POSNER, Chief Judge.

          The plaintiffs—an ophthalmic clinic known as the "Desnick Eye Center" after its owner, Dr. Desnick, and two ophthalmic surgeons employed by the clinic, Glazer and Simon—appeal from the dismissal of their suit against the ABC television network, a producer of the ABC program PrimeTime Live named Entine, and the program's star reporter, Donaldson. The suit is for trespass, defamation, and other torts arising out of the production and broadcast of a program segment of PrimeTime Live that was highly critical of the Desnick Eye Center. Federal jurisdiction is based primarily on diversity of citizenship (though there is one federal claim), with Illinois law, and to a lesser extent Wisconsin and Indiana law, supplying the substantive rules on which decision is to be based. The suit was dismissed for failure to state a claim. See Desnick v. Capital Cities/ABC, Inc., 851 F.Supp. 303 (N.D.Ill. 1994). The record before us is limited to the complaint and to a transcript, admitted to be accurate, of the complained-about segment.

          In March of 1993 Entine telephoned Dr. Desnick and told him that PrimeTime Live wanted to do a broadcast segment on large cataract practices. The Desnick Eye Center has 25 offices in four midwestern states and performs more than 10,000 cataract operations a year, mostly on elderly persons whose cataract surgery is paid for by Medicare. 1348*1348 The complaint alleges—and in the posture of the case we must take the allegations to be true, though of course they may not be—that Entine told Desnick that the segment would not be about just one cataract practice, that it would not involve "ambush" interviews or "undercover" surveillance, and that it would be "fair and balanced." Thus reassured, Desnick permitted an ABC crew to videotape the Desnick Eye Center's main premises in Chicago, to film a cataract operation "live," and to interview doctors, technicians, and patients. Desnick also gave Entine a videotape explaining the Desnick Eye Center's services.

          Unbeknownst to Desnick, Entine had dispatched persons equipped with concealed cameras to offices of the Desnick Eye Center in Wisconsin and Indiana. Posing as patients, these persons—seven in all—requested eye examinations. Plaintiffs Glazer and Simon are among the employees of the Desnick Eye Center who were secretly videotaped examining these "test patients."

          The program aired on June 10. Donaldson introduces the segment by saying, "We begin tonight with the story of a so-called `big cutter,' Dr. James Desnick.... [I]n our undercover investigation of the big cutter you'll meet tonight, we turned up evidence that he may also be a big charger, doing unnecessary cataract surgery for the money." Brief interviews with four patients of the Desnick Eye Center follow. One of the patients is satisfied ("I was blessed"); the other three are not—one of them says, "If you got three eyes, he'll get three eyes." Donaldson then reports on the experiences of the seven test patients. The two who were under 65 and thus not eligible for Medicare reimbursement were told they didn't need cataract surgery. Four of the other five were told they did. Glazer and Simon are shown recommending cataract surgery to them. Donaldson tells the viewer that PrimeTime Live has hired a professor of ophthalmology to examine the test patients who had been told they needed cataract surgery, and the professor tells the viewer that they didn't need it—with regard to one he says, "I think it would be near malpractice to do surgery on him." Later in the segment he denies that this could just be an honest difference of opinion between professionals.

          An ophthalmic surgeon is interviewed who had turned down a job at the Desnick Eye Center because he would not have been "able to screen who I was going to operate on." He claims to have been told by one of the doctors at the Center (not Glazer or Simon) that "as soon as I reject them [i.e., turn down a patient for cataract surgery], they're going in the next room to get surgery." A former marketing executive for the Center says Desnick took advantage of "people who had Alzheimer's, people who did not know what planet they were on, people whose quality of life wouldn't change one iota by having cataract surgery done." Two patients are interviewed who report miserable experiences with the Center—one claiming that the doctors there had failed to spot an easily visible melanoma, another that as a result of unnecessary cataract surgery her "eye ruptured," producing "running pus." A former employee tells the viewer that Dr. Desnick alters patients' medical records to show they need cataract surgery—for example, changing the record of one patient's vision test from 20/30 to 20/80—and that he instructs all members of his staff to use pens of the same color in order to facilitate the alteration of patients' records.

          One symptom of cataracts is that lights of normal brightness produce glare. Glazer is shown telling a patient, "You know, you're getting glare. I would say we could do significantly better [with an operation]." And Simon is shown asking two patients, "Do you ever notice any glare or blurriness when you're driving, or difficulty with the signs?" Both say no, and immediately Donaldson tells the viewer that "the Desnick Center uses a very interesting machine, called an auto-refractor, to determine whether there are glare problems." Donaldson demonstrates the machine, then says that "Paddy Kalish is an optometrist who says that when he worked at the Desnick clinic from 1987 to 1990, the machine was regularly rigged. He says he watched a technician tamper with the machine, this way"—and then Kalish gives a demonstration, adding, "This happened routinely for all the older patients that came in 1349*1349 for the eye exams." Donaldson reveals that Dr. Desnick has obtained a judgment against Kalish for defamation, but adds that "Kalish is not the only one to tell us the machine may have been rigged. PrimeTime talked to four other former Desnick employees who say almost everyone failed the glare test."

          There is more, including mention of a proceeding begun by the Illinois Medical Board in which Dr. Desnick is charged with a number of counts of malpractice and deception— and an "ambush" interview. Donaldson accosts Desnick at O'Hare Airport and cries, "Is it true, Doctor, that you changed medical records to show less vision than your patients actually have? We've been told, Doctor, that you've changed the glare machine so we have a different reading. Is that correct? Doctor, why won't you respond to the questions?"

          The plaintiffs' claims fall into two distinct classes. The first arises from the broadcast itself, the second from the means by which ABC and Entine obtained the information that they used in the broadcast. The first is a class of one. The broadcast is alleged to have defamed the three plaintiffs by charging that the glare machine is tampered with. No other aspect of the broadcast is claimed to be tortious. The defendants used excerpts from the Desnick videotape in the broadcast, and the plaintiffs say that this was done without Dr. Desnick's permission. But they do not claim that in showing the videotape without authorization the defendants infringed copyright, cast the plaintiffs in a false light, or otherwise invaded a right, although they do claim that the defendants had obtained the videotape fraudulently (a claim in the second class). And they do not claim that any of the other charges in the broadcast that are critical of them, such as that they perform unnecessary surgery or that Dr. Desnick tampers with patients' medical records, are false.

          We begin with the charge of defamation, which the parties agree is governed by Illinois law. The district judge ruled that Glazer and Simon could not establish defamation concerning the tampering with the glare machine because the viewer would not think that they were being accused of doing the tampering. Courts used to strain to find that a defamatory statement that did not actually name the plaintiff might reasonably be understood to be about someone else; this was the "innocent construction" rule. John v. Tribune Co., 24 Ill.2d 437, 181 N.E.2d 105, 108 (1962). But in modern law it is enough if the audience would be likely to think that the defendant was talking about the plaintiff. Chapski v. Copley Press, 92 Ill.2d 344, 65 Ill.Dec. 884, 442 N.E.2d 195 (1982); Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1226 (7th Cir.1993) (applying Illinois law).

          Whether it would think that or not is treated by the Illinois courts as a question of law, to be decided by the judge subject to plenary appellate review. Chapski v. Copley Press, supra, 65 Ill.Dec. at 888, 442 N.E.2d at 199. We have done the same in diversity cases in which Illinois law supplies the rule of decision, Babb v. Minder, 806 F.2d 749, 757 and n. 3 (7th Cir.1986); Action Repair, Inc. v. American Broadcasting Cos., 776 F.2d 143, 145 (7th Cir.1985), but without remarking that this question—whether application of the innocent construction rule is a question of fact or of law, and the scope of appellate review—is one of federal, not of state, law. For it is a question about the control of the jury and the relation of the appellate to the trial court, rather than about the substantive law of defamation. See Mayer v. Gary Partners & Co., 29 F.3d 330 (7th Cir.1994); Coplay Cement Co. v. Willis & Paul Group, 983 F.2d 1435, 1438 (7th Cir.1993). But as no party in the present case has questioned the propriety of plenary review, we shall leave the question whether the federal rule should be identical to Illinois's rule for another day.

          The part of the broadcast about the tampering with the glare machine follows immediately upon Dr. Simon's asking test patients about glare; and earlier Dr. Glazer had been shown asking the same thing of another test patient. The inference that Glazer and Simon are mixed up in the tampering is not inevitable, but it is sufficiently probable to entitle them to sue. Rosner v. Field Enterprises, Inc., 205 Ill.App.3d 769, 151 Ill.Dec. 154, 176, 564 N.E.2d 131, 153 (1990). Kalish tells the viewer that the glare machine is tampered with in all cases involving 1350*1350 elderly patients, and hence by implication in cases handled by Drs. Glazer and Simon. And elsewhere the broadcast segment has insinuated that any doctor who works for the Desnick Eye Center is unethical. It is true that Kalish says that technicians do the tampering. But presumably they do so under a doctor's direction. Most viewers would infer that Glazer and Simon, if they did not actually change the setting on the machine themselves, were complicit with the actual tamperer. And even if this were wrong, it would not justify dismissal of the defamation count with respect to the other plaintiff, the Desnick Eye Center itself.

          The judge also ruled, however, that the defamation count failed because the allegation that the plaintiffs tampered with the glare machine did not significantly increase the damage to their reputations inflicted by the parts of the broadcast segment they do not challenge. If a false accusation cannot do any incremental harm to the plaintiff's deserved reputation because the truth if known would have demolished his reputation already, he has not been harmed by the false accusation and therefore has no remedy. Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at 1227-29. This is provided, however, that the false accusation is closely related to the true facts. A sexual deviant might have a worse reputation than an embezzler, but it would not be a defense to a charge of falsely accusing a person of being an embezzler that while he is not an embezzler, he is a sexual deviant, and that is worse. Such a rule "would strip people who had done bad things of any legal protection against being defamed; they would be defamation outlaws." Id. at 1228; see also Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1568 and n. 6 (D.C.Cir.1984), vacated on other grounds, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

          The doctrine that we have been describing goes by the name of "substantial truth." Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516-17, 111 S.Ct. 2419, 2432-33, 115 L.Ed.2d 447 (1991); Lemons v. Chronicle Publishing Co., 253 Ill.App.3d 888, 192 Ill. Dec. 634, 636, 625 N.E.2d 789, 791 (1993); Moldea v. New York Times Co., 15 F.3d 1137, 1150, modified on other grounds, 22 F.3d 310, 313 (D.C.Cir.1994). Here is an example from Haynes. The defendants' book said that Haynes had lost a job or jobs because of drinking. What was true was that, during a period in which he was indeed drinking heavily, he lost his job because his supervisor found an unopened bottle of liquor (which Haynes had received from a friend) in his pocket. Moreover, the author had left out of the book a number of very damaging facts about Haynes that later emerged in pretrial discovery, including the fact that he had been arrested and jailed for assaulting a police officer after drinking. Everything considered, the literal truth about Haynes's drinking was neither materially different from, nor significantly less damning than, the falsehood.

          Haynes had been decided on summary judgment, after the defendants had obtained the complete facts about Mr. Haynes in discovery. We said that the question whether a defamatory work is substantially true although erroneous in some details is ordinarily a jury question but that given the facts that had emerged in discovery no reasonable jury could find a significant incremental harm. 8 F.3d at 1228. In this case there has been no discovery, so dismissal was justified only if it is clear from the transcript of the broadcast segment itself that the plaintiffs could not have been harmed by the charge that they tampered with the glare machine. This may seem clear because they do not challenge the other charges in the broadcast—such as that the Desnick Eye Center performs unnecessary surgery, sometimes with harmful results, that it preys on ignorant old people, and that Dr. Desnick alters patients' records to show a need for cataract surgery where there is none. These are serious charges, but unlike the situation in the Haynes case they neither are admitted nor are established by uncontested affidavits or other undisputed or indisputable evidence. Given the obstacles to proving defamation, the failure to mount a legal challenge to a defamatory statement cannot be considered an admission that the statement is true.

          And even if all these other charges had been admitted or demonstrated to be true, 1351*1351 we could not say on this bare record that the charge of rigging the glare machine adds nothing to them. The other charges, even the alteration of patients' records, either fall into a gray area where disagreement merges with misconduct and disappointment in results with charges of malpractice, or are easily explained away without having to be denied — Desnick claimed merely to be correcting erroneous entries in patients' records made by his technicians. There can be no explaining away the alteration of the settings on an ophthalmic machine so that a person with normal eyesight (Donaldson, who demonstrated the effect of the tampering with the machine on himself) experiences the symptoms of cataract. It is a particularly shocking charge to make against a clinic and its physicians. It would be one thing to accuse a radiologist of misreading x-rays, and another to accuse him of altering his x-ray machine so that a normal person was shown with a tumor on his lung.

          Of course, when additional facts about the Desnick Eye Center are brought to light in discovery, it may turn out either that the machine was indeed tampered with or that, even if it was not, the plaintiffs did so many other bad things in the line of Medicare fraud that the tampering fades into insignificance. But this is not so clear at this stage that the defamation count of the complaint can properly be dismissed.

          The second class of claims in this case concerns, as we said, the methods that the defendants used to create the broadcast segment. There are four such claims: that the defendants committed a trespass in insinuating the test patients into the Wisconsin and Indiana offices of the Desnick Eye Center, that they invaded the right of privacy of the Center and its doctors at those offices (specifically Glazer and Simon), that they violated federal and state statutes regulating electronic surveillance, and that they committed fraud by gaining access to the Chicago office by means of a false promise that they would present a "fair and balanced" picture of the Center's operations and would not use "ambush" interviews or undercover surveillance.

          To enter upon another's land without consent is a trespass. The force of this rule has, it is true, been diluted somewhat by concepts of privilege and of implied consent. But there is no journalists' privilege to trespass. Prahl v. Brosamle, 98 Wis.2d 130, 295 N.W.2d 768, 780-81 (App.1980); Le Mistral, Inc. v. Columbia Broadcasting System, 61 A.D.2d 491, 402 N.Y.S.2d 815 (1978). And there can be no implied consent in any non-fictitious sense of the term when express consent is procured by a misrepresentation or a misleading omission. The Desnick Eye Center would not have agreed to the entry of the test patients into its offices had it known they wanted eye examinations only in order to gather material for a television exposé of the Center and that they were going to make secret videotapes of the examinations. Yet some cases, illustrated by Martin v. Fidelity & Casualty Co., 421 So.2d 109, 111 (Ala. 1982), deem consent effective even though it was procured by fraud. There must be something to this surprising result. Without it a restaurant critic could not conceal his identity when he ordered a meal, or a browser pretend to be interested in merchandise that he could not afford to buy. Dinner guests would be trespassers if they were false friends who never would have been invited had the host known their true character, and a consumer who in an effort to bargain down an automobile dealer falsely claimed to be able to buy the same car elsewhere at a lower price would be a trespasser in the dealer's showroom. Some of these might be classified as privileged trespasses, designed to promote competition. Others might be thought justified by some kind of implied consent — the restaurant critic for example might point by way of analogy to the use of the "fair use" defense by book reviewers charged with copyright infringement and argue that the restaurant industry as a whole would be injured if restaurants could exclude critics. But most such efforts at rationalization would be little better than evasions. The fact is that consent to an entry is often given legal effect even though the entrant has intentions that if known to the owner of the property would cause him for perfectly understandable and generally ethical or at least lawful reasons to revoke his consent.

          1352*1352 The law's willingness to give effect to consent procured by fraud is not limited to the tort of trespass. The Restatement gives the example of a man who obtains consent to sexual intercourse by promising a woman $100, yet (unbeknownst to her, of course) he pays her with a counterfeit bill and intended to do so from the start. The man is not guilty of battery, even though unconsented-to sexual intercourse is a battery. Restatement (Second) of Torts § 892B, illustration 9, pp. 373-74 (1979). Yet we know that to conceal the fact that one has a venereal disease transforms "consensual" intercourse into battery. Crowell v. Crowell, 180 N.C. 516, 105 S.E. 206 (1920). Seduction, standardly effected by false promises of love, is not rape, Pletnikoff v. State, 719 P.2d 1039, 1043 (Alaska App.1986); intercourse under the pretense of rendering medical or psychiatric treatment is, at least in most states. Compare State v. Tizard, 1994 WL 630498, *8-10 (Tenn.Crim.App. Nov. 10, 1994), with Boro v. Superior Court, 163 Cal. App.3d 1224, 210 Cal.Rptr. 122 (1985). It certainly is battery. Bowman v. Home Life Ins. Co., 243 F.2d 331 (3d Cir.1957); Commonwealth v. Gregory, 132 Pa.Super. 507, 1 A.2d 501 (1938). Trespass presents close parallels. If a homeowner opens his door to a purported meter reader who is in fact nothing of the sort — just a busybody curious about the interior of the home — the homeowner's consent to his entry is not a defense to a suit for trespass. See State v. Donahue, 93 Or.App. 341, 762 P.2d 1022, 1025 (1988); Bouillon v. Laclede Gaslight Co., 148 Mo. App. 462, 129 S.W. 401, 402 (1910). And likewise if a competitor gained entry to a business firm's premises posing as a customer but in fact hoping to steal the firm's trade secrets. Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d 174, 178 (7th Cir.1991); E.I. duPont deNemours & Co. v. Christopher, 431 F.2d 1012, 1014 (5th Cir. 1970).

          How to distinguish the two classes of case — the seducer from the medical impersonator, the restaurant critic from the meter-reader impersonator? The answer can have nothing to do with fraud; there is fraud in all the cases. It has to do with the interest that the torts in question, battery and trespass, protect. The one protects the inviolability of the person, the other the inviolability of the person's property. The woman who is seduced wants to have sex with her seducer, and the restaurant owner wants to have customers. The woman who is victimized by the medical impersonator has no desire to have sex with her doctor; she wants medical treatment. And the homeowner victimized by the phony meter reader does not want strangers in his house unless they have authorized service functions. The dealer's objection to the customer who claims falsely to have a lower price from a competing dealer is not to the physical presence of the customer, but to the fraud that he is trying to perpetuate. The lines are not bright — they are not even inevitable. They are the traces of the old forms of action, which have resulted in a multitude of artificial distinctions in modern law. But that is nothing new.

          There was no invasion in the present case of any of the specific interests that the tort of trespass seeks to protect. The test patients entered offices that were open to anyone expressing a desire for ophthalmic services and videotaped physicians engaged in professional, not personal, communications with strangers (the testers themselves). The activities of the offices were not disrupted, as in People v. Segal, 78 Misc.2d 944, 358 N.Y.S.2d 866 (Crim.Ct.1974), another case of gaining entry by false pretenses. See also Le Mistral, Inc. v. Columbia Broadcasting System, supra, 402 N.Y.S.2d at 81 n. 1. Nor was there any "inva[sion of] a person's private space," Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at 1229, as in our hypothetical meter-reader case, as in the famous case of De May v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881) (where a doctor, called to the plaintiff's home to deliver her baby, brought along with him a friend who was curious to see a birth but was not a medical doctor, and represented the friend to be his medical assistant), as in one of its numerous modern counterparts, Miller v. National Broadcasting Co., 187 Cal.App.3d 1463, 232 Cal.Rptr. 668, 679 (1986), and as in Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir.1971), on which the plaintiffs in our case rely. Dietemann involved a home. True, the portion 1353*1353 invaded was an office, where the plaintiff performed quack healing of nonexistent ailments. The parallel to this case is plain enough, but there is a difference. Dietemann was not in business, and did not advertise his services or charge for them. His quackery was private.

