The opinion
Rosellini, J.
(dissenting) — There was a time when a defamation was generally avenged by resort to the duel, formal or informal, a recourse which was never favored by society, which offered the civil libel action as a more sober substitute. That men would risk death, as well as inflict it, to preserve their honor indicates something of the intensity of feeling with which a person's good name is regarded. While today the law provides a remedy to a person defamed, that remedy is severely restricted where he is a public official or a public figure.
*420 There is no contention here that the respondent was a public figure. Upon conflicting evidence, the jury in this case found that the appellant negligently published false and libelous charges against him. If the respondent was a public employee and not a public official, the court correctly refused to instruct the jury that recovery could not be had without proof of actual malice in the publication. I cannot agree with the majority that the respondent can properly be termed a public official. I do agree that the question of who is a public official so as to come within the constitutional restriction on defamation actions is one upon which United States Supreme Court rulings are controlling. See Restatement (Second) of Torts § 580A, comment b (1977).
While the factors which are significant in determining whether an individual is such an official have never been clearly defined by that court, it has said that the designation "public official" applies at least to those governmental employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs, and it has added that the position must be one which would invite public scrutiny of the person holding it, entirely apart from, the scrutiny and discussion occasioned by the particular charges in controversy. Rosenblatt v. Baer, 383 U.S. 75 , 15 L. Ed. 2d 597 , 86 S. Ct. 669 (1966). Restatement (Second) of Torts, supra.
The majority opinion recognizes the applicability of these factors and yet gives them slight heed in reaching the conclusion that a jury might find the respondent to be such an official.
I find it impossible to discern the reasoning by which the majority concludes that the respondent may have this status. It concedes that the mere fact that the respondent was involved in a matter of general public concern does not subject him to the New York Times burden of proof (actual malice) (New York Times Co. v. Sullivan, 376 U.S. 254 , 11 L. Ed. 2d 686 , 84 S. Ct. 710 , 95 A.L.R.2d 1412 (1964)), thus acknowledging the authority of Gertz v. Robert Welch, Inc., *421 418 U.S. 323 , 41 L. Ed. 2d 789 , 94 S. Ct. 2997 (1974), wherein the United States Supreme Court rejected the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 , 29 L. Ed. 2d 296 , 91 S. Ct. 1811 (1971). The majority also implicitly concedes that the respondent is not a "public figure," a concession which the appellants themselves make. And it expressly acknowledges that only if the respondent is a public official can he be required to prove actual malice in order to recover.
It further recognizes that the question is for the court and not for the jury to decide. It then proceeds, quite summarily it seems to me, to decide that this garage superintendent was not merely a county employee, but a county official, exercising governmental powers and holding an office which invited public scrutiny. Significantly missing, however, in the majority opinion, is any finding that such scrutiny attached to the office itself, entirely apart from the matter publicized. In point of fact, it is precisely the activities charged in the newspaper article which the majority finds sufficient to elevate the respondent's status from that of employee to that of official. In effect, it holds that a newspaper may convert a public employee into a public official simply by publishing a libelous material about him. It was precisely this notion which was rejected in Gertz .
The real import of the majority opinion is that, as a matter of public policy, all public employees should be subject to the "actual malice" standard. This conclusion, in the words of the United States Supreme Court in Rosenblatt , "virtually disregard^] society's interest in protecting reputation." Rosenblatt v. Baer, supra at 87 n.13. If this is the course to be taken, and assuming that the people are entitled to know what the law is which governs their lives, I think the majority should state its holding in commonly understood language. Only then can an individual be expected to appreciate the risk involved when he accepts government employment.
It is quite obviously conceded by the majority that the respondent was no "public official," as that designation is *422 commonly understood. Neither was he such an official within the Rosenblatt definition.
