing concerns, we have been especially anxious to assure to the freedoms of speech and press that “breathing space”' essential to their fruitful exercise. NAACP v. Button, 371 U. S. 415, 433 (1963). To that end this Court has extended a measure of strategic protection to defamatory falsehood.

The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. This standard administers an extremely powerful antidote to the inducement to media self-censorship of the common-law rule of strict liability for libel and slander. And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. Despite this *343substantial abridgment of the state law right to compensation for wrongful hurt to one’s reputation, the Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehood concerning public officials and public figures. New York Times Co. v. Sullivan, supra; Curtis Publishing Co. v. Butts, supra. We think that these decisions are correct, but we do not find their holdings justified solely by reference to the interest of the press and broadcast media in immunity from liability. Rather, we believe that the New York Times rule states an accommodation between this concern and the limited state interest present in the context of libel actions brought by public persons. For the reasons stated below, we conclude that the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them.

Theoretically, of course, the balance between the needs of the press and the individual’s claim to compensation for wrongful injury might be struck on a case-by-case basis. As Mr. Justice Harlan hypothesized, “it might seem, purely as an abstract matter, that the most utilitarian approach would be to scrutinize carefully every jury verdict in every libel case, in order to ascertain whether the final judgment leaves fully protected whatever First Amendment values transcend the legitimate state interest in protecting the particular plaintiff who prevailed.” Rosenbloom v. Metromedia, Inc., 403 U. S., at 63 (footnote omitted). But this approach would lead to unpredictable results and uncertain expectations, and it could render our duty to supervise the lower courts unmanageable. Because an ad hoc resolution of the competing interests at stake in each particular ease is not feasible, we must lay down broad rules of general *344application. Such rules necessarily treat alike various cases involving differences as well as similarities. Thus it is often true that not all of the considerations which justify adoption of a given rule will obtain in each particular case decided under its authority.

With that caveat we have no difficulty in distinguishing among defamation plaintiffs. The first remedy of any victim of defamation is self-help — using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.9 Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.

More important than the likelihood that private individuals will lack effective opportunities for rebuttal, there is a compelling normative consideration underlying the distinction between public and private defamation plaintiffs. An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case. And society’s interest in the officers of government is not strictly limited to the formal discharge of official duties. As the Court pointed out in Garrison v. Louisiana, 379 U. S., at 77, the public’s interest extends to “anything *345which might touch on an official's fitness for office .... Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character.”

Those classed as public figures stand in a similar position. Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.

Even if the foregoing generalities do not obtain in every instance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an “influential role in ordering society.” Curtis Publishing Co. v. Butts, 388 U. S., at 164 (Warren, C. J., concurring in result). He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.

For these reasons we conclude that the States should retain substantial latitude in their efforts to enforce a *346legal remedy for defamatory falsehood injurious to the reputation of a private individual. The extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable. And it would occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of “general or public interest” and which do not — to determine, in the words of Mr. Justice Marshall, “what information is relevant to self-government.” Rosenbloom v. Metromedia, Inc., 403 U. S., at 79. We doubt the wisdom of committing this task to the conscience of judges. Nor does the Constitution require us to draw so thin a line between the drastic alternatives of the New York Times privilege and the common law of strict liability for defamatory error. The “public or general interest” test for determining the applicability of the New York Times standard to private defamation actions inadequately serves both of the competing values at stake. On the one hand, a private individual whose reputation is injured by defamatory falsehood that does concern an issue of public or general interest has no recourse unless he can meet the rigorous requirements of New York Times. This is true despite the factors that distinguish the state interest in compensating private individuals from the analogous interest involved in the context of public persons. On the other hand, a publisher or broadcaster of a defamatory error which a court deems unrelated to an issue of public or general interest may be held liable in damages even if it took every reasonable precaution to ensure the accuracy of its assertions. And liability may far exceed compensation for any actual injury to the plaintiff, for the jury may be permitted to presume damages without proof of loss and even to award punitive damages.

*347We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.10 This approach provides a more equitable *348boundary between the competing concerns involved here. It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation. At least this conclusion obtains where, as here, the substance of the defamatory statement “makes substantial danger to reputation apparent.” 11 This phrase places in perspective the conclusion we announce today. Our inquiry would involve considerations somewhat different from those discussed above if a State purported to condition civil liability on a factual misstatement whose content did not warn a reasonably prudent editor or broadcaster of its defamatory potential. Cf. Time, Inc. v. Hill, 385 U. S. 374 (1967). Such a case is not now before us, and we intimate no view as to its proper resolution.

IV

Our accommodation of the competing values at stake in defamation suits by private individuals allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times. This conclusion is not based on a belief that the considerations which prompted the adoption of the New York Times privilege for defamation of public officials and its extension to public figures are wholly inapplicable to the context of private individuals. Rather, we endorse this approach in recognition of the strong and legitimate state interest in compensating private individuals for injury to reputa*349tion. But this countervailing state interest extends no further than compensation for actual injury. For the reasons stated below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.

The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury.

We would not, of course, invalidate state law simply because we doubt its wisdom, but here we are attempting to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We *350need not define “actual injury,” as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.

We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury.

*351V

Notwithstanding our refusal to extend the New York Times privilege to defamation of private individuals, respondent contends that we should affirm the judgment below on the ground that petitioner is either a public official or a public figure. There is little basis for the former assertion. Several years prior to the present incident, petitioner had served briefly on housing committees appointed by the mayor of Chicago, but at the time of publication he had never held any remunerative governmental position. Respondent admits this but argues that petitioner's appearance at the coroner’s inquest rendered him a "de facto public official.” Our cases recognize no such concept. Respondent’s suggestion would sweep all lawyers under the New York Times rule as officers of the court and distort the plain meaning of the “public official” category beyond all recognition. We decline to follow it.

Respondent’s characterization of petitioner as a public figure raises a different question. That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.

Petitioner has long been active in community and professional affairs. He has served as an officer of local civic groups and of various professional organizations, and he has published several books and articles on legal subjects. Although petitioner was consequently well known in some circles, he had achieved no general fame *352or notoriety in the community. None of the prospective jurors called at the trial had ever heard of petitioner prior to this litigation, and respondent offered no proof that this response was atypical of the local population. We would not lightly assume that a citizen’s participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.

In this context it is plain that petitioner was not a public figure. He played a minimal role at the coroner’s inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.

We therefore conclude that the New York Times standard is inapplicable to this case and that the trial court erred in entering judgment for respondent. Because the jury was allowed to impose liability without fault and was permitted to presume damages without proof of injury, a new trial is necessary. We reverse and remand for further proceedings in accord with this opinion.

It is so ordered.

*353Mr. Justice Blackmun,

concurring.

I joined Mr. Justice Brennan’s opinion for the plurality in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971). I did so because I concluded that, given New York Times Co. v. Sullivan, 376 U. S. 254 (1964), and its progeny (noted by the Court, ante, at 334-336, n. 6), as well as Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U. S. 130 (1967), the step taken in Rosen-bloom, extending the New York Times doctrine to an event of public or general interest, was logical and inevitable. A majority of the Court evidently thought otherwise, as is particularly evidenced by Mr. Justice White’s separate concurring opinion there and by the respective dissenting opinions of Mr. Justice Harlan and of Mr. Justice Marshall joined by Mr. Justice Stewart.

The Court today refuses to apply New York Times to the private individual, as contrasted with the public official and the public figure. It thus withdraws to the factual limits of the pre-Rosenbloom cases. It thereby fixes the outer boundary of the New York Times doctrine and says that beyond that boundary, a State is free to define for itself the appropriate standard of media liability so long as it does not impose liability without fault. As my joinder in Rosenbloom’s plurality opinion would intimate, I sense some illogic in this.

The Court, however, seeks today to strike a balance between competing values where necessarily uncertain assumptions about human behavior color the result. Although the Court’s opinion in the present case departs from the rationale of the Rosenbloom plurality, in that the Court now conditions a libel action by a private person upon a showing of negligence, as contrasted with a showing of willful or reckless disregard, I am willing to *354join, and do join, the Court’s opinion and its judgment for two reasons:

1. By removing the specters of presumed and punitive damages in the absence of New York Times malice, the Court eliminates significant and powerful motives for self-censorship that otherwise are present in the traditional libel action. By so doing, the Court leaves what should prove to be sufficient and adequate breathing space for a vigorous press. What the Court has done, I believe, will have little, if any, practical effect on the functioning of responsible journalism.

2. The Court was sadly fractionated in Bosenbloom. A result of that kind inevitably leads to uncertainty. I feel that it is of profound importance for the Court to come to rest in the defamation area and to have a clearly defined majority position that eliminates the unsureness engendered by Rosenbloom’s diversity. If my vote were not needed to create a majority, I would adhere to my prior view. A definitive ruling, however, is paramount. See Curtis Publishing Co. v. Butts, 388 U. S., at 170 (Black, J., concurring); Time, Inc. v. Hill, 385 U. S. 374, 398 (1967) (Black, J., concurring); United States v. Vuitch, 402 U. S. 62, 97 (1971) (separate statement).

For these reasons, I join the opinion and the judgment of the Court.

Mr. Chief Justice Burger,

dissenting.

The doctrines of the law of defamation have had a gradual evolution primarily in the state courts. In New York Times Co. v. Sullivan, 376 U. S. 254 (1964), and its progeny this Court entered this field.

Agreement or disagreement with the law as it has evolved to this time does not alter the fact that it has been orderly development with a consistent basic rationale. In today’s opinion the Court abandons the tradi*355tional thread so far as the ordinary private citizen is concerned and introduces the concept that the media will be liable for negligence in publishing defamatory statements with respect to such persons. Although I agree with much of what Mr. Justice White states, I do not read the Court’s new doctrinal approach in quite the way he does. I am frank to say I do not know the parameters of a “negligence” doctrine as applied to the news media. Conceivably this new doctrine could inhibit some editors, as the dissents of Mr. Justice Douglas and Mr. Justice Brennan suggest. But I would prefer to allow this area of law to continue to evolve as it has up to now with respect to private citizens rather than embark on a new doctrinal theory which has no jurisprudential ancestry.

The petitioner here was performing a professional representative role as an advocate in the highest tradition of the law, and under that tradition the advocate is not to be invidiously identified with his client. The important public policy which underlies this tradition — the right to counsel — would be gravely jeopardized if every lawyer who takes an “unpopular” case, civil or criminal, would automatically become fair game for irresponsible reporters and editors who might, for example, describe the lawyer as a “mob mouthpiece” for representing a client with a serious prior criminal record, or as an “ambulance chaser” for representing a claimant in a personal injury action.

I would reverse the judgment of the Court of Appeals and remand for reinstatement of the verdict of the jury and the entry of an appropriate judgment on that verdict.

Mr. Justice Douglas,

dissenting.

The Court describes this case as a return to the struggle of “defin[ing] the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment.” It is indeed a struggle, once described by Mr. Justice Black as “the same *356quagmire” in which the Court “is now helplessly struggling in the field of obscenity.” Curtis Publishing Co. v. Butts, 388 U. S. 130, 171 (concurring opinion). I would suggest that the struggle is a quite hopeless one, for, in light of the command of the First Amendment, no “accommodation” of its freedoms can be “proper” except those made by the Framers themselves.

Unlike the right of privacy which, by the terms of the Fourth Amendment, must be accommodated with reasonable searches and seizures and warrants issued by magistrates, the rights of free speech and of a free press were protected by the Framers in verbiage whose proscription seems clear. I have stated before my view that the First Amendment would bar Congress from passing any libel law.1 This was the view held by Thomas Jefferson2 and it is one Congress has never challenged through enactment of a civil libel statute. The sole congressional attempt at this variety of First Amendment muzzle was in the Sedition Act of 1798 — a criminal libel act never tested in this Court and one which expired by its terms three years after enactment. As President, Thomas Jefferson pardoned those who were convicted under the Act, and fines levied in its prosecution were repaid by Act of Congress.3 The general *357consensus was that the Act constituted a regrettable legislative exercise plainly in violation of the First Amendment.4

With the First Amendment made applicable to the States through the Fourteenth,5 I do not see how States have any more ability to “accommodate” freedoms of speech or of the press than does Congress. This is true whether the form of the accommodation is civil or criminal since “[w]hat a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel.” New York Times Co. v. Sullivan, 376 U. S. 254, 277. Like Congress, States are without power “to use a civil libel law or any other law to impose damages for merely discussing public affairs.” Id., at 295 (Black, J., concurring).6

*358Continued recognition of the possibility of state libel suits for public discussion of public issues leaves the freedom of speech honored by the Fourteenth Amendment a diluted version of First Amendment protection. This view is only possible if one accepts the position that the First Amendment is applicable to the States only through the Due Process Clause of the Fourteenth, due process freedom of speech being only that freedom which this Court might deem to be “implicit in the concept of ordered liberty.” 7 But the Court frequently has rested *359state free speech and free press decisions on the Fourteenth Amendment generally8 rather than on the Due Process Clause alone. The Fourteenth Amendment speaks not only of due process but also of “privileges and immunities” of United States citizenship. I can conceive of no privilege or immunity with a higher claim to recognition against state abridgment than the freedoms of speech and of the press. In our federal system we are all subject to two governmental regimes, and freedoms of speech and of the press protected against the infringement of only one are quite illusory. The identity of the oppressor is, I would think, a matter of relative indifference to the oppressed.