          No embarrassingly intimate details of anybody's life were publicized in the present case. There was no eavesdropping on a private conversation; the testers recorded their own conversations with the Desnick Eye Center's physicians. There was no violation of the doctor-patient privilege. There was no theft, or intent to steal, trade secrets; no disruption of decorum, of peace and quiet; no noisy or distracting demonstrations. Had the testers been undercover FBI agents, there would have been no violation of the Fourth Amendment, because there would have been no invasion of a legally protected interest in property or privacy. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427-28, 17 L.Ed.2d 312 (1966); Forster v. County of Santa Barbara, 896 F.2d 1146, 1148-49 (9th Cir.1990); Northside Realty Associates, Inc. v. United States, 605 F.2d 1348, 1355 (5th Cir.1979). "Testers" who pose as prospective home buyers in order to gather evidence of housing discrimination are not trespassers even if they are private persons not acting under color of law. Cf. id. at 1355. The situation of the defendants' "testers" is analogous. Like testers seeking evidence of violation of anti-discrimination laws, the defendants' test patients gained entry into the plaintiffs' premises by misrepresenting their purposes (more precisely by a misleading omission to disclose those purposes). But the entry was not invasive in the sense of infringing the kind of interest of the plaintiffs that the law of trespass protects; it was not an interference with the ownership or possession of land. We need not consider what if any difference it would make if the plaintiffs had festooned the premises with signs forbidding the entry of testers or other snoops. Perhaps none, see United States v. Centennial Builders, Inc., 747 F.2d 678, 683 (11th Cir.1984), but that is an issue for another day.

          What we have said largely disposes of two other claims — infringement of the right of privacy, and illegal wiretapping. The right of privacy embraces several distinct interests, but the only ones conceivably involved here are the closely related interests in concealing intimate personal facts and in preventing intrusion into legitimately private activities, such as phone conversations. Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at 1229; Zinda v. Louisiana Pacific Corp., 149 Wis.2d 913, 440 N.W.2d 548, 555 (1989); Doe v. Methodist Hospital, 639 N.E.2d 683, 685 (Ind.App.1994). As we have said already, no intimate personal facts concerning the two individual plaintiffs (remember that Dr. Desnick himself is not a plaintiff) were revealed; and the only conversations that were recorded were conversations with the testers themselves. Thomas v. Pearl, 998 F.2d 447, 452 (7th Cir.1993).

          The federal and state wiretapping statutes that the plaintiffs invoke allow one party to a conversation to record the conversation unless his purpose in doing so is to commit a crime or a tort or (in the case of the state, but not the federal, law) to do "other injurious acts." 18 U.S.C. § 2511(2)(d); Wis.Stat. § 968.31(2)(c); Thomas v. Pearl, supra, 998 F.2d at 451; State v. Waste Management of Wisconsin, Inc., 81 Wis.2d 555, 261 N.W.2d 147, 154 (1978). The defendants did not order the camera-armed testers into the Desnick Eye Center's premises in order to commit a crime or tort. Maybe the program as it was eventually broadcast was tortious, for we have said that the defamation count was dismissed prematurely. But there is no suggestion that the defendants sent the testers into the Wisconsin and Illinois offices for the purpose of defaming the plaintiffs by charging tampering with the glare machine. The purpose, by the plaintiffs' own account, was to see whether the Center's physicians would recommend cataract surgery on the testers. By the same token it was not to injure the Desnick Eye Center, unless the public exposure of misconduct is an "injurious act" within the meaning of the Wisconsin statute. Telling the world the truth about a Medicare 1354*1354 fraud is hardly what the framers of the statute could have had in mind in forbidding a person to record his own conversations if he was trying to commit an "injurious act." See id., 261 N.W.2d at 154 and n. 17.

          Last is the charge of fraud in the defendants' gaining entry to the Chicago office and being permitted while there to interview staff and film a cataract operation, and in their obtaining the Desnick Eye Center's informational videotape. The alleged fraud consists of a series of false promises by the defendants — that the broadcast segment would be fair and balanced and that the defendants would not use "ambush" interviews or undercover surveillance tactics in making the segment. Since the promises were given in exchange for Desnick's permission to do things calculated to enhance the value of the broadcast segment, they were, one might have thought, supported by consideration and thus a basis for a breach of contract suit. That we need not decide. The plaintiffs had a claim for breach of contract in their complaint and it survived the motion to dismiss, but they voluntarily dismissed the claim so that there would be a final judgment from which they could appeal. The only issue before us is fraud.

          Unlike most states nowadays, Illinois does not provide a remedy for fraudulent promises ("promissory fraud") — unless they are part of a "scheme" to defraud. Willis v. Atkins, 412 Ill. 245, 106 N.E.2d 370, 377-78 (1952); Stamatakis Industries, Inc. v. King, 165 Ill.App.3d 879, 117 Ill.Dec. 419, 421-22, 520 N.E.2d 770, 772-73 (1987); Bower v. Jones, 978 F.2d 1004, 1011-12 (7th Cir.1992). The distinction between a mere promissory fraud and a scheme of promissory fraud is elusive, and has caused, to say the least, considerable uncertainty, as even the Illinois cases acknowledge. E.g., Stamatakis Industries, Inc. v. King, supra, 117 Ill.Dec. at 421-22, 520 N.E.2d at 772-73; Vance Pearson, Inc. v. Alexander, 86 Ill.App.3d 1105, 42 Ill.Dec. 204, 209, 408 N.E.2d 782, 787 (1980). Some cases suggest that the exception has swallowed the rule. Id., 42 Ill.Dec. at 209, 408 N.E.2d at 787; Lovejoy Electronics, Inc. v. O'Berto, 873 F.2d 1001, 1004 (7th Cir.1989); Price v. Highland Community Bank, 722 F.Supp. 454, 460 (N.D.Ill. 1989). Others seem unwilling to apply the exception. For a good discussion, see Michael J. Polelle, "An Illinois Choice: Fossil Law or an Action for Promissory Fraud?" 32 DePaul L.Rev. 565, 578-88 (1983).

          The distinction certainly is unsatisfactory, but it reflects an understandable ambivalence, albeit one shared by few other states, about allowing suits to be based on nothing more than an allegation of a fraudulent promise. There is a risk of turning every breach of contract suit into a fraud suit, of circumventing the limitation that the doctrine of consideration is supposed however ineptly to place on making all promises legally enforceable, and of thwarting the rule that denies the award of punitive damages for breach of contract. A great many promises belong to the realm of puffery, bragging, "mere words," and casual bonhomie, rather than to that of serious commitment. They are not intended to and ordinarily do not induce reliance; a healthy skepticism is a better protection against being fooled by them than the costly remedies of the law. In any event it is not our proper role as a federal court in a diversity suit to read "scheme" out of Illinois law; we must give it some meaning. Our best interpretation is that promissory fraud is actionable only if it either is particularly egregious or, what may amount to the same thing, it is embedded in a larger pattern of deceptions or enticements that reasonably induces reliance and against which the law ought to provide a remedy.

          We cannot view the fraud alleged in this case in that light. Investigative journalists well known for ruthlessness promise to wear kid gloves. They break their promise, as any person of normal sophistication would expect. If that is "fraud," it is the kind against which potential victims can easily arm themselves by maintaining a minimum of skepticism about journalistic goals and methods. Desnick, needless to say, was no tyro, or child, or otherwise a member of a vulnerable group. He is a successful professional and entrepreneur. No legal remedies to protect him from what happened are required, or by Illinois provided. It would be different if the false promises were stations on the way to taking 1355*1355 Desnick to the cleaners. An elaborate artifice of fraud is the central meaning of a scheme to defraud through false promises. The only scheme here was a scheme to expose publicly any bad practices that the investigative team discovered, and that is not a fraudulent scheme.

          Anyway we cannot see how the plaintiffs could have been harmed by the false promises. We may assume that had the defendants been honest, Desnick would have refused to admit the ABC crew to the Chicago premises or given Entine the videotape. But none of the negative parts of the broadcast segment were supplied by the visit to the Chicago premises or came out of the informational videotape, and Desnick could not have prevented the ambush interview or the undercover surveillance. The so-called fraud was harmless.

          One further point about the claims concerning the making of the program segment, as distinct from the content of the segment itself, needs to be made. The Supreme Court in the name of the First Amendment has hedged about defamation suits, even when not brought by public figures, with many safeguards designed to protect a vigorous market in ideas and opinions. Today's "tabloid" style investigative television reportage, conducted by networks desperate for viewers in an increasingly competitive television market (see Capital Cities/ABC, Inc. v. FCC, 29 F.3d 309 (7th Cir. 1994)), constitutes — although it is often shrill, one-sided, and offensive, and sometimes defamatory — an important part of that market. It is entitled to all the safeguards with which the Supreme Court has surrounded liability for defamation. And it is entitled to them regardless of the name of the tort, see, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988), and, we add, regardless of whether the tort suit is aimed at the content of the broadcast or the production of the broadcast. If the broadcast itself does not contain actionable defamation, and no established rights are invaded in the process of creating it (for the media have no general immunity from tort or contract liability, Cohen v. Cowles Media Co., 501 U.S. 663, 669-70, 111 S.Ct. 2513, 2518-19, 115 L.Ed.2d 586 (1991); Le Mistral, Inc. v. Columbia Broadcasting System, supra), then the target has no legal remedy even if the investigatory tactics used by the network are surreptitious, confrontational, unscrupulous, and ungentlemanly. In this case, there may have been — it is too early to tell — an actionable defamation, and if so the plaintiffs have a remedy. But none of their established rights under either state law or the federal wiretapping law was infringed by the making, as opposed to the dissemination, of the broadcast segment of which they complain, with the possible and possibly abandoned exception of contract law.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

KAYE, J.

          In this action for slander, we consider whether the plaintiff has stated a viable claim without any showing of special damages, whether the alleged slander is protected by qualified privilege, and whether there is a triable issue of fact as to malice. We conclude that plaintiff's claims were correctly dismissed on summary judgment.

I.

          Before us is one of eight actions, consolidated for disposition by the motion court, centering on a luxury apartment building in Manhattan. Plaintiff, Barnet L. Liberman, is the building's landlord. Defendant, Leonard Gelstein (a tenant), is on the board of governors of the tenants' association. Disputes between the landlord and tenants of the building erupted nearly a decade ago, when the tenants organized opposition to the landlord's application for a rent increase, and they have continued and proliferated through the conversion of the building to cooperative ownership (see, e.g., Matter of 421 Hudson St. Tenants Assn. v Abrams, 140 Misc 2d 166).

          This defamation action against Gelstein is one of three suits brought by Liberman against individual members of the tenant association's board of governors. Gelstein has countersued Liberman and his wife for misconduct arising from a criminal 433*433 complaint filed by Mrs. Liberman, which apparently resulted in Gelstein's overnight incarceration.

          The present complaint alleged five causes of action sounding in slander. Only two — the second and fifth — are pressed by plaintiff on this appeal. The other causes of action involving, for example, accusations by Gelstein that Liberman charged an illegal $10 monthly dog rent and stole electricity from the building, have over the years been dropped.

          In his second cause of action, plaintiff alleged that in July 1986, the following conversation took place between defendant and another tenant of the building, Robert Kohler.

"Gelstein: Can you find out from your friend at the precinct which cop is on the take from Liberman?

"Kohler: What are you talking about? "Gelstein: There is a cop on the take from Liberman. That's why none of the building's cars ever get tickets — they can park anywhere because Liberman's paid them off. He gives them a hundred or two hundred a week."

          The fifth cause of action alleged that in May 1986 defendant made the following statement in the presence of employees of the building:

"Liberman threw a punch at me. He screamed at my wife and daughter. He called my daughter a slut and threatened to kill me and my family."

          Plaintiff claimed $5 million damages on each cause of action for injury to his reputation and emotional distress. After discovery, defendant sought summary judgment dismissing the complaint. On the second cause of action, defendant invoked the "common interest" qualified privilege, characterizing his conversation with Kohler, a colleague on the board of governors, as an inquiry designed to uncover wrongdoing by the landlord affecting tenants. At his deposition, defendant testified that several vehicles operated by the building's management regularly parked in front of the building beyond the legal limit but never received parking summonses. He further testified that he was told by two building employees, whom he identified, that Liberman was bribing the police to avoid parking tickets. Defendant admitted that he did not know whether the allegations were true, but testified that they 434*434 "sounded truthful" to him. Accordingly, defendant testified that he approached Kohler — whose friend was captain of the local police precinct — in an effort to discover whether the allegations were true.

          Plaintiff responded that there was an issue of fact on malice, which if proved at trial, would defeat the qualified privilege. Plaintiff argued that malice of the common-law variety (spite or ill will) could be inferred from defendant's over-all conduct toward plaintiff, including one occasion in July 1987 when defendant threw a lit firecracker into his car and another in May 1986 when he pounded on the car's windows and attempted to rip out the windshield wiper. Moreover, plaintiff argued, malice of the constitutional variety (knowledge of falsity or reckless disregard for truth or falsity) could be found in defendant's concession that he had no actual knowledge of bribery and the lack of trustworthiness of his sources, "disgruntled" building employees.

          On the fifth cause of action, defendant argued that the statements were either true, not defamatory or never made.

          In dismissing the second cause of action, Supreme Court agreed with defendant that the statements were qualifiedly privileged and plaintiff failed to sustain his burden of raising a triable issue on malice. The court also held that the statements comprising the fifth cause of action could only have been understood by the recipients, who were familiar with the parties' history of disagreements, as rhetorical hyperbole.

          The Appellate Division affirmed, agreeing with Supreme Court's reasoning. One Justice, who would have reinstated the second cause of action, dissented in part. He was not "entirely persuaded" that the statements were qualifiedly privileged, and thought that in any event defendant's deposition testimony that he did not know whether the bribery charge was true was itself sufficient to raise a triable issue whether the statements were made with reckless disregard as to their truth or falsity.

The Appellate Division granted leave, and we affirm.

II.

          Slander as a rule is not actionable unless the plaintiff suffers special damage (see, Aronson v Wiersma, 65 N.Y.2d 592, 594; Matherson v Marchello, 100 AD2d 233, 236 [Titone, J. P.]; Restatement [Second] of Torts [Restatement] § 575). Special damages contemplate "the loss of something having economic 435*435 or pecuniary value" (Restatement § 575, comment b; see, Prosser and Keeton, Torts [Prosser] § 112, at 794 [5th ed]). Plaintiff has not alleged special damages, and thus his slander claims are not sustainable unless they fall within one of the exceptions to the rule.

          The four established exceptions (collectively "slander per se") consist of statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman (see, Moore v Francis, 121 N.Y. 199, 203; Privitera v Town of Phelps, 79 AD2d 1, 3 [Simons, J.]; Civil Rights Law § 77; 2 Seelman, Libel and Slander in the State of New York, at 869-907 [1964]; Restatement §§ 570-573; Smolla, Defamation § 7.05). When statements fall within one of these categories, the law presumes that damages will result, and they need not be alleged or proven.[1]

          Plaintiff claims that both sets of statements were slanderous per se inasmuch as they charged him with criminal conduct. Not every imputation of unlawful behavior, however, is slanderous per se. "With the extension of criminal punishment to many minor offenses, it was obviously necessary to make some distinction as to the character of the crime, since a charge of a traffic violation, for example, would not exclude a person from society, and today would do little, if any, harm to his [or her] reputation at all" (Prosser § 112, at 789). Thus, the law distinguishes between serious and relatively minor offenses, and only statements regarding the former are actionable without proof of damage (see, Restatement § 571, comment g [list of crimes actionable as per se slander includes murder, burglary, larceny, arson, rape, kidnapping]).

          We agree with plaintiff that defendant's alleged statement that "[t]here is a cop on the take from Liberman" charges a serious crime — bribery (see, Penal Law § 200.00; People v Tran, 80 N.Y.2d 170). Accordingly, the statements constituting the second cause of action are actionable without the need to establish special harm, and absent any privilege would be sufficient to go to a jury.

          436*436We disagree, however, with plaintiff's contention that the statement "Liberman * * * threatened to kill me and my family" was slanderous per se.[2] Plaintiff claims these words falsely attributed to him the commission of the crime of harassment (see, Penal Law § 240.25; People v Dorns, 88 Misc 2d 1064 [threats to kill]). Harassment is a relatively minor offense in the New York Penal Law — not even a misdemeanor — and thus the harm to the reputation of a person falsely accused of committing harassment would be correspondingly insubstantial. Hence, even if we agreed with plaintiff that the statement would not have been construed by the listeners as rhetorical hyperbole, the cause of action must nevertheless be dismissed because it is not slanderous per se to claim that someone committed harassment.

          Plaintiff alternatively argues that the statements in the fifth cause of action tended to harm him in his business as a property owner, and thus are actionable under the "trade, business or profession" exception. That exception, however, is "limited to defamation of a kind incompatible with the proper conduct of the business, trade, profession or office itself. The statement must be made with reference to a matter of significance and importance for that purpose, rather than a more general reflection upon the plaintiff's character or qualities" (Prosser § 112, at 791). Thus, "charges against a clergyman of drunkenness and other moral misconduct affect his fitness for the performance of the duties of his profession, although the same charges against a business man or tradesman do not so affect him" (Restatement § 573, comment c). The statements at issue are unrelated to plaintiff's status as a landlord, and therefore do not fall into the "trade, business or profession" exception (see, Aronson v Wiersma, 65 NY2d, at 594, supra).

          In sum, the second cause of action is on its face sustainable without special damages because it involves charges of serious crime, and the fifth cause of action was correctly dismissed.

III.

          We next consider whether the courts below properly concluded that defendant's conversation with Kohler was conditionally privileged and that plaintiff failed to raise an issue of fact on malice.

          437*437Courts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether (see, Bingham v Gaynor, 203 N.Y. 27, 31). When compelling public policy requires that the speaker be immune from suit, the law affords an absolute privilege, while statements fostering a lesser public interest are only conditionally privileged (see, 600 W. 115th St. Corp. v Von Gutfeld, 80 N.Y.2d 130, 135-136; Park Knoll Assocs. v Schmidt, 59 N.Y.2d 205, 208-209; Toker v Pollak, 44 N.Y.2d 211, 218-220).

          One such conditional, or qualified, privilege extends to a "communication made by one person to another upon a subject in which both have an interest" (Stillman v Ford, 22 N.Y.2d 48, 53). This "common interest" privilege (see, Restatement § 596) has been applied, for example, to employees of an organization (see, Loughry v Lincoln First Bank, 67 N.Y.2d 369, 376), members of a faculty tenure committee (Stukuls v State of New York, 42 N.Y.2d 272) and constituent physicians of a health insurance plan (Shapiro v Health Ins. Plan, 7 N.Y.2d 56, 60-61). The rationale for applying the privilege in these circumstances is that so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded.

          We thus agree with the motion court and Appellate Division that defendant's conversation with Kohler was conditionally privileged (see, Restatement § 596, comment d ["Tenants in common * * * are included within the rule stated in this Section as being conditionally privileged to communicate among themselves matter defamatory of others which concerns their common interests"]). Gelstein and Kohler were members of the governing body of an association formed to protect the tenants' interests. If Liberman was in fact bribing the police so that his cars could occupy spaces in front of the building, that would be inimical to those interests. Thus, Gelstein had a qualified right to communicate his suspicions — though defamatory of Liberman — to Kohler.

          The shield provided by a qualified privilege may be dissolved if plaintiff can demonstrate that defendant spoke with "malice" (see, Park Knoll Assocs. v Schmidt, 59 NY2d, at 211, supra). Under common law, malice meant spite or ill will (see, Stillman v Ford, 22 NY2d, at 53, supra; Shapiro v Health Ins. Plan, 7 NY2d, at 61, supra). In New York Times Co. v Sullivan (376 US 254), however, the Supreme Court established an 438*438 "actual malice" standard for certain cases governed by the First Amendment: "knowledge that [the statement] was false or * * * reckless disregard of whether it was false or not" (376 US, at 279-280). Consequently, the term "malice" has become somewhat confused (see, Mahoney v Adirondack Publ. Co., 71 N.Y.2d 31, 36, n 1; see also, Greenbelt Publ. Assn. v Bresler, 398 US 6, 10 [trial court erred in First Amendment case by charging jury under common-law malice standard]). Indeed, as the Supreme Court itself recently acknowledged (Masson v New Yorker Mag., 501 US ___, ___, 111 S Ct 2419, 2429-2430):

"Actual malice under the New York Times standard should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will * * * We have used the term actual malice as a shorthand to describe the First Amendment protections for speech injurious to reputation and we continue to do so here. But the term can confuse as well as enlighten. In this respect, the phrase may be an unfortunate one."