While all of the duties and powers which the respondent exercised as a motor pool mechanic and supervisor are cited, we are not told how the operation of a garage can be termed "the conduct of governmental affairs." Governmental affairs are, by definition, those which involve the governing of the people — the making, executing, administering, implementing and enforcement of the laws. The maintenance of a motor pool hardly rises to that dignity. In all of the United States Supreme Court cases applying that doctrine, including Rosenblatt , at least one of these governing powers was exercised by the plaintiff. New York Times Co. v. Sullivan, supra (police commissioner — enforcement); Garrison v. Louisiana, 379 U.S. 64 , 13 L. Ed. 2d 125 , 85 S. Ct. 209 (1964) (prosecuting attorney — enforcement); Rosenblatt v. Baer, supra (alleged exercise of administrative and implementing powers); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 , 19 L. Ed. 2d 248 , 88 S. Ct. 197 (1967) (elected clerk of criminal and civil courts — implementation); St. Amant v. Thompson, 390 U.S. 727 , 20 L. Ed. 2d 262 , 88 S. Ct. 1323 (1968) (deputy sheriff — enforcement).
The respondent has no duties of equal importance which would invite public scrutiny of the person performing them, apart from the scrutiny and discussion occasioned by the charges in controversy, and the majority is unable to point to any aspect of the respondent's position which would invite such scrutiny.
Rosenblatt v. Baer, supra, the one case in which the United States Supreme Court held that a governmental employee might conceivably be found to be a public official, and in which it laid down the criteria upon which the majority and I are agreed, was a suit by the supervisor of a publicly owned and operated recreation area, employed by county commissioners. He claimed to have been libeled by a newspaper article criticizing the management of the area. Since the plaintiff was not named in the article, he found it necessary to allege that his role in the management of the *423 area was so prominent and important that the public regarded him as "the man responsible for its operations, chargeable with its failures and to be credited with its successes." The court noted that the management of the area was a matter of lively public interest. The case was remanded, apparently for the taking of additional evidence upon the question of the plaintiff’s responsibilities and public image, and for a determination by the trial judge "in the first instance" as to whether he was a public official within the meaning of the New York Times doctrine. 3
In that case the public's interest in the management of the recreation area was shown to be continuing and not an interest inspired solely by the charges of mismanagement. Here there was no evidence that the public had any interest in the county motor pool, aside from that which may have been engendered by the published charges.
The majority attaches some significance to the fact that the respondent had a potential conflict of interest by reason of his independent garage operation. This may have affected his performance of his duties, but it was not a characteristic of his position, and, as I read Rosenblatt , it is that type of characteristic which determines whether a position is one commanding the attention of the public.
The Supreme Court in Rosenblatt was quick to disavow any intention of including all public employees in its concept of public official. It said:
It is suggested that this test might apply to a night watchman accused of stealing state secrets. But a conclusion that the New York Times malice standards apply could not be reached merely because a statement defamatory of some person in government employ catches the *424 public's interest; that conclusion would virtually disregard society's interest in protecting reputation. The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.
Rosenblatt v. Baer, supra at 86-87 n.13.
In accord with this disavowal, the court has very recently let stand a plaintiff's verdict in a case where a state court had held that a consulting engineer, hired to prepare specifications for a state contract, need not prove actual malice. Times-Picayune Publishing Co. v. Forrest, 435 U.S. 971 , 56 L. Ed. 2d 63 , 98 S. Ct. 1612 (1978). (Forrest v. Lynch, 347 So. 2d 1255 , 351 So. 2d 168 (La. App. 1977).)
As the majority shows by a number of citations, other state courts have rendered some rather curious decisions, characterizing as public officials such employees as x-ray technicians, investigators, and office secretaries. Not surprisingly the rationale for these decisions, if any, is not presented in the opinion. The Supreme Court, in spite of its loose definition of the term "public official" in Rosenblatt , has expressed some sensitivity with respect to its limits. In Monitor Patriot Co. v. Roy, 401 U.S. 265, 271 , 28 L. Ed. 2d 35 , 91 S. Ct. 621 (1971), the lower court had instructed the jury that a candidate for public office was a public official, and the instruction was not challenged. Nevertheless, the high court said:
[I]t might be preferable to categorize a candidate as a "public figure," if for no other reason than to avoid straining the common meaning of words.