There can be no doubt that a State impinges upon free and open discussion when it sanctions the imposition of damages for such discussion through its civil libel laws. Discussion of public affairs is often marked by highly charged emotions, and jurymen, not unlike us all, are subject to those emotions. It is indeed this very type of speech which is the reason for the First Amendment since speech which arouses little emotion is little in need of protection. The vehicle for publication in this case was the American Opinion, a most controversial periodical which disseminates the views of the John Birch Society, an organization which many deem to be *360quite offensive. The subject matter involved “Communist plots,” “conspiracies against law enforcement agencies,” and the killing of a private citizen by the police. With any such amalgam of controversial elements pressing upon the jury, a jury determination, unpredictable in the most neutral circumstances, becomes for those who venture to discuss heated issues, a virtual roll of the dice separating them from liability for often massive claims of damage.

It is only the hardy publisher who will engage in discussion in the face of such risk, and the Court’s preoccupation with proliferating standards in the area of libel increases the risks. It matters little whether the standard be articulated as “malice” or “reckless disregard of the truth” or “negligence,” for jury determinations by any of those criteria are virtually unreviewable. This Court, in its continuing delineation of variegated mantles of First Amendment protection, is, like the potential publisher, left with only speculation on how jury findings were influenced by the effect the subject matter of the publication had upon the minds and viscera of the jury. The standard announced today leaves the States free to “define for themselves the appropriate standard of liability for a publisher or broadcaster” in the circumstances of this case. This of course leaves the simple negligence standard as an option, with the jury free to impose damages upon a finding that the publisher failed to act as “a reasonable man.” With such continued erosion of First Amendment protection, I fear that it may well be the reasonable man who refrains from speaking.

Since in my view the First and Fourteenth Amendments prohibit the imposition of damages upon respondent for this discussion of public affairs, I would affirm the judgment below.

*361Mr. Justice Brennan,

dissenting.

I agree with the conclusion, expressed in Part V of the Court’s opinion, that, at the time of publication of respondent’s article, petitioner could not properly have been viewed as either a “public official” or “public figure”; instead, respondent’s article, dealing with an alleged conspiracy to discredit local police forces, concerned petitioner’s purported involvement in “an event of public or general interest.” Roosenbloom v. Metromedia, Inc., 403 U. S. 29, 31-32 (1971); see ante, at 331-332, n. 4. I cannot agree, however, that free and robust debate— so essential to the proper functioning of our system of government — -is permitted adequate “breathing space,” NAACP v. Button, 371 U. S. 415, 433 (1963), when, as the Court holds, the States may impose all but strict liability for defamation if the defamed party is a private person and “the substance of the defamatory statement ‘makes substantial danger to reputation apparent.’ ” Ante, at 348.1 I adhere to my view expressed in Rosen-bloom v. Metromedia, Inc., supra, that we strike the proper accommodation between avoidance of media self-censorship and protection of individual reputations only when we require States to apply the New York Times Co. v. Sullivan, 376 U. S. 254 (1964), knowing-or-reckless-falsity standard in civil libel actions concerning media reports of the involvement of private individuals in events of public or general interest.

The Court does not hold that First Amendment guarantees do not extend to speech concerning private persons’ involvement in events of public or general interest. It recognizes that self-governance in this country perseveres because of our “profound national com*362mitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Id., at 270 (emphasis added). Thus, guarantees of free speech and press necessarily reach “far more than knowledge and debate about the strictly official activities of various levels of government,” Rosenbloom v. Metromedia, Inc., supra, at 41; for “[f]reedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” Thornhill v. Alabama, 310 U. S. 88, 102 (1940).

The teaching to be distilled from our prior cases is that, while public interest in events may at times be influenced by the notoriety of the individuals involved, “[t]he public’s primary interest is in the event[,] . . . tile conduct of the participant and the content, effect, and significance of the conduct....” Rosenbloom, supra, at 43. Matters of public or general interest do not “suddenly become less so merely because a private individual is involved, or because in some sense the individual did not ‘voluntarily’ choose to become involved.” Ibid. See Time, Inc. v. Hill, 385 U. S. 374, 388 (1967).

Although acknowledging that First Amendment values are of no less significance when media reports concern private persons’ involvement in matters of public concern, the Court refuses to provide, in such cases, the same level of constitutional protection that has been afforded the media in the context of defamation of public persons. The accommodation that this Court has established between free speech and libel laws in cases involving public officials and public figures — that defamatory falsehood be shown by clear and convincing evidence to have been published with knowledge of falsity or with reckless disregard of truth — is not apt, the Court holds, because *363the private individual does not have the same degree of access to the media to rebut defamatory comments as does the public person and he has not voluntarily exposed himself to public scrutiny.

While these arguments are forcefully and eloquently presented, I cannot accept them, for the reasons I stated in Rosenbioom:

“The New York Times standard was applied to libel of a public official or public figure to give effect to the [First] Amendment's function to encourage ventilation of public issues, not because the public official has any less interest in protecting his reputation than an individual in private life. While the argument that public figures need less protection because they can command media attention to counter criticism may be true for some very prominent people, even then it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not ‘hot’ news, and rarely receive the prominence of the original story. When the public official or public figure is a minor functionary, or has left the position that put him in the public eye . . . , the argument loses all of its force. In the vast majority of libels involving public officials or public figures, the ability to respond through the media will depend on the same complex factor on which the ability of a private individual depends: the unpredictable event of the media’s continuing interest in the story. Thus the unproved, and highly improbable, generalization that an as yet [not fully defined] class of ‘public figures’ involved in matters of public concern will be better able to respond through the media than private individuals also involved in such matters seems too insubstantial *364a reed on which to rest a constitutional distinction.” 403 U. S., at 46-47.

Moreover, the argument that private persons should not be required to prove New York Times knowing-or-reckless falsity because they do not assume the risk of defamation by freely entering the public arena “bears little relationship either to the values protected by the First Amendment or to the nature of our society.” Id., at 47. Social interaction exposes all of us to some degree of public view. This Court has observed that “[t]he risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press.” Time, Inc. v. Hill, 385 U. S., at 388. Therefore,

“[v]oluntarily or not, we are all ‘public’ men to some degree. Conversely, some aspects of the lives of even the most public men fall outside the area of matters of public or general concern. See . . . Griswold v. Connecticut, 381 U. S. 479 (1965). Thus, the idea that certain ‘public’ figures have voluntarily exposed their entire lives to public inspection, while private individuals have kept theirs carefully shrouded from public view is, at best, a legal fiction. In any event, such a distinction could easily produce the paradoxical result of dampening discussion of issues of public or general concern because they happen to involve private citizens while extending constitutional encouragement to discussion of aspects of the lives of ‘public figures’ that are not in the area of public or general concern.” Rosenbloom, supra, at 48 (footnote omitted).

To be sure, no one commends publications which defame the good name and reputation of any person: “In an ideal world, the responsibility of the press would match the freedom and public trust given it.” Id., at *36551.2 Rather, as the Court agrees, some abuse of First Amendment freedoms is tolerated only to insure that would-be commentators on events of public or general interest are not “deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.” New York Times Co. v. Sullivan, 376 U. S., at 279. The Court's holding and a fortiori my Brother White’s views, see n. 1, supra, simply deny free expression its needed “breathing space.” Today’s decision will exacerbate the rule of self-censorship of legitimate utterance as publishers “steer far wider of the .unlawful zone,” Speiser v. Randall, 357 U. S. 513, 526 (1958).

We recognized in New York Times Co. v. Sullivan, supra, at 279, that a rule requiring a critic of official conduct to guarantee the truth of all of his factual contentions would inevitably lead to self-censorship when *366publishers, fearful of being unable to prove truth or unable to bear the expense of attempting to do so, simply eschewed printing controversial articles. Adoption, by many States, of a reasonable-care standard in cases where private individuals are involved in matters of public interest — the probable result of today’s decision — will likewise lead to self-censorship since publishers will be required carefully to weigh a myriad of uncertain factors before publication. The reasonable-care standard is “elusive,” Time, Inc. v. Hill, supra, at 389; it saddles the press with “the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.” Ibid. Under a reasonable-care regime, publishers and broadcasters will have to make pre-publication judgments about juror assessment of such diverse considerations as the size, operating procedures, and financial condition of the newsgathering system, as well as the relative costs and benefits of instituting less frequent and more costly reporting at a higher level of accuracy. See The Supreme Court, 1970 Term, 85 Harv. L. Rev. 3, 228 (1971). Moreover, in contrast to proof by clear and convincing evidence required under the New York Times test, the burden of proof for reasonable care will doubtless be the preponderance of the evidence.

“In the normal civil suit where [the preponderance of the evidence] standard is employed, ‘we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor.’ In re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). In libel cases, however, we view an erroneous verdict for the plaintiff as most serious. Not only does it mulct the defendant for an innocent misstatement . . . but the *367possibility of such error, even beyond the vagueness of the negligence standard itself, would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate.” Rosenbloom, 403 U. S., at 50.

And, most hazardous, the flexibility which inheres in the reasonable-care standard will create the danger that a jury will convert it into “an instrument for the suppression of those 'vehement, caustic, and sometimes unpleasantly sharp attacks/ . . . which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 277 (1971).

The Court does not discount altogether the danger that jurors will punish for the expression of unpopular opinions. This probability accounts for the Court’s limitation that “the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Ante, at 349. But plainly a jury’s latitude to impose liability for want of due care poses a far greater threat of suppressing unpopular views than does a possible recovery of presumed or punitive damages. Moreover, the Court’s broad-ranging examples of “actual injury,” including impairment of reputation and standing in the community, as well as personal humiliation, and mental anguish and suffering, inevitably allow a jury bent on punishing expression of unpopular views a formidable weapon for doing so. Finally, even a limitation of recovery to “actual injury” — however much it reduces the size or frequency of recoveries — will not provide the necessary elbowroom for First Amendment expression.

“It is not simply the possibility of a judgment for damages that results in self-censorship. The very *368possibility of having to engage in litigation, an expensive and protracted process, is threat enough to cause discussion and debate to 'steer far wider of the unlawful zone’ thereby keeping protected discussion from public cognizance. . . . Too, a small newspaper suffers equally from a substantial damage award, whether the label of the award be 'actual’ or 'punitive.’ ” Rosenbloom, supra, at 52-53.

On the other hand, the uncertainties which the media face under today’s decision are largely avoided by the New York Times standard. I reject the argument that my Rosenbloom view improperly commits to judges the task of determining what is and what is not an issue of “general or public interest.” 3 I noted in Rosenbloom *369that performance of this task would not always be easy. Id., at 49 n. 17. But surely the courts, the ultimate arbiters of all disputes concerning clashes of constitutional values, would only be performing one of their traditional functions in undertaking this duty. Also, the difficulty of this task has been substantially lessened by that “sizable body of cases, decided both before and after Rosenbloom, that have employed the concept of a matter of public concern to reach decisions in . . . cases dealing with an alleged libel of a private individual that employed a public interest standard . . . and . . . cases that applied Butts to the alleged libel of a public figure.” Comment, The Expanding Constitutional Protection for the News Media from Liability for Defamation: Predictability and the New Synthesis, 70 Mich. L. Rev. 1547, 1560 (1972). The public interest is necessarily broad; any residual self-censorship that may result from the uncertain contours of the “general or public interest” concept should be of far less concern to publishers and broadcasters than that occasioned by state laws imposing liability for negligent falsehood.

Since petitioner failed, after having been given a full and fair opportunity, to prove that respondent published the disputed article with knowledge of its falsity or with reckless disregard of the truth, see ante, at 329-330, n. 2, I would affirm the judgment of the Court of Appeals.

Me. Justice White,

dissenting.

For some 200 years — from the very founding of the Nation — the law of defamation and right of the ordinary citizen to recover for false publication injurious to his reputation have been almost exclusively the business of *370state courts and legislatures. Under typical state defamation law, the defamed private citizen had to prove only a false publication that would subject him to hatred, contempt, or ridicule. Given such publication, general damage to reputation was presumed, while punitive damages required proof of additional facts. The law governing the defamation of private citizens remained untouched by the First Amendment because until relatively recently, the consistent view of the Court was that libelous words constitute a class of speech wholly unprotected by the First Amendment; subject only to limited exceptions carved out since 1964.

But now, using that Amendment as the chosen instrument, the Court, in a few printed pages, has federalized major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 States. That result is accomplished by requiring the plaintiff in each and every defamation action to prove not only the defendant’s culpability beyond his act of publishing defamatory material but also actual damage to reputation resulting from the publication. Moreover, punitive damages may not be recovered by showing malice in the traditional sense of ill will; knowing falsehood or reckless disregard of the truth will now be required.

I assume these sweeping changes will be popular with the press, but this is not the road to salvation for a court of law. As I see it, there are wholly insufficient grounds for scuttling the libel laws of the States in such wholesale fashion, to say nothing of deprecating the reputation interest of ordinary citizens and rendering them powerless to protect themselves. I do not suggest that the decision is illegitimate or beyond the bounds of judicial review, but it is an ill-considered exercise of the power entrusted to this Court, particularly when the *371Court has not had the benefit of briefs and argument addressed to most of the major issues which the Court now decides. I respectfully dissent.

I

Lest there be any mistake about it, the changes wrought by the Court’s decision cut very deeply. In 1938, the Restatement of Torts reflected the historic rule that publication in written form of defamatory material— material tending “so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him”1 — subjected the publisher to liability although no special harm to reputation was actually proved.2' Re*372statement of Torts § 569 (1938).3 Truth was a defense, and some libels were privileged; but, given a false circulation, general damage to reputation was presumed and damages could be awarded by the jury, along with any special damages such as pecuniary loss and emotional distress. At the very least, the rule allowed the recovery of nominal damages for any defamatory publication actionable per se and thus performed

“a vindicatory function by enabling the plaintiff publicly to brand the defamatory publication as false. The salutary social value of this rule is preventive in character since it often permits a defamed person to expose the groundless character of a defamatory rumor before harm to the reputation has resulted therefrom.” Id., § 569, comment b, p. 166.