          Nevertheless, malice has now assumed a dual meaning, and we have recognized that the constitutional as well as the common-law standard will suffice to defeat a conditional privilege (see, Loughry v Lincoln First Bank, 67 NY2d, at 376, supra; O'Rorke v Carpenter, 55 N.Y.2d 798, 799; Stillman v Ford, 22 NY2d, at 53, supra; see also, Restatement §§ 600, 603, comment a).

          Under the Times malice standard, the plaintiff must demonstrate that the "statements [were] made with [a] high degree of awareness of their probable falsity" (Garrison v Louisiana, 379 US 64, 74). In other words, there "must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of [the] publication" (St. Amant v Thompson, 390 US 727, 731; see also, Restatement § 600, comment b).

          Applying these principles, we conclude that there is no triable malice issue under the Times standard. Although the dissenter below suggested that Gelstein's admission that he did not know whether the bribery charge was true raised a triable issue on malice, there is a critical difference between not knowing whether something is true and being highly aware that it is probably false. Only the latter establishes reckless disregard in a defamation action. Moreover, as the motion court correctly observed, plaintiff's mere characterization 439*439 of Gelstein's informants as "disgruntled" is insufficient to raise a triable issue. Although plaintiff criticizes defendant for not producing affidavits from the informants — arguing that "it has never been factually established that Gelstein had any source" — it was plaintiff's burden to raise a factual issue on malice, and he did not seek to depose the employees either.[3] In sum, this record is insufficient to raise a triable issue of fact under the Times standard of malice.

          Similarly, there is insufficient evidence of malice under the common-law definition. A jury could undoubtedly find that, at the time Gelstein discussed his bribery suspicions with Kohler, Gelstein harbored ill will toward Liberman. In this context, however, spite or ill will refers not to defendant's general feelings about plaintiff, but to the speaker's motivation for making the defamatory statements (see, Restatement § 603, and comment a; Stukuls v State of New York, 42 NY2d, at 281-282, supra; Stillman v Ford, 22 NY2d, at 53, supra). If the defendant's statements were made to further the interest protected by the privilege, it matters not that defendant also despised plaintiff. Thus, a triable issue is raised only if a jury could reasonably conclude that "malice was the one and only cause for the publication" (Stukuls v State of New York, 42 NY2d, at 282, supra).

          Plaintiff has not sustained that burden. Significantly, Gelstein did not make a public announcement of his suspicions — from which an inference could be drawn that his motive was to defame Liberman — but relayed them to a colleague who was in a position to investigate. As noted, the conversation was within the common interest of Gelstein and Kohler, and there is nothing in this record from which a reasonable jury could find that Gelstein was not seeking to advance that common interest.

          Thus, the courts below properly concluded that defendant's conversation with Kohler was qualifiedly privileged, and plaintiff failed to raise a fact issue on malice.[4]

          440*440Accordingly, the order of the Appellate Division should be affirmed, with costs.

SMITH, J. (dissenting in part).

          Because there is an issue of fact as to whether defendant's statements accusing the plaintiff of bribery either resulted from a reckless disregard for the truth or falsity of the statements or were motivated solely by malice, the order of the Appellate Division should be modified by denying so much of defendant's motion for summary judgment as sought to dismiss the second cause of action and reinstating that cause of action. Therefore, I dissent with respect to the second cause of action.

          In this defamation action, the plaintiff landlord and defendant tenant, a board member of the tenants' association, have been involved in continuous disputes over the last 10 years concerning rent increases and the conversion of the property to cooperative ownership. Numerous civil and criminal actions involving these parties and/or others have resulted therefrom.

          The second cause of action is based upon the following conversation between the defendant and a fellow board member:

"Gelstein: Can you find out from your friend at the precinct which cop is on the take from Liberman?

"Kohler: What are you talking about?

"Gelstein: There is a cop on the take from Liberman. That's why none of the building's cars ever get tickets — they can park anywhere because Liberman's paid them off. He gives them a hundred or two hundred a week."

          There is no dispute that these statements were made. However, defendant contends that these were not statements, but rather his effort on behalf of the tenants' association to investigate what he had supposedly learned from named plaintiff's employees. He had no knowledge of the truth or falsity of this bribery accusation. Accordingly, defendant asserted 441*441 that, if defamatory, the statements were within the ambit of the common interest qualified privilege and that he had acted "without malice or negligence."

          Two issues are raised here concerning the second cause of action. The first is whether or not there was a qualified privilege to make the statement. The second is, assuming there was a qualified privilege, whether there has been raised a sufficient factual showing of malice, knowledge of the falsity of the statement, or reckless disregard of its truth or falsity to defeat the motion for summary judgment (Loughry v Lincoln First Bank, 67 N.Y.2d 369, 376).

          The majority has properly concluded that there is a qualified privilege here. Moreover, the plaintiff does not challenge the assertion that the statement was qualifiedly privileged.

          Given this qualified privilege, the burden shifts to the plaintiff to show that the statement is nevertheless actionable because it is false and motivated by malice (Toker v Pollak, 44 N.Y.2d 211, 219; Park Knoll Assocs. v Schmidt, 59 N.Y.2d 205, 209; Restatement [Second] of Torts § 613). As the law has developed in this area, "malice" has been assigned different meanings based upon the context.[1] At common law, malice has been based upon a determination that the statement is false, that the defendant knew it to be false when published and, therefore, the defendant acted in bad faith (Lovell Co. v Houghton, 116 N.Y. 520). In other words, actual malice at common law meant "`personal spite or ill will, or culpable recklessness or negligence'" (Hoeppner v Dunkirk Print. Co., 254 N.Y. 95, 106; see also, Shapiro v Health Ins. Plan, 7 N.Y.2d 56, 61). For malice to be found, the fact that the statement was false had to be augmented by defendant's desire to injure the plaintiff (id.). For purposes of a constitutional analysis, actual malice has been defined as "with knowledge that [the statement] was false or with reckless disregard of whether it was false or not" (New York Times Co. v Sullivan, 376 US 254, 280; Trails W. v Wolff, 32 N.Y.2d 207, 219). The standard articulated in New York Times Co. v Sullivan (supra) was expanded to consider whether there was a "high degree of awareness" of the statement's probable falsity (Garrison v Louisiana, 379 US 64, 74) or that the defendant "in fact" entertained "serious doubts" as to its truth (St. Amant v Thompson, 390 US 727, 731), 442*442 as we acknowledged in Pauling v National Review (22 N.Y.2d 818, 819). These expansions of the constitutional standard evoke the common-law concept of bad faith. Indeed, this Court has recognized that consideration of malice in the constitutional and the common-law sense is proper in determining whether a qualified privilege is to be given effect (Loughry v Lincoln First Bank, 67 N.Y.2d 369, 376, supra [conditional privilege may be negated by "statements published with malice or with knowledge of their falsity or reckless disregard as to their truth or falsity"]).[2] This dual analysis is reflected in the New York Pattern Jury Instructions on qualified privilege (see, PJI 3:32 [1991 Supp]).

          In light of the foregoing, the issue of malice in the case at bar should be reviewed under both standards. Under the constitutional standard, there is an issue of fact as to whether there was a reckless disregard for the truth or falsity of the bribery accusation or whether defendant, in good faith, was attempting to ascertain the truth or falsity of the accusation. The record is presently lacking any evidence to support the conclusion that defendant knew that the accusation was false, that there was a high degree of awareness of probable falsity, or that he entertained serious doubts as to its truthfulness. Defendant denies any knowledge as to its truth or falsity but maintains that he believed the accusation to be true because the source was two of plaintiff's employees, whom he identified. (These persons have not yet been deposed.) However, as to whether the defendant may have shown a reckless disregard for the truth, it is significant that the defendant and Kohler, the person to whom the statement was first made, dispute whether the accusation was stated as a matter of fact or as part of an inquiry. In Kohler's version of the conversation, the inquiry contained therein pertained to the identification of the bribed police officer, not the truth of the accusation. Clearly, there is an issue of fact here that may be resolved by further discovery or that may require determination by a trier of fact.

          Turning to a common-law analysis, there is sufficient evidence in this record to create an issue of fact as to whether defendant's statements were motivated solely by spite or ill will. The parties' acrimonious relationship is accentuated by, 443*443 inter alia, lawsuits, defendant tossing a possibly lit firecracker into plaintiff's vehicle, and an incident where defendant pounded on plaintiff's vehicle while occupied by plaintiff, his wife, and their children. And, as discussed above, if it is found that defendant stated the accusation as fact, spite or ill will may have been the sole motivation.

          Therefore, if plaintiff proves that the accusation is false, the foregoing considerations suffice to create issues of fact as to malice under both standards.

          The conclusion that there is no triable issue of fact here because a jury could not reasonably conclude that malice alone was the motivation for the statement is not supported by the record. Plaintiff indeed has the burden of proving that malice alone was the cause for the publication (Stukuls v State of New York, 42 N.Y.2d 272, 281-282). However, having presented a basis for that conclusion, plaintiff should be afforded an opportunity to present such evidence to a trier of fact that the actions of the defendant were duplicitous and motivated solely by malice (see, Stukuls v State of New York, supra, at 282 [the claim, affidavits, and the need for additional discovery precluded finding that plaintiff could not raise an issue of fact]). In this case, plaintiff has alleged that defendant filed the motion for summary judgment before depositions of the employees who supposedly told defendant of the bribery scheme could be taken. Accordingly, the second cause of action should be reinstated.

          Order affirmed, with costs.

          [1] The presumed-damages rule has been found unconstitutional in certain First Amendment cases (Gertz v Robert Welch, Inc., 418 US 323, 349) and criticized for use in defamation cases generally (see, e.g., Anderson, Reputation, Compensation, and Proof, 25 Wm & Mary L Rev 747 [1984]; Uniform Defamation Act [Feb. 6, 1992 draft] § 9, and comment thereto). Our disposition makes it unnecessary to consider the issue here.

          [2] On this appeal, this is the only portion of the fifth cause of action raised by plaintiff.

          [3] Plaintiff's appellate argument that he needs further discovery (see, dissenting opn, at 442) is unavailing. Almost three years elapsed between defendant's assertion of the common-interest privilege in his verified answer and the motion for summary judgment. Indeed, plaintiff never claimed a need for discovery in opposition to the motion (see, CPLR 3212 [f]).

          [4] The dissent's contrary conclusion is puzzling in light of its acknowledgment that the "record is presently lacking any evidence to support the conclusion that defendant knew that the [bribery] accusation was false, that there was a high degree of probable falsity, or that he entertained serious doubts as to its truthfulness." (Dissenting opn, at 442.) Moreover, the purported factual issue whether the bribery "accusation was stated as a matter of fact or as part of an inquiry" (dissenting opn, at 442) goes not to malice, but to whether there is an actionable statement in the first instance. Insofar as the dissent concludes that the parties' "acrimonious relationship" is sufficient to raise a triable issue under the common-law standard (dissenting opn, at 442), we have observed that the "existence of earlier disputes between the parties is not evidence of malice" (Shapiro v Health Ins. Plan, 7 NY2d, at 64, supra).

          [1] In response to the divergent meanings attributed to the term "malice" in the defamation area, the Restatement (Second) of Torts has abandoned its use for the more comprehensive "abuse of privilege" terminology.

          [2] It should be noted that in Loughry the jury found, inter alia, that the defendants acted "solely from malice intend[ed] to injure plaintiff" (supra, at 376).

          6The trial court erred in instructing the jury that a qualified privilege existed. Absent the existence of a qualified privilege, plaintiff would not have been required to prove actual malice. We cannot say that the instructional error was harmless beyond a reasonable doubt and therefore reverse for a new trial.

          We reject plaintiff's claim that the attorney fees awarded to defendants Taylor and AMC were unreasonable. However, because plaintiff is entitled to a new trial on the slander claim against defendant Taylor, the award of attorney fees in favor of Taylor, whether incurred by AMC's attorney on behalf of Taylor or by Taylor's counsel, must be reversed. The fees were awarded pursuant to the mediation court rule, MCR 2.405, for plaintiff's failure to sufficiently improve his position. Since it is possible that plaintiff may in fact sufficiently improve his position on retrial, any award of attorney fees as to defendant Taylor is premature. However, the award of fees on behalf of defendant AMC, incurred up to the date of dismissal, is affirmed, plaintiff not having appealed the dismissal order as to AMC.

ADAMS, Circuit Judge.

          This appeal from a summary judgment in favor of the defendant presents an important question concerning the law of defamation. We must review the district court's determination that a news magazine enjoys a privilege, under the common law of Pennsylvania, to publish a summary of FBI documents identifying the plaintiff as a member of an organized crime "family." We affirm.

135*135 I.

          In its March 6, 1978 issue, Time magazine published an article describing suspected criminal activities of then-Congressman Daniel J. Flood. The article stated that Stephen Elko, a former Flood aide, had characterized the Congressman as a "muscler" — an official who used his considerable influence to direct federal contracts to individuals and companies that responded with cash. The article further stated that at least eight separate United States Attorneys' offices had undertaken investigations of Flood's activities.

          As an example of suspected misconduct, the Time article listed the following:

Among the matters under scrutiny: Ties between Flood and Pennsylvania Rackets Boss Russell Bufalino. The suspected link: the Wilkes-Barre firm of Medico Industries, controlled by President Philip Medico and his brothers. The FBI discovered more than a decade ago that Flood steered Government business to the Medicos and traveled often on their company jet. Investigators say Bufalino frequently visited the Medico offices; agents tape-recorded Bufalino's description of Philip as a capo (chief) in his Mafia family. Elko's testimony has sparked new investigative interest in the Flood-Medico-Bufalino triangle.

          Circulation of the March 6, 1978 issue of Time exceeded four million copies.

          Following publication of the article, Medico instituted a defamation action against Time, Inc., in federal district court on the basis of diversity jurisdiction.[1] Medico alleged that the article's import was that he held a high position in an organized criminal society.

          Time initially moved for summary judgment in June 1979. It asserted that the substance of the article was not that Medico actually participated in criminal activities, but only that FBI agents had recorded Russell Bufalino's description of Medico as a Mafia capo. Time argued that this latter statement was true. In support of its motion, Time submitted the affidavit of John Danahy, a former FBI official, and two documents — an FBI report on "La Cosa Nostra, Philadelphia Division," and a personal profile report on Philip Medico — which Danahy identified as official FBI documents. Both documents state that an "informant" alternately code-named "PH T-3" and "PH 591-C*" has identified Medico as a close associate of Russell Bufalino and a "capo" or "capodecina" in La Cosa Nostra. The affidavit states that La Cosa Nostra is the FBI's term for the Mafia, and that the "informant" was not a person, but an electronic listening device, by means of which a recording had been made.

          The district court agreed with Time that the substance of the allegedly defamatory article was that the FBI had recorded Bufalino's identification of Medico as an underworld leader. It concluded, however, that the supporting documents which Time submitted did not resolve all genuine issues concerning the truth of its report. Although the FBI documents corroborated the Time article, the court ruled that the affidavit Time had advanced to authenticate the documents was not based on the personal knowledge of the affiant, as required by Rule 56(e). The court therefore denied Time's motion for summary judgment.

          In January 1980, Time again moved for summary judgment based on the substantial truth of its publication. Time resubmitted the two FBI documents it had proffered to support its initial motion, supplemented with affidavits of two FBI agents. One affiant, David Breen, had supervised an investigation of organized crime that the FBI's Philadelphia Office had conducted. He stated that the Philadelphia Office had prepared the report on La Cosa Nostra at his direction, and that Medico's personal profile card had been prepared and maintained by the FBI. Breen further stated that, based on his personal experience with the FBI, he knew from the code names 136*136 assigned the "informant" that the information in the documents was derived from a tape-recording made by means of an electronic listening device and transcribed by highly trained individuals capable of identifying the voices of the persons recorded. The other affiant, Patrick Collins, also had served in a supervisory position with the FBI. He confirmed Breen's interpretation of the documents, primarily on the basis of his "general experience with similar such reports."

          On this occasion the district court granted Time's motion for summary judgment, but not on the basis of the truth defense. The court expressed doubt about its earlier conclusion that, in order to prevail on a truth theory, Time need only establish that FBI agents recorded Bufalino's description of Medico, rather than that Medico was in fact a Mafia chieftain. The court acknowledged that Pennsylvania law might require proof of the underlying assertion, but decided it did not have to resolve the issue; the court concluded that, whether the statement sued upon be given a broad or narrow scope, the evidentiary affidavits that Time submitted failed to establish the truth defense. Although the court found that the affidavits established the authenticity of the FBI report and personal file card as FBI materials, it also determined that neither affiant had personal knowledge of the "factual basis" for the documents. Neither Breen nor Collins had installed the listening devices allegedly used in recording Bufalino's conversations, had transcribed the recorded conversations, or had personal knowledge of the identity of all the participants in the relevant conversations.

          After declining to hold for Time on the truth theory, the district court considered whether the Time article fell within the common law privilege accorded the press to report on official proceedings. The judge seemed troubled because Pennsylvania courts apparently had so far extended the privilege only to reports of proceedings open to the public, whereas Time had summarized reports which the FBI had kept secret and whose release to Time evidently had been unauthorized. But after an exhaustive analysis of Pennsylvania precedents, the court concluded that Pennsylvania courts, if presented with the question, would find summaries of non-public government reports within the privilege. The district judge then ascertained that the Time article represented a fair and accurate account of the FBI documents. Accordingly he held that the publication was privileged, and awarded summary judgment in favor of Time.

          On appeal, Medico argues that the district court incorrectly determined that Time's publication was privileged under Pennsylvania law. Time counters that the district judge accurately construed the applicable state law on privilege, and contends further that the defense of truth applies and affords an alternate basis for affirming the district court. Our analysis of the district court's result will entail examination of the state law precedents regarding the fair report privilege, of the policies underlying them, and of Constitutional constraints on defamation law.[2]

137*137 II.

          The fair report privilege on which the district court relied developed as an exception to the common law rule that the republisher of a defamation was subject to liability similar to that risked by the original defamer.[3] Pennsylvania had adopted the republication rule by the turn of the century,[4] and no case brought to our attention suggests that Pennsylvania has abandoned it.[5] With this rule, the law indulged the fiction that the republisher of a defamatory statement "adopted" the statement as his own.[6] The common law regime created special problems for the press. When a newspaper published a newsworthy account of one person's defamation of another, it was, by virtue of the republication rule, charged with publication of the underlying defamation. Thus, although the common law exonerated one who published a defamation as long as the statement was true,[7] a newspaper in these circumstances traditionally could avail itself of the truth defense only if the truth of the underlying defamation were established.[8]

          To ameliorate the chilling effect on the reporting of newsworthy events occasioned by the combined effect of the republication rule and the truth defense, the law has long recognized a privilege for the press[9] to publish accounts of official proceedings or reports even when these contain defamatory statements. So long as the account presents a fair and accurate summary of the proceedings,[10] the law abandons the assumption that the reporter adopts the defamatory 138*138 remarks as his own.[11] The privilege thus permits a newspaper or other press defendant to relieve itself of liability without establishing the truth of the substance of the statement reported. The fair report privilege has a somewhat more limited scope than the truth defense, however. So long as the speaker establishes the truth of his statement, he is shielded from liability, regardless of his motives; the fair report privilege, on the other hand, can be defeated in most jurisdictions by a showing that the publisher acted for the sole purpose of harming the person defamed.[12]

          Unlike many states,[13] Pennsylvania has never codified the fair report privilege. In addition, while Pennsylvania follows the Restatement (Second) of Torts on most matters,[14] the Pennsylvania Supreme Court evidently has not yet had occasion to comment on the Restatement's version of the fair report privilege. Earlier, however, the state courts had endorsed the privilege as set forth in the original Restatement,[15] and this edition was similar in most respects to the more recent one. We believe it appropriate to accept as the law of Pennsylvania the version of the fair report privilege embodied in the current Restatement.[16]

Section 611 of Restatement (Second) provides:

Report of Official Proceeding or Public Meeting

The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.