The matter was immaterial there, since the standard of liability was the same in either case.
Insofar as courts of other jurisdictions have departed from the criteria laid down by the United States Supreme Court, I would view them as out of harmony with the public policy of this state which, prior to New York Times, favored the right of individuals to recover damages for *425 careless injury to their reputations occasioned by the publication of false and defamatory statements, even where the statement concerned a public official. Jolly v. Fossum, 63 Wn.2d 537 , 388 P.2d 139 (1964). 4 Since New York Times and its progeny, that policy must be considered to have been modified to the extent which those cases require. Inasmuch as the high court has paid little attention, before Gertz v. Robert Welch, Inc., supra, to the interest of the state in protecting reputation, I would be loath to extend the New York Times doctrine by judicial action without first giving full consideration to its actual impact on the legitimate coi. cerns of society, both freedom of speech and press and protection of reputation — an impact which has not been touched upon in this case.
In my opinion, the respondent was not a public official. The Superior Court decided the question properly. The respondent exercises no control over governmental affairs, and his position is one which does not invite public scrutiny, apart from the scrutiny which was aroused when he was accused of misconduct. Under the criteria of Rosenblatt v. Baer, 383 U.S. 75 , 15 L. Ed. 2d 597 , 86 S. Ct. 669 (1966), he was a mere employee.
I also believe that public policy and the principles upon which the United States Supreme Court justified its decision in New York Times and subsequent cases, dictate that the respondent should be held to the lesser burden of proof required under Taskett v. KING Broadcasting Co., 86 *426 Wn.2d 439 , 546 P.2d 81 (1976), that of showing the absence of ordinary care in ascertaining the facts. It has long been the policy of the courts, in developing the common law, to provide a remedy for those who have suffered harm through the careless conduct of others. They have consistently recognized the interest of the individual in the preservation of his reputation.
I am, of course, acutely aware of the importance of freedom of speech and press and I regard those constitutional rights with the deepest reverence. I am, nevertheless, not blind to the immense power which is wielded by the press and other media and to the helplessness of the individual who is defamed by their utterances. One cannot, after all, fight a duel with a television set, nor will the law permit one to do so with an editor.
I am also aware of the fact that most communications media are conducted as profit-making businesses. In virtually all other fields of human activity, where one conducts his business in such a way as to do harm to others, whether carelessly or intentionally, and sometimes without any fault whatsoever, the law requires him to respond in damages. The exceptions are rare, now that both the state and charitable institutions are answerable for their negligence. These and other very important and essential activities such as the practice of medicine and law, must bear the burden of compensating for the harm which may be negligently inflicted in the pursuit of their very desirable goals. As in other areas, the cost can be spread among those who benefit from the defendant's activity, including its advertisers. The granting of wholesale immunity to the media does not accord with this principle.
I do not mean to say that I believe in the awarding of punitive damages in the ordinary case. Where there has been only negligence, the award should be the same as that for negligence in other areas of human activity — the actual damages suffered. The Supreme Court has announced its approval of this concept in Gertz v. Robert Welch, Inc., 418 U.S. 323 , 41 L. Ed. 2d 789 , 94 S. Ct. 2997 (1974), although I *427 must say it appears to have been somewhat inattentive to the question in Time, Inc. v. Firestone, 424 U.S. 448 , 47 L. Ed. 2d 154 , 96 S. Ct. 958 (1976), where a $100,000 verdict for a slightly erroneous reporting of a divorce decree was allowed to stand. As I read the opinions in New York Times, the justices there were properly outraged by a verdict of $500,000 awarded to an official who was not named or even obliquely referred to in the advertisement which formed the basis of the action, and whose reputation, in the court's view, was probably enhanced rather than damaged in his own community (the only place where he would be identified with the publication). It seems obvious to me that the verdict there reflected not a finding of damages suffered by the plaintiff but rather a punishment inflicted for disparagement of the community of Montgomery, Alabama, of which the jury were members.