If the defamation was not libel but slander, it was actionable per se only if it imputed a criminal offense; a venereal or loathsome and communicable disease; improper conduct of a lawful business; or unchastity by a woman. Id., § 570. To be actionable, all other types of slanderous statements required proof of special damage other than actual loss of reputation or emotional distress, that special damage almost always being in the form of material or pecuniary loss of some kind. Id., § 575 and comment b, pp. 185-187.

Damages for libel or slander per se included “harm caused thereby to the reputation of the person defamed or in the absence of proof of such harm, for the harm which normally results from such a defamation.” Id., § 621. At the heart of the libel-and-slander-per-se *373damage scheme lay the award of general damages for loss of reputation. They were granted without special proof because the judgment of history was that the content of the publication itself was so likely to cause injury and because “in many cases the effect of defamatory statements is so subtle and indirect that it is impossible directly to trace the effects thereof in loss to the person defamed.” Id., § 621, comment a, p. 314.4 Proof of actual injury to reputation was itself insufficient proof of that special damage necessary to support liability for slander not actionable per se. But if special damage in the form of material or pecuniary loss were proved, general damages for injury to reputation could be had without further proof. “The plaintiff may recover not only for the special harm so caused, but also for general loss of reputation.” Id., § 575, comment a, p. 185.5 The right to recover for emotional distress depended upon the defendant’s otherwise being liable for either libel or slander. Id., § 623. Punitive damages were recoverable upon proof of special facts amounting to express malice. Id., § 908 and comment b, p. 555.

*374Preparations in the mid-1960’s for Restatement (Second) of Torts reflected what were deemed to be substantial changes in the law of defamation, primarily a trend toward limiting per se libels to those where the defamatory nature of the publication is apparent on its face, i. e., where the “defamatory innuendo is apparent from the publication itself without reference to extrinsic facts by way of inducement.” Restatement (Second) of Torts § 569, p. 29 (Tent. Draft No. 12, Apr. 27,1966). Libels of this sort and slanders per se continued to be recognized as actionable without proof of special damage or injury to reputation.6 • All other defamations would require proof of special injury in the form of material or pecuniary loss. Whether this asserted change reflected the prevailing law was heavily debated,7 but it was unquestioned at the time that there are recurring situations in which libel and slander are and should be actionable per se.

In surveying the current state of the law, the proposed Restatement (Second) observed that “[a] 11 courts except Virginia agree that any libel which is defamatory upon its face is actionable without proof of damage . . . .” Restatement (Second) of Torts § 569, p. 84 (Tent. Draft No. 11, Apr. 15, 1965). Ten jurisdictions continued to support the old rule that libel not defamatory on its face and whose innuendo depends on extrinsic facts is actionable without proof of damage although slander would not be. Twenty-four jurisdictions were said to hold that libel not defamatory on its face is to be treated like slander and thus not actionable without proof of damage where *375slander would not be. Id., § 569, p. 86. The law in six jurisdictions was found to be in an unsettled state but most likely consistent with the Restatement (Second). Id., § 569, p. 88. The law in Virginia was thought to consider libel actionable without proof of special damage only where slander would be, regardless of whether the libel is defamatory on its face. Id., § 569, p. 89. All States, therefore, were at that time thought to recognize important categories of defamation that were actionable per se.8 Nor was any question apparently raised at that time that upon proof of special damage in the form of material or pecuinary loss, general damages to reputation could be recovered without further proof.

Unquestionably, state law continued to recognize some absolute, as well as some conditional, privileges to publish defamatory materials, including the privilege of fair comment in defined situations. But it remained true that in a wide range of situations, the ordinary citizen could make out a prima facie case without proving more than a defamatory publication and could recover general damages for injury to his reputation unless defeated by the defense of truth.9

The impact of today’s decision on the traditional law of libel is immediately obvious and indisputable. No longer will the plaintiff be able to rest his case with proof of a libel defamatory on its face or proof of a slander historically actionable per se. In addition, he must prove some further degree of culpable conduct on the part of the *376publisher, such as intentional or reckless falsehood or negligence. And if he succeeds in this respect, he faces still another obstacle: recovery for loss of reputation will be conditioned upon “competent” proof of actual injury to his standing in the community. This will be true regardless of the nature of the defamation and even though it is one of those particularly reprehensible statements that have traditionally made slanderous words actionable without proof of fault by the publisher or of the damaging impact of his publication. The Court rejects the judgment of experience that some publications are so inherently capable of injury, and actual injury so difficult to prove, that the risk of falsehood should be borne by the publisher, not the victim. Plainly, with the additional burden on the plaintiff of proving negligence or other fault, it will be exceedingly difficult, perhaps impossible, for him to vindicate his reputation interest by securing a judgment for nominal damages, the practical effect of such a judgment being a judicial declaration that the publication was indeed false. Under the new rule the plaintiff can lose, not because the statement is true, but because it was not negligently made.

So too, the requirement of proving special injury to reputation before general damages may be awarded will clearly eliminate the prevailing rule, worked out over a very long period of time, that, in the case of defama-tions not actionable per se, the recovery of general damages for injury to reputation may also be had if some form of material or pecuniary loss is proved. Finally, an inflexible federal standard is imposed for the award of punitive damages. No longer will it be enough to prove ill will and an attempt to injure.

These are radical changes in the law and severe invasions of the prerogatives of the States. They should *377at least be shown to be required by the First Amendment or necessitated by our present circumstances. Neither has been demonstrated.

Of course, New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Rosenblatt v. Baer, 383 U. S. 75 (1966), and Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U. S. 130 (1967), have themselves worked major changes in defamation law. Public officials and public figures, if they are to recover general damages for injury to reputation, must prove knowing falsehood or reckless disregard for the truth. The States were required to conform to these decisions. Thereafter in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), three Members of the Court urged that the same standard be applied whenever the publication concerned an event of public or general concern. But none of these cases purported to foreclose in all circumstances recovery by the ordinary citizen on traditional standards of liability, and until today, a majority of the Court had not supported the proposition that, given liability, a court or jury may not award general damages in a reasonable amount without further proof of injury.

In the brief period since Rosenbloom was decided, at least 17 States and several federal courts of appeals have felt obliged to consider the New York Times constitutional privilege for liability as extending to, in the words of the Rosenbloom plurality, “all discussion and communication involving matters of public or general concern.” Id., at 44.10 Apparently, however, general *378damages still remain recoverable once that standard of liability is satisfied. Except where public officials and public figures are concerned, the Court now repudi*379ates the plurality opinion in Rosenbloom and appears to espouse the liability standard set forth by three other Justices in that ease. The States must now struggle to *380discern the meaning of such ill-defined concepts as “liability without fault” and to fashion novel rules for the recovery of damages. These matters have not been briefed or argued by the parties and their workability has not been seriously explored. Nevertheless, yielding to the apparently irresistible impulse to announce a new and different interpretation of the First Amendment, the Court discards history and precedent in its rush to refashion defamation law in accordance with the inclinations of a perhaps evanescent majority of the Justices.

II

The Court does not contend, and it could hardly do so, that those who wrote the First Amendment intended to prohibit the Federal Government, within its sphere of influence in the Territories and the District of Columbia, from providing the private citizen a peaceful remedy for damaging falsehood. At the time of the adoption of the First Amendment, many of the consequences of libel law already described had developed, particularly the rule that libels and some slanders were so inherently injurious that they were actionable without special proof of damage to reputation. As the Court pointed out in Roth v. United States, 354 U. S. 476, 482 (1957), 10 of the 14 States that had ratified the Constitution by 1792 had themselves provided constitutional guarantees for free *381expression, and 13 of the 14 nevertheless provided for the prosecution of libels. Prior to the Revolution, the American Colonies had adopted the common law of libel.11 Contrary to some popular notions, freedom of the press was sharply curtailed in colonial America.12 Seditious libel was punished as a contempt by the colonial legislatures and as a criminal offense in the colonial courts.13

Scant, if any, evidence exists that the First Amendment was intended to abolish the common law of libel, at least to the extent of depriving ordinary citizens of meaningful redress against their defamers. On the contrary,

“[i]t is conceded on all sides that the common-law rules that subjected the libeler to responsibility for the private injury, or the public scandal or disorder occasioned by his conduct, are not abolished by the protection extended to the press in our constitutions.” 2 T. Cooley, Constitutional Limitations 883 (8th ed. 1927).

Moreover, consistent with the Blackstone formula,14 these *382common-law actions did not abridge freedom of the press. See generally L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 247-248 (1960); Merin, Libel and the Supreme Court, 11 Wm. & Mary L. Rev. 371, 376 (1969); Hallen, Fair Comment, 8 Tex. L. Rev. 41, 56 (1929). Alexander Meikle-john, who accorded generous reach to the First Amendment, nevertheless acknowledged:

“No one can doubt that, in any well-governed society, the legislature has both the right and the duty to prohibit certain forms of speech. Libelous assertions may be, and must be, forbidden and punished. So too must slander. . . . All these necessities that speech be limited are recognized and provided for under the Constitution. They were not unknown to the writers of the First Amendment. That amendment, then, we may take it for granted, does not forbid the abridging of speech. But, at the same time, it does forbid the abridging of the freedom of speech. It is to the solving of that paradox, that apparent self-contradiction, that we are summoned if, as free men, we wish to know what the right of freedom of speech is.” Political Freedom, The Constitutional Powers of the People 21 (1965).

See also Leflar, The Free-ness of Free Speech, 15 Yand. L. Rev. 1073,1080-1081 (1962).

Professor Zechariah Chafee, a noted First Amendment scholar, has persuasively argued that conditions in 1791 “do not arbitrarily fix the division between lawful and unlawful speech for all time.” Free Speech in the United States 14 (1954).15 At the same time, however, *383he notes that while the Framers may have intended to abolish seditious libels and to prevent any prosecutions by the Federal Government for criticism of the Government,16 “the free speech clauses do not wipe out the common law as to obscenity, profanity, and defamation of individuals.”17

The debates in Congress and the States over the Bill of Rights are unclear and inconclusive on any articulated intention of the Framers as to the free press guarantee.18 We know that Benjamin Franklin, John Adams, and William Cushing favored limiting freedom of the press to truthful statements, while others such as James Wilson suggested a restatement of the Blackstone standard.19 *384Jefferson endorsed Madison’s formula that “Congress shall make no law . . . abridging the freedom of speech or the press” only after he suggested:

“The people shall not be deprived of their right to speak, to write, or otherwise to publish anything but false facts affecting injuriously the life, liberty, or reputation of others . . . F. Mott, Jefferson and the Press 14 (1943).20

Doubt has been expressed that the Members of Congress envisioned the First Amendment as reaching even this far. Merin, Libel and the Supreme Court, 11 Win. & Mary L. Rev. 371, §379-380 (1969).

This Court in bygone years has repeatedly dealt with libel and slander actions from the District of Columbia and from the Territories. Although in these cases First Amendment considerations were not expressly discussed, the opinions of the Court unmistakably revealed that the classic law of libel was firmly in place in those areas where federal law controlled. See, e. g., Washington Post Co. v. Chaloner, 250 U. S. 290 (1919); Baker v. Warner, 231 U. S. 588 (1913); Nolle v. Oyster, 230 U. S. 165 (1913); Dorr v. United States, 195 U. S. 138 (1904); Pollard v. Lyon, 91 U. S. 225 (1876); White v. Nicholls, 3 How. 266 (1845).

The Court’s consistent view prior to New York Times Co. v. Sullivan, 376 U. S. 254 (1964), was that defamatory *385utterances were wholly unprotected by the First Amendment. In Patterson v. Colorado ex rel. Attorney General, 205 U. S. 454, 462 (1907), for example, the Court said that although freedom of speech and press is protected from abridgment by the Constitution, these provisions “do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.” This statement was repeated in Near v. Minnesota ex rel. Olson, 283 U. S. 697, 714 (1931), the Court adding:

“But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our constitutions.” Id., at 715.

Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942) (footnotes omitted), reflected the same view:

“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Beauharnais v. Illinois, 343 U. S. 250, 254-257 (1952) (footnotes omitted), repeated the Chaplinsky statement, noting also that nowhere at the time of the adoption of *386the Constitution “was there any suggestion that the crime of libel be abolished.” And in Roth v. United States, 354 U. S., at 483 (footnote omitted), the Court further examined the meaning of the First Amendment:

“In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v. Illinois, 343 U. S. 250, 266. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press.” 21

The Court could not accept the generality of this historic view in New York Times Co. v. Sullivan, supra. There the Court held that the First Amendment was intended to forbid actions for seditious libel and that defamation actions by public officials were therefore not subject to the traditional law of libel and slander. If these officials (and, later, public figures occupying semiofficial or influential, although private, positions) were to. recover, they were required to prove not only that the publication was false but also that it was knowingly false or published with reckless disregard for its truth or falsity. This view that the First Amendment was written to for*387bid seditious libel reflected one side of the dispute that raged at the turn of the nineteenth century22 and also mirrored the views of some later scholars.23

The. central meaning of New York Times, and for me the First Amendment as it relates to libel laws, is that seditious libel — criticism of government and public officials — falls beyond the police power of the State. 376 U. S., at 273-276.24 In a democratic society such as ours, the citizen has the privilege of criticizing his government and its officials. But neither New York Times nor its progeny suggest that the First Amendment intended in all circumstances to deprive the private citizen of his historic recourse to redress published falsehoods damaging to reputation or that, contrary to history and precedent, the Amendment should now be so interpreted. Simply put, the First Amendment did not confer a “license to defame the citizen.” W. Douglas, The Right of the People 36 (1958).