          With respect to the present controversy, the basic inquiry is whether Time's summary of FBI documents concerning Philip Medico is 139*139 "a report of an official action or proceeding.'[17]

          The district court examined and rejected the possibility that the FBI reports in question are not "official" because they are not generally available to the public. Medico does not challenge this reasoning on appeal, and we perceive no need to rehearse arguments that the district court has already canvassed. Medico contends before this Court that the FBI documents should not be deemed "official" because they express only tentative and preliminary conclusions that the FBI has never adopted as accurate. He points out that the title page to the FBI report on La Cosa Nostra bears the following legend: "This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency."

          Neither the text of Section 611 nor the accompanying comments dispose of the issue Medico raises. Section 611 itself speaks only of "official" action or proceedings, without elaborating on when a statement is made in an official capacity. Comment d provides some support for locating the FBI documents concerning Medico within the scope of the privilege. That comment states: "The filing of a report by an officer or agency of the government is an action bringing a reporting of the governmental report within the scope of the privilege." In the present case, the FBI included its information on Medico in a report on the Philadelphia activities of the Mafia, and forwarded it for inclusion in a report on nationwide organized crime.

          But another comment casts doubt on the applicability of the fair report privilege to the FBI materials. Comment h indicates that, while a report of an arrest or of the charge of crime falls within the privilege, "statements made by the police or by the complainant or other witnesses or by the prosecuting attorney as to the facts of the case or the evidence expected to be given are not yet part of [a] judicial proceeding or of the arrest itself and are not privileged." Because the FBI's information concerning Medico never led to an arrest or prosecution, the FBI materials may be thought to stem from such an early stage of official proceedings that the Section 611 privilege does not attach.

          Pennsylvania cases predating the publication of Restatement (Second) also fail to resolve definitively whether summaries of criminal investigatory files fall within the privilege. The two cases most nearly on point, however, strongly support Time's defense. In Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (1963), the defendant newspaper had published three articles based on the "Reuter Report," a study, commissioned by then-Governor of New York, Averell Harriman, of the activities and associations of individuals who had attended a meeting of alleged organized crime figures.[18] The Pennsylvania Supreme Court held the newspaper's publication protected, announcing the fair report privilege in broad terms: "Upon the theory that it is in the public interest that information be made available as to what takes place in public affairs, a newspaper has the privilege to report the acts of the executive or administrative officials of government." Id. at 600, 187 A.2d at 588. As in the present case, there is no 140*140 indication that the Reuter Report had led to the arrest or criminal prosecution of any suspected wrongdoer. The Reuter Report, however, bore stronger indicia of representing an "official" act than the FBI materials here: it was filed with the Governor and then released to the public, it evidently did not bear a legend indicating that it reached only tentative conclusions, and it resulted from an inquiry into the history and habits of organized crime figures that occupied New York State officials for several months. While Sciandra affords some basis for predicting that Pennsylvania would extend the fair report privilege to the publication challenged in this case, we doubt whether, standing alone, Sciandra disposes of this issue.[19]

          A decision by a federal district court construing Pennsylvania law also supports application of the privilege to Time's publication. In Hanish v. Westinghouse Broadcasting Co., 487 F.Supp. 397 (E.D.Pa.1980), the court held that the privilege applied to a news report summarizing a civil complaint that contained defamatory accusations and that had formed the basis for a temporary restraining order.[20] The court approvingly quoted Justice Holmes' statement in Cowley v. Pulsifer, 137 Mass. 392 (1884), that "[i]f pleadings and other documents can be published to the world by anyone who gets access to them, no more effectual way of doing malicious mischief with impunity could be devised than filing papers containing false and scurrilous charges, and getting those printed as news"; the district court concluded nonetheless that, at least when some judicial action has been taken on a complaint, the fair report privilege applies.[21]

          Assuming the court in Hanish correctly predicted Pennsylvania law, we think that decision supports application of the Section 611 privilege to the present case. FBI files seem at least as "official" as the pleadings in civil cases. Although civil complaints are instituted, for the most part, by private parties, the FBI documents concerning Medico were compiled by government agents acting in their official capacities. Moreover, the danger that a civil litigant will willfully insert defamatory assertions in his complaint generally would appear at least as great as the risk that a criminal investigatory agency will knowingly include false or malicious statements in its files. If Pennsylvania courts would grant the privilege to newspaper accounts of civil complaints on which a court has acted ex parte, we think it likely that they would grant the privilege to republication of defamatory items from the FBI materials on Medico.

III.

          Three policies underlie the fair report privilege, and an examination of them provides further guidance for our decision today. Initially, an agency theory was offered to rationalize a privilege of fair report: 141*141 one who reports what happens in a public, official proceeding acts as an agent for persons who had a right to attend, and informs them of what they might have seen for themselves.[22] The agency rationale, however, cannot explain application of the privilege to proceedings or reports not open to public inspection.[23]

          A theory of public supervision also informs the fair report privilege. Justice Holmes, applying the privilege to accounts of courtroom proceedings, gave the classic formulation of this principle:

[The privilege is justified by] the security which publicity gives for the proper administration of justice.... It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

          Cowley v. Pulsifer, 137 Mass. 392, 394 (1884). The supervisory rationale has been invoked in the context of executive action as well.[24]

          We believe the public supervision rationale applies to the present case. As public inspection of courtroom proceedings may further the just administration of the laws, public scrutiny of the proceedings and records of criminal investigatory agencies may often have the equally salutary effect of fostering among those who enforce the laws "the sense of public responsibility." For example, exposing the content of agency records may, in some cases, help ensure impartial enforcement of the laws.

          It is not necessary for us to decide, however, whether the supervisory rationale is relevant to every republication of documents found in FBI files. For any general supervisory concern with respect to the FBI is heightened in the present case by the public's interest in examining the conduct of individuals it elects to positions of civic trust. Elected officials derive their authority from, and are answerable to, the public. If the citizenry is effectively and responsibly to discharge its obligation to monitor the conduct of its government, there can be no penalty for exposing to general view the possible wrongdoing of government officials. Because the alleged defamation of Medico occurred in an article analyzing the conduct of former Congressman Flood, we believe it implicates this aspect of the supervisory rationale. Moreover, even though Time's publication arguably may have tarnished the reputation of Medico, a private individual,[25] as well as that of Representative 142*142 Flood, the public has a lively interest in considering the relationships formed by elected officials.[26]

          A third rationale for the fair report privilege rests, somewhat tautologically, on the public's interest in learning of important matters.[27] While "mere curiosity in the private affairs of others is of insufficient importance to warrant granting the privilege,"[28] the present case does not involve such idle probing. The Time article discussed two topics of legitimate public interest. First, for the same reasons that support the supervisory rationale, examination of the affairs of elected officials is obviously a matter of legitimate public concern. In addition, as various federal courts have already recognized, there is significant public importance to reports on investigations of organized criminal activities,[29] whether or not these implicate government officials.

          Because the Time article focused on organized crime, we think the informational rationale is especially relevant. The district court in the case at hand commented on the difficulty of gathering information pertaining to organized criminal activity: "Due to the size, sophistication and secrecy of most organized criminal endeavors, only the largest and most sophisticated intelligence-gathering entities can monitor them effectively. In practice this task has been taken up primarily by the Justice Department of the federal government and, in particular, by the FBI." Indeed, the documents that Time summarized had been compiled by a government agency. In light of the difficulty in obtaining independent corroboration of FBI information, the press may often have to rely on materials the government acquires if it is to report on organized crime at all. We believe Time's publication of FBI materials mentioning Medico served a legitimate public interest in learning about organized crime.

          Care must be taken, of course, to ensure that the supervisory and informational rationales not expand into justifications for reporting any defamatory matter maintained in any government file. Personal interests in privacy are not to be taken lightly, and are not to be overborne by mere 143*143 invocation of a public need to know.[30] But we believe that the public interest is involved when, as here, information compiled by an enforcement agency may help shed light on a Congressman's alleged criminal or unethical behavior.

IV.

          Constitutional considerations also help resolve the present dispute. Although the Supreme Court has never explicitly recognized a constitutional privilege of fair report, several of its recent decisions point toward that result. While we need not decide today whether the First Amendment requires a privilege for the press to report on official acts and proceedings regardless of whether they contain defamatory information, we find that analysis of the constitutional issues reinforces our prediction that Pennsylvania would, as a matter of common law, apply the fair report privilege to Time's publication about Medico.

          Two cases from outside the field of defamation reflect the Supreme Court's recognition of the First Amendment value of reports of official proceedings. In Cox Broadcasting v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), the Court ruled that the First Amendment precludes a cause of action for invasion of privacy brought about by publication of the name of a deceased rape victim. The Court noted: "Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media." Id. at 495, 95 S.Ct. at 1046. In addition to these comments, which emphasize the informational rationale for the fair report privilege, the Court stressed the supervisory duties of the public: "The citizenry is the final judge of the proper conduct of public business.... With respect to judicial proceedings in particular, the function of the press serves ... to bring to bear the beneficial effect of public scrutiny upon the administration of justice." Id. at 495, 492, 95 S.Ct. at 1046, 1044.

          While Cox Broadcasting arose from a news report based on judicial records open to public inspection, the Court's commitment to dissemination of information of interest and value to the public seems just as apposite when, as here, the press reports on materials not open for inspection. Moreover, the Court in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), extended the protective mantle of the First Amendment to a report of a proceeding closed to the public. The Court there held that a state may not impose criminal sanctions on those who publish information regarding proceedings before a state judicial review commission, even when the state constitution and laws declare the proceedings confidential. The Court again stressed the need for public knowledge of the affairs of government: "`A major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.' ... Neither the Commonwealth's interest in protecting the reputation of its judges, nor its interest in maintaining the institutional integrity of its courts is sufficient to justify the subsequent punishment of speech at issue here. Id. at 838, 841, 98 S.Ct. at 1541, 1542 (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (1966)).

          Landmark Communications, like Cox Broadcasting, does not strictly control the issue before us — for Landmark arose in the context of criminal sanctions,[31] rather than 144*144 a defamation suit, and plaintiff in Landmark was a public official.[32] But in both Cox Broadcasting and Landmark Communications, the Supreme Court articulated the First Amendment value of reports that inform the public of the affairs of government and assist the citizenry in its supervisory duties. In Cox Broadcasting these values applied in the context of a damage action instituted by a private figure, and in Landmark Communications they could not be overcome by the confidentiality of the materials reported on.[33] Since we have found that the publication at issue here implicates these informational and supervisory interests, Cox and Landmark provide a constitutional basis for applying a fair report privilege to a controversy which, like the present one, arises from a private figure's damage action for publication of reports not available to the public.

          Closer to the facts in our case is Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971), which some commentators have interpreted as elevating the fair report privilege into a constitutional requirement.[34] Pape arose from a Time magazine article that quoted excerpts from a Report of the United States Commission on Civil Rights. One section of the Report, dealing with police brutality, listed in detail allegations against Pape and other Chicago police officers contained in a civil complaint; Time quoted the allegations without citing the complaint, arguably making it appear that the allegations were factual findings of the Commission.

          The precise issue presented to the Supreme Court was whether there was sufficient evidence for a jury to conclude that Time magazine, in omitting to mention that the charges of brutality were allegations of a complainant rather than findings of the Commission, had published material it knew to be false, or had acted in reckless disregard of the truth.[35] The Court observed that it is often possible to separate the question of the truth of the publication from the question of whether the publisher had an adequate basis for believing his publication true. 401 U.S. at 285, 91 S.Ct. at 637. But not all cases are susceptible to this analysis: "A vast amount of what is published in the daily and periodical press purports to be descriptive of what somebody said rather than of what anybody did. Indeed, perhaps the largest share of news concerning the doings of government appears in the form of accounts of reports, speeches, press conferences, and the like. The question of the `truth' of such an indirect newspaper report presents rather complicated problems." Id. at 285-86, 91 S.Ct. at 637 (emphasis in original). After analyzing the Time article in light of the Commission Report, the Court concluded that Time had not engaged in a falsification sufficient to warrant a jury finding of actual malice.

          145*145 While the fair report privilege was not at issue in Pape,[36] the Court's explicit recognition of the sensitive First Amendment problems that arise when the press publishes accounts of government reports and activities has not been lost on other federal courts. At least one court of appeals, citing Pape, has generalized this concern to create a constitutional privilege whenever the press republishes defamatory comments while reporting on newsworthy events. In Edwards v. National Audubon Society, Inc., 556 F.2d 113, 120 (2d Cir.), cert. denied, 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977), the Second Circuit stated:

When a responsible, prominent organization ... makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity.... What is newsworthy about such accusations is that they were made.... The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.

          Although this Court, in dicta, has declined to follow Edwards, see Dickey v. CBS, Inc., 583 F.2d 1221, 1225-26 (3d Cir. 1980), other federal courts have, as a matter of federal law, expressed reluctance to hold the press responsible for publication of defamatory statements originally uttered by others.[37] Moreover, the concerns underlying Pape and Edwards are heightened when the source of newsworthy defamation is a government official or report.[38]

          We are careful to point out that we do not decide at this time that the First Amendment immunizes a newspaper's republication of a defamation arising in connection with a matter of public interest, and originally authored by a government source. But we believe that the solicitude that both the Supreme Court and other federal tribunals have expressed for the press in such circumstances might well influence the Pennsylvania Supreme Court's application of its common law privilege of fair report.[39] 146*146 The trend of federal case law strengthens our belief that the Pennsylvania Court, if confronted with the question, would find the Time article that Medico challenges within the ambit of the privilege.

V.

          Once the libel defendant establishes the existence of a "privileged occasion" for the publication of a defamatory article, the burden returns to the plaintiff to prove that the defendant abused its privilege. Sciandra v. Lynett, 409 Pa. 595, 601, 187 A.2d 586, 589 (1963). Pennsylvania recognizes two forms of "abuse": the account of an official report may fail to be fair and accurate,[40] as when the publisher overly embellishes the account, Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53, 56 (1971); Sciandra v. Lynett, 409 Pa. at 600, 187 A.2d at 589; or the defamatory material may be published for the sole purpose of causing harm to the person defamed, id. Inasmuch as Medico does not allege that Time published its article for the purpose of harming him, the sole issue with respect to abuse of privilege is whether the district court erred in concluding that there was no genuine question whether Time's publication fairly and accurately summarized the FBI materials concerning Medico.

          We agree with the district court that nothing in the record suggests that the Time article unfairly or inaccurately reported on the FBI materials. Medico asserts that Time's failure to mention the legend on the FBI report on the Philadelphia Branch of La Cosa Nostra renders its story unfair. No similar legend, however, appears on the FBI's personal file card on Medico, which is an independent source of the information reported. Moreover, nothing in the Time article expresses a "recommendation" or "conclusion" on the part of the FBI concerning Medico's participation in Mafia activities. The article simply says that FBI "agents tape-recorded Bufalino's description of Philip as a capo (chief) in his Mafia family."

          Medico also insists that, because the FBI files identify the "informant" only by a code name, it is impossible to ascertain whether Time's summary was accurate. But the uncontradicted affidavits of Breen and Collins establish that the code names refer to electronic listening devices that the FBI planted in the Philadelphia area. Time has accurately portrayed the FBI records as indicating that Medico has been identified as part of the Bufalino crime family.

VI.

          Medico further contends that Time can avail itself of the fair report privilege only if it actually based its article on the FBI materials; if the report reflects the contents of the official materials merely by coincidence, the privilege does not attach. Medico maintains there is a genuine issue of fact whether Time employees worked with the FBI materials in preparing the article.

          Pennsylvania law squarely contradicts this argument. In Binder v. Triangle Publications, 147*147 Inc., 442 Pa. 319, 275 A.2d 53 (1971), a newspaper printed an allegedly libelous article that purported to summarize testimony at a criminal trial. The reporter who wrote the article had not attended the trial, however, but had based his story on information supplied by persons who had attended. The Pennsylvania Supreme Court held the story was nonetheless privileged. It said: "How a reporter gathers his information concerning a judicial proceeding is immaterial provided his story is a fair and substantially accurate portrayal of the events in question." Id. at 327, 275 A.2d at 58. In the present case, then, how Time magazine obtained its knowledge of the FBI materials is irrelevant under the law of Pennsylvania.[41] The article is privileged as a fair and accurate summary of the FBI materials.

VII.

          We conclude that Time's publication of an allegedly defamatory article concerning Philip Medico falls within the scope of the Pennsylvania common law privilege of fair report, and that Medico has failed to establish a genuine issue of fact concerning a possible abuse of the privilege. We therefore find it unnecessary to address Time's alternative argument for affirmance: that the affidavits it submitted establish the substantial truth of its publication. In particular, we need not examine the issue, left unresolved by the district court, whether under Pennsylvania law repetition of another's words relieves the press of the need to prove the truth of the underlying assertion as long as it accurately ascribes all it says to the original utterer.[42]

          The judgment of the district court granting Time's motion for summary judgment will be affirmed.

          [1] 28 U.S.C. § 1332(a) (1976). At the time he filed the complaint, Medico was a citizen of Pennsylvania. Time, Inc., is incorporated under the laws of Illinois with its principal place of business in New York.

          [2] A threshold inquiry is which state's substantive law applies to this diversity action. The parties implicitly agree that Pennsylvania law governs, and the district court applied Pennsylvania law. Inasmuch as Pennsylvania has an interest in the outcome of this litigation — the target of the alleged defamation is a Pennsylvania resident and the issue of Time magazine containing the allegedly libelous article was circulated throughout the state — this Court has no cause sua sponte to challenge the choice of Pennsylvania law. See Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 269-70 (3d Cir. 1980); Pierce v. Capital Cities Communications, Inc., 576 F.2d 495, 501-02 (3d Cir.), cert. denied, 439 U.S. 861, 99 S.Ct. 181, 58 L.Ed.2d 170 (1978).

          Under Pennsylvania law, a defamation claim consists of two basic elements. First, the communication must be defamatory in nature and understood as such by the recipient. Corabi v. Curtis Publishing Co., 441 Pa. 432, 441-42, 273 A.2d 899, 904 (1971); 42 Pa.Cons.Stat.Ann. § 8343(a)(1) to (4) (Supp.1979). Before this court, Time does not dispute the defamatory nature of its statements concerning Medico. Second, the communication must be uttered maliciously — that is, intentionally or negligently and "without just cause or excuse." Corabi v. Curtis Publishing Co., 441 Pa. at 451, 273 A.2d at 909; 42 Pa.Cons.Stat.Ann. § 8344 (Supp.1979). This malice component is "implied or presumed to exist from the unprivileged publication of defamatory words actionable per se." Corabi v. Curtis Publishing Co., 441 Pa. at 451, 273 A.2d at 909 (emphasis deleted). On this appeal, then, the sole issue is whether Time can negate the presumption of malice by establishing that its publication was privileged.

          [3] See W. Prosser, Handbook of the Law of Torts 798 & n.13 (4th ed. 1971); Note, Privilege to Republish Defamation, 64 Colum.L.Rev. 1102, 1102 (1964).

          [4] See Oles v. Pittsburgh Times, 2 Pa.Super. 130, 142 (1896) ("One who ... repeats a defamatory accusation is deemed to have published it, and is liable to action although he gives the name of the author."); Stepp v. Croft, 18 Pa.Super. 101 (1901).