The Supreme Court likened the enormous verdict given by the Alabama jury, and the sustaining of it by the courts of that state, to the punishments imposed for seditious libel under the Alien and Sedition Act of 1798, 1 Stat. 596 , which, although it had never been declared unconstitutional by that court, had been successfully declared invalid by the "court of history." That act had punished the publication of
any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress ... or the President . . ., with intent to defame . . . or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States . . .
The quite reasonable objection leveled against this type of legislation was that it was an undertaking by the government to punish and therefore stifle criticism of itself. Such a procedure is inimical to the functioning of a free society. Because the jury verdict in New York Times was not supported by any evidence of damage to the plaintiff, it could be interpreted as nothing more than a punishment *428 inflicted on the Times for publishing an ad, which, when read in its entirety, could be understood only as a criticism of the government of Alabama and particularly Montgomery County. While it was not accomplished under a law couched in the language of a sedition act, the result of the sustained verdict accomplished the same purpose.
Unfortunately, the court did not draw the analogy that far, but rather equated the libeling of a public official to the libeling of government itself, thus introducing a new area of constitutional privilege.
Some members of the court spoke of the necessity of granting to the press a degree of immunity which legislative and judicial bodies, as well as high executive officers, enjoy in the performance of their duties — a sort of quid pro quo, it would seem. However, that immunity is quite strictly limited in its scope. Engelmohr v. Bache, 66 Wn.2d 103 , 401 P.2d 346 (1965); White v. Nicholls, 44 U.S. (3 How.) 266 , 11 L. Ed. 591 (1845); Restatement (Second) of Torts § 591 (1977). As is pointed out in 50 Am. Jur. 2d Libel and Slander § 193 (1970), the immunity is only available where the communication was made on a privileged occasion. See Restatement § 591, comment, for differences between immunities of federal and state officers. The court has not seen fit to place a corresponding limitation on the scope of the media privilege. Also, in New York Times, it did not consider the question whether an occasion might arise in which a communication by a police commissioner would be absolutely privileged, nor has it paid much attention to this balancing of immunities in subsequent cases. Certainly the "public figure" cases do not involve persons enjoying governmental immunity, and I would be very much surprised if the park superintendent in Rosenblatt could claim the privilege to defame others in the pursuit of his duties.
Nevertheless, the Restatement § 580A, comment a, gives this corollary as one of the grounds advanced to support the doctrine of New York Times. The other grounds of support which it recites are that a public official normally has a greater opportunity than a private citizen to defend *429 himself, and that by taking the office or position, he voluntarily submits himself to the comments and statements of the public.
The majority here has refuted the notion that a public official or a public figure or anyone libeled by the media has an effective means of defending himself. One would think that, having demolished this justification for the doctrine, the majority would conclude that state courts ought not to extend that doctrine. Instead it opines that the rule should be stretched to preclude recovery by government employees as well as officials and when the employee is charged with having been involved in a publicized matter. One can only conclude that it is the majority belief that if a rule is unjust, it should be made to apply to as many people as possible.
A third leg of the stool of logic which has been constructed to support the New York Times doctrine is that a public official assumes the risk of defamation when he embarks upon public life. In other words, he is presumed to be willing to submit to careless defamation and to absorb any damages which he may thereby suffer, as a price which he must pay for serving the public. Since this waiver of common-law rights is not based on any empirical study that I know of, it reflects no factual finding but rather a policy declaration by the court. It involves a determination that freedom of speech is of much greater importance than good government.
