# Petition for Writ of Certiorari — Bandido's, Inc. v. Journal-Gazette Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0079%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 528 U.S. 1005 ## Text nn G@aprems Court, Us. FILED ) eh) 499 SEP 2 1 1999 No. OFFICE OF THE CLERK In The Supreme Court of the United States . BANDIDO’S, INC., Petitioner, JOURNAL-GAZETTE COMPANY, INC., Respondent. . On Petition For A Writ Of Certiorari To The Supreme Court Of Indiana “ PETITION FOR A WRIT OF CERTIORARI € MILLER CARSON BOXBERGER & Murpuy LLP Epwarp L. Murpny, Jr. Counsel of Record Diana C. BAUER 1400 One Summit Square Fort Wayne, IN 46802 Telephone: (219) 423-9411 O’Dowp, RieBpeNack & CONNOLLY Rosert E. CONNOLLY 110 W. Berry, Suite 1910 Fort Wayne, IN 46802 Telephone: (219) 423-3343 Attorneys for Petitioner, Bandido’s, Inc. aa (a COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 \S\ ax QUESTIONS PRESENTED 1. Whether the First Amendment jurisprudence of this Court requires application of a negligence standard to a private person defamation action where the actual malice standard adopted by the Indiana Supreme Court effectively abolishes defamation actions in Indiana and is in conflict with a wealth of decisions of other state courts. 2. Whether the First Amendment jurisprudence of this Court permits independent appellate evaluation of the sufficiency of the evidence when reviewing a jury verdict in a defamation case involving a private person where such independent review usurps the province of the jury in awarding damages. li TABLE OF CONTENTS Page QUESTION PRESENTED. . 6.264 .0scscccvescecsscoes i TABLE OF CONTENES .. 2. iscccssccsscnecscscnesece ii TABLE OF AUTHORITIES ..........cccccesccsccces iii OPINIONS AND ORDERS BELOW ................ 1 JURISDICTIONAL STATEMENT...............--5- 1 RELEVANT CONSTITUTIONAL PROVISIONS...... 2 STATEMENT OF THE CASE..........cccccsccescoen 3 STATEMENT OF PACTS . . 25.4. scasssnagecsoencsses 9 REASONS FOR GRANTING THE PETITION ....... 16 QUESTION ONE «0. i cccstccccnnampecsoeuesesses 16 CUES SION TWO). . uss cce ccamenage pwameneeneuens 26 CONCTAISIIN 6.0653 (34 isd shee eeeeeenes 30 APPUNMOWK . .icis ci App. 1 ili a TABLE OF AUTHORITIES Page | CAsEs: ; Aafco Heating & Air Conditioning Co. v. Northeast Publications, Inc., 162 Ind. App. 671, 321 N.E.2d 580 (1974), cert. denied, 424 U.S. 913, 96 S.Ct. 1112, 47 L.Ed.2d 318 (1976)........scecscccccsccees 3 Adams v. Frontier Broadcasting Co., 555 P.2d 556 (Wry. 1976) ......ccccccccccccccccccccssseccccccce 21 Bandido’s v. Journal-Gazette, Inc., 575 N.E.2d 324 (Ind. App. 1991)........ccccccccccccceccccccces 3, 4, 8 Bose Corp. v. Consumer Union of the United States, Inc., 446 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 NG UN dink dhideudsececcce64 64000000 6sénn 27, 28, 29 Brewer v. Memphis Publishing Co., 626 F.2d 1238 (5th Cir. 1980), cert. denied, 456 U.S. 962, 101 S.Ct. 3112, 69 L.Ed.2d 973 (1981). .............20.- 22 Cahill v. Hawaiian Paradise Park Corp., 543 P.2d 1356 ) CE bo che ub bab esnbsecccccessccdsctacsccses 20 Colombo v. Times-Argus Ass‘n., 380 A.2d 80 (Vt. ) MEM Dh ang 54 n00500e00s 600s eeepeaeecscns 21 Corbett v. Register Publishing Co., 356 A.2d 472 ; (Conn. Super. 1975)........cccsccccccccccccccscess 21 Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70 | cb dAGA i vestuawevensdiersrescnsesess 21 Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. } 1975, 18°L.BG.2d 1094 (1967)... 2... ccccccccccccces: 17 : DeCarvalho v. Dasilva, 414 A.2d 806 (R.I. 1980)....... 21 Denny v. Mertz, 318 N.W.2d 141 (Wis. 1982), cert. denied, 459 U.S. 883, 103 S.Ct. 179, 74 L.Ed.2d PPT iGadl cs Cesnebhdesccnnsss cenceect 21, 22, 23 SEE eer a iv TABLE OF AUTHORITIES - Continued Page Dodrill v. Arkansas Democrat Co., 590 S.W.2d 840 CMR: TONE hae ck ccncsdenedcsgisaceecsavnterabasecs 20 Embers Supper Club, Inc. v. Scripps-Howard Broad- casting Co., 457 N.E.2d 1164 (Ohio 1984).......... 21 Foster v. Loredo Newspapers, Inc., 541 S.W.2d 809 — Ca. TO Ss diwcksdbakeaeedesaeshe acne tanaakuns 21, 23 Gazette, Inc. v. Harris, 325 S.E.2d 713 (Va. 1985) ..21, 23 Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.ct. 2997, GA LEGA TOD C176) 060s ccccncsvvccseas passim Gobin v. Globe Publishing Co., 531 P.2d 76 (Kan. POR ccsvccksssahavencsahvincavaaseupsdianderares 20 Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 CRUE 6c oe eb sehesecuedsccbecbecedceuesbasanes 27 Hurley v. Irish American Gay Lesbian & Bisexual Group of Boslin, 515 U.S. 557, 115 S.Ct. 2338, 132 Le SOF CHRD). 6 on o's ied a Cetwabeviehece dives 27 Hyde v. Columbia, 637 S.W.2d 251 (Mo.App. 1982), cert. denied, 459 U.S. 1226, 103 S.Ct. 1233, 75 LDS GF THRs iv cine cdédccdkexvicdsigercssesi 21 Jacron Sales Co. v. Sindorf, 350 A.2d 688 (Md. 1976) .... 21 Jones v. Palmer Communications, Inc., 440 N.W.2d SOA GONE TED oc ano cenccknncgennngccdapes aasones 20 Jones v. Sun Publishing Co., 292 S.E.2d 23 (S.C. SOUR ams 0:5 hans encaes bncesccshstcecseeamesenneaaees 21 Journal-Gazette Company, Inc. v. Bandido’s, Inc., 712 ke ey errr rere ete 1 ; . : Vv TABLE OF AUTHORITIES - Continued Journal-Gazette Company, Inc. v. Bandido’s, Inc., 672 PERAG SGP Cem Aw. TGIG) ass hina ec cVannsccet en a3 McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882 (Ky. 1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2239, 72 L.Ed.2d 849 (1982) ............. 20 McCusker v. Valley News, 428 A.2d 493 (N.H. 1981).... 21 Madison v. Yunker, 589 P.2d 126 (Mont. 1978)........ 21 Marchiondo v. Brown, 649 P.2d 462 (N.M. 1982) ...... 21 Martin v. Griffin Television, Inc., 549 P.2d 85 (Okla. | Ree Ae Per rer ery ager eee 23; 3 Mathis v. Philadelphia Newspapers, Inc., 455 F.Supp. G6 (RDPO. THT 6 0d 6 S088) NGI 22 Memphis Pub. Co. v. Nichols, 569 S.W.2d 412 (Tenn. ROTM. 0.0.2 kchs vib cindasdbscccdub name cerns eet 21, 22 Miami Herald Publishing Co. v. Ane, 458 So.2d 239 Rh, PO cdi pt neecscaascapeninbaueiaeee dbase 20 Mobile Press Register, Inc. v. Faulkner, 372 So.2d BOS CA. FOR cence cen cndpndens Ceaeeeeer reece 20 New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ........ 17, 19, 23, 26, 27, 28 Peagler v. Phoenix Newspapers, Inc., 560 P.2d 1216 RE, FOE ho kk cides bce dnewedeunddeendansaeane 20 Phillips v. Evening Star Newspaper Co., 424 A.2d 78 tie. Pere rrr ere Tee rr era ere yo. erie) Sto Prey 21 Re v. Gannett Co., 480 A.2d 662 (Del.Super.Ct. 1984), aff'd, 496 A.2d 553 (Del. 1985).............. 20 Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. SRE; DD Ue See Cee Ais o's cccvecvscsces 18, 19, 23 vi TABLE OF AUTHORITIES - Continued Page Ross v. Bricker, D.D.S., 770 F.Supp. 1038 (D. Virgin BORGES BOGEN vc vccccécccacuns cOsenesadssbenenaene 21 Rouch v. Enquirer & News of Battle Creek, 398 INU BES GG, BRB ccccccccccccssctsocensosns 21 Seegmiller v. KSL, Inc., 626 P.2d 968 (Utah 1981) ..21, 23 Stone v. Essex County Newspapers, Inc., 330 N.E.2d BG) DEAD. BAF pies dcccodcccccevdescteteesskatntas 21 Taskett v. King Broadcasting Co., 546 P.2d 81 (Wash. BITE cc cccccccccnscnccacccsoccccoonns seeeunuans 21, 24 Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 Se BDO CAFU URs coc ccccecccviéacancisasanbensons 20 Triangle Publications, Inc. v. Chumley, 317 S.E.2d SOO Cee. BID. cc ccccccccvvesiscccscewiewethenanes 20 Troman v. Wood, 340 N.E.2d 292 (Ill. 1975)........... 20 Walters v. Sandford Herald, Inc., 228 S.E.2d 766 CULAR. TVG cc scccccicccesséccsscadunevuee cues 21 Weimer v. Rankin, 790 P.2d 347 (Idaho 1990)......... 20 Wheeler v. Green, 593 P.2d 777 (Or. 1979) ............ 21 Wilson v. Capital City Press, 315 So.2d 393 (La.App. BOVE o cc ccccccusceseeccacenéapedtgschapsasuteceses 20 STATUTES AND RULEs: BD WDA. FEAT co cccccccvescececacccacnsdumbaensadl 2 WS. SAR. BR BBR e oi isc cbncesdtiecceck cpaapinesis 2 EnGiome Rees OF Ae. FMRC. BE occcancdccncdscucecas 1 Indiana Rules of App. Proc. 11(B).................... 2 _s Pe ee Vii TABLE OF AUTHORITIES - Continued Page CONSTITUTIONAL PROVISIONS: US. Comet. Age, Bao ccscscccccccccccscsscsens passim CD, Gee. FOIE, Vis ccc cccccscccccscscctccsese 2, 26 CS, CMOS. BGR. FES ccicccccccccsssccccveccecas 2,3 Ret, SG. Es kc veccccccccescsucncwstsncasec 26 —eee 4 ene P a Se a OPINIONS AND ORDERS BELOW The decision by the Indiana Supreme Court that gives rise to this Petition is published as Journal-Gazette Company, Inc. v. Bandido’s, Inc., 712 N.E.2d 446 (Ind. 1999). A copy of that decision is reprinted in the Appendix hereto in Appendix A at p. A-1. ¢ JURISDICTIONAL STATEMENT On March 30, 1994, a jury in the Noble Circuit Court, Nobie County, Indiana, returned a verdict in favor of Bandido’s, Inc. (hereinafter “Bandido’s”), and against the Journal-Gazette Company, Inc. (hereinafter “Journal- Gazette”), in the amount of Nine Hundred Eighty-Five Thousand Dollars ($985,000.00). On April 13, 1994, the Trial Court entered judgment pursuant to the jury’s ver- dict. On April 26, 1994, the Journal-Gazette initiated an appeal by filing a Praecipe with the Noble Circuit Court, Noble County, Indiana. On November 26, 1996, the Indiana Court of Appeals entered a decision published as Journal-Gazette Company, Inc. v. Bandido’s, Inc., 672 N.E. 969 (Ind.App. 1996), in which the Indiana Court of Appeals reversed the jury’s verdict in favor of Bandido’s. On December 24, 1996, Bandido’s timely filed a Peti- tion for Transfer to the Indiana Supreme Court pursuant to Rule 11 of the Indiana Rules of Appellate Procedure. On September 12, 1997, the Indiana Supreme Court granted Bandido’s Petition for Transfer pursuant to Appellate Rule 11(B) of the Indiana Rules of Appellate Procedure. — This Petition for Writ of Certiorari is being timely filed in accordance with Rule 13.1 of the Rules of the Supreme Court of the United States. This Court has juris- diction pursuant to 28 U.S.C. § 1257(a). ¢ RELEVANT CONSTITUTIONAL PROVISIONS The Constitutional provisions at issue in this case are U.S. Const. amend. I: Congress shall make no law respecting an estab- lishment of religion, or prohibiting the free exer- cise thereof; or bridging the freedom of speech or of the press; or the right of the people peace- ably to assemble, and to petition the Govern- ment for a redress of grievances. U.S. Const. amend. VII: In Suits at common law, or the value in contro- versy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the Rules of the Common Law. U.S. Const. amend. XIV: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privi- leges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within this jurisdic- tion the equal protection of the laws. & bl STATEMENT OF THE CASE This appeal arises from a