          [5] Cf. Hoover v. Peerless Publications, Inc., 461 F.Supp. 1206, 1208 (E.D.Pa.1978) (construing Pennsylvania law) (citing "the black-letter rule that one who republishes a libel is subject to liability just as if he had published it originally, even though he attributes the libelous statement to the original publisher").

          [6] See R. Sack, Libel, Slander, and Related Problems § 11.6.1, at 86-87 (1980); Robertson, Defamation and the First Amendment: In Praise of Gertz v. Robert Welch, Inc., 54 Tex.L.Rev. 199, 262-63 (1976).

          [7] See Restatement (Second) of Torts § 581A (1977).

          [8] The following example is given in Oles v. Pittsburgh Times, 2 Pa.Super. 130, 142 (1896): if J.S. publishes that he heard J.A. say that J.G. was a traitor or a thief, then "J.S. must prove that J.G. was a traitor or a thief in order to make a complete defense."

          Although the common law placed the burden of proving truth on the defendant, this allocation may run afoul of recently announced constitutional principles. See note 38 infra. Because we dispose of the present case on the basis of the fair report privilege, we have no occasion to resolve this constitutional issue, or to consider whether Pennsylvania courts would continue to apply the republication rule to a newspaper account of defamatory remarks, see Part VII & note 42 infra.

          [9] There is some dispute whether the privilege is available to non-press defendants. The Restatement suggests that "any person who makes an oral, written or printed report" on an official proceeding should have access to the defense. Restatement (Second) of Torts § 611, Comment c (1977). While some states adhere to this approach, see e. g., N.Y.Civil Rights Law § 74 (McKinney 1976); Ohio Rev.Code Ann. §§ 2317.04-05 (Page 1953); Okla.Stat. tit. 12, § 1443 (1971), other states grant the privilege only to specified press defendants, see, e. g., Mich.Comp.Laws Ann. § 600.2911(3) (West 1968) ("reporter, editor, publisher or proprietor of a newspaper"); N.J.Stat.Ann. § 2A:43-1 (West Supp.1976) ("publication in any newspaper"). Although Pennsylvania, as far as we can tell, has not delineated the availability of the privilege, in light of the identity of defendant Time, Inc., we need not decide at this time whether Pennsylvania would allow non-media defendants to claim the fair report privilege.

          [10] See Restatement (Second) of Torts § 611 (1977); W. Prosser, supra note 3, at 832.

          [11] See R. Sack, supra note 6, § VI.3.7, at 316 & n.213. Analytically, the fair report privilege is similar to the truth defense. Both make verity the issue, although requiring that a report be fair and accurate may allow the press a somewhat greater margin of error than requiring that its report be true. In those cases where a plaintiff claims that republication of an official report defamed him not by conveying the underlying defamation, but by leading the reading public to believe that a government agency had leveled defamatory charges against him, the two defenses are effectively "merged." The common law defense of truth would turn on whether the government actors had in fact so charged the plaintiff, and the fair report privilege would focus on the same inquiry. See Sowle, Defamation and the First Amendment: The Case for A Constitutional Privilege of Fair Report, 54 N.Y.U.L.Rev. 469, 506-07 (1979).

          [12] See 1 F. Harper & F. James, The Law of Torts 450-56 (1956). For this reason, truth generally is referred to as an "absolute," and fair report as a "conditional," privilege. See generally Sack, supra note 6, § VI.1.

          [13] For examples of statutory versions of the privilege, see Cal.Civ.Code § 47 (West 1954); Ga.Code Ann. § 105-704 (1978); N.J.Stat.Ann. § 2A:43-1 (West Supp.1978); N.Y.Civil Rights Laws § 74 (McKinney 1976); Ohio Rev.Code Ann. § 2317.04 (Page 1953); Wis.Stat. § 895.05 (1975). Application of the privilege varies from state to state. See Comment, Constitutional Privilege to Republish Defamation, 77 Colum.L.Rev. 1266, 1275 n.72 (1977).

          [14] See Gilbert v. Korvette, Inc., 457 Pa. 602, 611 n.25, 327 A.2d 94, 100 n.25 (1974) ("In recent years, this Court has not hesitated to adopt sections of the Restatement (Second) of Torts (1965) when our common-law precedents varied from the Restatement or when the Pennsylvania common law provided no answer.").

          [15] See Binder v. Triangle Publications, Inc., 442 Pa. 319, 324, 275 A.2d 53, 56 (1971); Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 177, 191 A.2d 662, 667 (1963); Sciandra v. Lynett, 409 Pa. 595, 600, 187 A.2d 586, 589 (1962). Section 611 of the original Restatement of Torts provided:

REPORTS OF JUDICIAL, LEGISLATIVE, AND EXECUTIVE PROCEEDINGS.

          The publication of a report of judicial proceedings, or proceedings of a legislative or administrative body or an executive officer of the United States, a State or Territory thereof, or a municipal corporation or of a body empowered by law to perform a public duty is privileged, although it contains matter which is false and defamatory, if it is

(a) accurate and complete or a fair abridgment of such proceedings, and

(b) not made solely for the purpose of causing harm to the person defamed.

          [16] Accord, Mathis v. Philadelphia Newspapers, Inc., 455 F.Supp. 406, 415 (E.D.Pa.1978); see Hanish v. Westinghouse Broadcasting Co., 487 F.Supp. 397 (E.D.Pa.1980) (assuming without elaboration that § 611 of Restatement (Second) represents the law of Pennslyvania).

          [17] Although the Time article did not explicitly credit the FBI Report on La Cosa Nostra or the FBI personal file card on Medico as the Magazine's sources of information, the statements about Medico, taken in context, may reasonably be understood to inform the reader that the story was based on FBI materials. The article should accordingly be regarded as a summary of a purportedly "official" government report. See Mathis v. Philadelphia Newspapers, Inc., 455 F.Supp. 406, 416 (E.D.Pa.1978) (articles summarizing information supplied by Philadelphia Police Department were accounts of governmental reports and hence within Section 611, even though the articles did not expressly identify the Department as the source of the information); cf. R. Sack, supra note 6, § VI.3.7.5, at 325 (if the publication does not inform the reader of the identity or nature of the government proceeding, it probably is not a fair and accurate report).

          [18] Interestingly, one of the alleged crime figures examined by the Reuter Report is Russell Bufalino.

          [19] Other Pennsylvania cases applying the fair report privilege cast little light on the question here, inasmuch as they involved reports of clearly official proceedings. See Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53 (1971) (account of proceedings in open court at criminal trial); Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 191 A.2d 662 (1963) (same).

          [20] Although the Court found the publication within the ambit of the privilege, it denied defendant's motion for summary judgment because it determined that plaintiff had raised a genuine issue of material fact concerning whether the publication fairly and accurately summarized the contents of the complaint.

          [21] Considerable controversy surrounds republication of defamations contained in pleadings on which no official action has been taken. Although Comment e to Section 611 of the Restatement excludes such pleadings from the scope of the privilege. Professor Eldredge writes that "the weight of authority is contrary to the [Restatement] rule, and is that the report of pleadings filed in court which have not yet come before a judicial officer and upon which no judicial action has been taken comes within the privilege." L. Eldredge, The Law of Defamation § 79(b)(1), at 430 (1978). Compare Campbell v. New York Evening Post, 245 N.Y. 320, 157 N.E. 153 (1927) (reports of preliminary proceedings are privileged), and American Dist. Tel. Co. v. Brinks, Inc., 380 F.2d 131, 133 (7th Cir. 1967) (same), with Cowley v. Pulsifer, 137 Mass. 392 (1884) (report of preliminary proceedings not privileged).

          [22] Thus in Curry v. Walter, 126 Eng.Rep. 1046 (C.P.1796), perhaps the earliest reported case recognizing the privilege, see Sowle, supra note 11, at 478, Chief Justice Eyre instructed the jury that it is not unlawful to publish "a true account of what took place in a court of justice which is open to all the world." The theory seems to be that because a member of the public could have witnessed the defamation, he is entitled to be informed of it. For an argument that the agency rationale confuses elements that justify republication with those that merely indicate when the privilege may exist, see Note, supra note 3, at 1116.

          [23] Courts still occasionally invoke the agency rationale, see Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 387, 149 A.2d 193, 209 (1959) (Weintraub, J., dissenting); Borg v. Boas, 231 F.2d 788, 794 (9th Cir. 1956) (construing Idaho law). See also Restatement (Second) of Torts § 611, Comment d (1977) ("It is not clear whether the privilege extends to a report of an official proceeding that is not public or available to the public under the law.")

          [24] See Note, supra note 3, at 1108-09.

          [25] We need not decide whether Medico is a "public figure" for constitutional purposes. Beginning with New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964), the Supreme Court has required that "public officials" may not recover in actions for defamation unless they prove that the defendant published false material, knowing of its falsity or with reckless disregard of the truth. The Supreme Court later extended this same protection to defendants in defamation suits brought by "public figures," Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), a class the Supreme Court delineated more specifically on Gertz v. Robert Welch Publishing Co., 418 U.S. 323, 342-45, 351-52, 94 S.Ct. 2997, 3008-09, 3012-13, 41 L.Ed.2d 789 (1974). Where the plaintiff is a "private figure," however, the First Amendment forbids states to impose liability without fault, but otherwise permits them to define for themselves the appropriate standard of liability. Id. at 347, 94 S.Ct. at 3010. Although Time argued, in connection with its initial summary judgment motion, that Medico was a public figure, Time withdrew this argument after the Supreme Court indicated in Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9, 99 S.Ct. 2675, 2680 n.9, 61 L.Ed.2d 411 (1979), that the "actual malice" issue generally should go to the jury.

          [26] See Sowle, supra note 22, at 485-86.

          [27] See Note, supra note 3, at 1111-16. The Pennsylvania Supreme Court appeared to embrace this rationale in Sciandra v. Lynett, 409 Pa. 595, 600, 187 A.2d 586, 587, 588 (1963): "Upon the theory that it is in the public interest that information be made available as to what takes place in public affairs, a newspaper has the privilege to report the acts of the executive or administrative officials of government." See also Barto v. Felix, 250 Pa.Super. 262, 267, 378 A.2d 927, 929-30 (1977).

          Some jurisdictions rely on the informational rationale to extend the privilege to accounts of the proceedings of public meetings of private, nongovernmental organizations, as long as the meeting deals with matters of concern to the public. See Barrows v. Bell, 73 Mass. (7 Gray) 301, 313 (1856); Pinn v. Lawson, 72 F.2d 742 (D.C.Cir.1934) (meeting of parish church board); Borg v. Boas, 231 F.2d 788, 794-95 (9th Cir. 1956) (meeting calling on judge to convene grand jury). The British Defamation Act of 1952, 15 & 16 Geo. 6 & 1 Eliz. 2, c. 66, § 7, extended the privilege to reports of "proceedings at any public meeting ... bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of any matter of public concern."

          [28] Note, supra note 3, at 1111.

          [29] See Miller v. News Syndicate Co., 445 F.2d 356 (2d Cir. 1971); Time, Inc. v. Ragano, 427 F.2d 219 (5th Cir. 1970); Wasserman v. Time, Inc., 424 F.2d 920 (D.C.Cir.), cert. denied, 398 U.S. 940, 90 S.Ct. 1844, 26 L.Ed.2d 273 (1970). During the short-lived regime of Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), which applied the New York Times standard to defamation actions arising out of reports on matters of public or general interest, courts frequently applied the "actual malice" requirement to actions based on accounts of organized criminal activities. See Taskett v. King Broadcasting, 86 Wash.2d 439, 546 P.2d 81, 100 (1976) (Horowitz, J., dissenting).

          [30] The excesses of the McCarthy era, for example, prompted some commentators to point out the reputational injury the republication of official defamation can cause, and to advocate restricting the fair report privilege. See Pedrick, Senator McCarthy and the Law of Libel: A Study of Two Campaign Speeches, 48 Nw.U.L.Rev. 135 (1953); 13 Rutgers L.Rev. 723, 727 (1959). See also Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 149 A.2d 193 (1959) (serviceman previously unknown to public defamed by Senator McCarthy's summary of secret Congressional hearings; newspaper account held privileged.)

          [31] At least one commentator has remarked that "[t]he fact that the defendant in Landmark suffered a criminal sanction, as opposed to a civil liability for defamation, should have no bearing on the relevance to defamation law of the Court's reasoning." Sowle supra note 22, at 500. As the Supreme Court observed in New York Times v. Sullivan, 376 U.S. 254, 277, 84 S.Ct. 710, 724, 11 L.Ed.2d 686 (1964), "the fear of damages awards ... may be markedly more inhibiting than the fear of prosecution under a criminal statute."

          [32] Some language in Landmark suggests that the Court may have limited its reasoning to public officials; thus, the Court observed: "Our prior cases have firmly established ... that injury to official reputation is an insufficient reason `for repressing speech that would otherwise be free.'" 435 U.S. at 841-42, 98 S.Ct. at 1542-43 (quoting New York Times v. Sullivan, 376 U.S. 254, 272-73, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).

          [33] Cf. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (classified status of Defense Department study of Viet Nam War does not justify prior restraint of newspaper publication).

          [34] See Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc., and Beyond: An Analytical Primer, 61 Va.L.Rev. 1349, 1362 n.46 (1976); Comment, The Expanding Constitutional Protection for the News Media from Liability for Defamation; Predictability and the New Synthesis, 70 Mich.L.Rev. 1547, 1555 (1972); W. Prosser, supra note 3, at 832.

          [35] Pape did not challenge the findings of the district court that he was a "public official." See 401 U.S. at 284, 91 S.Ct. at 636.

          [36] The way a plaintiff frames the allegations of defamation determines what factual allegations a truth defense requires. See W. Prosser, supra note 3, at 798. Pape did not allege that the "gist" or "sting" of the Time article was that he was guilty of brutality, but rather that Time defamed him by falsely asserting that the Commission charged that Pape was guilty of brutality. The case thus did not implicate the fair report privilege, since the object of the privilege — to put in issue the truth of the report that a third party defamed the plaintiff, rather than the truth of the underlying defamation — had been attained by virtue of how Pape framed his case. For a more thorough discussion, see Sowle, supra note 22, at 501-08.

          [37] See Medina v. Time, Inc., 439 F.2d 1129 (1st Cir. 1971); Oliver v. Village Voice, Inc., 417 F.Supp. 235, 238 (S.D.N.Y.1976); Novel v. Garrison, 338 F.Supp. 977, 982-83 (N.D.Ill.1971).

          [38] The news report at issue in Dickey involved a defamation originally uttered by a public official, but one speaking in a personal rather than in an official capacity. See 583 F.2d at 1222-23. Plaintiff in Dickey admitted that he was a public figure and could prevail on his defamation claim only if he satisfied the New York Times standard of "actual malice," see note 25 supra. The Third Circuit affirmed the district court's holding that plaintiff had failed to satisfy his burden of proof on this issue. Id. at 1227-29. The court's discussion of Edwards v. National Audubon Society, Inc., was thus irrelevant to its decision.

          [39] Since the Supreme Court's decision in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 680 (1964), Pennsylvania cases frequently have taken account of constitutional principles while fashioning common law rules of defamation law. The result is that "no rigid line of demarcation may be maintained between state law rules and constitutional norms, for both are intermixed in the Pennsylvania precedents." Pierce v. Capital Cities Communications, Inc., 576 F.2d 495, 502 (3d Cir.), cert. denied, 439 U.S. 861, 99 S.Ct. 181, 58 L.Ed.2d 170 (1978). For an illustration, see Matus v. Triangle Publications, Inc., 445 Pa. 384, 395, 286 A.2d 357, 362-63 (1971), where the Pennsylvania Supreme Court, following the decision on Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), engrafted onto Pennsylvania law the rule that the New York Times knowing or reckless falsity standard applies in a civil libel action brought by a private individual for defamatory falsehoods uttered in a news broadcast about the individual's involvement in an event of public or general interest.

          [40] Placement on the plaintiff of the burden of demonstrating that a privileged report was not fair and accurate traditionally distinguished the fair report privilege from the truth defense, in which defendant bore the burden of proving truth, see Corabi v. Curtis Publishing Co., 441 Pa. 432, 449-50, 273 A.2d 898, 908-09 (1971). After Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct 2997, 41 L.Ed.2d 789 (1974), it is doubtful that a state can place the burden of proving truth on the defendant. Gertz held that a plaintiff in a defamation action must be required to demonstrate "fault" on the part of defendant, id. at 347, 94 S.Ct. at 3010, and rejected Justice White's suggestion, offered in dissent, that a publisher may be required to prove the truth of a defamatory statement concerning a private individual, id. at 347 n.10, 94 S.Ct. at 3010 n.10. We have earlier questioned whether Pennsylvania's placement of the burden of proving truth on the defendant survives Gertz, see Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 274 n.49 (3d Cir. 1980), and at least one member of the Pennsylvania Supreme Court has expressed similar reservations, see Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441, 447 (1975) (Roberts, J., concurring). But see Eaton, supra note 33, at 1381-86, 1429 (Gertz tolerates common law rule of presuming falsity of defamatory publication, and placing on defendant burden of proving truth).

          [41] Medico cites Kilian v. Doubleday & Co., 367 Pa. 117, 79 A.2d 657 (1951), as establishing that, in order to be privileged as true or as a fair report, a defamatory statement must be based on the personal observations of the speaker. Medico's reliance is misplaced. In Kilian, the author had written his story in the first person; although he based his portrayal of events on the reports of other people, he wrote the story as though he had witnessed the events himself. Thus, his story carried "the verisimilitude naturally to be expected from the author's statement that he himself witnessed such occurrences, as distinguished from assertions made on the basis of hearsay." Under these circumstances, the Pennsylvania Supreme Court indicated that the defendant could prevail on his truth defense only by establishing the events related. By contrast, the authors of the Time article made no claim to have heard the FBI recordings they reported. Kilian does not suggest that a defense of truth or privilege requires that the story be based on personal observations of the author, when the account makes no claim to first-hand knowledge.

          [42] The possible interpretations of Time's publication about Medico may be used to illustrate the different approaches to the truth defense. The Time article is subject to at least three constructions:

A. Medico is a Mafia capo.

B. Government agents overheard Bufalino describe Medico as a Mafia capo.

C. FBI records indicate that government agents overheard Bufalino describe Medico as a Mafio capo.

          Under the fair report privilege, the accuracy of C relieves Time of liability. If the privilege did not apply, however, we would have to ascertain whether Pennsylvania law would exonerate Time on the basis of the truth defense if Time established the truth of B, or whether Time would have to prove A. In light of our holding that Time's publication comes under the fair report privilege, we need not dispose of this question. In addition, we need not review the district court's determination that Time has failed to demonstrate the truth of either A or B.

Appeal by Permission from the Court of Appeals Circuit Court for White County, No. CC-2605, Amy V. Hollars, Judge.

Tenn. R. App. P. 11 Judgment of the Court of Appeals Affirmed and Case Remanded to the Trial Court.

Lucian T. Pera, Phillip Michael Kirkpatrick, and J. Bennett Fox, Jr., Nashville, Tennessee, for the appellant, Sparta Newspapers, Incorporated.

Edmund S. Sauer, Brian R. Epling, and Caroline D. Spore, Nashville, Tennessee, and W.I. Howell Acuff, Cookeville, Tennessee, for the appellee, Jeffery Todd Burke.

Douglas R. Pierce, Nashville, Tennessee, for the amicus curiae, Tennessee Association of Broadcasters.

Paul R. McAdoo, Nashville, Tennessee, for the amici curiae, The Associated Press, Cable News Network, Inc., Cox Media Group Northeast, LLC D/B/A WHBQ-TV, The E.W. Scripps Company, Gannett Co., Inc., Gatehouse Media, LLC, Gray Television, Inc., Meredith Corporation, Nexstar Media Group, Inc., Raycom Media, Inc., Reporters Committee for Freedom of the Press, Sinclair Broadcast Group, Inc., TEGNA Inc., and Tribune Media Company.