I do not labor the foregoing matters to contend that the Court is foreclosed from reconsidering prior interpretations of the First Amendment.25 But the Court apparently finds a clean slate where in fact we have instructive historical experience dating from long before *388the first settlers, with their notions of democratic government and human freedom, journeyed to this land. Given this rich background of history and precedent and because we deal with fundamentals when we construe the First Amendment, we should proceed with care and be presented with more compelling reasons before we jettison the settled law of the States to an even more radical extent.26

Ill

The Court concedes that the dangers of self-censorship are insufficient to override the state interest in protecting the reputation of private individuals who are both more helpless and more deserving of state concern than public persons with more access to the media to defend themselves. It therefore refuses to condition the private plaintiff’s recovery on a showing of intentional or reckless falsehood as required by New York Times. But the Court nevertheless extends the reach of the First Amendment to all defamation actions by requiring that the ordinary *389citizen, when libeled by a publication defamatory on its face, must prove some degree of culpability on the part of the publisher beyond the circulation to the public of a damaging falsehood. A rule at least as strict would be called for where the defamatory character of the publication is not apparent from its face. Ante, at 348.27 Furthermore, if this major hurdle to establish liability is surmounted, the Court requires proof of actual injury to reputation before any damages for such injury may be awarded.

The Court proceeds as though it were writing on tabula rasa and suggests that it must mediate between two unacceptable choices — on the one hand, the rigors of the New York Times rule which the Court thinks would give insufficient recognition to the interest of the private plaintiff, and, on the other hand, the prospect of imposing “liability without fault” on the press and others who are charged with defamatory utterances. Totally ignoring history and settled First Amendment law, the Court purports to arrive at an “equitable compromise,” rejecting both what it considers faultless liability and New York Times malice, but insisting on some intermediate degree of fault. Of course, the Court necessarily discards the contrary judgment arrived at in the 50 States that the reputation interest of the private citizen is deserving of considerably more protection.

The Court evinces a deep-seated antipathy to “liability without fault.” But this catch-phrase has no talismanic significance and is almost meaningless in this context where the Court appears to be addressing those libels and slanders that are defamatory on their face and where *390the publisher is no doubt aware from the nature of the material that it would be inherently damaging to reputation. He publishes notwithstanding, knowing that he will inflict injury. With this knowledge, he must intend to inflict that injury, his excuse being that he is privileged to do so — that he has published the truth. But as it turns out, what he has circulated to the public is a very damaging falsehood. Is he nevertheless “faultless”?Perhaps it can be said that the mistake about his defense was made in good faith, but the fact remains that it is he who launched the publication knowing that it could ruin a reputation.

In these circumstances, the law has heretofore put the risk of falsehood on the publisher where the victim is a private citizen and no grounds of special privilege are invoked. The Court would now shift this risk to the victim, even though he has done nothing to invite the calumny, is wholly innocent of fault, and is helpless to avoid his injury. I doubt that jurisprudential resistance to liability without fault is sufficient ground for employing the First Amendment to revolutionize the law of libel, and in my view, that body of legal rules poses no realistic threat to the press and its service to the public. The press today is vigorous and robust. To me, it is quite incredible to suggest that threats of libel suits from private citizens are causing the press to refrain from publishing the truth. I know of no hard facts to support that proposition, and the Court furnishes none.

The communications industry has increasingly become concentrated in a few powerful hands operating very lucrative businesses reaching across the Nation and into almost every home.28 Neither the industry as a whole nor *391its individual components are easily intimidated, and we are fortunate that they are not. Requiring them to pay for the occasional damage they do to private reputation will play no substantial part in their future performance or their existence.

In any event, if the Court’s principal concern is to protect the communications industry from large libel judgments, it would appear that its new requirements with respect to general and punitive damages would be ample protection. Why it also feels compelled to escalate the threshold standard of liability I cannot fathom, *392particularly when this will eliminate in many instances the plaintiff’s possibility of securing a judicial determination that the damaging publication was indeed false, whether or not he is entitled to recover money damages. Under the Court’s new rules, the plaintiff must prove not only the defamatory statement but also some degree of fault accompanying it. The publication may be wholly false and the wrong to him unjustified, but his case will nevertheless be dismissed for failure to prove negligence or other fault on the part of the publisher. I find it unacceptable to distribute the risk in this manner and force the wholly innocent victim to bear the injury; for, as between the two, the defamer is the only culpable party. It is he who circulated a falsehood that he was not required to publish.

It is difficult for me to understand why the ordinary citizen should himself carry the risk of damage and suffer the injury in order to vindicate First Amendment values by protecting the press and others from liability for circulating false information. This is particularly true because such statements serve no purpose whatsoever in furthering the public interest or the search for truth but, on the contrary, may frustrate that search and at the same time inflict great injury on the defenseless individual. The owners of the press and the stockholders of the communications enterprises can much better bear the burden. And if they cannot, the public at large should somehow pay for what is essentially a public benefit derived at private expense.

IV

A

Not content with escalating the threshold requirements of establishing liability, the Court abolishes the ordinary damages rule, undisturbed by New York Times *393and later cases, that, as to libels or glanders defamatory on their face, injury to reputation is presumed and general damages may be awarded along with whatever special damages may be sought. Apparently because the Court feels that in some unspecified and unknown number of cases, plaintiffs recover where they have suffered no injury or recover more than they deserve, it dismisses this rule as an “oddity of tort law.” The Court thereby refuses in any case to accept the fact of wide dissemination of a per se libel as prima facie proof of injury sufficient to survive a motion to dismiss at the close of plaintiff’s case.

I have said before, but it bears repeating, that even if the plaintiff should recover no monetary damages, he should be able to prevail and have a judgment that the publication is false. But beyond that, courts and legislatures literally for centuries have thought that in the generality of cases, libeled plaintiffs will be seriously shortchanged if they must prove the extent of the injury to their reputations. Even where libels or slanders are not on their face defamatory and special damage must be shown, when that showing is made, general damages for reputation injury are recoverable without specific proof.29

*394The Court is clearly right when at one point it states that “the law of defamation is rooted in our experience that the truth rarely catches up with a lie.” Ante, at 344 n. 9. But it ignores what that experience teaches, viz., that damage to reputation is recurringly difficult to prove and that requiring actual proof would repeatedly destroy any chance for adequate compensation. Eminent authority has warned that

“it is clear that proof of actual damage will be impossible in a great many cases where, from the character of the defamatory words and the circumstances of publication, it is all but certain that serious harm has resulted in fact.” W. Prosser, Law of Torts §112, p. 765 (4th ed. 1971).30

The Court fears uncontrolled awards of damages by juries, but that not only denigrates the good sense of most jurors — it fails to consider the role of trial and appellate courts in limiting excessive jury verdicts where no reasonable relationship exists between the amount awarded and the injury sustained.31 Available informa*395tion tends to confirm that American courts have ably discharged this responsibility.32

The new rule with respect to general damages appears to apply to all libels or slanders, whether defamatory on their face or not, except,-1 gather, when the plaintiff proves intentional falsehood or' reckless disregard. Although the impact of the publication on the victim is the same, in such circumstances the injury to reputation may apparently be presumed in accordance with the traditional rule. Why a defamatory statement is more apt to cause injury if the lie is intentional than when it is only negligent, I fail to understand. I suggest that judges and juries who must live by these rules will find them equally incomprehensible.

B

With a flourish of the pen, the Court also discards the prevailing rule in libel and slander actions that punitive damages may be awarded on the classic grounds of common-law malice, that is, “‘[ajctual malice’ in the sense of ill will or fraud or reckless indifference to con*396sequences.” C. McCormick, Law of Damages § 118, p. 431 (1935); see also W. Prosser, supra, § 113, p. 772; 1 A. Hanson, Libel and Related Torts ¶ 163, p. 133 (1969) ; Note, Developments in the Law — Defamation, 69 Harv. L. Rev. 875, 938 (1956); Cal. Civ. Code §48a(4)(d) (1954). In its stead, the Court requires defamation plaintiffs to show intentional falsehood or reckless disregard for the truth or falsity of the publication. The Court again complains about substantial verdicts and the possibility of press self-censorship, saying that punitive damages are merely “private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.” Ante, at 350. But I see no constitutional difference between publishing with reckless disregard for the truth, where punitive damages will be permitted, and negligent publication where they will not be allowed. It is difficult to understand what is constitutionally wrong with assessing punitive damages to deter a publisher from departing from those standards of care ordinarily followed in the publishing industry, particularly if common-law malice is also shown.

I note also the questionable premise that “juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused.” Ibid. This represents an inaccurate view of established practice, “another of those situations in which judges, largely unfamiliar with the relatively rare actions for defamation, rely on words without really going behind them . . . .”33 While a jury award in any type of civil case may certainly be unpredictable, trial and appellate courts have been increasingly vigilant in ensuring that the jury’s result is “based upon a rational consideration of the evidence and the proper application of the *397law.” Reynolds v. Pegler, 123 F. Supp. 36, 39 (SDNY 1954), aff’d, 223 F. 2d 429 (CA2), cert. denied, 350 U. S. 846 (1955). See supra, nn. 31-32. Moreover, some courts require that punitive damages bear a reasonable relation to the compensatory damages award.34 Still others bar common-law punitive damages or condition their award on a refusal to print a retraction.35

“The danger ... of immoderate verdicts, is certainly a real one, and the criterion to be applied by the judge in setting or reducing the amount is concededly a vague and subjective one. Nevertheless the verdict may be twice submitted by the complaining defendant to the common sense of trained judicial minds, once on motion for new trial and again on appeal, and it must be a rare instance when an unjustifiable award escapes correction.” C. McCormick, supra, § 77, p. 278.

The Court points to absolutely no empirical evidence to substantiate its premise. For my part, I would require something more substantial than an undifferentiated fear of unduly burdensome punitive damages awards before retooling the established common-law rule and depriving the States of the opportunity to experiment with different methods for guarding against abuses.

Even assuming the possibility that some verdicts will be “excessive,” I cannot subscribe to the Court’s remedy. On its face it is a classic example of judicial overkill. Apparently abandoning the salutary New York Times policy of case-by-case “ 'independent examination of the whole record’ ... so as to assure ourselves that the judgment does not constitute a forbidden intrusion on *398the field of free expression,” 36 the Court substitutes an inflexible rule barring recovery of punitive damages absent proof of constitutional malice. The First Amendment is a majestic statement of a free people’s dedication to “uninhibited, robust, and wide-open” debate on public issues,37 but we do it a grave disservice when we needlessly spend its force.38 For almost 200 years, punitive damages and the First Amendment have peacefully coexisted. There has been no demonstration that state libel laws as they relate to punitive damages necessitate the majority’s extreme response. I fear that those who read the Court’s decision will find its words inaudible, for the Court speaks “only [with] a voice of power, not of reason.” Mapp v. Ohio, 367 U. S. 643, 686 (1961) (Harlan, J., dissenting).

y

In disagreeing with the Court on the First Amendment’s reach in the area of state libel laws protecting nonpublic persons, I do not repudiate the principle that the First-Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.” Associated Press v. United States, 326 U. S. 1, 20 (1945); see also Miami Herald Publishing Co. v. Tor-nillo, ante, at 260 (White, J., concurring). I continue to subscribe to the New York Times decision and those decisions extending its protection to defamatory falsehoods about public persons. My quarrel with the Court stems

*399from its willingness “to sacrifice good sense to a syllogism” 39 — to find in the New York Times doctrine an infinite elasticity. Unfortunately, this expansion is the latest manifestation of the destructive potential of any good idea carried out to its logical extreme.

Recovery under common-law standards for defamatory falsehoods about a private individual, who enjoys no “general fame or notoriety in the community,” who is not “pervasive[ly] involve[d] in the affairs of society,” and who does not “thrust himself into the vortex of [a given] public issue ... in an attempt to influence its outcome,” 40 is simply not forbidden by the First Amendment. A distinguished private study group put it this way:

“Accountability, like subjection to law, is not necessarily a net subtraction from liberty.” “The First Amendment was intended to guarantee free expression, not to create a privileged industry.” Commission on Freedom of the Press, A Free and Responsible Press 130, 81 (1947).

I fail to see how the quality or quantity of public debate will be promoted by further emasculation of state libel laws for the benefit of the news media.41 If any*400thing, this trend may provoke a new and radical imbalance in the communications process. Cf. Barron, Access to the Press — A New First Amendment Right, 80 Harv. L. Rev. 1641, 1657 (1967). It is not at all inconceivable that virtually unrestrained defamatory remarks about private citizens will discourage them from speaking out and concerning themselves with social problems. This would turn the First Amendment on its head. Note, The Scope of First Amendment Protection for Good-Faith Defamatory Error, 75 Yale L. J. 642, 649 (1966); Merin, 11 Wm. & Mary L. Rev., at 418. David Riesman, writing in the midst of World War II on the fascists' effective use of defamatory attacks on their oppo-' nents, commented: “Thus it is that the law of libel, with its ecclesiastic background and domestic character, its aura of heart-balm suits and crusading nineteenth-century editors, becomes suddenly important for modern democratic survival.” Democracy and Defamation: Fair Game and Fair Comment I, 42 Col. L. Rev. 1085, 1088 (1942).