defamation action filed by the petitioner, Bandido’s, against the Journal-Gazette as the result of a false and defamatory subheadline written for an article that appeared in the October 6, 1988 issue of the Journal-Gazette. On November 21, 1988, Bandido’s filed a Complaint for Damages and Demand for Jury Trial, asserting a defamation claim against the Journal- Gazette. On October 2, 1989, Bandido’s filed an Amended Complaint with Demand for Jury Trial. On July 2, 1990, the Journal-Gazette filed a Motion for Summary Judgment. On November 11, 1990, the Noble Circuit Court entered its Findings of Fact, Conclu- sions of Law and Judgment on the Motion for Summary Judgment, in favor of the Journal-Gazette. Bandido’s timely filed an appeal with the Indiana Court of Appeals concerning the granting of the Journal- Gazette’s Motion for Summary Judgment. As part of that appeal, Bandido’s requested that the Court abandon the actual malice test adopted in Indiana by Aafco Heating & Air Conditioning Co. v. Northwest Publications, Inc., 321 N.E.2d 580 (Ind.App. 1975) in favor of a negligence stan- dard for defamation actions involving private individ- uals. In Bandido’s, Inc. v. Journal-Gazette Company, Inc., 575 N.E.2d 324 (Ind.App. 1991), the Indiana Court of Appeals reversed the Trial Court’s grant of summary judgment, finding that there remained a factual dispute on the issue of whether the Journal-Gazette published the article with actual malice. With respect to Bandido’s request for a change in the law, the Court held that “when a compel- ling case can be made for modification of Indiana’s libel law, our courts will respond accordingly.” 575 N.E.2d at 327 n. 3. The Journal-Gazette’s Petition to Transfer to the Indiana Supreme Court was denied and the case pro- ceeded to trial. The case was tried to a jury in the Noble Circuit Court for eight (8) days from March 21 through March 30, 1994. On March 30, 1994, the jury returned its verdict in favor of Bandido’s and against the Journal-Gazette in the amount of $985,000.00. On April 13, 1994, the Trial Court entered judgment pursuant to the jury’s verdict. On April 26, 1994, the Journal-Gazette filed a Prae- cipe with the Noble Circuit Court. Bandido’s filed its Brief in the Indiana Court of Appeals on December 23, 1996. In its Brief, Bandido’s raised the issue of whether the Indiana Court of Appeals should abrogate the actual malice standard in favor of a negligence standard in libel cases involving private indi- viduals. On November 26, 1996, the Indiana Court of Appeals reversed the jury’s verdict in favor of Bandido’s and entered judgment in favor of the Journal-Gazette. 672 N.E.2d 996 (Ind.App. 1996). As the Court reversed the jury’s verdict, it did not address the impropriety of the actual malice standard as applied to private individuals. Bandido’s timely filed its Petition for Transfer with the Indiana Supreme Court. In that Petition, Bandido’s once again specifically raised the issue of whether the Indiana Supreme Court should abolish the actual malice standard in favor of a negligence standard in order to bring Indiana in line with the overwhelming majority of States which have adopted a simple negligence standard in defamation cases involving private individuals: The opinion of the Court of Appeals correctly follows its own precedent in Aafco Heating & Air Conditioning Co. v. Northwest Publications, Inc., 321 N.E.2d 580 (Ind.App. 1974), but there is no ruling precedent from this Court and the actual malice standard adopted twenty-two years ago in Aafco is erroneous and in need of modifica- tion and should be abolished by this Court in favor of a negligence standard, as adopted by an overwhelming majority of jurisdictions. On September 12, 1997, the Indiana Supreme Court granted Bandido’s Petition to Transfer. On June 23, 1999 in a 3-2 decision, the Indiana Supreme Court entered an opinion in which it refused to adopt the negligence stan- dard and held that under Indiana law, both public and private individuals must satisfy the actual malice stan- dard in order to prevail in a defamation action: Having previously granted transfer, we adopt Aafco and hold that both private individuals and public figures must prove actual malice to recover in a defamation suit involving matters of public or general concern. We also hold that Bandido’s has failed to prove that Journal- Gazette acted with actual malice and hereby reverse the judgment of the trial court. (See A-55). Chief Justice Shepherd and Justice Dickson authored vociferous and well-reasoned dissenting opinions in which they sadly predict that the majority’s opinion leaves citizens of the State of Indiana with no legal recourse for defamation claims against media defendants. As Chief Justice Shepard wrote: Today’s decision makes life more difficult for Indiana’s citizens when they have been falsely and publicly maligned in front of their neigh- bors. Constructing a regime that affords news organi- zations a respectable defenses for defamation claims might well include some of the walls erected today, but the cumulative effect of this series of barriers is to leave defamed citizens virtually without a remedy. The U.S. Supreme Court and thirty state supreme courts have con- cluded that a free society can flourish without making it so hard for the average person to defend his or her reputation as it will now be in Indiana. Just one or two state courts have thought otherwise. (See A-62). + * + At the end of the day, we have a case before us in which a copy editor wrote a defaming head- line that could not be justified on the basis of the reporter’s story about reports from the board of health. The copy editor was an employee whose job evaluations reveal that the newspaper knew she produced inaccurate head- lines. A local judge had warned the newspaper about the special risks of improper inferences or interpretations of health department inspection reports. Nevertheless, newspaper management had never given the copy editor any directions areata c ictal? PI or cautions about dealing with health depart- ment reports on restaurants. Finally, when newspaper management did focus on what its editors had done, it decided not to publish a retraction conforming to Indiana’s statute on retractions. A jury of people in Fort Wayne were satisfied that all this showed reckless indifference and that this small business was badly hurt. The appellate judges are not convinced. Judgment for the newspaper. Most injured plaintiffs will not have the smok- ing guns that Bandido’s brought to this lawsuit. When the Court declares its dissatisfaction with the jury and the evidence in this case, it effec- tively says to other injured citizens, “You're toast.” (See A-65-66). Justice Dickson echoed Chief Justice Shepard’s senti- ments: The majority’s preference to repudiate the negli- gence standard of proof in favor of the actual malice standard for private figure defamation cases presents an unnecessary and substantial impairment to the right of injured citizens to seek legal recourse and remedy in Indiana courts. This limitation is opposite to the words, spirit, and history of the Indiana Constitution, contrary to the overwhelming authority from other state jurisdictions, and detrimental to sound public policy. I believe that the majority approach endangers personal privacy, encour- ages irresponsible journalism, and unnecessarily deprives injured persons of reasonable recourse for harm suffered from defamatory distortions and falsehoods published by entertainment and news media. For these reasons, I dissent. (See A-114). Parenthetically, in a footnote to his majority opinion, Justice Sullivan made reference to an isolated jury instruction which stated that “Bandido’s is a limited- purpose public figure.” The footnote further stated that “to the extent Bandido’s was tried as a public figure, the holding in AAFCO is not relevant to resolve the case at hand...” (See A-10). (Italics added). In fact, despite the instructions, Bandido’s was tried as a private individual, not as a public figure. The law of the case, Bandido’s, Inc. v. Journal-Gazette Co., 575 N.E.2d 324, 326 (Ind.App. 3 Dist. 1991) in defining the plaintiff’s burden at trial stated: “In Indiana a ‘private individual’ such as Bandido’s may recover for defamatory statements published in a newspaper only upon a showing that the statement was published with ‘actual malice.’ ” Further, the record of the entire case is devoid of any evidence of any kind that Bandido’s was a limited-purpose public figure. The remainder of the jury instructions addressed the issue of public concern without reference to the status of Bandido’s as a private or public figure. The instructions made no practical difference because the controlling standard in Indiana for both private fig- ures involved in matters of public concern and public figures regardless of the status, was, and is, actual malice as delineated in New York Times. The standard of proof required of Bandido’s and established to the satisfaction of the jury was identical. Bandido’s was tried as a private figure and the extensive review and analysis by the Indi- ana Supreme Court was appropriate. As a result, this petition to provide Indiana residents with the same redress for defamatory falsehoods as is available in vir- tually every other state is also appropriate. S STATEMENT OF FACTS The Journal-Gazette is a newspaper of general circu- lation that publishes three (3) editions each day. The first edition is known as the “Ohio Edition” and is circulated in several northwest Ohio counties, including Allen County, Ohio. (R. at 173). The second edition is known as the “Indiana Edition” and is circulated in Indiana coun- ties other than Allen County, Indiana. (R. at 173). The last edition published is known as the “Final Edition” and is circulated in Allen County, Indiana. (R. at 174). Bandido’s operates four (4) Mexican-style restau- rants, three of which are located in Fort Wayne, Indiana, and one of which is located in Lima, Allen County, Ohio. (R. at 1195). The Bandido’s restaurant at issue in this case is the Bandido’s located in Northcrest Shopping Center in Fort Wayne, Indiana, which will be referred to as the Northcrest Bandido’s. The Fort Wayne-Allen County Board of Public Health (“Board of Health”) periodically inspects restaurants in its jurisdiction to determine whether the restaurants are in compliance with established health laws and regula- tions. (R. at 1702). The inspectors use a standard form known as a “Food Establishment Inspection Report” that contains a checklist