Richard L. Hollow, Knoxville, Tennessee, for the amicus curiae, Tennessee Press Association.

Amy Farrar, Murfreesboro, Tennessee, and Rodney A. Smolla, Wilmington, Delaware, for the amici curiae, David A. Elder and Rodney A. Smolla.

117*117 OPINION

Cornelia A. Clark, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., and Sharon G. Lee, Holly Kirby, and Roger A. Page, JJ., joined.

This appeal requires us to determine whether the fair report privilege applies to a nonpublic, one-on-one conversation between a newspaper reporter and a detective of a county sheriff's department, who also served as the public information officer for the sheriff's department. The plaintiff sued the newspaper alleging that it had published defamatory statements the detective made about the plaintiff during the nonpublic, one-on-one conversation with the reporter. The newspaper moved for summary judgment based on the fair report privilege. The trial court granted the newspaper summary judgment, but the Court of Appeals reversed. We hold that the fair report privilege applies only to public proceedings or official actions of government that have been made public and does not apply to the nonpublic, one-on-one conversation at issue here. On this basis alone we affirm the judgment of the Court of Appeals reversing the trial court's decision granting the defendant summary judgment and remand to the trial court for further proceedings.

I. Factual and Procedural Background

The facts relevant to the issue in this appeal are undisputed. On January 30, 2014, The Expositor, a newspaper of general circulation published twice weekly in White County, Tennessee, ran an article in its online and print editions which reported on the indictment and arrest of Jeffery Todd Burke. A staff writer with the newspaper, Pamela Claytor, wrote the article. The article reported that Mr. Burke had served as a middleman between a local youth football league and a cookie dough fundraising company, that the football league had collected and given "more than $16,000" to Mr. Burke for cookie dough orders, that Mr. Burke "had misappropriated" the money and had "never turned that money over to the fundraiser company," 118*118 and that the football league "[had] never received the cookie dough they had sold and collected money for." The article additionally reported that Mr. Burke had been indicted "at the January meeting of the Grand Jury ... for theft over $10,000," and had been arrested in White County on January 24, 2014, but subsequently released on $10,000 bond. The article also stated that Mr. Burke had been previously indicted in Smith County "for allegedly stealing $11,000 ... from a youth football league last fall." The article quoted "the case's lead investigator, Detective Chris Isom, of the White County Sheriff's Office," who gave his personal assessment of the strength of the case, stating: "We are happy with the case." The article ended with another quote from Detective Isom, who said: "We are trying to get justice for these kids. It's a shame that kids have to learn a lesson like this so early."

The same day the newspaper published the article, Mr. Burke's attorney emailed Ms. Claytor and advised that the allegations related to the White County youth football league were "seriously inaccurate." Mr. Burke's attorney advised that the youth football league "did, in fact, receive everything that was ordered." The next day, the editor of The Expositor responded by email to Mr. Burke's attorney. The editor stated that the information in the article came directly from Detective Isom, "a quotable source," and that the newspaper would run corrections only if Detective Isom verified that there actually were inaccuracies in the article. The editor advised that Detective Isom had identified only one fact that needed clarification, which was that the amount of money involved was $11,000 instead of $16,000. Because Detective Isom had verified "that the other information [reported] was accurate according to the investigation," the newspaper stood by the remainder of the story.

By an email reply later that same day, Mr. Burke's attorney urged the editor to contact the youth football league. Mr. Burke's attorney stated that Mr. Burke actually had delivered everything the youth league had ordered. Mr. Burke's attorney characterized the matter as delays in the performance of a contract and offered to discuss the situation with the editor. By a second email later that same day, Mr. Burke's attorney advised that, even if the newspaper revised the monetary amount from $16,000 to $11,000, the revision would not correct the error because Mr. Burke had delivered all the product ordered and therefore had not stolen any amount of money. So far as the record on appeal reflects, there were no further communications between the editor and Mr. Burke's attorney.

On January 30, 2015, Mr. Burke filed suit against Sparta Newspapers, Incorporated ("Sparta Newspapers"), the publisher of The Expositor, in the Circuit Court for White County, Tennessee. Mr. Burke alleged that both the print and online editions of the January 30, 2014 article contained three "errors of fact that cast [Mr. Burke] in a false light and are damaging to his personal and vocational reputation": (1) the amount of money involved; (2) the statement that the cookie dough was never delivered; and (3) the statement that the Plaintiff failed to deliver the collected funds to the fundraising company. According to Mr. Burke's complaint, his performance under the contract "was delayed," but the cookie dough was ultimately delivered to the youth football league more than two months before the matter was presented to the White County Grand Jury. Mr. Burke also alleged that The Expositor never printed a correction or retraction of the errors in the story in either its print or online edition. Mr. Burke asserted that as a result of the defamatory article, he lost 119*119 his job, sustained damage to his personal and vocational reputation, and suffered serious emotional strain and duress. Mr. Burke requested compensatory damages of no greater than $250,000.00 and punitive damages of $1.00.

After Sparta Newspapers answered the complaint and the parties engaged in other pretrial litigation not relevant to this appeal, Sparta Newspapers moved for summary judgment, asserting immunity from liability based on the fair report privilege. Sparta Newspapers argued that the privilege applied because the article was a fair and accurate report of the statements Detective Isom made to Ms. Claytor in his official capacity both as lead detective and as public information officer for the White County Sheriff's Department.^[1] Sparta Newspapers contended that the fair report privilege applied, even though Detective Isom made the allegedly defamatory statements in a nonpublic, one-on-one conversation with its reporter. Sparta Newspapers supported its motion for summary judgment with affidavits from Ms. Claytor and Detective Isom, who both confirmed that Detective Isom made the allegedly defamatory statements in a nonpublic, one-on-one conversation. Detective Isom also stated: "The White County Sheriff's Office, including me as the Public Information Officer for that office, regularly provides interviews, statements and releases of information regarding indictments and arrests to media outlets, including The Expositor, in an effort to inform and protect the public."

Mr. Burke filed a response in opposition to the motion for summary judgment and argued that Detective Isom was not acting in his capacity as public information officer when he talked with the reporter, and he pointed out that Detective Isom never sent any documents or press releases concerning Mr. Burke to The Expositor or to any other media outlet. Mr. Burke also argued that, even assuming Detective Isom was acting in his official capacity, the fair report privilege still did not apply because the statements he made in the nonpublic, one-on-one conversation included information in addition to the information available in the public records of Mr. Burke's arrest and indictment.^[2]

The trial court held a hearing on the motion for summary judgment, and subsequently, on April 19, 2016, entered a written order granting Sparta Newspapers summary judgment. The trial court specifically found that the "one-on-one interview conducted by [Ms. Claytor] of Public Information Officer and Detective Chris Isom of the White County Sheriff's Department" satisfied "the `official' prong" of the fair report privilege.

The Plaintiff appealed, and the Court of Appeals reversed. Burke v. Sparta Newspapers, Inc., No. M2016-01065-COA-R3-CV, 2018 WL 3530839, at *1 (Tenn. Ct. App. July 23, 2018). The Court of Appeals held that "the interview given by Detective Isom was not itself an official action, official proceeding, or public meeting within 120*120 the scope of the fair report privilege." Id. at *5. The intermediate appellate court explained that Tennessee courts "have not extended the fair report privilege so far as to include a private, one-on-one interview as an official action." Id. Relying on its own prior decisions, the Court of Appeals reiterated that "[t]he requirement that official actions or proceedings be open to the public serves the underlying rationale behind the privilege, allowing the press to be `the eyes and ears of the members of the public who would have been able to witness the proceeding or obtain the information had they been present to see or hear for themselves.'" Id. at *3 (quoting Lewis v. NewsChannel 5 Network, L.P., 238 S.W.3d 270, 285 (Tenn. Ct. App. 2007)).

Sparta Newspapers then applied for permission to appeal to this Court, and we granted the application to consider the scope of the fair report privilege. Burke v. Sparta Newspapers, Inc., No. M2016-01065-SC-R11-CV (Tenn. Jan. 17, 2019) (order granting permission to appeal).^[3]

II. Standard of Review

We review a lower court's ruling on a motion for summary judgment de novo without a presumption of correctness afforded the trial court's decision. Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)). We "make a fresh determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied." Id. at 250 (citing In re Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 2013)). Summary judgment is appropriate under Rule 56 when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Tenn. R. Civ. P. 56.04. In this appeal, the relevant facts are undisputed. Our task is to determine whether the fair report privilege applies to these undisputed facts and entitles Sparta Newspapers to summary judgment as a matter of law.

III. Analysis

Tennessee recognized the fair report privilege more than a century ago, Saunders v. Baxter, 53 Tenn. 369, 382-83 (1871), yet this Court had not discussed the privilege in many years until our recent decision in Funk v. Scripps Media, Inc., which was released after the trial court and the Court of Appeals ruled in this case. 570 S.W.3d 205 (Tenn. 2019). In Funk, we explained that the fair report privilege is an exception to the common law rule "that a person who repeats the defamatory statements made by another is also liable for 121*121 defamation." Funk, 570 S.W.3d at 211 (citing VI Matthew Bacon with Henry G. William and Bird Wilson, A New Abridgment of the Law 238-39 (Philadelphia, Philip H. Nicklin 1813); Dameron v. Washington Magazine, Inc., 779 F.2d 736, 739 (D.C. Cir. 1985)); see also Restatement (Second) of Torts § 578 (1977) ("[O]ne who repeats or otherwise republishes defamatory matter is subject to liability as if he had originally published it."); Rodney A. Smolla, 2 Law of Defamation § 8:3 (2d ed. May 2019 update) [hereinafter Smolla at § ___) ("[T]he fair report privilege is an exception to the normal common-law rule rendering a speaker liable for republication of another's defamatory statement."). We recognized that the privilege originally applied only to the republication of allegedly defamatory statements made during judicial proceedings, but noted that American courts, including courts in Tennessee, later expanded it to apply to reports about a variety of official actions and proceedings. Funk, 570 S.W.3d at 211 (citing David Elder, Defamation: A Lawyer's Guide § 3:1 (July 2018 update)); see also Lewis, 238 S.W.3d at 285 (providing examples of the official actions and proceedings to which the privilege has been applied). We reiterated that the original rationale for the privilege was that liability should not be imposed on those who republish allegedly defamatory statements made during judicial proceedings that are "`open to all the world.'" Funk, 570 S.W.3d at 211 (quoting Curry v. Walter, 126 Eng. Rep. 1046 (C.P. 1769)). In other words, the basis of the fair report privilege is "the interest of the public in having information made available to it as to what occurs in official proceedings and public meetings." Restatement (Second) of Torts § 611 cmt. a (1977); see also Smolla at § 8.67 ("The rationale for the privilege is of considerable vintage, but remains as relevant as ever: The reporter is a surrogate for the public, permitting it to observe through the reporter's eyes how the business of government is being conducted."). We reaffirmed that Tennessee courts also have relied upon this rationale when applying the privilege. Funk, 570 S.W.3d at 211 (stating that "newspapers should be allowed to report on publicly accessible information" (citing David Elder, Defamation: A Lawyer's Guide § 3:1 (July 2018 update)); Lewis, 238 S.W.3d 270 (stating that the privilege allows "the media and others to be the eyes and ears of the members of the public who would have been able to witness the proceeding or obtain the information had they been present to see or hear for themselves"); Smith v. Reed, 944 S.W.2d 623, 625 (Tenn. Ct. App. 1996) (stating that the fair report privilege was recognized "in order that members of the public may be apprised of what takes place in [judicial] proceedings without having been present"). We further acknowledged that a second justification for the fair report privilege is that it "facilitates the worthwhile goal of public supervision of official actions or proceedings." Funk, 570 S.W.3d at 211-12 (citing David Elder, Defamation: A Lawyer's Guide § 3:1 (July 2018 update); Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975)); see also Am. Publ'g Co. v. Gamble, 115 Tenn. 663, 90 S.W. 1005, 1008 (1906) (stating that the privilege allows the public to "have the means of knowing how the duties of their officers are performed, whether faithfully and intelligently or otherwise").

We then turned our attention in Funk to defining the fair report privilege. We noted that in Tennessee, as in most other jurisdictions, the privilege had traditionally been applied to fair and accurate reports of official actions or proceedings but only so long as the reports were not made with express malice—in other words, so long as the reports were not made for the purpose 122*122 of harming the person defamed in the official action or proceeding. Funk, 570 S.W.3d at 212, 214. After reconsidering the traditional approach in light of developments in defamation law, including the United States Supreme Court's decisions in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), we abandoned the traditional formulation of the fair report privilege to the extent a showing of express malice could defeat the privilege. Funk, 570 S.W.3d at 214-16. In its place we "adopt[ed] the approach of the Restatement (Second) of Torts section 611" to the fair report privilege. Id. at 217.

Therefore, to determine whether the fair report privilege applies to the undisputed facts in this appeal, we turn to Section 611, which states: "The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported." Restatement (Second) of Torts section 611.^[4] The undisputed facts establish that the nonpublic, one-on-one conversation between Detective Isom and Ms. Claytor was not "a meeting open to the public that deal[t] with a matter of public concern." The fair report privilege applies here, then, only if the nonpublic, one-on-one conversation constituted "an official action or proceeding."

The text of Section 611 does not answer the question of whether a nonpublic, one-on-one conversation is an official action or proceeding. Nor do the comments to Section 611 provide a definitive answer to this question. Indeed, comment d to Section 611 states: "It is not clear whether the privilege extends to a report of an official proceeding that is not public or available to the public under the law." Restatement (Second) of Torts section 611 cmt. d. Not surprisingly then, both parties to this appeal, as well as the amici curiae, have located and analyzed authority from other jurisdictions supporting their respective positions either for or against expanding the fair report privilege to the nonpublic, one-on-one conversation at issue here. This authority illustrates that the fair report privilege is raised in a variety of factual situations and that, as comment d to Section 611 indicates, courts in other jurisdictions disagree on its scope.^[5]

123*123 In contrast to the disagreement existing elsewhere, however, the Court of Appeals has consistently held that the fair report privilege in Tennessee is "limited to circumstances involving public proceedings or official actions of government that have been made public." Lewis, 238 S.W.3d at 285; Eisenstein v. WTVF-TV News Channel 5 Network, 389 S.W.3d 313, 323 (Tenn. Ct. App. 2012) (quoting Lewis for the scope of the privilege); Grant v. Commercial Appeal, No. W2015-00208-COA-R3-CV, 2015 WL 5772524, at *6 (Tenn. Ct. App. Sept. 18, 2015) (quoting Lewis for the scope of the privilege).^[6] The Court of Appeals has declined to expand the fair report privilege to "the `myriad types of informal reports and official and unofficial investigations, contacts, and communications of law enforcement personnel at all levels of the state and federal bureaucracy with local, regional, and national media.'" Lewis, 238 S.W.3d at 286-87 (quoting David A. Elder, Defamation: A Lawyer's Guide § 3:10, at 3-30-3:31 (2003)).

We agree with the Court of Appeals that the fair report privilege encompasses only public proceedings or official actions of government that have been made public. Lewis, 238 S.W.3d at 285. As we noted in Funk, a statement to which the privilege applies "is worthy of public notice, not only because of the contents of the statement but also because of the context in which it was made." Funk, 570 S.W.3d at 216 (emphasis added). Defining the fair report privilege as applying only to public proceedings or official actions of government that have been made public still enables newspapers and other outlets "to be the eyes and ears of the members of the public who would have been able to witness the proceeding or obtain the information had they been present to see or hear for themselves." Lewis, 238 S.W.3d at 285. But, at the same time, this limitation ensures that the fair report privilege remains closely connected to the rationale from which it originated—"the public's interest in being informed of official actions or proceedings that are themselves public." Id. (citing Restatement (Second) of Torts § 611 cmt. a; David A. Elder, Defamation: A Lawyer's Guide § 3:12, at 3-38-3-39, 3-42 (2003)).

Limiting the privilege to public proceedings or official actions of the government that have been made public also is consistent with, and indeed complementary to, our recent decision in Funk, where we held that "the privilege can only be defeated by showing that a report about an official action or proceeding was unfair or inaccurate." Funk, 570 S.W.3d at 217. Records are generated of public proceedings or official actions of government that have been made public. Any report on a public proceeding or official action of government that has been made public can be compared to the record. By this comparison, judges and lawyers can readily determine whether such a report is fair and accurate and entitled to the protection of the privilege. On the other hand, lawyers, judges, and litigants would have no objective means of determining the fairness and accuracy 124*124 of a report derived from a nonpublic, one-on-one conversation. Only the parties would know what was said during the conversation. In such circumstances, every assertion of the fair report privilege would require testimony from the parties to the conversation and an assessment of their credibility in the context of litigation to determine whether the report was fair and accurate.

In sum, we conclude that expanding the fair report privilege to nonpublic, one-on-one conversations would constitute a departure both from the rationale on which the privilege is based and from existing Tennessee law defining its scope and that such an expansion would unnecessarily complicate the task of determining whether a report should be protected by the privilege. For all these reasons, we hold that the fair report privilege applies only to public proceedings or official actions of government that have been made public.

Applying this holding to the undisputed facts, we conclude that the fair report privilege does not apply to the report at issue in this appeal. The nonpublic, one-on-one conversation between Ms. Claytor and Detective Isom was neither a public proceeding nor an official action of the government that had been made public.^[7]

It is worth emphasizing, however, that our holding here does not resolve the question of whether a press conference or a press release constitutes a public proceeding or an official action of government that has been made public. Although Detective Isom stated in his affidavit that he "routinely" issues press releases, it is undisputed that none was issued here. Additionally, because our decision is based on the context in which Detective Isom made his remarks to Ms. Claytor, we need not and do not address how, if at all, comment h to Section 611 of the Restatement (Second) of Torts would apply had the context been different.^[8] Finally, our holding that the fair report privilege does not apply in these circumstances does not impose liability on Sparta Newspapers or in any way foreclose Sparta Newspapers from raising other available defenses on remand. See Phillips, 424 A.2d at 90 (stating that the privilege's inapplicability did not foreclose the newspaper from raising other defenses to the defamation claim).

IV. Conclusion

For the reason stated herein, we affirm the judgment of the Court of Appeals reversing the trial court's decision granting summary judgment to Sparta Newspapers. We remand this matter to the trial court for further proceedings. Costs of this appeal are taxed to Sparta Newspapers, Incorporated for which execution may issue if necessary.

[1] Sparta Newspapers also argued in its motion for summary judgment that Mr. Burke was a limited-purpose public figure and had failed to plead and could not prove actual malice. The trial court did not base its decision on these arguments, and they are not at issue in this appeal.

[2] Mr. Burke also argued that the newspaper's failure to "make further inquiry ... in the face of multiple emails from counsel" constituted actual malice that defeated the fair report privilege. The trial court rejected this argument, and we need not address it given our recent decision holding that actual malice does not defeat the fair report privilege. Funk v. Scripps Media, Inc., 570 S.W.3d 205, 207 (Tenn. 2019).

[3] In the order granting the application for permission to appeal, we limited our consideration to the following three issues:

1. Whether the Court of Appeals' holding in the Opinion that a fair and accurate report of on-the-record statements made by a sheriff's department public information officer about a pending criminal case during an interview with a newspaper reporter does not qualify for protection under Tennessee's fair report privilege is contrary to Tennessee law.

2. Whether the Court of Appeals' analysis of the supposed "distinction between reports of official actions or proceedings on the one hand and sources within the government on the other" is contrary to Tennessee law.

3. Whether the Court of Appeals' requirement imposed by the Opinion that, "[t]o rely on the fair report privilege, the article should be written in such a manner that an average reader can `understand the article (or the pertinent section thereof) to be a report on or summary of an official document or proceeding,'" is contrary to Tennessee law.