This case ultimately comes down to the importance the Court attaches to society’s “pervasive and strong interest in preventing and redressing attacks upon reputation.” Rosenblatt v. Baer, 383 U. S., at 86. From all that I have seen, the Court has miscalculated and denigrates that interest at a time when escalating assaults on individuality and personal dignity counsel otherwise.42 *401At the very least, the issue is highly debatable, and the Court has not carried its heavy burden of proof to justify tampering with state libel laws.43

*402While some risk of exposure “is a concomitant of life in a civilized community,” Time, Inc. v. Hill, 385 U. S. 374, 388 (1967), the private citizen does not bargain for defamatory falsehoods. Nor is society powerless to vindicate unfair injury to his reputation.

“It is a fallacy ... to assume that the First Amendment is the only guidepost in the area of state defamation laws. It is not. . . .

“The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being — • a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.” Rosenblatt v. Baer, supra, at 92 (Stewart, J., concurring).

The case against razing state libel laws is compelling when considered in light of the increasingly prominent role of mass media in our society and the awesome power it has placed in the hands of a select few.44 Surely, our political “system cannot flourish if regimentation takes hold.” Public Utilities Comm’n v. Pollak, 343 U. S. 451, 469 (1952) (Douglas, J., dissenting). Nor can it survive if our people are deprived of an effective method *403of vindicating their legitimate interest in their good names.45

Freedom and human dignity and decency are not antithetical. Indeed, they cannot survive without each other. Both exist side-by-side in precarious balance, one always threatening to overwhelm the other. Our experience as a Nation testifies to the ability of our democratic institutions to harness this dynamic tension. One of the mechanisms seized upon by the common law to accommodate these forces was the civil libel action tried before a jury of average citizens. And it has essentially fulfilled its role. Not because it is necessarily the best or only answer, but because

“the juristic philosophy of the common law is at bottom the philosophy of pragmatism. Its truth is relative, not absolute. The rule that functions well produces a title deed to recognition.” B. Cardozo, Selected Writings 149 (Hall ed. 1947).

In our federal system, there must be room for allowing the States to take diverse approaches to these vexing questions. We should “continue to forbear from fettering the States with an adamant rule which may embarrass them in coping with their own peculiar problems . . . .” Mapp v. Ohio, 367 U. S., at 681 (Harlan, J., dissenting); see also Murnaghan, From Figment to Fiction to Philosophy — The Requirement of Proof of Damages in Libel Actions, 22 Cath. U. L. Rev. 1, 38 (1972). *404Cf. Younger v. Harris, 401 U. S. 37, 44-45 (1971). Whether or not the course followed by the majority is wise, and I have indicated my doubts that it is, our constitutional scheme compels a proper respect for the role of the States in acquitting their duty to obey the Constitution. Finding no evidence that they have shirked this responsibility, particularly when the law of defamation is even now in'transition, I would await some demonstration of the diminution of freedom of expression before acting.

For the foregoing reasons, I would reverse the judgment of the Court of Appeals and reinstate the jury's verdict.

*751Justice Powell

announced the judgment of the Court and delivered an opinion, in which Justice Rehnquist and Justice O’Connor joined.

In Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), we held that the First Amendment restricted the damages that a private individual could obtain from a publisher for a libel that involved a matter of public concern. More specifically, we held that in these circumstances the First Amendment prohibited awards of presumed and punitive damages for false and defamatory statements unless the plaintiff shows “actual malice,” that is, knowledge of falsity or reckless disregard for the truth. The question presented in this case is whether this rule of Gertz applies when the false and defamatory statements do not involve matters of public concern.

HH

Petitioner Dun & Bradstreet, a credit reporting agency, provides subscribers with financial and related information about businesses. All the information is confidential; under the terms of the subscription agreement the subscribers may not reveal it to anyone else. On July 26, 1976, petitioner sent a report to five subscribers indicating that respondent, a construction contractor, had filed a voluntary petition for bankruptcy. This report was false and grossly misrepresented respondent’s assets and liabilities. That same day, while discussing the possibility of future financing with its bank, respondent’s president was told that the bank had received the defamatory report. He immediately called petitioner’s regional office, explained the error, and asked for a correction. In addition, he requested the names of the firms that had received the false report in order to assure them that the company was solvent. Petitioner promised to look into the matter but refused to divulge the names of those who had received the report.

After determining that its report was indeed false, petitioner issued a corrective notice on or about August 3, 1976, *752to the five subscribers who had received the initial report. The notice stated that one of respondent’s former employees, not respondent itself, had filed for bankruptcy and that respondent “continued in business as usual.” Respondent told petitioner that it was dissatisfied with the notice, and it again asked for a list of subscribers who had seen the initial report. Again petitioner refused to divulge their names.

Respondent then brought this defamation action in Vermont state court. It alleged that the false report had injured its reputation and sought both compensatory and punitive damages. The trial established that the error in petitioner’s report had been caused when one of its employees, a 17-year-old high school student paid to review Vermont bankruptcy pleadings, had inadvertently attributed to respondent a bankruptcy petition filed by one of respondent’s former employees. Although petitioner’s representative testified that it was routine practice to check the accuracy of such reports with the businesses themselves, it did not try to verify the information about respondent before reporting it.

After trial, the jury returned a.verdiet in favor of respondent and awarded $50,000 in compensatory or presumed damages and $300,000 in punitive damages. Petitioner moved for a new trial. It argued that in Gertz v. Robert Welch, Inc., supra, at 349, this Court had ruled broadly that “the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth,” and it argued that the judge’s instructions in this case permitted the jury to award such damages on a lesser showing. The trial court indicated some doubt as to whether Gertz applied to “non-media cases,” but granted a new trial “[bjecause of . . . dissatisfaction with its charge and . . . conviction that the interests of justice require[d]” it. App. 26.

The Vermont Supreme Court reversed. 143 Vt. 66, 461 A. 2d 414 (1983). Although recognizing that “in certain instances the distinction between media and nonmedia defend*753ants may be difficult to draw,” the court stated that “no such difficulty is presented with credit reporting agencies, which are in the business of selling financial information to a limited number of subscribers who have paid substantial fees for their services.” Id., at 73, 461 A. 2d, at 417. Relying on this distinguishing characteristic of credit reporting firms, the court concluded that such firms are not “the type of media worthy of First Amendment protection as contemplated by New York Times [Co. v. Sullivan, 376 U. S. 254 (1964),] and its progeny.” Id., at 73-74, 461 A. 2d, at 417-418. It held that the balance between a private plaintiff’s right to recover presumed and punitive damages without a showing of special fault and the First Amendment rights of “nonmedia” speakers “must be struck in favor of the private plaintiff defamed by a nonmedia defendant.” Id., at 75, 461 A. 2d, at 418. Accordingly, the court held “that as a matter of federal constitutional law, the media protections outlined in Gertz are inapplicable to nonmedia defamation actions.” Ibid.

Recognizing disagreement among the lower courts about when the protections of Gertz apply,1 we granted certiorari. 464 U. S. 959 (1983). We now affirm, although for reasons different from those relied upon by the Vermont Supreme Court.

II

As an initial matter, respondent contends that we need not determine whether Gertz applies in this case because the instructions, taken as a whole, required the jury to find “actual *754malice” before awarding presumed or punitive damages.2 The trial court instructed the jury that because the report was libelous per se, respondent was not required “to prove actual damages . . . since damage and loss [are] conclusively presumed.” App. 17; accord, id., at 19. It also instructed the jury that it could award punitive damages only if it found “actual malice.” Id., at 20. Its only other relevant instruction was that liability could not be established unless respondent showed “malice or lack of good faith on the part of the Defendant.” Id., at 18. Respondent contends that these references to “malice,” “lack of good faith,” and “actual malice” required the jury to find knowledge of falsity or reckless disregard for the truth — the “actual malice” of New York Times Co. v. Sullivan, 376 U. S. 254 (1964)—before it awarded presumed or punitive damages.

We reject this claim because the trial court failed to define any of these terms adequately. It did not, for example, provide the jury with any definition of the term “actual malice.” In fact, the only relevant term it defined was simple “malice.”3 And its definitions of this term included not only the New York Times formulation but also other concepts such as *755“bad faith” and “reckless disregard of the [statement’s] possible consequences.” App. 19. The instructions thus permitted the jury to award presumed and punitive damages on a lesser showing than “actúal malice.” Consequently, the trial court’s conclusion that the instructions did not satisfy Gertz was correct, and the Vermont Supreme Court’s determination that Gertz was inapplicable was necessary to its decision that the trial court erred in granting the motion for a new trial. We therefore must consider whether Gertz applies to the case before us.

*754“If you find that the Defendant acted in a bad faith towards the Plaintiff in publishing the Erroneous Report, or that Defendant intended to injure the Plaintiff in its business, or that it acted in a willful, wanton or reckless disregard of the rights and interests of the Plaintiff, the Defendant has acted maliciously and the privilege is destroyed. Further, if the Report was made with reckless disregard of the possible consequences, or if it was made with the knowledge that it was false or with reckless disregard of its truth or falsity, it was made with malice.” App. 18-19 (emphasis added).

*755Ill

In New York Times Co. v. Sullivan, supra, the Court for the first time held that the First Amendment limits the reach of state defamation laws. That case concerned a public official’s recovery of damages for the publication of an advertisement criticizing police conduct in a civil rights demonstration. As the Court noted, the advertisement concerned “one of the major public issues of our time.” Id., at 271. Noting that “freedom of expression upon public questions is secured by the First Amendment,” id., at 269 (emphasis added), and that “debate on public issues should be uninhibited, robust, and wide-open,” id., at 270 (emphasis added), the Court held that a public official cannot recover damages for defamatory falsehood unless he proves that the false 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,” id., at 280. In later cases, all involving public issues, the Court extended this same constitutional protection to libels of public figures, e. g., Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), and in one case suggested in a plurality opinion that this constitutional rule should extend to libels of any individual so long as the defamatory statements involved a “matter of public or general interest,” Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 44 (1971) (opinion of Brennan, J.).

*756In Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), we held that the protections of New York Times did not extend as far as Rosenbloom suggested. Gertz concerned a libelous article appearing in a magazine called American Opinion, the monthly outlet of the John Birch Society. The article in question discussed whether the prosecution of a policeman in Chicago was part of a Communist campaign to discredit local law enforcement agencies. The plaintiff, Gertz, neither a public official nor a public figure, was a lawyer tangentially involved in the prosecution. The magazine alleged that he was the chief architect of the “frame-up” of the police officer and linked him to Communist activity. Like every other case in which this Court has found constitutional limits to state defamation laws, Gertz involved expression on a matter of undoubted public concern.

In Gertz, we held that the fact that expression concerned a public issue did not by itself entitle the libel defendant to the constitutional protections of New York Times. These protections, we found, were not “justified solely by reference to the interest of the press and broadcast media in immunity from liability.” 418 U. S., at 343. Rather, they represented “an accommodation between [First Amendment] con-cernís] and the limited state interest present in the context of libel actions brought by public persons.” Ibid. In libel actions brought by private persons we found the competing interests different. Largely because private persons have not voluntarily exposed themselves to increased risk of injury from defamatory statements and because they generally lack effective opportunities for rebutting such statements, id., at 345, we found that the State possessed a “strong and legitimate . . . interest in compensating private individuals for injury to reputation.” Id., at 348-349. Balancing this stronger state interest against the same First Amendment interest at stake in New York Times, we held that a State could not allow recovery of presumed and punitive damages absent a showing of “actual malice.” Nothing in our opinion, *757however, indicated that this same balance would be struck regardless of the type of speech involved.4

<

We have never considered whether the Gertz balance obtains when the defamatory statements involve no issue of public concern. To make this determination, we must employ the approach approved in Gertz and balance the State’s interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression. This state interest is identical to the one weighed in Gertz. There we found that it was “strong and legitimate.” 418 U. S., at 348. A State should not lightly be required to abandon it,

“for, as Mr. Justice Stewart has reminded us, the individual’s right to the protection of his own good name *758‘reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. . . .’ Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (concurring opinion).” Id., at 341.

The First Amendment interest, on the other hand, is less important than the one weighed in Gertz. We have long recognized that not all speech is of equal First Amendment importance.5 It is speech on “‘matters of public concern’” *759that is “at the heart of the First Amendment’s protection.” First National Bank of Boston v. Bellotti, 435 U. S. 765, 776 (1978), citing Thornhill v. Alabama, 310 U. S. 88, 101 (1940). As we stated in Connick v. Myers, 461 U. S. 138, 145 (1983), this “special concern [for speech on public issues] is no mystery”:

“The First Amendment ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ Roth v. United States, 354 U. S. 476, 484 (1957); New York Times Co. v. Sullivan, 376 U. S. 254, 269 (1964). ‘[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.’ Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964). Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the ‘ “highest rung of the hierarchy of First Amendment values,”’ and is entitled to special protection. NAACP v. Claiborne Hardware Co., 458 U. S. 886, 913 (1982); Carey v. Brown, 447 U. S. 455, 467 (1980).”

In contrast, speech on matters of purely private concern is of less First Amendment concern. Id., at 146-147. As a number of state courts, including the court below, have recognized, the role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent.6 In such a case,

*760“[t]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas concerning self-government; and there is no threat of liability causing a reaction of self-censorship by the press. The facts of the present case are wholly without the First Amendment concerns with which the Supreme Court of the United States has been struggling.” Harley-Davidson Motorsports, Inc. v. Markley, 279 Ore. 361, 366, 568 P. 2d 1359, 1363 (1977).