of items to be inspected at the restau- rant. (R. at 1527). There are 40 numbered items on the Food Establishment Inspection Report. If an inspection 10 reveals that a restaurant is not in compliance with one of the items, the inspector circles or marks the particular item that does not comply with health laws and regula- tions. (R. at 1137). The reverse side of the Food Establish- ment Inspection Report provides space for the inspector to write comments concerning any of the items marked on the front side of the Inspection Report. (R. at 1137). In 1988, the Journal-Gazette filed a lawsuit against the Board of Health to gain access to the Food Establish- ment Inspection Reports, arguing that the reports were public records to which the newspaper was entitled to access. On May 6, 1988, the Honorable Vern Sheldon of the Allen Superior Court entered a Decision in which he held that the Food Establishment Inspection Reports were public records to which the Journal-Gazette was entitled to access. (R. at 1702, Exhibit 30). Although Judge Shel- don granted the Journal-Gazette access to the Food Estab- lishment Inspection Reports, he cautioned the Journal- Gazette that “[t]here is a possibility that public disclosure of the inspection reports might result in improper infer- ences or interpretations as to the seriousness of the viola- tions noted.” (R. at 1702, Exhibit 30, p. 1). On September 13, 1988, Debbie Consadine (“Con- sadine”), an inspector from the Board of Health, con- ducted an inspection of the Northcrest Bandido’s. (R. at 1137, Exhibit 1). Consadine circled several items on the Food Establishment Inspection Report including Item 35. That box states as follows: “INSECT, RODENT AND OTHER ANIMAL CONTROL 11 *35 NO EVIDENCE OF INSECTS OR RODENTS PRESENT AND OUTER OPENINGS ADE- QUATELY PROTECTED. NO OTHER ANIMALS PRESENT.” (R. 1137, Exhibit 1). On the reverse side of the Food Establishment Inspection Report, Consadine made the following nota- tion concerning Item 35: “Evidence of flies, roaches and rodents noted. Advise exterminator to do a full clean out of premise. Rodent droppings noted only in rest- room.” (R. at 1137, Exhibit 1). Northcrest Bandido’s complied with Inspector Con- sadine’s request that an exterminator perform a complete clean out of the premises. (R. at 1143). After receiving the September 13, 1988 Food Establishment Inspection Report, Bandido’s contacted its regular pest control main- tenance man, George Carney (“Carney”) from Pest Pre- vention. (R. at 1144). Carney performed the clean out on September 22, 1988 and provided Northcrest Bandido’s with a Sanitation Report concerning his clean-out. (R. at 1471). On October 4, 1988, Loren Robertson (“Robertson”), the Director of the Division of Food Protection with the Board of Health conducted another inspection of the Northcrest Bandido’s. (R. at 1147, 1531). The purpose of Robertson’s inspection was to determine if the Northcrest Bandico’s had corrected the problems noted on a Septem- ber 13, 1988 Food Establishment Inspection Report and to determine the necessity for a hearing on Bandido’s license scheduled for October 5, 1988. (R. at 1531). a iio Tinitieeteiadiaented ime —— ee 12 Robertson prepared a Food Establishment Inspection Report which contained several violations and therefore determined that it was necessary to follow through with the October 5, 1988 hearing. However, with respect to Item 35, Robertson did not make any marks on the Food Establishment Inspection Report. (R. at 1532). When Robertson inspected the Northcrest Bandido’s on October 4, 1988, he saw no evidence of mouse or rodent drop- pings and also did not observe any rodents. (R. at 1532). On October 5, 1988, the Board of Health held a hear- ing to determine whether the Northcrest Bandido’s should be closed. (R. at 1533). The Northcrest Bandido’s was ultimately closed based upon a pattern of violations and noncompliance throughout the year of 1988. (R. at 1597). June Remley (“Remley”), a Journal-Gazette staff writer who covered county government and health issues, wrote an article about the Northcrest Bandido’s closure. (R. at 2390). When Remley wrote the article, she was in possession of the September 13, 1988 Food Estab- lishment Inspection Report. (R. at 2401). Remley was also aware of the fact that Robertson conducted an inspection on October 4, 1988 during which he found no evidence of rats, rodents, roaches or bugs. (R. at 2402-3). At no time did Robertson ever inform Remley that the Northcrest Bandido’s was being closed because rats were found in the restaurant. (R. at 2406). After Remley typed the article into her computer, her computer forwarded the article to Gabriella Jacobs (“Jacobs”), an assistant metro editor, for review. (R. at 13 1615). Jacobs’ responsibility was to get the article “pub- lication ready” and resolve any questions about the arti- cle with the author, Remley. (R. at 1615). Next, the article was sent to Ellen Garner (“Garner”), a news editor, for lay-out. (R. at 1616, 1617). Garner then sent the article to Sheila Pinkley (“Pink- ley”) a copy editor. (R. at 1618). As copy editor, it was Pinkley’s responsibility to perform a final edit of the article and to write an appropriate headline for the arti- cle. (R. at 1618). Prior to writing the headline, it was Pinkley’s respon- sibility to read Remley’s article word-by-word and line- by-line and to resolve any questions she might have about the article. (R. at 1618, 2449). The purpose of per- forming a word-by-word, line-by-line review of that arti- cle prior to writing a headline is to insure that the story supports the headline. (R. at 1621-22). According to Craig Klugman (“Klugman”), the editor of the Journal-Gazette, it is the Journal-Gazette’s policy that if a word is going to appear in a headline or a subheadline, that word must also appear somewhere in the body of the article. (R. at 1729). Tim Harmon (“Har- mon”), the managing editor of the Journal-Gazette, con- firms that if a word is used in a headline, that particular word must be somewhere in the article. (R. at 2450). Although the word rat did not appear anywhere in Remley’s article, Pinkley wrote the following headline and subheadline for the article, in bold-face type: 14 Health board shuts doors of Bandido’s Investigators find rats, roaches” at local eatery Only two and one-half months prior to writing the erroneous headline, Pinkley received a performance eval- uation in which she was criticized for writing inaccurate headlines. (R. at 1625, Exhibit 28). For example, Pinkley was criticized for writing a story about a plane crash where an aircraft lost part of its roof over the ocean, but did not crash. (R. at 1625, Exhibit 28). After Pinkley edited the article and wrote the head- line and subheadline, she sent the article to William Leonard (“Leonard”), the Journal-Gazette’s copy desk chief. (R. at 1619). As the copy desk chief, it was Leonard's responsibility to give the article a final review, which would include a determination as to whether the headline accurately summarized the story. (R. at 1619, 1717). In reviewing the headline and subheadline prepared by Pinkley, Leonard did not conduct a word-by-word, line-by-line review of Remley’s article to determine if the word “rats” in the subheadline also appeared somewhere in the article. (R. at 1642, 1643, 1666). In reading the article, Leonard did not see the word “rat.” (R. at 1645). Leonard simply assumed that the word “rats” appeared somewhere in the story. (R. at 1666). He relied upon Pinkley to insure that the word “rats” appeared some- where in the article. (R. at 1642). Leonard took no special precautions to insure that the word “rats” appeared somewhere in the article. (R. at 1668). — a UNE SENSI? SONNETS FAC RT ca 15 Leonard received a performance review on March 23, 1988, in which he was also criticized for inaccurate head- lines written by copy editors, like Pinkley. (R. at 1632, Exhibit 29). Leonard was told to work with his copy editors as they sometimes wrote “vague, offtarget [and] inappropriate” headlines. (R. at 1632, Exhibit 29). Remley’s article, accompanied by the headline and subheadline prepared by Pinkley, appeared in the Ohio edition of the Journal-Gazette. (R. at 1190, Exhibit 9). The second edition of the Journal-Gazette, known as the Indi- ana edition, did not contain the subheadline “Inspectors Find Rats, Roaches at Local Eatery.” (R. at 1189, Exhibit 10). The subheadline reappeared in the final edition which is circulated in Allen County, Indiana. (R. at 1658-59). The word inspectors was changed to investiga- tors, the word roaches was changed to bugs, and the phrase “local eatery” was changed to “north-side eatery.” (R. at 1189, Exhibit 8). Leonard requested the changes in the subheadline. (R. at 1658). He sent the subheadline back to Pinkley to recast. (R. at 1663). He also asked her to fine-tune the headline so that the readers would know which Bandido’s restaurant was being closed. (R. at 1663). The headline and subheadline in the final edition are as follows: Health board shuts doors of Bandido’s Investigators find rats, bugs at north-side eatery As soon as the managing editor of the Journal- Gazette, Tim Harmon (“Harmon”), read the story, he 16 knew the subheadline was false. (R. at 2451). The word “rats” did not appear in the article and therefore could not appear in the headline. (R. at 2451). Craig Klugman (“Klugman”), the editor, was in Nashville, Tennessee when the article and headline appeared in the Journal-Gazette. (R. at 1717). Harmon contacted Klugman and told him that the Journal-Gazette made an error in a headline in a food inspection story. (R. at 1719). Klugman was very upset by this news. (R. at 1719). In fact, Klugman thought the error was a careless error and he was mad as hell about the error. (R. at 1720). In Klugman’s opinion, Leonard should have caught the erroneous headline prior to publication. (R. at 1724). + REASONS FOR GRANTING THE PETITION QUESTION ONE This appeal once again brings to the forefront the delicate interplay between an individual's right to the protection of his good name and reputation, on the one hand, and the First Amendment guarantees of freedom and speech and freedom of the press, on the other hand. Rather than strike a balance between these two compet- ing interests, as both this Court and the vast majority of state courts have done, the Indiana Supreme Court stomps on, and virtually extinguishes, individual citi- zen’s rights, all in the name of providing special protec- tion to the media. Indeed, the practical effect of the Indiana Supreme Court's decision is to immunize media defendants from liability. a SS ee 17 Unlike the citizenry in almost any other state in the Union, an Indiana resident defamed by a media defen- dant is left with no reasonable recourse for the irrepar- able damage to his or her reputation as a result of the media’s conduct. If the majority opinion is allowed to stand, it signals the death-knell for defamation actions in Indiana. This Court’s review is necessary to ensure that the citizens of the State of Indiana are entitled to the same protections as the citizenry of most other states when a newspaper or other media defendant publishes false and defamatory information about a private person. Since New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), this Court has acknowledged that the media does not enjoy complete immunity when it comes to publishing information that injures an individ- ual citizen’s reputation. Indeed, as this Court commented in Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974): The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this court would have embraced long ago the view that publishers and broadcas- ters enjoy an unconditional and indefeasible immunity from liability for defamation. The New York Times’ Court held that a public official could not maintain a defamation action without showing that the defamatory statement “was made with actual malice.” 