If, as the court reasons, libel judgments tend to discourage the exercise of the right of free speech — and this, of course, is the assumption which lies at the root of the doctrine of New York Times — then the corollary must be true, that the prospect of exposing oneself to libel, with no remedy to reestablish one's good name, discourages honorable persons from seeking governmental office. Who would undertake public service except one who had nothing to lose? one may ask. Or at least one may ask it as easily as one may ask whether any publisher would freely criticize public officials if he knew they might recover damages if he *430 carelessly defamed them. For I know of no empirical study upon either of these propositions; and the courts, insofar as I have been able to determine, have cited none. My own observation is that the writers in Time magazine continue to speak out with the same boldness and impish verbiage which they displayed prior to Time, Inc. v. Firestone, supra, and its $100,000 verdict. I doubt that even the $500,000 verdict rendered against the New York Times would have so intimidated the publishers of that venerable organ as to cause them to cease to publish "all the news that's fit to print." Nevertheless, I do consider that verdict so unwarranted that the United States Supreme Court would have been justified in setting it aside upon the same reasoning that it changed the rule of law with respect to liability — that is, that the verdict was so excessive as to constitute an unconstitutional burden on the exercise of the right of free speech and press.
It appears that the communications industry has grown to its present enormous size and influence in spite of the inhibitions of libel verdicts. I do not know that "debate" has been more robust or the dissemination of information more unrestrained since New York Times, although gossip does appear to be flourishing. Whether the quality of persons seeking public office has been adversely affected is also an open question, although complaint is heard of the dearth of "good" people willing to serve in public office.
Since both of these questions rest in the realm of speculation, neither affords a very sound basis for fashioning a rule of law. It behooves the court to get on with its duty of dispensing justice. Justice, as we have generally conceived it, dictates that one who has suffered harm through the careless act of another should be afforded compensation. It seems to me that if the courts exercise more supervision over verdicts in defamation cases, being careful to see that they reflect the evidence rather than prejudice or speculation, this end can be achieved without undue frustration of freedom of speech and of the press. This is certainly the belief which the United States Supreme Court has *431 expressed in its recent opinions in Gertz and Firestone , at least with respect to claims by persons who are neither public officials nor public figures.
The opinion of the majority in this case permits the jury to impose liability upon one who, though employed by the county, exercised no responsibility for or control over the governmental affairs of the county and whose position was not one which invited public scrutiny, entirely apart from the scrutiny engendered by the published charges. To my mind, this is an unwarranted extension of the doctrine of New York Times.
There are before the court a number of assignments of error, which the majority has not found it necessary to discuss. The conclusion must be that it has found them to be without merit, since the case is remanded solely for the purpose of taking evidence on the question of malice. I have given serious consideration to those assignments of error and am in agreement with the majority that they do not warrant a granting of a new trial.
Wright, C.J., and Hamilton and Hicks, JJ., concur with Rosellini, J.
The court said: "Because the trial here was had before New York Times [Co. v. Sullivan, 376 U.S. 254 , 11 L. Ed. 2d 686 , 84 S. Ct. 710 (1964)], we have concluded that we should not foreclose (the plaintiff) from attempting retrial of his action. We remark only that, as is the case with questions of privilege generally, it is for the trial judge in the first instance to determine whether the proofs show respondent to be a 'public official.'" Rosenblatt v. Baer, 383 U.S. 75, 87-88 , 15 L. Ed. 2d 597 , 86 S. Ct. 669 (1966).
See also RCW 9.58.020, exhibiting a legislative conclusion that a publisher should be held to a standard of ordinary care with respect to publications concerning public affairs. That criminal statute excused a malicious publication
when honestly made in belief of its truth and fairness and upon reasonable grounds for such belief, and [when it consisted] of fair comments upon the conduct of any person in respect of public affairs, made after a fair and impartial investigation.
This law expired when the 1976 criminal code (RCW Title 9A) became effective, and the present law does not punish libel. I read this omission as evidencing a legislative finding that civil remedies provided under the common law should be adequate to protect the public interest in reputation. And see Taskett v. KING Broadcasting Co., 86 Wn.2d 439 , 546 P.2d 81 (1976).