Accord, Rowe v. Metz, 195 Colo. 424, 426, 579 P. 2d 83, 84 (1978); Denny v. Mertz, 106 Wis. 2d 636, 661, 318 N. W. 2d 141, 153, cert. denied, 459 U. S. 883 (1982).

While such speech is not totally unprotected by the First Amendment, see Connick v. Myers, supra, at 147, its protections are less stringent. In Gertz, we found that the state interest in awarding presumed and punitive damages was not “substantial” in view of their effect on speech at the core of First Amendment concern. 418 U. S., at 349. This interest, however, is “substantial” relative to the incidental effect these remedies may have on speech of significantly less constitutional interest. The rationale of the common-law rules has been the experience and judgment of history that “proof of actual damage will be impossible in a great many cases where, from the character of the defamatory words and the circumstances of publication, it is all but certain that serious harm has resulted in fact.” W. Prosser, Law of Torts § 112, p. 765 (4th ed. 1971); accord, Rowe v. Metz, supra, at 425-426, 579 P. 2d, at 84; Note, Developments in the Law—Defamation, 69 Harv. L. Rev. 875, 891-892 (1956). As a result, courts for centuries have allowed juries to presume that some damage occurred from many defamatory utter-*761anees and publications. Restatement of Torts § 568, Comment b, p. 162 (1938) (noting that Hale announced that damages were to be presumed for libel as early as 1670). This rule furthers the state interest in providing remedies for defamation by ensuring that those remedies are effective. In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest adequately supports awards of presumed and punitive damages — even absent a showing of “actual malice.”7

V

The only remaining issue is whether petitioner’s credit report involved a matter of public concern. In a related context, we have held that “[w]hether . . . speech addresses a matter of public concern must be determined by [the expression’s] content, form, and context ... as revealed by the whole record.” Connick v. Myers, supra, at 147-148. *762These factors indicate that petitioner’s credit report concerns no public issue.8 It was speech solely in the individual interest of the speaker and its specific business audience. Cf. Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 561 (1980). This particular interest warrants no special protection when — as in this case — the speech is wholly false and clearly damaging to the victim’s business reputation. Cf. id., at 566; Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771-772 (1976). Moreover, since the credit report was made available to only five subscribers, who, under the terms of the subscription agreement, could not disseminate it further, it cannot be said that the report involves any “strong interest in the free flow of commercial information.” Id., at 764. There is simply no credible argument that this type of credit reporting requires special protection to ensure that “debate on public issues [will] be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S., at 270.

In addition, the speech here, like advertising, is hardy and unlikely to be deterred by incidental state regulation. See Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 771-772. It is solely motivated by the desire for profit, which, we have noted, is a force less likely to be deterred than others. Ibid. Arguably, the reporting here was also more objectively verifiable than speech deserving of greater protection. See ibid. In any case, the market provides a powerful incentive to a credit reporting *763agency to be accurate, since false credit reporting is of no use to creditors. Thus, any incremental “chilling” effect of libel suits would be of decreased significance.9

I — i >

We conclude that permitting recovery of presumed and punitive damages in defamation cases absent a showing of “actual malice” does hot violate the First Amendment when the defamatory statements do not involve matters of public concern. Accordingly, we affirm the judgment of the Vermont Supreme Court.

It is so ordered.

Chief Justice Burger,

concurring in the judgment.

In Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), contrary to well-established common law prevailing in the states, a divided Court held that a private plaintiff in a defamation action cannot recover for a published falsehood unless he proves that the defendant was at least negligent in publishing the falsehood. The Court further held that there can be no “presumed” damages in such an action and that the private plaintiff cannot receive “punitive” damages unless it is established that the publication was made with “actual malice,” as defined in New York Times Co. v. Sullivan, 376 U. S. 254 (1964).

I dissented in Gertz because I believed that, insofar as the “ordinary private citizen” was concerned, 418 U. S., at 355, the Court’s opinion “abandoned] the traditional thread,” id., at 354-355, that had been the theme of the law in this country *764up to that time. I preferred “to allow this area of law to continue to evolve as it [had] up to [then] with respect to private citizens rather than embark on a new doctrinal theory which [had] no jurisprudential ancestry.” Ibid. Gertz, however, is now the law of the land, and until it is overruled, it must, under the principle of stare decisis, be applied by this Court.

The single question before the Court today is whether Gertz applies to this case. The plurality opinion holds that Gertz does not apply because, unlike the challenged expression in Gertz, the alleged defamatory expression in this case does not relate to a matter of public concern. I agree that Gertz is limited to circumstances in which the alleged defamatory expression concerns a matter of general public importance, and that the expression in question here relates to a matter of essentially private concern. I therefore agree with the plurality opinion to the extent that it holds that Gertz is inapplicable in this case for the two reasons indicated. No more is needed to dispose of the present case.

I continue to believe, however, that Gertz was ill-conceived, and therefore agree with Justice White that Gertz should be overruled. I also agree generally with Justice White’s observations concerning New York Times Co. v. Sullivan. New York Times, however, equates “reckless disregard of the truth” with malice; this should permit a jury instruction that malice may be found if the defendant is shown to have published defamatory material which, in the exercise of reasonable care, would have'' been revealed as untrue. But since the Court has not applied the literal language of New York Times in this way, I agree with Justice White that it should be reexamined. The great rights guaranteed by the First Amendment carry with them certain responsibilities as well.

Consideration of these issues inevitably recalls an aphorism of journalism that “too much checking on the facts has ruined many a good news story.”

*765Justice White,

concurring in the judgment.

Until New York Times Co. v. Sullivan, 376 U. S. 254 (1964), the law of defamation was almost exclusively the business of state courts and legislatures. Under the then prevailing state libel law, the defamed individual had only to prove a false written publication that subjected him to hatred, contempt, or ridicule. Truth was a defense; but given a defamatory false circulation, general injury to reputation was presumed; special damages, such as pecuniary loss and emotional distress, could be recovered; and punitive damages were available if common-law malice were shown. General damages for injury to reputation were presumed and awarded because the judgment of history was that “in many cases the effect of defamatory statements is so subtle and indirect that it is impossible directly to trace the effects thereof in loss to the person defamed.” Restatement of Torts § 621, Comment a, p. 314 (1938). The defendant was permitted to show that there was no reputational injury; but at the very least, the prevailing rule was that at least nominal damages were to be awarded for any defamatory publication actionable per se. This rule performed

“a vindicatory function by enabling the plaintiff publicly to brand the defamatory publication as false. The salutary social value of this rule is preventive in character since it often permits a defamed , person to expose the groundless character of a defamatory rumor before harm to the reputation has resulted therefrom.” Id. §569, Comment 6, p. 166.

Similar rules applied to slanderous statements that were actionable per se.1

*766New York Times Co. v. Sullivan was the first major step in what proved to be a seemingly irreversible process of con-stitutionalizing the entire law of libel and slander. Under the rule announced in that case, a public official suing for libel could no longer make out his case by proving a false and damaging publication. He could not establish liability and recover any damages, whether presumed or actually proved, unless he proved “malice,” which was defined as a knowing falsehood or a reckless disregard for the truth. 376 U. S., at 280. Given that proof, however, the usual damages were available, including presumed and punitive damages. This judgment overturning 200 years of libel law was deemed necessary to implement the First Amendment interest in “uninhibited, robust, and wide-open” debate on public issues. Id., at 270. Three years later, the same rule was applied to plaintiffs who were not public officials, but who were termed public figures. Curtis Publishing Co. v. Butts, 388 U. S. 130, 155 (1967).

In 1971, four Justices took the view that the New York Times rules should apply wherever a publication concerned any manner of general or public interest, even though the plaintiff was a private person. Rosenbloom v. Metromedia, Inc., 403 U. S. 29. That view did not command a majority. But in Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), the Court again dealt with defamation actions by private individuals, for the first time holding that such plaintiffs could no longer recover by proving a false statement, no matter how damaging it might be to reputation. They must, in addition, prove some “fault,” at least negligence. Id., at 347, 350. Even with that proof, damages were not presumed but had to be proved. Id., at 349. Furthermore, no punitive damages were available without proof of New York Times malice. *767418 U. S., at 350. This decision, which again purported to implement First Amendment values, seemingly left no defamation actions free from federal constitutional limitations.

I joined the judgment and opinion in New York Times. I also joined later decisions extending the New York Times standard to other situations. But I came to have increasing doubts about the soundness of the Court’s approach and about some of the assumptions underlying it. I could not join the plurality opinion in Rosenbloom, and I dissented in Gertz, asserting that the common-law remedies should be retained for private plaintiffs. I remain convinced that Gertz was erroneously decided. I have also become convinced that the Court struck an improvident balance in the New York Times case between the public’s interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation.

In a country like ours, where the people purport to be able to govern themselves through their elected representatives, adequate information about their government is of transcendent importance. That flow of intelligence deserves full First Amendment protection. Criticism and assessment of the performance of public officials and of government in general are not subject to penalties imposed by law. But these First Amendment values are not at all served by circulating false statements of fact about public officials. On the contrary, erroneous information frustrates these values. They are even more disserved when the statements falsely impugn the honesty of those men and women and hence lessen the confidence in government. As the Court said in Gertz: “[TJhere is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” 418 U. S., at 340. Yet in New York Times cases, the public official’s complaint will be dismissed unless he alleges and makes out a jury case of a knowing or reckless falsehood. Absent such proof, there will be no *768jury verdict or judgment of any kind in his favor, even if the challenged publication is admittedly false. The lie will stand, and the public continue to be misinformed about public matters. This will recurringly happen because the putative plaintiff’s burden is so exceedingly difficult to satisfy and can be discharged only by expensive litigation. Even if the plaintiff sues, he frequently loses on summary judgment or never gets to the jury because of insufficient proof of malice. If he wins before the jury, verdicts are often overturned by appellate courts for failure to prove malice. Furthermore, when the plaintiff loses, the jury will likely return a general verdict and there will be no judgment that the publication was false, even though it was without foundation in reality.2 The public is left to conclude that the challenged statement was true after all. Their only chance of being accurately informed is measured by the public official’s ability himself to counter the lie, unaided by the courts. That is a decidedly weak reed to depend on for the vindication of First Amend*769ment interests — “it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not ‘hot’ news, and rarely receive the prominence of the original story.” Rosenbloom, 403 U. S., at 46-47 (opinion of Brennan, J.); Gertz, supra, at 363-364 (Brennan, J., dissenting).

Also, by leaving the lie uncorrected, the New York Times rule plainly leaves the public official without a remedy for the damage to his reputation. Yet the Court has observed that the individual’s right to the protection of his own good name is a basic consideration of our constitutional system, reflecting “‘our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.’” Gertz, supra, at 341, quoting Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (Stewart, J., concurring). The upshot is that the public official must suffer the injury, often cannot get a judgment identifying the lie for what it is, and has very little, if any, chance of countering that lie in the public press.

The New York Times rule thus countenances two evils: first, the stream of information about public officials and public affairs is polluted and often remains polluted by false information; and second, the reputation and professional life of the defeated plaintiff may be destroyed by falsehoods that might have been avoided with a reasonable effort to investigate the facts. In terms of the First Amendment and reputational interests at stake, these seem grossly perverse results.

Of course, the Court in New York Times could not have been unaware of these realities. Despite our ringing endorsement of “wide-open” and “uninhibited” debate, which taken literally would protect falsehoods of all kinds, we cannot fairly be accused of giving constitutional protection to false information as such, for we went on to find competing and overriding constitutional justification for our decision. The constitutional interest in the flow of information about *770public affairs was thought to be very strong, and discovering the truth in this area very difficult, even with the best of efforts. These considerations weighed so heavily that those who write and speak about public affairs were thought to require some breathing room — that is, they should be permitted to err and misinform the public as long as they act unknowingly and without recklessness. If the press could be faced with possibly sizable damages for every mistaken publication injurious to reputation, the result would be an unacceptable degree of self-censorship, which might prevent the occasional mistaken libel, but would also often prevent the timely flow of information that is thought to be true but cannot be readily verified. The press must therefore be privileged to spread false information, even though that information has negative First Amendment value and is severely damaging to reputation, in order to encourage the full flow of the truth, which otherwise might be withheld.

Gertz is subject to similar observations. Although rejecting the New York Times malice standard where the plaintiff is neither a public official nor a public figure, there the Court nevertheless deprived the private plaintiff of his common-law remedies, making recovery more difficult in order to provide a margin for error. In doing so, the Court ruled that without proof of at least negligence, a plaintiff damaged by the most outrageous falsehoods would be remediless, and the lie very likely would go uncorrected. And even if fault were proved, actual damage to reputation would have to be shown, a burden traditional libel law considered difficult, if not impossible, to discharge. For this reason Justice Powell would not impose on the plaintiff the burden of proving damages in the case now before us.

Although there was much talk in Gertz about liability without fault and the unfairness of presuming damages, all of this, as was the case in New York Times, was done in the name of the First Amendment, purportedly to shield the press and others writing about public affairs from possibly intimidating *771damages liability. But if protecting the press from intimidating damages liability that might lead to excessive timidity was the driving force behind New York Times and Gertz, it is evident that the Court engaged in severe overkill in both cases.