376 U.S. at 279-80, 84 S.Ct. at 726. Three years later, in Curtis Publishing Co. v. Butts, 388 US. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), this Court extended the New York Times actual malice standard to defamation actions involving public figures. 18 In Rosenbloom v. Metro Media, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), a three-judge plurality, in a badly-fractured opinion, extended the New York Times actual malice standard to all publications involving mat- ters “of public or general interest,” even if the defamed party was a private individual. The Rosenbloom Court wrote five separate opinions, indicative of the Court's concern about the potentially overexpansive reach of the New York Times actual malice standard. One of those opinions was a dissenting opinion by Justice Harlan. Justice Harlan suggested that a less stringent standard apply to defamation actions instituted by private individ- uals. Justice Harlan formulated a “reasonable man” negli- gence standard. 403 U.S. at 67, 76, 91 S.Ct. at 1830. Three short years later, in Gertz, supra, a majority of this Court retreated from its previous position, expressly repudiated the Rosenbloom extension, and held that the controlling factor in determining the applicable standard was whether the plaintiff was a private individual or a public official or figure, not whether the statements related to an issue of public or general concern. The necessity of providin: actual malice in defamation suits by private individuals was struck down. This Court reevaluated the Rosenbloom plurality deci- sion in an effort to strike an appropriate balance between freedom of the press and the state’s interest in protecting private individuals from defamatory publications. The Gertz Court held that the interest of a private person in recovering damages for injury to reputation must be bal- anced against the media’s exercise of its First Amend- ment rights. In addition, the Gertz Court held that the 19 New York Times actual malice standard did not adequately take this reputational interest into account when a private individual was defamed. The Court rejected the “public or general interest” standard for determining appli- cability of the New York Times’ standard to private defa- mation actions. As this Court wrote: “[W]e conclude that the State’s interest in com- pensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them.” 418 U.S. at 343, 94 S.Ct. at 3008. After rejecting the Rosenbloom plurality, the Gertz Court held that individual states should be permitted to set the standard of proof in cases where a defamatory statement is published by a media defendant concerning a private individual. As the Court wrote: [As] long as they do not impose liability without fault, the states may define for themselves the appropriate standards of liability for a publisher or broadcaster of defamatory falsehood inju- rious to a private individual. Gertz, supra, 418 U.S. at 347, 94 S.Ct. at 3010. The Court reasoned that “this approach provides a more equitable boundary between the competing con- cerns involved,” and “recognizes the strength of the legit- imate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation.” 418 U.S. at 347-48, 94 S.Ct. at 3010. Justice Blackmun, in a concurring opinion, wrote, “the Court now conditions a libel action by a private person upon a showing of negligence, as contrasted with 20 a showing of willful or reckless disregard.” Id. at 353, 94 S.Ct. at 3014. The negligence standard was confirmed in Justice Powell’s concurring opinion in Time, Inc. v. Fire- stone, 424 U.S. 448, 96 S.Ct. 958, 970, 47 L.Ed.2d 154 (1976): “Thus, while a State may elect to hold a pub- lisher to a lesser duty of care, there is no First Amendment constraint against allowing recov- ery upon proof of negligence.” Taking their cue from Gertz, supra, a resounding majority of Indiana’s sister states have enthusiastically embraced a simple negligence standard in private figure defamation cases. To date, thirty-eight (38) states, the District of Columbia, and the United States Virgin Islands have adopted the Gertz negligence standard for their respective jurisdictions. Thirty-one (31) states, the District of Columbia, and the United States Virgin Islands have expressly adopted the Gertz standard of negligence. ! ' ALABAMA: Mobile Press Register, Inc. v. Faulkner, 372 So.2d 1282, 1284 (Ala. 1979); ARKANSAS: Dodrill v. Arkansas Democrat Co., 590 S.W.2d 840 (Ark. 1979); ARIZONA: Peagler v. Phoenix Newspapers, Inc., 560 P.2d 1216, 1222 (Ariz. 1977); DELAWARE: Re v. Gannett Co., 480 A.2d 662 (Del.Super.Ct. 1984), aff'd, 496 A.2d 553 (Del. 1985); FLORIDA: Miami Herald Publishing Co. v. Ane, 458 So.2d 239 (Fla. 1984); GEORGIA: Triangle Publications, Inc. v. Chumley, 317 S.E.2d 534, 541 (Ga. 1984); HAWAII: Cahill v. Hawaiian Paradise Park Corip., 543 P.2d 1356, 1366 (Haw. 1975); IDAHO: Weimer v. Rankin, 790 P.2d 347, 354-55 (Idaho 1990); ILLINOIS: Troman v. Wood, 340 N.E.2d 292, 299 (Ill. 1975); IOWA: Jones v. Palmer Communications, Inc., 440 N.W.2d 884 (lowa 1989); KANSAS: Gobin v. Globe Publishing Co., 531 P.2d 76 (Kan. 1975); KENTUCKY: McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 886 (Ky. 1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2239, 72 L.Ed.2d 849; LOUISIANA: Wilson 21 Five states have assumed, without discussion, that the Gertz negligence standard is the proper standard in cases involving private plaintiffs.2 In two States, v. Capital City Press, 315 So.2d 393 (La.App. 1975); MARYLAND: Jacron Sales Co. v. Sindorf, 350 A.2d 688 (Md. 1976); MASSACHUSETTS: Stone v. Essex County Newspapers, Inc., 330 N.E.2d 161, 168 (Mass. 1975); MICHIGAN: Rouch v. Enauirer & News of Battle Creek, 398 N.W.2d 245, 265 (Mich. 1986); MISSOURI: Hyde v. Columbia, 637 S.W.2d 251 (Mo.App. 1982), cert. denied, 459 U.S. 1226, 103 S.Ct. 1233, 75 L.Ed.2d 467 (1984); MONTANA: Madison v. Yunker, 589 P.2d 126 (Mont. 1978); NEW HAMPSHIRE: McCusker v. Valley News, 428 A.2d 493, 494 (N.H. 1981); NEW MEXICO: Marchiondo v. Brown, 649 P.2d 462, 470 (N.M. 1982); NORTH CAROLINA: Walters v. Sandford Herald, Inc., 228 S.E.2d 766 (N.C.App. 1976); OHIO: Embers Supper Club, Inc. v. Scripps-Howard Broadcasting Co., 457 N.E.2d 1164 (Ohio 1984); OKLAHOMA: Martin v. Griffin Television, Inc., 549 P.2d 85, 92 (Okla. 1976); SOUTH CAROLINA: Jones v. Sun Publishing Co., 292 S.E.2d 23 (S.C. 1982); TENNESSEE: Memphis Pub. Co. v. Nichols, 569 S.W.2d 412 (Tenn. 1978); TEXAS: Foster v. Loredo Newspapers, Inc., 541 S.W.2d 809 (Tex. 1976); UTAH: Seegmiller v. KSL, Inc., 626 P.2d 968 (Utah 1981); VIRGINIA: Gazette, Inc. v. Harris, 325 S.E.2d 713 (Va. 1985); WASHINGTON: Taskett v. King Broadcasting Co., 546 P.2d 81 (Wash. 1976); WEST VIRGINIA: Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70 (W.Va. 1983); WISCONSIN: Denny v. Mertz, 318 N. W. 2d 141 (Wis. 1982), cert. denied, 459 U.S. 883, 103 S.Ct. 179, 74 L.Ed.2d 147 (1982); DISTRICT OF COLUMBIA: Phillips v. Evening Star Newspaper Co., 424 A.2d 78 (D.C. 1980); VIRGIN ISLANDS: Ross v. Bricker, D.D.S., 770 F.Supp. 1038 (D. Virgin Islands 1991). * CONNECTICUT: Corbett v. Register Publishing Co., 356 A.2d 472 (Conn. Super. 1975); OREGON: Wheeler v. Green, 593 P.2d 777 (Or. 1979); RHODE ISLAND: DeCarvalho v. Dasilva, 414 A. 2d 806 (R. I. 1980); VERMONT: Colombo v. Times-Argus Ass‘n., 380 A.2d 80 (Vt. 1977); and WYOMING: Adams v. Frontier Broadcasting Co., 555 P.2d 556 (Wyo. 1976). 22 Pennsylvania and Virginia, federal courts have inter- preted the respective state law as adopting Gertz.3 Many courts cite public policy reasons for adoption of the negligence standard rather than the more stringent actual malice standard, holding that the negligence stan- dard strikes a balance between the protection of a private individual’s reputation and the media’s right to freedom of speech and press. The Tennessee Supreme Court observed in Memphis Pub., supra, 569 S.W.2d at 418: It is our conclusion that the ordinary negligence standard permitted by Gertz for all defamation actions brought by private persons against media defendants, is the only standard of liability that achieves the desired accommodation of First Amendment guarantees and the interest in protect- ing individual reputation. (Emphasis added). Similarly, in Denny, supra, the Wisconsin Supreme Court echoed the balancing of the interests when it adopted the negligence standard: A person’s reputation and good name is of ines- timable value to him and once it has been besmirched by another through carelessness or * MISSISSIPPI: Brewer v. Memphis Publishing Co., 626 F.2d 1238, 1247 (Sth Cir. 1980), cert. denied, 456 U.S. 962, 101 S.Ct. 3112, 69 L.Ed.2d 973 (1981) (interpreting Mississippi law as adopting a negligence standard because “[the overwhelming majority of state court responding to [the] mandate of Gertz have adopted negligence as the rule of liability”); PENNSYLVANIA: Mathis v. Philadelphia Newspapers, Inc., 455 F.Supp. 406, 410 (E.D.Pa. 1978) (“Pennsylvania law allows a ‘private figure’ plaintiff to recover based on a showing of negligence”). 