[4] We note that even before we adopted section 611 in Funk, the Court of Appeals had repeatedly relied upon it when addressing the fair report privilege. See, e.g., Lewis, 238 S.W.3d at 285.

[5] Compare Medico v. Time, Inc., 643 F.2d 134 (3d Cir. 1981) (extending the fair report privilege to confidential FBI reports in a case involving alleged criminal activities of a member of the United States Congress), with Thomas v. Tel. Publ'g Co., 155 N.H. 314, 929 A.2d 993, 1010 (2007) (declining to apply the fair report privilege when the information reported "came from private conversations" between a reporter and officers and "went well beyond the fact of the plaintiff's arrest and the grounds for the charge" and included "the officers' comments referenc[ing] related investigations and the plaintiff's prior criminal history"); Phillips v. Evening Star Newspaper, 424 A.2d 78, 89 (D.C. 1980) (refusing to apply the fair report privilege to reports based on the public information officer's "hot line" recording that "represent[ed] little more than an informal arrangement between the police and the media, a joint venture, which consists of nothing more sanctified than unofficial statements of police regarding a crime"); Wiemer v. Rankin, 117 Idaho 566, 790 P.2d 347, 354 (1990) (refusing to apply the fair report privilege to "private statements of police officers made to members of the news media"); Kelley v. Hearst Corp., 2 A.D.2d 480, 157 N.Y.S.2d 498, 502 (1956) (holding that "[t]the narration in private to newspaper reporters by police officers of facts of other persons is not `a public and official proceeding'" to which the fair report privilege applies). See also Smolla at § 8:72 (discussing the proceedings to which the fair report privilege has been applied); 2 Fowler V. Harper, et al., Harper, James and Gray on Torts § 5.24 at 244-45 (3d ed. 2006) ("A conversation between a reporter and a detective is not a public event that requires, or merits, coverage under this privilege.").

[6] Any language in these Court of Appeals' decisions which indicates that the fair report privilege may be defeated by a showing of express (actual) malice has been abrogated by our holding in Funk.

[7] Our resolution of this issue makes it unnecessary to resolve the other two issues set out in the order granting Sparta Newspapers' application for permission to appeal.

[8] Comment h states:

Arrest. An arrest by an officer is an official action, and a report of the fact of the arrest or of the charge of crime made by the officer in making or returning the arrest is therefore within the conditional privilege covered by this Section. On the other hand statements made by the police or by the complainant or other witnesses or by the prosecuting attorney as to the facts of the case or the evidence expected to be given are not yet part of the judicial proceeding or of the arrest itself and are not privileged under this Section.

DAVIS, Justice:

          Quincy Wilson, appellant/plaintiff below (hereinafter referred to as "Mr. Wilson"), appeals an adverse ruling by the Circuit Court of Hancock County which granted summary judgment to the Daily Gazette Company, appellee/defendant below (hereinafter referred to as "The Gazette"). The circuit court's order dismissed Mr. Wilson's defamation claim against The Gazette.[1] Before this Court, Mr. Wilson contends that the circuit court erred in concluding that he was a "public figure," and further erred in concluding that he failed to carry his burden of producing sufficient evidence to establish the element of malice in his defamation claim. Simply put, Mr. Wilson contends that he was not a public figure. Alternatively, if found to be a public figure, he claims to have produced sufficient evidence to meet his burden of establishing malice at the summary judgment stage. After reviewing the briefs and listening to the arguments of the parties, this case is reversed and remanded.

I. FACTUAL AND PROCEDURAL HISTORY

          In 1999, Mr. Wilson was a seventeen year old student athlete at Weir High School. Mr. Wilson was a member of the high school's football and basketball teams. As a football player, Mr. Wilson was a co-winner of the Kennedy Award.[2] He received an athletic scholarship to play football at West Virginia University. As a basketball player, Mr. Wilson helped lead his team to the state championship.

          On March 18, 1999, Mr. Wilson participated in a statewide championship high school basketball game held in Charleston. At the conclusion of the game, a rumor was circulated that Mr. Wilson "exposed" himself in public during a post-game victory celebration. On March 19, 1999, the Gazette published two articles referencing the rumor that Mr. Wilson had exposed himself after the basketball game.[3] The relevant language from the first article read as follows:

          201*201 Some East Bank fans complained that [Quincy] Wilson exposed himself to the Pioneers' cheering section during Weir's postgame celebration.[4]

          The relevant language from the second article read as follows:

Weir's players, rather than run and celebrate with fans, found themselves rolling around in front of East Bank's fans.

That scene led to taunts from both sides. It led to an allegation that ... co-Kennedy Award winner Quincy Wilson went the extra step and exposed himself.[5]

          202*202 Subsequent to the publication of the articles, Mr. Wilson filed a defamation action against the Gazette. After a period of discovery, the Gazette filed a motion for summary judgment. One of the legal issues raised by the Gazette's motion was that Mr. Wilson was a public figure within the meaning of defamation law. The circuit court agreed with the Gazette. Consequently, the circuit held that Mr. Wilson had to show that the publications were made with actual malice. The circuit court ultimately concluded that Mr. Wilson failed to present sufficient evidence to establish actual malice. Therefore, the circuit court granted summary judgment in favor of the Gazette. It is from these rulings that Mr. Wilson appeals.

II. STANDARD OF REVIEW

          Here, we are asked to review the circuit court's order granting summary judgment in favor of the Gazette. Our cases have made clear that "[a] circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Insofar as "`appellate review of an entry of summary judgment is plenary, this Court, like the circuit court, must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor.'" Provident Life and Accident Ins. Co. v. Bennett, 199 W.Va. 236, 238, 483 S.E.2d 819, 821 (1997) (quoting Asaad v. Res-Care, Inc., 197 W.Va. 684, 687, 478 S.E.2d 357, 360 (1996)). We have made clear that "summary judgment is appropriate [only] if `there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.'" Pritt v. Republican Nat'l Committee, 210 W.Va. 446, 452, 557 S.E.2d 853, 859 (2001) (quoting W. Va.R.Civ.P. 56(c)). Further, "[s]ummary judgment should be denied `even where there is no dispute as to the evidentiary facts in the case but only as to the conclusions to be drawn therefrom.'" Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329, 336 (1995) (quoting Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.1951)). "The essence of the inquiry the court must make is `whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Williams, 194 W.Va. at 61, 459 S.E.2d at 338 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)). Moreover, "[a] nonmoving party need not come forward with evidence in a form that would be admissible at trial in order to avoid summary judgment. However, to withstand the motion, the nonmoving party must show there will be enough competent evidence available at trial to enable a finding favorable to the nonmoving party." Williams, 194 W.Va. at 60-61, 459 S.E.2d at 337-338 (citations omitted).

          In this proceeding one of the dispositive issues we are called upon to examine involves the circuit court's determination that Mr. Wilson was a public figure. Courts have generally recognized, and we now hold, that "whether a plaintiff in a defamation action is a public figure is a question of law for the trial court." Khawar v. Globe Int'l, Inc., 19 Cal.4th 254, 79 Cal.Rptr.2d 178, 183, 965 P.2d 696 (1998). See also State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 346, 480 S.E.2d 548, 555 (1996) (holding that whether plaintiff is a public figure "can be decided by a court as [a] matter[ ] of law."); Lundell Mfg. Co., Inc. v. American Broad. Cos., Inc., 98 F.3d 351, 362 (8th Cir.1996) ("The determination of a plaintiff's status as a .... public figure is an issue of law."); Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C.Cir.1987) ("Whether 203*203 (and to what extent) a person is a public figure is a matter of law for the court to decide."); Rebozo v. Washington Post Co., 637 F.2d 375, 379 (5th Cir.1981) ("[T]he trial court, not a jury, must determine whether the evidence showed that plaintiff was a public figure.").[6] Consequently, we further hold that "[o]n appeal, the trial court's resolution of disputed factual questions bearing on the public figure determination is reviewed for [clear error], while the trial court's resolution of the ultimate question of public figure status is a question of law subject to [de novo] review." Khawar, 79 Cal.Rptr.2d at 183, 965 P.2d 696. With these principles in view, we now turn to the merits of this case.

III. DISCUSSION

A. Determining Whether Mr. Wilson Was a Public Figure

          The first issue we must address is whether the circuit court correctly concluded that Mr. Wilson was a public figure[7] for purposes of his defamation claim.[8] At the outset, we follow the general rule among other federal and state jurisdictions by holding that, in a claim for defamation, there are three recognized categories of public figures: "(1) `involuntary public figures,' who become public figures through no purposeful action of their own; (2) `all-purpose public figures,' who achieve such pervasive fame or notoriety that they become public figures for all purposes and in all contexts; and (3) `limited-purpose public figures,' who voluntarily inject themselves into a particular public controversy and thereby become public figures for a limited range of issues." Wells v. Liddy, 186 F.3d 505, 532 (4th Cir.1999). Accord U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 938 (3d Cir.1990); Naantaanbuu v. Abernathy, 816 F.Supp. 218, 223 (S.D.N.Y.1993); Metge v. Central Neighborhood Improvement Ass'n, 649 N.W.2d 488, 495 (Minn.Ct.App.2002); Gaunt v. Pittaway, 139 N.C.App. 778, 534 S.E.2d 660, 664-665 (2000).[9] In the instant proceeding, the circuit court's order does not identify the public figure category for Mr. Wilson. Therefore, we must separately examine each category.

1. All-purpose public figure.

          In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the United States Supreme Court established the all-purpose public figure category.[10] The decision in Gertz involved a defamation action brought by an attorney who alleged that he was defamed by an article in the defendant's magazine. The article described the attorney as a communist. The lower federal courts granted judgment for the defendant. On appeal to the Supreme Court, one of the issues raised was whether the attorney was a public figure. The evidence on the attorney's status as a public figure revealed that "[h]e served as an officer of local civic groups and of various professional organizations, and he ha[d] published several books and articles on legal subjects." Gertz, 418 U.S. at 351, 94 S.Ct. at 3013. In its resolution of this issue, Gertz created the all-purpose public figure 204*204 category. Gertz stated "[i]n some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts." Gertz, 418 U.S. at 351, 94 S.Ct. at 3013. Gertz further held "[a]bsent 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." Gertz, 418 U.S. at 352, 94 S.Ct. at 3013. In its application of the test for an all-purpose public figure Gertz concluded that the attorney was not an all-purpose public figure.

          One of the leading cases interpreting the Gertz test for determining an all-purpose public figure stated "[t]his test is a strict one." Waldbaum v. Fairchild Publ'ns, Inc., 627 F.2d 1287, 1292 (D.C.Cir.1980).[11] See also Blue Ridge Bank v. Veribanc, Inc., 866 F.2d 681, 687 (4th Cir.1989) ("The attainment of general public figure status is not to be lightly assumed, even if the plaintiff is involved in community affairs, and requires clear evidence of such stature."); National Life Ins. Co. v. Phillips Publ'g., Inc., 793 F.Supp. 627, 633 (D.Md.1992) ("[T]he evidence standard for determining a general purpose public figure is a strict one, requiring clear and convincing evidence of the general fame and pervasive influence in societal affairs."); In re Thompson, 162 B.R. 748, 766 (Bkrtcy.E.D.Mich.1993) ("[This test] sets up what amounts to a fairly strong presumption against a finding of widespread notoriety: a person will not be deemed to be a general-purpose public figure unless there is `clear evidence of general fame or notoriety in the community."`); Burgess v. Reformer Pub. Corp., 146 Vt. 612, 508 A.2d 1359, 1361 (1986) ("The test is a stringent one."). Waldbaum also held that "[f]ew people ... attain the general notoriety that would make them public figures for all purposes." Waldbaum, 627 F.2d at 1296. Consequently, the decision in Waldbaum interpreted Gertz as holding that an all-purpose "public figure is a well-known `celebrity,' his name a `household word.' The public recognizes him and follows his words and deeds, either because it regards his ideas, conduct, or judgment as worthy of its attention or because he actively pursues that consideration." Waldbaum, 627 F.2d at 1294. Accord Kroll Assoc. v. City and County of Honolulu, 833 F.Supp. 802, 805 (D.Haw.1993); Harris v. Tomczak, 94 F.R.D. 687, 703 (E.D.Cal.1982); Bowman v. Heller, 420 Mass. 517, 651 N.E.2d 369, 373 (1995); Vassallo v. Bell, 221 N.J.Super. 347, 534 A.2d 724, 733 (1987); Rutt v. Bethlehems' Globe Publ'g Co., 335 Pa.Super. 163, 484 A.2d 72, 80 (1984); Bay View Packing Co. v. Taff, 198 Wis.2d 653, 543 N.W.2d 522, 530 (Ct.App.1995).[12] The decision in Waldbaum articulated the following guidelines for helping to determine whether a person is an all-purpose public figure:

In determining whether a plaintiff has achieved the degree of notoriety and influence necessary to become a public figure in all contexts, a court may look to several factors. The judge can examine statistical surveys, if presented, that concern the plaintiff's name recognition. Previous coverage of the plaintiff in the press also is relevant. The judge can check whether others in fact alter or reevaluate their conduct or ideas in light of the plaintiff's actions. He also can see if the plaintiff has shunned the attention that the public has given him and determine if those efforts have been successful.... No one parameter is dispositive; the decision still involves an element of judgment. Nevertheless, the weighing of these and other relevant factors can lead to a more accurate and a more predictable assessment of a person's overall fame and notoriety in the community.

Waldbaum, 627 F.2d at 1295.

          In view of the above authorities we hold that, in a defamation action, in order to find that a plaintiff is an all-purpose public figure, a defendant must produce clear evidence 205*205 of the plaintiff's general fame or notoriety in the state, and pervasive involvement in the affairs of society. In determining whether a plaintiff is an all-purpose public figure, a trial court may consider (1) statistical survey data concerning the plaintiff's name recognition; (2) evidence of previous coverage of the plaintiff by the media; (3) evidence that others alter or reevaluate their conduct or ideas in light of the plaintiff's actions; and (4) any other relevant evidence.

          Turning to the case at hand, the evidence submitted by The Gazette, and accepted by the circuit court, revealed that Mr. Wilson: (1) was an outstanding athlete; (2) was a co-winner of the Kennedy Award; (3) led his football team to the state championship; (4) received news coverage of his signing a letter of intent to accept a football scholarship from West Virginia University;[13] (5) played in the high school championship basketball tournament; (6) his father was a former professional football player;[14] and (7) his athletic accomplishments were posted on a West Virginia University website.[15]

          The Gazette contends that this evidence was sufficient to establish Mr. Wilson's "prominence and notoriety," thereby making him an all-purpose public figure. We disagree. The Gazette's evidence completely failed to show that Mr. Wilson "occupied a position of such `persuasive power and influence' that he could be deemed one of that small group of individuals who are public figures for all purposes." Wolston v. Reader's Digest Ass'n, Inc., 443 U.S. 157, 165, 99 S.Ct. 2701, 2706, 61 L.Ed.2d 450 (1979).[16] This evidence, at best, simply established that in some circles, namely athletics, Mr. Wilson may have achieved a reputation as a 206*206 quality high school athlete. Evidence of a limited circle of notoriety does not satisfy the high bar outlined by Gertz for establishing the all-purpose public figure doctrine. See Gertz, 418 U.S. at 351-352, 94 S.Ct. at 3013 ("Although petitioner was ... well known in some circles, he had achieved no general fame or notoriety in the community."); Time, Inc. v. Firestone, 424 U.S. 448, 453, 96 S.Ct. 958, 965, 47 L.Ed.2d 154 (1976) ("Respondent did not assume any role of especial prominence in the affairs of society, other than perhaps Palm Beach society[.]"); Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C.Cir.1987) ("William Tavoulareas is a highly prominent individual, especially in business circles, but his celebrity in society at large does not approach that of ... the archetypes of the general purpose public figure.").

2. Limited purpose public figure.

          The limited purpose public figure doctrine was also established by the United States Supreme Court in Gertz. Gertz opined that "an individual [who] voluntarily injects himself or is drawn into a particular public controversy [may] thereby become[] a public figure for a limited range of issues." Gertz, 418 U.S. at 351, 94 S.Ct. at 3013. The seminal case by this Court addressing the limited purpose public figure doctrine was authored by Justice Cleckley in State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 480 S.E.2d 548 (1996).

          The plaintiff in Suriano, a physician, filed a defamation action against two defendants as a result of published statements the defendants made about the plaintiff's withdrawal from participation in state-sponsored healthcare programs. The case languished for several years in the trial court before the defendants filed for a writ of prohibition with this Court. The writ of prohibition sought to prevent the case from going to trial. One of the issues addressed in Suriano was the defendants' contention that the plaintiff was a limited purpose public figure. In order to determine whether the plaintiff was a limited purpose public figure, Justice Cleckley adopted the following test in syllabus point 3 of Suriano:

A libel plaintiff is a limited purpose public figure if the defendant proves the following:

(1) the plaintiff voluntarily engaged in significant efforts to influence a public debate—or voluntarily assumed a position that would propel him to the forefront of a public debate—on a matter of public concern;

(2) the public debate or controversy and the plaintiff's involvement in it existed prior to the publication of the allegedly libelous statement; and

(3) the plaintiff had reasonable access to channels of communication that would permit him to make an effective response to the defamatory statement in question.

          Under the Suriano test, the Court ruled that the plaintiff was a limited purpose public figure. The evidence in Suriano established that a controversy regarding state healthcare coverage existed prior to the alleged defamatory statements, that the plaintiff voluntarily injected himself into the debate, and that the plaintiff had access to the media. Evidence of the plaintiff's involvement in the controversy was summarized as follows:

It is clear, too, that Dr. Romano voluntarily thrust himself into the debate and sought to influence its outcome. Indeed, he was aggressively involved. The quantity of his letter writing to newspapers, professional journals and organizations, fellow physicians, and government officials regarding the controversy was impressive and demonstrated an active engagement in the PEIA controversy. Indeed, the record contains at least fifty examples of such correspondence. In these letters, Dr. Romano set forth his views regarding state-funded health care, his perception of the oppressive restrictions imposed by the West Virginia Omnibus Health Care Act and federal Medicare regulations, explained his reasons for withdrawing from these programs, and frequently exhorted others to join his protest.

Suriano, 198 W.Va. at 349-350, 480 S.E.2d at 558-559.[17]

          207*207 In the instant proceeding, The Gazette failed to satisfy the Suriano factors. In fact, the Gazette does not present any argument that would suggest it satisfied the Suriano factors. No evidence existed to show that Mr. Wilson voluntarily injected himself into a controversy regarding "sportsmanship."[18] There was also no evidence to show that a controversy existed regarding sportsmanship, prior to the publication of the Gazette's articles. The law is clear in holding that "a plaintiff should not be considered a limited-purpose public figure absent the existence of a pre-defamation public controversy in which the plaintiff has become directly involved." Blue Ridge Bank v. Veribanc, Inc., 866 F.2d 681, 688 (4th Cir.1989). See also Worldnet Software Co. v. Gannett Satellite Info. Network, Inc., 122 Ohio App.3d 499, 702 N.E.2d 149, 155 (1997) ("It is important to note that a plaintiff does not become a public figure merely because the allegedly defamatory statements create a controversy; the controversy must have existed prior to the statements.").

          The Gazette urges this Court to carve out an exception to the Suriano factors and hold that "amateur athletes like [Mr. Wilson], are public figures when they participate voluntarily in public sporting events." In other words, The Gazette seeks to have this Court hold that all non-professional athletes are limited purpose public figures. To support its argument, The Gazette cites to the decision in Holt v. Cox Enterprises, 590 F.Supp. 408 (N.D.Ga.1984).