In New York Times, instead of escalating the plaintiff’s burden of proof to an almost impossible level, we could have achieved our stated goal by limiting the recoverable damages to a level that would not unduly threaten the press. Punitive damages might have been scrutinized as Justice Harlan suggested in Rosenbloom, supra, at 77, or perhaps even entirely forbidden. Presumed damages to reputation might have been prohibited, or limited, as in Gertz. Had that course been taken and the common-law standard of liability been retained, the defamed public official, upon proving falsity, could at least have had a judgment to that effect. His reputation would then be vindicated; and to the extent possible, the misinformation circulated would have been countered. He might have also recovered a modest amount, enough perhaps to pay his litigation expenses. At the very least, the public official should not have been required to satisfy the actual malice standard where he sought no damages but only to clear his name. In this way, both First Amendment and reputational interests would have been far better served.

We are not talking in these cases about mere criticism or opinion, but about misstatements of fact that seriously harm the reputation of another, by lowering him in the estimation of the community or to deter third persons from associating or dealing with him. Restatement of Torts §559 (1938). The necessary breathing room for speakers can be ensured by limitations on recoverable damages; it does not also require depriving many public figures of any room to vindicate their reputations sullied by false statements of fact. It could be suggested that even without the threat of large presumed and punitive damages awards, press defendants’ communica*772tion will be unduly chilled by having to pay for the actual damages caused to those they defame. But other commercial enterprises in this country not in the business of disseminating information must pay for the damage they cause as a cost of doing business, and it is difficult to argue that the United States did not have a free and vigorous press before the rule in New York Times was announced. In any event, the New York Times standard was formulated to protect the press from the chilling danger of numerous large damages awards. Nothing in the central rationale behind New York Times demands an absolute immunity from suits to establish the falsity of a defamatory misstatement about a public figure where the plaintiff cannot make out a jury case of actual malice.

I still believe the common-law rules should have been retained where the plaintiff is not a public official or public figure. As I see it, the Court undervalued the reputational interest at stake in such cases. I have also come to doubt the easy assumption that the common-law rules would muzzle the press. But even accepting the Gertz premise that the press also needed protection in suits by private parties, there was no need to modify the common-law requirements for establishing liability and to increase the burden of proof that must be satisfied to secure a judgment authorizing at least nominal damages and the recovery of additional sums within the limitations that the Court might have set.3

It is interesting that Justice Powell declines to follow the Gertz approach in this case. I had thought that the decision in Gertz was intended to reach cases that involve any false statements of fact injurious to reputation, whether the statement is made privately or publicly and whether or not it implicates a matter of public importance. Justice Powell, however, distinguishes Gertz as a case that involved a matter *773of public concern, an element absent here. Wisely, in my view, Justice Powell does not rest his application of a different rule here on a distinction drawn between media and nonmedia defendants. On that issue, I agree with Justice Brennan that the First Amendment gives no more protection to the press in defamation suits than it does to others exercising their freedom of speech. None of our cases affords such a distinction; to the contrary, the Court has rejected it at every turn.4 It should be rejected again, particularly in this context, since it makes no sense to give the most protection to those publishers who reach the most readers and therefore pollute the channels of communication with the most misinformation and do the most damage to private reputation. If Gertz is to be distinguished from this case, on the ground that it applies only where the allegedly false publication deals with a matter of general or public importance, then where the false publication does not deal with such a matter, the common-law rules would apply whether the defendant is a member of the media or other public disseminator or a nonmedia individual publishing privately. Although Justice Powell speaks only of the inapplicability of the Gertz rule with respect to presumed and *774punitive damages, it must be that the Gertz requirement of some kind of fault on the part of the defendant is also inapplicable in cases such as this.

As I have said, I dissented in Gertz, and I doubt that the decision in that case has made any measurable contribution to First Amendment or reputational values since its announcement. Nor am I sure that it has saved the press a great deal of money. Like the New York Times decision, the burden that plaintiffs must meet invites long and complicated discovery involving detailed investigation of the workings of the press, how a news story is developed, and the state of mind of the reporter and publisher. See Herbert v. Lando, 441 U. S. 153 (1979). That kind of litigation is very expensive. I suspect that the press would be no worse off financially if the common-law rules were to apply and if the judiciary was careful to insist that damages awards be kept within bounds. A legislative solution to the damages problem would also be appropriate. Moreover, since libel plaintiffs are very likely more interested in clearing their names than in damages, I doubt that limiting recoveries would deter or be unfair to them. In any event, I cannot assume that the press, as successful and powerful as it is, will be intimidated into withholding news that by decent journalistic standards it believes to be true.

The question before us is whether Gertz is to be applied in this case. For either of two reasons, I believe that it should not. First, I am unreconciled to the Gertz holding and believe that it should be overruled. Second, as Justice Powell indicates, the defamatory publication in this case does not deal with a matter of public importance. Consequently, I concur in the Court’s judgment.

Justice Brennan,

dissenting.

This case involves a difficult question of the proper application of Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), to credit reporting — a type of speech at some remove from that *775which first gave rise to explicit First Amendment restrictions on state defamation law — and has produced a diversity of considered opinions, none of which speaks for the Court. Justice Powell’s plurality opinion affirming the judgment below would not apply the Gertz limitations on presumed and punitive damages to this case; rather, the three Justices joining that opinion would hold that the First Amendment requirement of actual malice — a clear and convincing showing of knowing falsehood or reckless disregard for the truth— should have no application in this defamation action because the speech involved a subject of purely private concern and was circulated to an extremely limited audience. Establishing this exception, the opinion reaffirms Gertz for cases involving matters of public concern, ante, at 756-757, and reaffirms New York Times Co. v. Sullivan, 376 U. S. 254 (1964), for cases in which the challenged speech allegedly libels a public official or a public figure. Ante, at 755. Justice White also would affirm; he would not apply Gertz to this case on the ground that the subject matter of the publication does not deal with a matter of general or public importance. Ante, at 774 (concurring in judgment).1 The Chief Justice apparently agrees with Justice White. Ante, at 764 (concurring in judgment). The four who join this opinion would reverse the judgment of the Vermont Supreme Court. We believe that, although protection of the type of expression at issue is admittedly not the “central meaning of the First Amendment,” 376 U. S., at 273, Gertz makes clear that the First Amendment nonetheless requires restraints on presumed and punitive damages awards for this *776expression. The lack of consensus in approach to these idiosyncratic facts should not, however, obscure the solid allegiance the principles of New York Times Co. v. Sullivan continue to command in the jurisprudence of this Court. See also Bose Corp. v. Consumer’s Union of the United States, Inc., 466 U. S. 485 (1984).

I

In New York Times Co. v. Sullivan the Court held that the First Amendment shields all who speak in good faith from the threat of unrestrained libel judgments for unintentionally false criticism of a public official. Recognizing that libel law, like all other governmental regulation of the content of speech, “can claim no talismanic immunity from constitutional limitations [and] must be measured by standards that satisfy the First Amendment,” 376 U. S., at 269, the Court drew from salutary common-law developments, id., at 280, and n. 20,2 and unquestioned First Amendment principles, id., at 273-274, to formulate the now-familiar actual malice test. Because the “erroneous statement is inevitable in free debate . . . [it] must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’” New York Times Co. v. Sullivan, supra, at *777271-272, quoting NAACP v. Button, 371 U. S. 415, 433 (1963); see Bose Corp., supra, at 513. These solidly accepted principles are not at issue today.

Our First Amendment libel decisions in the last two decades have in large measure been an effort to explore the full ramifications of the New York Times Co. v. Sullivan principles. Building on the extension of actual malice to “public figure” plaintiffs in Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), the Court in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), and Gertz v. Robert Welch, Inc., supra, focused largely on defining the circumstances under which protection of the central First Amendment value of robust debate of public issues should mandate plaintiffs to show actual malice to obtain a judgment and actual damages; the Court settled on a rule requiring actual malice as a prerequisite to recovery only in suits brought by public officials or public figures. 418 U. S., at 344-346.3 We have also recognized, however, that the First Amendment requires significant protection from defamation law’s chill for a range of expression far broader than simply speech about pure political issues. See Time, Inc. v. Hill, 385 U. S. 374, 388 (1967) (“The guarantees for free speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government”); cf. Abood v. Detroit Board of Education, 431 U. S. 209, 231 (1977).

*778Our cases since New York Times Co. v. Sullivan have proceeded from the general premise that all libel law implicates First Amendment values to the extent it deters true speech that would otherwise be protected by the First Amendment. 376 U. S., at 269. In this sense defamation law does not differ from state efforts to control obscenity, see Miller v. California, 413 U. S. 15, 23-24 (1973), ensure loyalty, see Speiser v. Randall, 357 U. S. 513 (1958), protect consumers, see Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976), oversee professions, see Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985), or pursue other public welfare goals through content-based regulation of speech. “When we deal with the complex of strands in the web of freedoms which make up free speech, the operation and effect of the method by which speech is sought to be restrained must be subjected to close analysis and critical judgment in the light of the particular circumstances to which it is applied.” Speiser v. Randall, supra, at 520. This general proscription against unnecessarily broad content-based regulation permeates First Amendment jurisprudence.

In libel law, no less than any other governmental effort to regulate speech, States must therefore use finer instruments to ensure adequate space for protected expression. Cf. Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 565 (1980) (restriction “may extend only so far as the interest it serves”); Lowe v. SEC, ante, at 234 (White, J., concurring in judgment) (“[T]he First Amendment permits restraints on speech only when they are narrowly tailored to advance a legitimate governmental interest”). The ready availability and unconstrained application of presumed and punitive damages in libel actions is too blunt a regulatory instrument to satisfy this First Amendment principle, even when the alleged libel does not implicate directly the type of speech at issue in New York Times Co. v. *779Sullivan. Justice Harlan made precisely this point in Rosenbloom:

“At a minimum, even in the purely private libel area, I think the First Amendment should be construed to limit the imposition of punitive damages to those situations where actual malice is proved. This is the typical standard employed in assessing anyone’s liability for punitive damages where the underlying aim of the law is to compensate for harm actually caused,. . . and no conceivable state interest could justify imposing a harsher standard on the exercise of those freedoms that are given explicit protection by the First Amendment.” 403 U. S., at 73 (dissenting opinion) (emphasis added).

See also id., at 65; New York Times Co. v. Sullivan, 376 U. S., at 269.

Justice Harlan’s perception formed the cornerstone of the Court’s analysis in Gertz. Requiring “that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved,” the Court found it “necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury.” 418 U. S., at 349. The Court explained that state rules authorizing presumed and punitive damages conferred on juries “largely uncontrolled discretion” to assess damages “in wholly unpredictable amounts bearing no necessary relation to the actual harm caused.” Id., at 349-350. Punitive damages in particular were found to be “wholly irrelevant to the state interest” because “[t]hey are not compensation for injury.” Id., at 350 (emphasis added). For these reasons, the Court in Gertz specifically held that the award of presumed and punitive damages on less than a showing of actual malice is not a narrowly tailored means to achieve the legitimate state purpose of protecting the reputation of private persons: the common-law approach, said the Court, “unnecessarily compounds the *780potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms.” Id., at 349 (emphasis added).4

Thus, when an alleged libel involves criticism of a public official or a public figure, the need to nurture robust debate of public issues and the requirement that all state regulation of speech be narrowly tailored coalesce to require actual malice as a prerequisite to any recovery. When the alleged libel involves speech that falls outside these especially important categories, we have held that the Constitution permits States significant leeway to compensate for actual damage to reputation.5 The requirement of narrowly tailored *781regulatory measures, however, always mandates at least a showing of fault and proscribes the award of presumed and punitive damages on less than a showing of actual malice. It has remained the judgment of the Court since Gertz that this comprehensive two-tiered structure best accommodates the values of the constitutional free speech guarantee and the States’ interest in protecting reputation.

HH I — I

The question presented here is narrow. Neither the parties nor the courts below have suggested that respondent Greenmoss Builders should be required to show actual malice to obtain a judgment and actual compensatory damages. Nor do the parties question the requirement of Gertz that respondent must show fault to obtain a judgment and actual damages. The only question presented is whether a jury award of presumed and punitive damages based on less than a showing of actual malice is constitutionally permissible. Gertz provides a forthright negative answer. To preserve the jury verdict in this case, therefore, the opinions of Justice Powell and Justice White have cut away the protective mantle of Gertz.

A

Relying on the analysis of the Vermont Supreme Court, respondent urged that this pruning be accomplished by restricting the applicability of Gertz to cases in which the defendant is a “media” entity. Such a distinction is irreconcilable with the fundamental First Amendment principle that “[t]he inherent worth of . . . speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” First National Bank of Boston v. Bellotti, 435 *782U. S. 765, 777 (1978). First Amendment difficulties lurk in the definitional questions such an approach would generate.6 And the distinction would likely be born an anachronism.7 *783Perhaps most importantly, the argument that Gertz should be limited to the media misapprehends our cases. We protect the press to ensure the vitality of First Amendment guarantees.8 This solicitude implies no endorsement of the principle that speakers other than the press deserve lesser First Amendment protection. “In the realm of protected speech, the legislature is constitutionally disqualified from dictating . . . the speakers who may address a public issue.” First National Bank of Boston v. Bellotti, supra, at 784-785. See Bridges v. California, 314 U. S. 252, 277-278 (1941).

The free speech guarantee gives each citizen an equal right to self-expression and to participation in self-government. See, e. g., Carey v. Brown, 447 U. S. 455, 459-463 (1980); Police Department of Chicago v. Mosley, 408 U. S. 92 (1972); Cohen v. California, 403 U. S. 15, 24 (1971); Whitney v. California, 274 U. S. 357, 375-377 (1927) (Brandeis, J., concurring). This guarantee also protects the rights of listeners to “the widest possible dissemination of information from diverse and antagonistic sources.” Associated Press v. United States, 326 U. S. 1, 20 (1945).9 Accordingly, at least six *784Members of this Court (the four who join this opinion and Justice White and The Chief Justice) agree today that, in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals or organizations engaged in the same activities. See ante, at 773 (opinion concurring in judgment).10

B

Eschewing the media/nonmedia distinction, the opinions of both Justice White and Justice Powell focus primarily on the content of the credit report as a reason for restricting the applicability of Gertz. Arguing that at most Gertz should protect speech that “deals with a matter of public or general importance,” ante, at 773, Justice White, without analysis or explanation, decides that the credit report at issue here falls outside this protected category. The plurality opinion of Justice Powell offers virtually the same conclusion with at least a garnish of substantive analysis.

Purporting to “employ the approach approved in Gertz,” ante, at 757, Justice Powell balances the state interest in protecting private reputation against the First Amendment interest in protecting expression on matters not of public concern. The state interest is found to be identical to that at stake in Gertz. The First Amendment interest is, however, found to be significantly weaker because speech on public issues, such as that involved in Gertz, receives greater constitutional protection than speech that is not a matter of public concern. See ante, at 759-760, citing Connick v. Myers, *785461 U. S. 138 (1983). Justice Powell is willing to concede that such speech receives some First Amendment protection, but on balance finds that such protection does not reach so far as to restrain the state interest in protecting reputation through presumed and punitive damages awards in state defamation actions. Ante, at 760-761. Without explaining what -is a “matter of public concern,” the plurality opinion proceeds to serve up a smorgasbord of reasons why the speech at issue here is not, ante, at 761-762, and on this basis affirms the Vermont courts’ award of presumed and punitive damages.

In professing allegiance to Gertz, the plurality opinion protests too much. As Justice White correctly observes, Justice Powell departs completely from the analytic framework and result of that case: “Gertz was intended to reach cases that involve any false statements . . . whether or not [they] implicate] a matter of public importance.” Ante, at 772 (concurring in judgment).11 Even accepting the notion that a distinction can and should be drawn between matters *786of public concern and matters of purely private concern, however, the analyses presented by both Justice Powell and Justice White fail on their own terms. Both, by virtue of what they hold in this case, propose an impoverished definition of “matters of public concern” that is irreconcilable with First Amendment principles. The credit reporting at issue here surely involves a subject matter of sufficient public concern to require the comprehensive protections of Gertz. Were this speech appropriately characterized as a matter of only private concern, moreover, the elimination of the Gertz restrictions on presumed and punitive damages would still violate basic First Amendment requirements.

(1)

The five Members of the Court voting to affirm the damages award in this case have provided almost no guidance as to what constitutes a protected “matter of public concern.” Justice White offers nothing at all, but his opinion does indicate that the distinction turns on solely the subject matter of the expression and not on the extent or conditions of dissemination of that expression. Ante, at 773. Justice Powell adumbrates a rationale that would appear to focus primarily on subject matter.12 The opinion relies on the fact that the speech at issue was “solely in the individual interest of the speaker and its specific business audience,” ante, at 762 (emphasis added). Analogizing explicitly to advertising, *787the opinion also states that credit reporting is “hardy” and “solely motivated by the desire for profit.” Ibid. These two strains of analysis suggest that Justice Powell is excluding the subject matter of credit reports from “matters of public concern” because the speech is predominantly in the realm of matters of economic concern.

In evaluating the subject matter of expression, this Court has consistently rejected the argument that speech is entitled to diminished First Amendment protection simply because it concerns economic matters or is in the economic interest of the speaker or the audience. See, e. g., Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 501-502 (1952); American Federation of Labor v. Swing, 312 U. S. 321, 325-326 (1941); Thornhill v. Alabama, 310 U. S. 88, 101-103 (1940); see also Abood v. Detroit Board of Education, 431 U. S., at 231-232, and n. 28. “[O]ur cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters — to take a nonexhaustive list of labels — is not entitled to full First Amendment protection.” Id., at 231. The breadth of this protection evinces recognition that freedom of expression is not only essential to check tyranny and foster self-government but also intrinsic to individual liberty and dignity and instrumental in society’s search for truth. See Bose Corp. v. Consumers Union of United States, Inc., 466 U. S., at 503-504; Whitney v. California, 274 U. S., at 375 (Brandeis, J., concurring).

Speech about commercial or economic matters, even if not directly implicating “the central meaning of the First Amendment,” 376 U. S., at 273, is an important part of our public discourse. The Court made clear in the context of discussing labor relations speech in Thornhill v. Alabama, supra:

“It is recognized now that satisfactory hours and wages and working conditions in industry and a bargaining position which makes these possible have an importance which is not less than the interests of those in the business or industry directly concerned. The health of the *788present generation and of those as yet unborn may depend on these matters, and the practices in a single factory may have economic repercussions upon a whole region and affect widespread systems of marketing. The merest glance at state and federal legislation on the subject demonstrates the force of the argument that labor relations are not matters of mere local or private concern. Free discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society.” 310 U. S., at 102-103.

As Thornhill suggests, the choices we make when we step into the voting booth may well be the products of what we have learned from the myriad of daily economic and social phenomenon that surround us. See id., at 102 (“Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period”).13

*789The credit reporting of Dun & Bradstreet falls within any reasonable definition of “public concern” consistent with our precedents. Justice Powell’s reliance on the fact that Dun & Bradstreet publishes credit reports “for profit,” ante, at 762, is wholly unwarranted. Time and again we have made clear that speech loses none of its constitutional protection “even though it is carried in a form that is ‘sold’ for profit.” Virginia Pharmacy Bd., 425 U. S., at 761. See also Smith v. California, 361 U. S. 147, 150 (1959); Joseph Burstyn, Inc. v. Wilson, supra, at 501. More importantly, an announcement of the bankruptcy of a local company is information of potentially great concern to residents of the community where the company is located; like the labor dispute at issue in Thornhill, such a bankruptcy “in a single factory may have economic repercussions upon a whole region.” And knowledge about solvency and the effect and prevalence of bankruptcy certainly would inform citizen opinions about questions of economic regulation. It is difficult to suggest that a bankruptcy is not a subject matter of public concern when federal law requires invocation of judicial mechanisms to effectuate it and makes the fact of the bankruptcy a matter of public record. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975).

Given that the subject matter of credit reporting directly implicates matters of public concern, the balancing analysis the Court today employs should properly lead to the conclusion that the type of expression here at issue should receive First Amendment protection from the chilling potential of unrestrained presumed and punitive damages in defamation actions.14

*790(2)

Even if the subject matter of credit reporting were properly considered — in the terms of Justice White and Justice Powell — as purely a matter of private discourse, this speech would fall well within the range of valuable expression for which the First Amendment demands protection. Much expression that does not directly involve public issues receives significant protection. Our cases do permit some diminution in the degree of protection afforded one category of speech about economic or commercial matters. “Commercial speech” — defined as advertisements that “[do] no more than propose a commercial transaction,” Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376, 385 (1973)—may be more closely regulated than other types of speech. Even commercial speech, however, receives substantial First Amendment protection. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985); Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., supra, at 765 (“So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private-economic decisions. ... To this end, the free flow of commercial information is indispensable”). Credit reporting is not “commercial speech” as this Court has defined the term. Even if credit reporting were so considered, it would still be entitled to the substantial protections the First Amendment affords that category. See Zauderer, 471 U. S., at 637; id., at 657-658 (Brennan, J., concurring in part and dissenting in part). Under either view, the expression at issue in this case should receive protection from the chilling potential of unrestrained presumed and punitive damages awards in defamation actions.

*791Our economic system is predicated on the assumption that human welfare will be improved through informed decision-making. In this respect, ensuring broad distribution of accurate financial information comports with the fundamental First Amendment premise that “the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” Associated Press v. United States, 326 U. S., at 20. The economic information Dun & Bradstreet disseminates in its credit reports makes an undoubted contribution to this private discourse essential to our well-being. Justice Douglas made precisely this point:

“The language of the First Amendment does not except speech directed at private economic decisionmaking. Certainly such speech could not be regarded as less important than political expression. When immersed in a free flow of commercial information, private sector deci-sionmaking is at least as effective an institution as are our various governments in furthering the social interest in obtaining the best general allocation of resources. . . .

“The financial data circulated by Dun & Bradstreet, Inc., are part of the fabric of national commercial communication.” Dun & Bradstreet, Inc. v. Grove, 404 U. S. 898, 905-906 (1971) (Douglas, J., dissenting from denial of certiorari).

Justice Douglas further noted that “[presumably the credit reports published by the petitioner facilitate through the price system the improvement of human welfare at least as much as did the underlying disagreement in our most recent libel opinion, Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), arising out of a squabble over whether a vendor had sold obscene magazines.” Id., at 905, n. 9.

The credit reports of Dun & Bradstreet bear few of the earmarks of commercial speech that might be entitled to somewhat less rigorous protection. In every case in which we have permitted more extensive state regulation on the basis of a commercial speech rationale the speech being regu*792lated was pure advertising — an offer to buy or sell goods and services or encouraging such buying and selling.16 Credit reports are not commercial advertisements for a good or service or a proposal to buy or sell such a product. We have been extremely chary about extending the “commercial speech” doctrine beyond this narrowly circumscribed category of advertising because often vitally important speech will be uttered to advance economic interests and because the profit motive making such speech hardy dissipates rapidly when the speech is not advertising. Compare Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557 (1980), with Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U. S. 530 (1980).

It is worth noting in this regard that the common law of most States, although apparently not of Vermont, 143 Vt. 66, 76, 461 A. 2d 414, 419 (1983), recognizes a qualified privilege for reports like that at issue here. See Maurer, Common Law Defamation and the Fair Credit Reporting Act, 72 Geo. L. J. 95, 99-105 (1983). The privilege typically precludes recovery for false and defamatory credit information without a showing of bad faith or malice, a standard of proof which is often defined according to the New York Times formulation. See, e. g., Datacon, Inc. v. Dun & Bradstreet, Inc., 465 F. Supp. 706, 708 (ND Tex. 1979). The common law thus recognizes that credit reporting is quite susceptible to libel’s chill; this accumulated learning is worthy of respect.

*793Even if Justice Powell’s characterization of the credit reporting at issue here were accepted in its entirety, his opinion would have done no more than demonstrate that this speech is the equivalent of commercial speech. The opinion, after all, relies on analogy to advertising. Credit reporting is said to be hardy, motivated by desire for profit, and relatively verifiable. Ante, at 762. But this does not justify the elimination of restrictions on presumed and punitive damages. State efforts to regulate commercial speech in the form of advertising must abide by the requirement that the regulatory means chosen be narrowly tailored so as to avoid any unnecessary chilling of protected expression. See Zauderer, supra; Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., supra; Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, supra.16

The Court in Gertz specifically held that unrestrained presumed and punitive damages were “unnecessarily” broad, *794418 U. S., at 350, in relation to the legitimate state interests. Indeed, Gertz held that in a defamation action punitive damages, designed to chill and not to compensate, were “wholly irrelevant” to furtherance of any valid state interest. Ibid. The Court did not reach these conclusions by weighing the strength of the state interest against the strength of the First Amendment interest. Rather, the Court recognized and applied the principle that regulatory measures that chill protected speech be no broader than necessary to serve the legitimate state interest asserted. The plurality opinion today recognizes, as it must, that the state interest at issue here is identical to that at issue in Gertz. What was “irrelevant” in Gertz must still be irrelevant, and the requirement that the regulatory means be no broader than necessary is no less applicable even if the speech is simply the equivalent of commercial speech. Thus, unrestrained presumed and punitive damages for this type of speech must run afoul of First Amendment guarantees.17

(3)

Even if not at “the essence of self-government,” Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964), the expression at issue in this case is important to both our public discourse and our private welfare. That its motivation might be the economic interest of the speaker or listeners does not diminish its First Amendment value. See Consolidated Edison Co. *795v. Public Service Comm’n of New York, 447 U. S. 530 (1980). Whether or not such speech is sufficiently central to First Amendment values to require actual malice as a standard of liability, this speech certainly falls within the range of speech that Gertz sought to protect from the chill of unrestrained presumed and punitive damages awards.18

Of course, the commercial context of Dun & Bradstreet’s reports is relevant to the constitutional analysis insofar as it implicates the strong state interest “in protecting consumers and regulating commercial transactions,” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 460 (1978). Cf. Bolger v. Young Drug Products Corp., 463 U. S. 60, 81 (1983) (Stevens, J., concurring in judgment). The special harms caused by inaccurate credit reports, the lack of public sophistication about or access to such reports, and the fact that such reports by and large contain statements that are fairly readily susceptible of verification, all may justify appropriate *796regulation designed to prevent the social losses caused by false credit reports.19 And in the libel context, the States’ regulatory interest in protecting reputation is served by. rules permitting recovery for actual compensatory damages upon a showing of fault. Any further interest in deterring potential defamation through case-by-case judicial imposition of presumed and punitive damages awards on less than a showing of actual malice simply exacts too high a toll on First Amendment values. Accordingly, Greenmoss Builders should be permitted to recover for any actual damage it can show resulted from Dun & Bradstreet’s negligently false credit report, but should be required to show actual malice to receive presumed or punitive damages. Because the jury was not instructed in accordance with these principles, we would reverse and remand for further proceedings not inconsistent with this opinion.