          Holt involves a complicated set of facts. Reduced to their working essence, those facts are as follows. The plaintiff in Holt was a football player for the University of Alabama. During a highly publicized game in 1961, between Alabama and Georgia Tech, the plaintiff struck an opponent in the face with his forearm. The blow struck by the plaintiff broke the opponent's jaw and nose, and knocked out several teeth. The game officials did not call a penalty on the plaintiff. For several years after the game, numerous articles were written about the plaintiff's conduct in striking the opponent, as well as the officials' failure to call a penalty. The controversy resurfaced in 1979. Then, the plaintiff granted an interview with a sportswriter. As a result of the interview, five articles were published about the 1961 incident. Subsequent to those 1979 publications, the plaintiff filed a defamation action against two newspaper companies and a reporter. Mr. Holtz alleged that their descriptions of the 1961 incident were false and defamed him.

          The defendants in Holt moved for summary judgment. One of the issues the federal district court had to address, was whether or not the plaintiff was a limited purpose public figure. In a rather convoluted manner, the district court ultimately found that the plaintiff was a limited purpose public figure. In dicta, the district court stated that, as a college football player, the plaintiff became a limited purpose public figure "when he first engaged in the sport." Holt, 590 F.Supp. at 412.[19] It is this "dicta" that the Gazette seeks for this Court to adopt. For the reasons set forth below, we decline to do so.

          In our review of Holt we find that the evidence supported finding the plaintiff was a limited purpose public figure. A controversy had existed for years regarding the 1961 incident. The plaintiff voluntarily interjected himself into the debate. The plaintiff had access to the media. With this evidence clearly established, the district court did not have to speculate nor suggest that all nonprofessional athletes are limited purpose public figures. Furthermore, the dicta language contained in Holt has not been adopted by any court in the country. In fact, only five courts have cited Holt. Not one of those five have adopted Holtz's dicta suggesting that merely playing in nonprofessional sports makes an individual a limited purpose public figure. See Contemporary Mission, Inc. v. New York Times Co., 842 F.2d 612, 619 (2nd Cir.1988) Washington v. Smith, 893 F.Supp. 60, 63 (D.D.C.1995); Don 208*208 King Prods., Inc. v. Douglas, 742 F.Supp. 778, 783 (S.D.N.Y.1990); Pesta v. CBS, Inc., 686 F.Supp. 166, 169 (E.D.Mich.1988); Warford v. Lexington Herald-Leader Co., 789 S.W.2d 758, 770 (Ky.1990). Moreover, the dicta in Holt is inconsistent with Gertz. The central requirement imposed by Gertz for labeling a person a limited purpose public figure is that there must be "a particular controversy." Gertz, 418 U.S. at 351, 94 S.Ct. at 3013. The mere fact of playing on a high school football team, or little league baseball team, or a college golf team, is not in and of itself a controversy.

3. Involuntary public figure.

          The involuntary public figure doctrine has its origins in one sentence from the United States Supreme Court decision in Gertz: "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." Gertz, 418 U.S. at 345, 94 S.Ct. at 3009. Gertz's recognition that an involuntary public figure is rare has been supported by subsequent case law. That is, only a handful of courts have ever found a plaintiff to be an involuntary public figure. See Dameron v. Washington Magazine, Inc., 779 F.2d 736, 742-43 (D.C.Cir.1985) (holding airport controller on duty during plane crash to be an involuntary public figure); Carson v. Allied News Co., 529 F.2d 206, 210 (7th Cir.1976) (wife of Johnny Carson held to be an involuntary public figure); Zupnik v. Associated Press, Inc., 31 F.Supp.2d 70, 73 (D.Conn.1998) (wife involuntary public figure because of spouse's notoriety); Atlanta Journal-Constitution v. Jewell, 251 Ga.App. 808, 555 S.E.2d 175, 186 (2002) (security guard held to be involuntary public figure); Daniel Goldreyer, Ltd. v. Dow Jones & Co., Inc., 259 A.D.2d 353, 687 N.Y.S.2d 64, 65 (1999) (art restorer held to be involuntary public figure); Bay View Packing Co. v. Taff, 198 Wis.2d 653, 543 N.W.2d 522, 532-34 (Ct.App.1995) (holding food processing company was involuntary public figure).

          The leading case to explore the contours of the involuntary public figure doctrine is Wells v. Liddy, 186 F.3d 505 (4th Cir.1999). In Wells, the plaintiff filed a defamation action against the defendant, G. Gordon Liddy, over statements he made about the plaintiff in his talks about the 1972 Watergate breakins. The federal district court granted the defendant summary judgment after finding the plaintiff was an involuntary public figure and that she failed to prove actual malice. The plaintiff appealed to the Fourth Circuit Court of Appeals. Prior to addressing the issue of whether the plaintiff was an involuntary public figure, the Fourth Circuit adopted the following test for establishing a plaintiff as an involuntary public figure:

First, to prove that a plaintiff is an involuntary public figure the defendant must demonstrate to the court that the plaintiff has become a central figure in a significant public controversy and that the allegedly defamatory statement has arisen in the course of discourse regarding the public matter. To prove that the plaintiff is a central figure in the controversy, the defendant must put forth evidence that the plaintiff has been the regular focus of media reports on the controversy.... Second, although an involuntary public figure need not have sought to publicize her views on the relevant controversy, she must have nonetheless assumed the risk of publicity. Therefore, the defendant must demonstrate that the plaintiff has taken some action, or failed to act when action was required, in circumstances in which a reasonable person would understand that publicity would likely inhere.

          Wells, 186 F.3d at 539-540. Applying its test to the facts presented, the Fourth Circuit concluded that the plaintiff was not an involuntary public figure because she "simply has not been a central figure in media reports on Watergate." Id., 186 F.3d at 540.

          Therefore, we hold that in a defamation action, to prove that a plaintiff is an involuntary public figure, the defendant must demonstrate by clear evidence that (1) the plaintiff has become a central figure in a significant public controversy, (2) that the allegedly defamatory statement has arisen in the course of discourse regarding the public matter, and (3) the plaintiff has taken some action, or failed to act when action was required, in circumstances in which a reasonable 209*209 person would understand that publicity would likely inhere.

          Applying the above test to the facts of the instant case, we find that Mr. Wilson was not an involuntary public figure. Nothing in the record remotely suggests that Mr. Wilson was a "central" figure in any purported public controversy involving sportsmanship that existed prior to the Gazette's publications.

4. Summation.

          The trial court's summary judgment order concluded that Mr. Wilson was a public figure. The order failed to state within which of the three public figure categories Mr. Wilson could be categorized. Consequently, we deemed it necessary to examine the evidence under all three public figure categories. From our analysis of the evidence, we have determined that the Gazette failed to show by clear and convincing evidence that Mr. Wilson fit under any of the three recognized public figure categories. Further, we have declined the Gazette's invitation to adopt a specific public figure category for nonprofessional athletes.[20] Therefore, we conclude that Mr. Wilson was not a public figure at the time of the alleged defamatory publications, and the trial court committed error in so finding.

B. Requiring Mr. Wilson to Prove Actual Malice

          The trial court found that, because Mr. Wilson was a public figure, he had to prove actual malice, and that he failed to do so. We have found that Mr. Wilson was not a public figure. Instead, he was a private individual at the time of the alleged defamatory publications. This Court recognized the significance between a public figure and a private individual in syllabus point 2, in part, of Suriano as follows:

Plaintiffs who are ... public figures must prove by clear and convincing evidence that the defendants made their defamatory statement with knowledge that it was false or with reckless disregard of whether it was false or not. Private figures need only show that the defendants were negligent in publishing the false and defamatory statement.[21]

          By labeling Mr. Wilson a public figure, the circuit court required him to establish that the Gazette's publications were done with actual malice, as opposed to the lower standard of negligence. This was error. Mr. Wilson's burden is that of merely showing the publications were done negligently.[22]

210*210 IV. CONCLUSION

          We conclude that the circuit court committed error in ruling that Mr. Wilson was a public figure and that he had to establish actual malice. Therefore the circuit court's order granting the Gazette summary judgment is reversed and this case is remanded for proceedings consistent with this opinion.

Reversed and Remanded.

Justice McGRAW and Justice ALBRIGHT dissent and reserve the right to file dissenting opinions.

McGRAW, Justice, dissenting:

(Filed June 13, 2003)

          As undesireable as I believe it is to make young high school students public figures, I believe that, in fact, is what our society has done. Consequently, I believe that the student involved in the present case should be so categorized.

          For the foregoing reason, I respectfully dissent. I am authorized to state that Justice Albright joins me in this dissent.

          [1] The circuit court also dismissed four other theories of liability. Because we decide this case on the defamation theory, we need not separately address the other theories of liability. See, supra, note 20.

          [2] The Kennedy Award is given annually to the State's top prep football player.

          [3] Both articles were written by Mitch Vingle, a reporter for the Gazette.

          [4] The full text of the first article appeared as follows:

Civic Center Incident Under Investigation

FROM STAFF REPORTS

          Charleston police are investigating lewd gestures allegedly made by at least one Weir High School player following the team's last-second win against East Bank at the state basketball tournament Thursday at the Civic Center.

          East Bank principal Neil Hopkins reported the alleged incident involving Weir's Quincy Wilson to Charleston Police.

          Some East Bank fans complained that Wilson exposed himself to the Pioneers' cheering section during Weir's postgame celebration.

          Charleston Police Detective R.E. Ingram said he will interview a potential witness today and determine if further action is warranted.

          "These are some serious allegations you're talking about," Weir coach Jack Kostur said. "Certainly I would not tolerate it if there's any truth to it, but I haven't seen any proof. As far as I'm concerned, its innocent until proven otherwise."

          Wilson, a senior who has signed to play football at West Virginia University, was co-winner (along with Nitro's J.R. House) of the 1998 Kennedy Award, given annually to West Virginia's top prep football player.

          [5] The full text of the second article appeared as follows:

Time To Clean Up Our Trash

Mitch Vingle

I'VE HAD IT.

All of it.

The finger wagging. The grabbing. The middle fingering.

Do me a favor. Take it all and deposit it in the nearest trash compactor.

I've had enough.

Thursday's exhibition at the boys basketball tournament was the capper. Weir's Bill Blakemore nailed an almost-impossible shot to lift his team past East Bank.

But did I interview Blakemore? Did I get you a sense of Blakemore's joy, his exhilaration?

No.

I had to cover the mess at the end of the game. I had to interview Charleston police Detective R.E. Ingram.

Weir's players, rather than run and celebrate with their fans, found themselves rolling around in front of East Bank's fans.

That scene led to taunts from both sides. It led to an allegation that Weir's Ryan Jeter grabbed himself, taunting the East Bank fans, and an allegation that Jeter's teammate and co-Kennedy Award winner Quincy Wilson went the extra step and exposed himself.

Today, Ingram is scheduled to interview a potential witness. The police will determine whether action is necessary.

Regardless of the outcome, the situation was ugly. Dog ugly.

And we need to curb this dog.

"At our Sunday coaches meeting," said SSAC executive secretary Warren Carter, "[assistant secretary] Betsy Best stood up and talked about sportsmanship.

"She stood right there and talked about how, in previous years, we've had problems with cheerleaders and mascots going to the opponent's fans and taunting.

"I never thought we'd have to discuss the teams doing that."

In all fairness, Weir's team didn't rush to East Bank's fans.

When the Red Rider players lifted Blakemore in celebration, the party just crashed in front of the Pioneers' fans.

Then the screaming and taunting and gesturing—to whatever degree—took place.

"When something like this happens," said Carter, "it sets us back a couple steps.

"Since I've taken over, I've tried to develop good sportsmanship. But when the kids see the pro players and the college players having problems, they think that's the way to go.

"Now, we've got to go back up and start over."

Of course, few mind a simple arm pump. Or a leap of joy. Or even good-natured trash talking—as long as the dialogue is concluded with a handshake.

Just please, everyone, give your opponents their props.

Give them proper respect. Especially at the high school level.

"I've noticed crowds becoming more volatile," said area official Perry Estep, who is working the tournament. "And I've been disappointed in the administrations. It's tough to find administrators willing to stand up to today's youth."

Estep said coaches and players weren't a big problem this season.

"I had 70 games this season," said Estep. In all those games, I only had two technical fouls on coaches. In about 10 situations, I had objects thrown on the floor. In about 10 others, I had to summon the administration because of fan vulgarity."

The result?

"It's taking families out of high school basketball," said Estep. "You don't see a lot of families going to high school games because of the profanity and vulgarity and the lack of crowd control."

And that's a shame. I mean, what is high school basketball for if not families and community?

"In our office," said Carter, "we've been dealing with more problems with fans. Refs, meanwhile, have been dealing with more problems with players."

Carter said he will challenge his administrators and coaches after the season.

Will that help?

Probably not. This is the era of WWF.

P.T. Barnum has been traded in for Sable. Pro wrestling shows are where moms and dads take their kids, these days.

As for sportsmanship?

It's just a New World Order.

          [6] In Estep v. Brewer, 192 W.Va. 511, 453 S.E.2d 345 (1994) (per curiam) we were asked to determine whether the trial court committed error in submitting to the jury an interrogatory which required the jury to determine whether the plaintiff was a public figure. We declined to address the issue after finding it was not properly preserved. This Court made clear in Estep that "we do not endorse the submission of such interrogatory by the trial court[.]" 192 W.Va. at 515, 453 S.E.2d at 349.

          [7] This Court has held that "[i]n defamation cases, three types of plaintiffs exist: (1) public officials and candidates for public office; (2) public figures; and, (3) private individuals." Syl. pt. 10, in part, Hinerman v. Daily Gazette Co., Inc., 188 W.Va. 157, 423 S.E.2d 560 (1992).

          [8] Since this defamation action concerns written allegations, this matter is technically a libel claim. See Syl. pt. 8, Greenfield v. Schmidt Baking Co., Inc., 199 W.Va. 447, 485 S.E.2d 391 (1997) ("Defamation published in written form, as opposed to spoken form, constitutes libel.").

          [9] See State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 347, 480 S.E.2d 548, 556 (1996) (recognizing two of the three types of public figures).

          [10] This Court has not previously addressed Gertz's all-purpose public figure category. But see Havalunch, Inc. v. Mazza, 170 W.Va. 268, 294 S.E.2d 70 (1981) (providing some general discussion of the all-purpose public figure and limited purpose public figure categories).

          [11] The decision in Waldbaum held that the plaintiff, president of the second largest cooperative in the nation, was a limited purpose public figure and not an all-purpose public figure.

          [12] It should be noted that nationwide fame or notoriety is not required. "Rather, the question is whether the individual had achieved the necessary degree of notoriety where he was defamed i.e., where the defamation was published." Waldbaum, 627 F.2d at 1295 n. 22.

          [13] The United States Supreme Court has rejected the argument that holding a few press conferences can transform a person into an all-purpose public figure. See Time, Inc. v. Firestone, 424 U.S. 448, 454 n. 3, 96 S.Ct. 958, 965 n. 3, 47 L.Ed.2d 154 (1976) ("Nor do we think the fact that respondent may have held a few press conferences during the divorce proceedings in an attempt to satisfy inquiring reporters converts her into a `public figure."`).

          [14] The Gazette points out that Mr. Wilson's father, Otis Wilson, played professional football for the Chicago Bears in the 1980's. Other than mentioning this fact, the Gazette has failed to show how Mr. Wilson became an all-purpose public figure as a result of his father's accomplishments. A case on point is Meeropol v. Nizer, 560 F.2d 1061 (2d Cir.1977). In Meeropol, the two sons of Julius and Ethel Rosenberg (who were executed in 1953 for conspiring to provide national defense information to the Soviet Union) filed a defamation action against several publishers. The action was dismissed by the district court on summary judgment. In their appeal, the plaintiffs argued that they were not all-purpose public figures. The court of appeals found that the plaintiffs were all-purpose public figures (arguably the court should have found the plaintiffs were limited purpose public figures). In doing so, the court of appeals noted that the plaintiffs had published a book about their lives with their parents. Consequently, it was held that "[i]n the course of extensive public debate revolving about the Rosenberg trial appellants were cast into the limelight and became `public figures' under the Gertz standards." Meeropol, 560 F.2d at 1066. We interpret Meeropol as requiring sufficient evidence of affirmative and widespread public conduct by children of all-purpose public figures in order to establish the children as all-purpose public figures. In the instant case, there is no actual evidence to establish that Mr. Wilson's father was an all-purpose public figure. Assuming, for the sake of argument, that he was, the Gazette nevertheless failed to produce sufficient evidence of affirmative and widespread public conduct by Mr. Wilson that would link him to his father's status.

          [15] The record is not clear in showing that the circuit court considered this factor. Assuming, however, that the Gazette presented evidence of the West Virginia University website to the circuit court, such evidence is totally irrelevant. The law is clear in holding that "[t]he fame or notoriety achieved by a public figure must have preexisted the allegedly defamatory statements which give rise to the litigation." Harris v. Tomczak, 94 F.R.D. 687, 701 (E.D.Cal.1982). See also Waldbaum, 627 F.2d at 1295 n. 19 ("The court must examine these factors as they existed before the defamation was published."). Evidence of the publication of Mr. Wilson's biography on a website, after the alleged defamation, simply cannot be used to assist in establishing that he is an all-purpose public figure.

          [16] Examples of persons the courts have found to be all-purpose public figures are: Clint Eastwood (Eastwood v. National Enquirer, Inc., 123 F.3d 1249 (9th Cir.1997)); Wayne Newton (Newton v. NBC, Inc., 930 F.2d 662 (9th Cir.1990)); Johnny Carson (Carson v. Allied News Co., 529 F.2d 206 (7th Cir.1976)); William F. Buckley, Jr. (Buckley v. Littell, 539 F.2d 882 (2nd Cir.1976)); Chase Masterson (Carafano v. Metrosplash.com, Inc., 207 F.Supp.2d 1055 (C.D.Cal.2002); and Carol Burnett (Burnett v. National Enquirer, Inc., 144 Cal.App.3d 991, 193 Cal.Rptr. 206 (1983)).

          [17] The Court ultimately granted the writ requested in Suriano and precluded the case from going any further.

          [18] From our review of both articles published by the Gazette, we have determined that the overriding theme of the articles involved sportsmanship.

          [19] The district court granted summary judgment to the defendants.

          [20] The Gazette has also argued that this Court should hold that Mr. Wilson is a public figure because his counsel purportedly admitted that he was a public figure during the hearing on the motion for summary judgment. We disagree. The passage from the hearing cited by the Gazette only shows Mr. Wilson's counsel speaking in hypothetical terms.

          Additionally, the Gazette contends that summary judgment was appropriate because the publications did not contain false statements. During oral argument to this Court, counsel for Mr. Wilson noted that the Gazette did not properly set out the issue of falsity as a cross assignment of error in its brief, consequently the issue is not properly before this Court. We agree. However, for the sake of argument, even if the issue was properly raised as a cross assignment of error, we would not disturb the circuit court's ruling on the matter. The circuit court's summary judgment order found that the issue of falsity presented a jury question:

          The Court concludes as a matter of law that the issue of fact concerning a falsehood could get to a jury based on the Hinerman case. The Court concludes as a matter of law that a fair reading of the article could indicate that the writer was intimating that he knew more about the caseespecially the portion of the column that refers to the writer having to stop what he was doing to report the incident.

          The record supports this finding by the circuit court.

          [21] "The distinction between public and private figures is justified on two grounds. First is the rationale of self-help. Public figures have greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Second, and perhaps more important, is the notion of assumption of risk.... [P]ublic figures in some sense voluntarily put themselves in a position of greater public scrutiny and thus assume the risk that disparaging remarks will be negligently made about them." McDowell v. Paiewonsky, 769 F.2d 942, 947-948 (3d Cir.1985) (citations and internal quotation marks omitted).

          [22] Insofar as the trial court dismissed Mr. Wilson's other theories of liability upon its erroneous resolution of the public figure/actual malice issues, those theories are also reinstated.