23 malice, restoration is virtually impossible. Pro- tection of a citizen's good name is a proper concern of the state. . . . » This standard strikes an appropriate balance between that interest and society's interest in free communication of ideas which is protected by the First Amendment . . . and the Wisconsin Constitu- tion. 318 N.W.2d at 151-52 (emphasis added). Likewise, the Utah Supreme Court emphasized that state’s interest in protecting an individual's reputation in Seegmiller, supra, 626 P.2d at 973: [W]e recognize that the integrity of an individ- ual’s reputation is essential to his standing in society, in his vocation, and even in his family. It may indeed be indispensable to one’s sense of self-worth. .. . See also, Gazette, Inc., supra, 325 S.E.2d at 725 (“a negli- gence test strikes a proper balance between the rights of the news media and the rights of private individuals”); Martin, supra, 549 P.2d at 92 (actual malice standard does not adequately accommodate the private figure’s interest in protecting his reputation); Foster, supra, 541 $.W.2d at 819-20 (negligence standard achieves a fair balance between competing interests). The Indiana Supreme Court's majority opinion reins- tates the public-interest standard from the Rosenbloom plurality; a concept that was expressly rejected as a mat- ter of federal constitutional law by the Gertz Court. For all practical purposes, the Indiana Supreme Court has resurrected the New York Times actual malice test as applying to defamation cases brought by private figure plaintiffs involved in issues of public concern. In so " 24 doing, the Court pays nothing more than lip-service to the Gertz Court’s admonition that a balance must be struck between freedom of the press and an individual citizen’s right to his good name and reputation. Indeed, the Indiana Supreme Court goes so far as to suggest that the Gertz rationale undermines the First Amendment. If application of a negligence standard so under- mines freedom of the press, why is it that the vast major- ity of states have chosen a negligence standard in defamation actions brought by private figure plaintiffs, even where the subject matter of the publication might involve a matter of public concern or importance? The answer is simple. Application of a negligence standard does not have the chilling effect or self-censorship which the Indiana Supreme Court apparently fears will result upon application of any standard other than the actual malice standard. For example, in Taskett, supra, the Wash- ington Supreme Court observed that application of a negligence standard would not curtail the freedom of the press nor result in media self-censorship: It has been argued by the defense that to reduce the standard first enunciated in New York Times, and subsequently adopted in both Rosenbloom and Miller, will have a “chilling effect” upon the press, and therefore, result in self-censorship. We find this contention to be without merit. It is true that greater caution must now be exercised where the subject of a publication is a private person, yet such a rule is totally justifiable in light of the State’s overriding interest in provid- ing a realistic remedy to an otherwise helpless private citizen. . . . Furthermore, since erroneous statements of fact are inevitable, this newly 25 announced standard does not require the media to guarantee the absolute fact of their publications, as would be required under a strict liability scheme. However, just as the First Amendment will not tolerate a strict liability criteria, neither will this State’s strong policy, providing a means of com- pensation to private citizens for injuries to their reputations, tolerate the giving to a near-abso- lute immunity to the media. 546 P.2d at 86 (emphasis added). All of Indiana’s neighboring sister states, Illinois, Michigan, Ohio, and Kentucky, apply a negligence stan- dard to defamation claims brought by private individ- uals. Thus, if the Chicago Tribune printed a similar article and headline about a restaurant in Chicago, that restau- rant need only to prove negligence in order to prevail ina defamation action. Similarly, if the Detroit Free Press published an article and similar headline about a restau- rant in Detroit, the negligence standard applies. Under the standard articulated by the majority of the Indiana Supreme Court, even a defamation plaintiff armed with numerous “smoking guns,” cannot prevail. Unless a media defendant in Indiana admits to publica- tion of information with knowledge of its falsity, a most unlikely event, media defendants are effectively immune from liability. This result simply cannot be justified under Gertz. Under the standards articulated by the Indiana Supreme Court, the only potentially successful plaintiff in a defamation action in Indiana is a private individual not engaged in a matter of public concern. However, it is impossible to even conjure up this type of hypothetical 26 private figure plaintiff. If the news media in Indiana publishes an article or broadcasts a story, the media defendant will always argue that the story involved a matter of public concern. Indeed, if the matter involved a purely private matter, it would be of no interest to the media. a The Indiana Supreme Court’s majority opinion applies the New York Times actual malice standard across the board to all plaintiffs, a concept squarely rejected by this Court in Gertz. Plaintiffs in defamation actions in Indiana are now left with no remedy for the damage to his or her reputation. On the other hand, media defen- dants in Indiana have free rein to publish false and defamatory information, along with the Indiana Supreme Court's blessing that they are virtually immune from any and all liability. This Court’s review is necessary to right this wrong. QUESTION TWO Both the Indiana Constitution, Ind. Const. art. 1 § 20,4 and the United States Constitution, U.S. Const. amend. VIL, specifically preserve the right of trial by jury and restrict the Appellate Courts ability to reweigh decisions rendered by a properly instructed jury. Notwithstanding these Constitutional provisions, this Court has balanced the “natural commitment to the free exchange of ideas, as ensured by the First Amend- ment... ” against the integrity of jury verdicts and * In all civil cases, the right of trial by jury shall remain inviolate. a 27 determined that in some circumstances, an independent review of the entire record of a case is necessary to protect freedom of expression. Harte-Hanks Communica- tions, Inc. v. Connaughton, 491 US. 657, 686, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). The requirement of an independent appellate review in First Amendment cases, has been identified as a rule of federal constitutional law in Bose Corp. v. Consumer Union of the United States, Inc., 446 U.S. 485, 510, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). This rule of federal constitutional law is applied wherever there is a claim that the activity at issue is in the nature of protected speech. Hurley v. Irish-American Gay Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557, 567, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). This holding in Hurley apparently creates a pervasive opportunity for an appellate court to set aside a jury verdict whenever the issue at bar contains a First Amendment “protected speech” claim. Prior to the Indiana Supreme Court’s decision, when a case involved defamation by media defendant, this independent judicial review was restricted to those occa- sions where the plaintiff was a public figure. This rule applied because it was in those cases that The New York Times test of actual malice by clear and convincing evi- dence applied. Bose Corp., 466 U.S. at 502, 104 S.Ct. at 1960. The appellate court’s independent analysis was intended to ensure that the record, taken in its entirety, established malice by clear and convincing evidence. 28 The Indiana Supreme Court has now decided that the “independent analysis” rule of federal constitutional law should also be applied to cases involving private persons. By applying the New York Times test to private persons, the Indiana Supreme Court reasoned that the indepen- dent review described in Bose Corp. and utilized for pub- lic figure plaintiffs should also apply. This special standard requires that appellate judges exercise independent judgment to ensure that evidence in the record “is sufficient to cross the constitutional thresh- old that bars entry of any judgment that is not supported by clear and convincing proof of ‘actual malice.’” Bose Corp., 466 U.S. at 511, 104 S.Ct. at 1965. That detailed analysis, which constituted two thirds (2/3) of the Indi- ana Supreme Court’s majority opinion, independently evaluated five (5) significant Pieces of evidence to deter- mine whether “any of these items alone shows by clear and convincing evidence that the Journal-Gazette acted with actual malice or whether the evidence cumulatively suggests actual malice.” (See A-23). This detailed anal- ysis, including a review of the testimony of witnesses ebviously without the Opportunity to consider the demeanor or credibility of the witnesses, resulted in the Indiana Supreme Court's decision that the evidence they analyzed did not establish actual malice by clear and convincing evidence and the jury’s verdict was reversed.5 ° In reversing the Trial Court's Order of Summary Judgment in prior appellate proceedings on the same case, the Indiana Court of Appeals analyzed depositions and pre-trial discovery and held that a reasonable jury could find actual malice by clear and convincing evidence and, as a result, the matter proceeded to jury trial and verdict. Bandido’s, Inc. v. 29 By requiring that private persons involved in matters of public interest prove actual malice by clear and con- vincing evidence, the Indiana Supreme Court places citi- zens of this State in a legal position which virtually eliminates any remedy they may have if defamed by media defendants. That alone is a heavy burden, but it is one which Bandido’s met to the satisfaction of a jury in Noble County, Indiana. By also extending the Bose Corp. require- ment of an independent review from public figure cases to private person cases, the Indiana Supreme Court has eliminated even that narrow opportunity for redress by defamed Indiana residents. The result can be summarized in the words of Chief Justice Shephard who concluded his strong dissent in this case by stating: “Most injured plaintiffs will not have the smok- ing guns that Bandido’s brought to this lawsuit. When the Court declared its dissatisfaction with the jury and evidence in this case, it effectively says to other injured citizens, ‘You're toast.’ ” (See A-66). Journal-Gazette, 575 N.E.2d 324 (Ind.App. 3 Dist. 1991), trans. denied. 30 CONCLUSION For all of the reasons stated herein, the Petition for Writ of Certiorari should be granted. Respectfully submitted, MiLcer CARSON BOXBERGER & Murpuy LLP Epwarp L. Murpny, Jr. Counsel of Record Diana C. BAuER 1400 One Summit Square Fort Wayne, IN 46802 Telephone: (219) 423-9411 O’Dowp, RiEBENACK & CONNOLLY Rosert E. CONNOLLY 110 W. Berry, Suite 1910 Fort Wayne, IN 46802 Telephone: (219) 423-3343 Attorneys for Petitioner, Bandido’s, Inc. App. 1 APPENDIX JOURNAL-GAZETTE COMPANY, INC., Appellant (Defendant below), Vv. BANDIDO’S, INC., Appellee (Plaintiff below). No. 57S03-9709-CV-00495. Supreme Court of Indiana. June 23, 1999. Reversed. Opinion, 672 N.E.2d 969, vacated. Boehm, J., filed concurring opinion. Shepard, C.]J., filed dissenting opinion in which Dick- son, J., concurred. Dickson, J., filed dissenting opinion in which Shep- ar«, C.J., concurred. James P. Fenton, Eilbacher Scott, P.C., Cathleen M. Shrader, John D. Walda, Barrett & McNagny, Fort Wayne, Indiana, Attorneys for Appellant. Edward L. Murphy, Jr., Diana C. Bauer, Miller Carson Boxberger & Murphy, Robert E. Connolly, O’Dowd Wyneken & Connolly, Fort Wayne, Indiana, Attorneys for Appellee. App. 2 ON PETITION TO TRANSFER SULLIVAN, Justice. In grappling with the right to freedom of speech provided by the First Amendment versus the right of individuals to be protected from attacks upon their repu- tations, the Court of Appeals determined that Bandido’s failed [sic] to prove by clear and convincing evidence that the Fort Wayne Journal-Gazette newspaper published a subheadline with actual malice. While we agree with the Court of Appeals’s conclusion, we write to hold that the actual malice standard of proof required in defamation cases involving matters of public or general concern applies not only to public figures, but to private individ- uals as well. Background Bandido’s is a Mexican-style restaurant with three locations in Fort Wayne Indiana, and one in Lima, Ohio. On September 13, 1988, the Allen County Board of Public Health conducted a health inspection of the north-side Bandido’s in Fort Wayne. In the report, the inspector identified several violations and made the following rele- vant remarks: “Evidence of flies, roaches and rodents noted. Advise exterminator to do a full clean out of premise. Rodent droppings noted only in restroom.” (R. at 631.) Immediately thereafter, Mr. Schindler, the owner of Bandido’s, received a letter from the Fort Wayne - Allen County Board of Public Health advising him of a hearing to determine whether the restaurant permit should be revoked. On October 3, the day before the hearing, another inspector visited the restaurant for the App. 3 sole purpose of gathering information for the hearing. At this time, the inspector did not find any evidence of rodents. On October 4, without permitting Mr. Schindler to speak, the Board of Public Health revoked Bandido’s permit and closed the restaurant. In a letter dated Octo- ber 5, 1988, to Mr. Schindler, Dr. Irmscher, the Commis- sioner for the Board of Public Health, stated that “This permit was revoked after a full and complete hearing and review of all food inspections for 1988.” (R. at 1155.) June Remley was assigned the task of writing an article concerning the closing of Bandido’s for the Fort- Wayne Journal-Gazette, a daily newspaper. Once written, the story was turned over to her supervisor, Gabby Jacobs, the Assistant Metro Editor. The story was untitled and Remley never saw the story again before publication. Jacobs’s job was to resolve any questions or ambiguities and generally get the story ready for publication. The story was then submitted to the news editor, Ellen Gar- ner. Garner’s role was to lay out the story for publication, do an initial edit, and make sure the story was still current. Garner also determined how much space was available for the story and for the headline. Next, the story proceeded to the copy editor, Sheila Pinkley. Pink- ley’s responsibility was to do a final edit of the story which required a word for word, line by line read. Pink- ley’s job was also to make any necessary changes to meet the spacing guidelines. Finally, Pinkley wrote the head- line and the subheadline which are at issue in this case. The story with the headline was then submitted to Pink- ley’s supervisor, Bill Leonard. Leonard’s duty was to approve everything that had been done, do a final review, make sure the layout was acceptable, and make sure the App. 4 headline accurately summarized the story. The story then went to the Managing Editor, Ellen Garner.! Garner reviewed the story and headline. Finally, the page proof editor, Tom Jones, looked for typographical errors, story and headline problems and things of that sort. The article was published on October 6, 1998 [sic], and the headline read:? Health board shuts doors of Bandido’s Inspectors find rats, roaches at local eatery While the story itself was accurate, the subheadline inac- curately used the word “rats.” The health board never discovered rats at Bandido’s and the word “rats” never appeared in the article. The next day, Mr. Schindler advised the Journal-Gazette of the mistake and asked for an immediate retraction. On October 7, 1988, the Journal- Gazette published another article in which it noted the ' Ordinarily, Sylvia Smith worked as the Managing Editor but was off that evening. * The Journal-Gazette publishes three editions each day. The first edition is circulated in northwestern Ohio. The second edition is provided to Indiana counties surrounding Fort Wayne. The final edition is published for the Fort Wayne area. The headline provided in the text ran in the first edition while the second edition contained the headline, but not the subheadline. Consequently, the trial court determined that the second edition was not defamatory. The third edition contained a revised subheadline: “Investigators find rats, bugs at north- side eatery.” App. 5 mistake and apologized.3 The next day, Robert Wright, Bandido’s attorney, wrote the Journal-Gazette and the Journal-Gazette’s attorney a letter expressing his and Mr. Schindler’s satisfaction with the article and the apology that appeared in the story, and his belief that the correc- tion would hopefully reduce the damages suffered by Mr. Schindler. Shortly after this letter was written, Mr. Schindler retained a new lawyer. On October 18, 1988, Robert Connolly, Bandido’s new attorney, sent the Jour- nal-Gazette a letter indicating that the October 7, 1988, follow-up story was insufficient because the headline made no reference to a retraction. This letter requested the Journal-Gazette to print a headline retraction the same size as the original story and in the same location. The Journal-Gazette did not comply with this request and consequently Bandido’s filed a defamation suit on November 21, 1988. The trial court concluded that there was no genuine issue of material fact with respect to the element of actual malice and granted summary judgment in favor of the journal-Gazette. On appeal, the Court of Appeals deter- mined that there were facts in dispute and conflicting * The article was titled “Owner says Bandido’s likely to reopen today.” The third paragraph of the story contained the following relevant statements: Because of an editing error, a headline — not the story ~ in some editions of Thursday’s Journal Gazette said inspectors had found rats and bugs at the restaurant. No evidence of rats was found at the restaurant. Journal-Gazette apologizes for the inaccuracy of the headline. (R. at 1203.) App. 6 inferences on the issue of actual malice, reversed the trial court’s decision, and remanded for a trial on the merits. Bandido's, Inc. v. Journal-Gazette Co., 575 N.E.2d 324 (Ind.Ct.App.1991), transfer denied. At the conclusion of trial, the jury awarded Bandido’s $985,000 in damages. The Journal-Gazette appealed and the Court of Appeals reversed the trial court, finding that there was not clear and convincing proof of actual malice. Journal-Gazette Co. v. Bandido’s, Inc., 672 N.E.2d 969 (Ind.Ct.App.1996). We will provide additional facts when necessary. Discussion Bandido’s defamation suit against the Journal- Gazette implicates the First Amendment to the United States Constitution. The First Amendment secures free- dom of the press.* It “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”® New York 4 The First Amendment provides the following: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. ° The First Amendment goal of protecting speech serves several purposes. Gerald R. Smith, Of Malice and Men, 27 Val. U.L.Rev. 39, 43 (1992). First, “[t]he free flow of information in the ‘marketplace of ideas’ ensures the vitality of a democratic government, provides a check on governmental abuse, and aids in the choices among competing opinions and options.” Second, “[f]reedom of speech also acts as a safety valve, reducing the App. 7 Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)). There is a “national commitment to the ‘principle that debate on public issues should be uninhibited, robust, and wide- open.” Id. at 270-71, 84 S.Ct. 710. The First Amendment has particularly protected the press because it is the means through which the public is informed of govern- ment actions and other matters of public interest. How- ever, the rights under the First Amendment are not absolute, for they must be weighed against other societal interests. For example, because society has a strong inter- est in protecting attacks upon individual reputation, the law of defamation was created. A defamatory communi- cation is defined as one that “tends so to harm the reputa- tion of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”© Doe v. Methodist Hospital, 690 N.E.2d 681, 686 (Ind.1997) (quoting Restatement (Second) of Torts § 559 (1977)); see Near East Side Community Org. v. Hair, 555 N.E.2d 1324, 1330 (Ind.Ct.App.1990); Cochran v. incidence of more destructive modes of expressing dissatisfaction.” And finally, “(t]he right to free expression also promotes self-fulfillment, personal growth and self- realization.” Id. at 44. © “Whether [a communication] is defamatory ‘depends, among other factors, upon the temper of the times, the current of contemporary public opinion, with the result that words, harmless in one age, in one community, may be highly damaging to reputation at another time or in a different place.’ ” Schermerhorn v. Rosenberg, 73 A.D.2d 276, 426 N.Y.S.2d 274, 282 (1980) (quoting Mencher v. Chesley, 297 N.Y. 94, 75 N.E.2d 257, 259 (N.Y.Super.Ct.1947)). App. 8 Indianapolis Newspapers, Inc., 175 Ind.App. 548, 553, 372 N.E.2d 1211, 1217 (1978). In the process of protecting reputation, limitations have been placed on the freedom of speech. This was a result of the long standing principle that defamation was not protected speech, Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), and could therefore be legislated by the states individually. However, the law of defamation has dramatically changed in the last few decades. In the landmark decision of New York Times, 376 U.S. at 254, 84 S.Ct. 710, the United States Supreme Court placed limits on the liability for defamation. New York Times was just the beginning of the Supreme Court’s attempt to confine the state laws on defamation to conform with First Amendment privileges. In New York Times, the Supreme Court held that the Constitution mandates “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disre- gard of whether it was false or not.” Id. at 279-80, 84 S.Ct. 710. Soon thereafter, the Supreme Court determined that the same requirement should apply to “public figures.” Curtis Publ’g Co. v. Butts, 388 U.S. 130, 164, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). Several years later, in Rosenbloom v. Metromedia, the Court rejected any distinction between a public and private individual because it made “no sense in terms of the First Amendment guarantees.” 403 U.S. 29, 46, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). Instead, the Rosenbloom Court determined that the controlling issue in determining when the New York Times standard of actual SE fe ee App. 9 malice applied was whether the issue concerned a matter of public or general concern. Rosenbloom, 403 US. at 52, 91 S.Ct. 1811. Three years later, observing that there had been a “general problem of reconciling the law of defamation with the First Amendment,” the Supreme Court recon- sidered its decision in Rosenbloom. Gertz v. Robert Welch, Inc., 418 U.S. 323, 333, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In doing so, the Supreme Court determined “that the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them.” Id. at 343, 94 S.Ct. 2997. Consequently, the Supreme Court changed its position and decided that a negligence standard would be imposed for defamation suits brought by private individ- uals in federal court, but left it up to States to define for themselves the appropriate standard of liability for defamatory statements made about a private individual. Id. at 347, 94 S.Ct. 2997. The Indiana Court of Appeals defined the standard it would apply for defamation of private individuals in Aafco Heating & Air Conditioning Co. v. Northwest Publica- tions, Inc., 162 Ind.App. 671, 321 N.E.2d 580 (1974), cert. denied, 424 U.S. 913, 96 S.Ct. 1112, 47 L.Ed.2d 318 (1976). In Aafco, the Court of Appeals decided to continue with the Rosenbloom approach of applying the New York Times actual malice standard for matters of general or public concern, irrespective of whether the allegedly defamed plaintiff was a public or private individual. Although it has been over two decades since this approach was ee App. 10 adopted by the Court of Appeals, this is our first oppor- tunity to address the standard of liability required for private individuals claiming defamation. Today, we expressly adopt the Aafco approach estab- lishing an actual malice standard in matters of public or general concern for private individual plaintiffs.? For nearly twenty-three years the law in Indiana has been that both private individuals and public figures must prove actual malice in order to recover in a defamation suit. As we have commented on numerous occasions, we ? As stated under Background, supra, the trial court initially granted summary judgment in favor of the Journal-Gazette. Bandido’s appealed the grant of summary judgment and in the course of remanding to the trial court for a trial on the merits, the Court of Appeals referred to Bandido’s as a “private individual.” Bandido’s, Inc. v. Journal-Gazette Co., 575 N.E.2d 324, 326 (Ind.Ct.App.1991). During trial, the jury was instructed that if the material published concerned an event of public or general concern, then Bandido’s was required by Aafco to prove actual malice. (R. at 882.) A determination of whether a controversy is of general or public concern is a question of law to be determined by the trial judge and not the jury. Consequently, it was error for the court to provide this ) instruction. The jury was also instructed that Bandido’s is a | limited-purpose public figure and Bandido’s did not object to this characterization at trial. (R. at 850.) To the extent that Bandido’s was tried as a limited-purpose public figure, the holding in Aafco is not relevant to resolve the case at hand nor is the issue properly before this Court. Nevertheless, we find it appropriate to address our view on Aafco as it relates to the future of defamation law in Indiana. App. 11 place a high value on adherence to precedent as a pri- mary instrument in providing the people of our state a predictable body of law.® Because we find no pressing reason to change the law, we affirm Aafco to be the law in Indiana. Our decision to uphold Aafco is also based on our strong commitment to protecting the freedom of speech and expression provided in the First Amendment to the United States Constitution. Such commitment, we believe, should persist irrespective of the status of an alleged defamed plaintiff. “If a matter is subject [sic] of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not ‘voluntarily’ choose to become involved. The public’s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant’s prior anonymity or notoriety.” Aafco, 321 N.E.2d at 587 (quoting Rosenbloom, 403 U.S. at 43, 91 S.Ct. 1811). The Indiana Court of Appeals properly noted that applying a negligence standard to private ® See Nelson v. Parker, 687 N.E.2d 187, 190 (Ind.1997) (recognizing the importance of settled rules in property law and that stability is desirable to predict outcomes): Marsillett v. State, 495 N.E.2d 699, 704 (Ind.1986) (“Under the doctrine of stare decisis, this Court adheres to a principle of law which has been firmly established. Important policy considerations militate in favor of continuity and predictability in the law.”) (emphasis in Original). App. 12 individuals and an actual malice standard to public fig- ures “assumes that society has a greater interest in pro- tecting ‘private’ reputation than safeguarding the community standing and repute of ‘public officials’ and ‘public figures.’” Such an assumption does not exist in Indiana in matters of public or general concern where “[t]he reputations of public figures and public officials mcrit the same quantum of protection as those of private citizens.” Id. at 587. Second, we believe that in most instances there is little disparity in the ability of private versus public individuals to obtain access “to the channels of effective communication” in order to “counteract false state- ments.” But see Gertz, 418 U.S. at 344, 94 S.Ct. 2997 (stating that public figures can more easily rebut false statements due to increased access to communication channels). Only rarely will a public official or public figure have attained sufficient prominence to com- mend media attention which will provide a meaningful chance to rebut and defend against defamatory falsehood. Even in the rare case where an adequate opportunity for reply is afforded, it is unlikely that the rebuttal state- ments will receive the same degree of public attention as the published defamation. It would appear that the proper solution for any lack of access on the part of all citizens, whether “pub- lic” or “private” is not the expansion of the right to sue for defamation, but rather the passage of state laws creating a limited right to respond to defamatory falsehoods. Aafco, 321 N.E.2d at 587 (footnote omitted). App. 13 Third, we do not find that public figures’ voluntary exposure to public scrutiny necessarily entitles non-pub- lic figures to greater protection from defamation. The argument that public officials and public figures assume the risk of defamation by volun- tarily placing themselves in the public eye is a misconception of the role which every citizen is expected to play in a system of participatory self-government. Every citizen, as a necessary part of living in society, must assume the risk of media comment when he becomes involved, whether voluntarily or involuntarily, in a matter of general or public interest. It has long been recognized that “[e]xposure of the self to others in varying degrees is a concomitant of life in a civilized community.” Id. at 588 (alteration in original) (quoting Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967)). The Rosenbloom Court responded to similar arguments in the following manner: [T]he idea that certain “public” figures have voluntarily exposed their entire lives to public inspection, while private individuals have kept theirs carefully shrouded from public view is, at best, a legal fiction. In any event, such a distinc- tion could easily produce the paradoxical result of dampening discussion of issues of public or general concern because they happen to involve private citizens while extending constitutional encouragement to discussion of aspects of the lives of “public figures” that are not in the area of public or general concern. Rosenbloom, 403 U.S. at 48, 91 S.Ct. 1811. App. 14 We acknowledge the appeal of the arguments made in Gertz and think that the news media bear a heavy moral responsibility not to invade the private lives of private citizens with respect to their private affairs. And when they do, they not only damage their own reputa- tions, but undermine support for their First Amendment protections. But, moral responsibility is not in this context identical to legal liability. In our view, imposing legal liability only when the news media engage in conduct with actual malice in matters of public or general concern protects the rights and values embodied in the First Amendment to the fullest extent. A negligence standard in matters of public or general concern for private indi- viduals likely would require the news media to censor s.ories of public or general concern or avoid publication of controversial articles. See Aafco, 321 N.E.2d at 588. This is because a negligence standard would permit private individuals to obtain favorable judgments on the basis that the news media failed to use reasonable care. “The uncertainty attendant upon a reasonable care standard would charge the press with ‘the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.’ ” Id. at 588 (quoting Time, 385 U.S. at 389, 87 S.Ct. 534). Such a rule would curtail the freedom of the press and undermine our attempt to protect speech that relates to matters of public or general concern.? 9 See Aafco, 321 N.E.2d at 588-89: “In the normal civil suit where [the preponderance of the evidence] standard is employed, ‘we view it as App. 15 For all of the foregoing reasons, we adopt the rule in Aafco and hold it to be the law in Indiana. Il In exploring the parameters of public figure status, the United States Supreme Court established two classes of public figures: general-purpose and limited-purpose public figures. Gertz, 418 U.S. at 352, 94 S.Ct. 2997. “Gen- eral purpose public figures are those individuals who ‘achieve such pervasive fame or notoriety that [they] become[] a public figure for all purposes and in all contexts.’ ” Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 433 (Sth Cir.1987) (quoting Gertz, 418 U.S. at 351, 94 S.Ct. 2997 (both alterations in original)). Consequently, “[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. 2997. In the case of limited purpose public figures, they achieve their status by “thrust[ing] them- selves to the forefront of particular public controversies more serious in general for there to be an erroneous verdict in the defendant’s favor.’ In re Winship, 397 U.S. 358, 371, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In libel cases, however, we view an erroneous verdict for the plaintiff as most serious. No only does it mulct the defendant for an innocent misstatement . . . but the possibility of such error, even beyond the vagueness of the negligence standard itself, would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate.” Id. (quoting Rosenbloom, 403 U.S. at 50, 91 S.Ct. 1811). App. 16 in order to influence the resolution of the issues involved.” Id. at 345, 94 S.Ct. 2997. Whether an individual is a public figure is a question of law for the court to resolve. Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). In the present case, there was no dispute as to Bandido’s status. The trial court instructed the jury that Bandido’s was a lim- ited-purpose public figure, and Bandido lodged no objec- tion to this characterization.'!° Given that no objection was made, we find this instruction to be binding on Bandido’s and sufficient to establish its status as a lim- ited-purpose public figure. See Groves v. First Nat'l Bank of Valparaiso, 518 N.E.2d 819, 824 (Ind.Ct.App.1988) (finding that an instruction to which no objection was made becomes the law of the case). Moreover, even had Bandido’s sought to contest its status as a limited-purpose public figure, we conclude that the authority on this issue cuts squarely against such a challenge. Restaurants and other establishments that actively advertise and seek commercial patronage have been routinely held to be public figures, at least for the limited purpose of consumer reporting on their goods and services. See, e.g., Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 272 (3d Cir.1980); Quantum Elec. v. Consumers Union of United States, 881 F.Supp. 753, 764 (D.R.I.1995); S & W Seafoods Co. v. Jacor Broad. of Atlanta, 194 Ga.App. 10 The trial court’s instruction stated, in pertinent part: “In this case, the statements upon which suit has been brought relate to a limited purpose public figure as well as a mater [sic] of public interest at least for the purpose of the statements at issue.” (R. at 850). App. 17 233, 390 S.E.2d 228, 23€ (1989); Greer v. Columbus Monthly Publ’g Corp., 4 Ohio App.3d 235, 4 O.B.R. 426, 448 N.E.2d 157, 162 (Ohio Ct.App.1982). Hence, while Bandido’s may not necessarily have been a public figure before the health department closed the restaurant, we find that it certainly became a public figure for the limited purpose of issues concerning the health department's report and the circumstances giving rise to the closing of the restau- rant. Bandido’s contends that the Court of Appeals exceeded the proper standard of review in determining that there was insufficient evidence to support the jury verdict that the Journal-Gazette published the incorrect subheadline with actual malice. Additionally, Bandido’s suggests that the “applicable appellate standard of review in a libel case is whether the evidence and reason- able inferences drawn therefrom support the verdict.” Appellee’s Br. at 2. The Journal-Gazette contends that the appellate court should undertake an independent and searching review of the record to determine whether Bandido’s has met its burden of proof. We agree with the Journal-Gazette.!! In New York Times, the United States Supreme Court determined that because proof of actual malice was ‘ Because Bandido’s is a public figure, see Part II, supra, we do not address the appellate standard of review to be employed in reviewing a judgment in a defamation case involving matters of public or general concern and a private individual plaintiff. App. 18 required for libel actions brought by public official plain- tiffs, effective judicial administration required review of the entire record to determine whether the evidence could constitutionally support a judgment. 376 U.S. at 285, 84 S.Ct. 710. Additionally, the Court made the fol- lowing comments: This Court’s duty is not limited to the elabora- tion of constitutional principles; we must also in proper cases review the evidence to make cer- tain that those principles have been constitu- tionally applied. This is such a case, particularly since the question is one of alleged trespass across “the line between speech unconditionally guaranteed and speech which may legitimately be regulated.” In cases where that line must be drawn, the rule is that we “examine for our- selves the statements in issue and the circum- stances under which they were made to see .. . whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Four- teenth Amendment, protect.” We must “make an independent examination of the whole record,” So as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression. Id. (omission in original) (citations omitted). In Rosen- bloom, the Court emphasized that it “has an ‘obligation to test challenged judgments against the guarantees of the First and Fourteenth Amendments,’ and in doing so ‘[it] cannot avoid making an independent constitutional judg- ment on the facts of the case.’ ” Rosenbloom, 403 U.S. at 54, 91 S.Ct. 1811 (quoting Jacobellis v. Ohio, 378 U.S. 184, 190, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (alteration added)). App. 19 “The simple fact is that First Amendment questions of ‘constitutional fact’ compel this Court’s de novo review.” Id.; see also Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (quoting New York Times, 376 U.S., at 284-86, 84 S.Ct. 710, and citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933-34, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982); Greenbelt Cooperative Publ’g Ass'n v. Bresler, 398 U.S. 6, 11, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970); St. Amant v. Thompson, 390 U.S. 727, 732-33, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)) (In cases raising First Amendment issues, “an appellate court has an obligation to ‘make an independent exam- ination of the whole record.’ ”). In justifying the use of an independent examination, the Supreme Court stated that “the rule of independent review assigns to judges a constitutional responsibility that cannot be delegated to the trier of fact, whether the factfinding function be performed in the particular case by a jury or by a trial judge.” Bose Corp., 466 U.S. at 501, 104 S.Ct. 1949. The requirement of independent appellate review reiterated in New York Times Co. v. Sul- livan is a rule of federal constitutional law. It emerged from the exigency of deciding concrete cases; it is law in its purest form under our common law heritage. It reflects a deeply held conviction that judges - and particularly Mem- bers of this Court - must exercise such review in order to preserve the precious liberties estab- lished and ordained by the Constitution. The question whether the evidence in the record in a defamation case is of the convincing clarity App. 20 required to strip the utterance of First Amend- ment protection is not merely a question for the trier of fact. Judges, as expositors of the Consti- tution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of “actual malice.” Bose Corp., 466 U.S. at 510-11, 104 S.Ct. 1949. This princi- ple was recently reaffirmed by a unanimous Court in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557, 567, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). We believe the language in the cases cited supra indicates that the Supreme Court has mandated that appellate courts use independent examination of the whole record as the standard of review when proof of actual malice is required as a matter of federal constitu- tional law in defamation cases. IV In the final part of our analysis, we must review the evidence to determine whether there was sufficient evi- dence to support a finding of actual malice. We hold that the evidence was insufficient. Actual malice must be shown by clear and convinc- ing evidence. Heeb v. Smith, 613 N.E.2d 416, 419 (Ind.Ct.App. 1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); see Rosenbloom, 403 U.S. at 52, 91 S.Ct. 1811. Actual malice App. 21 exists when the defendant publishes a defamatory state- ment “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times, 376 U.S. at 279-80, 84 S.Ct. 710; see Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991); Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 659, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989); Gertz, 418 U.S. at 342, 94 S.Ct. 2997; Rosenbloom, 403 U.S. at 52, 91 S.Ct. 1811; Curtis Publ’g Co., 388 U.S. at 134, 87 S.Ct. 1975. “[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before pub- lishing.” St. Amant, 390 U.S. at 731, 88 S.Ct. 1323. To demonstrate reckless disregard, “[t]here must be suffi- cient evidence to permit the conclusion that the defen- dant in fact entertained serious doubts as to the truth of his publication,” id., or proof that the false publication was made with a “high degree of awareness of their probable falsity,” Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); see Masson, 501 U.S. at 510, 111 S.Ct. 2419; Harte-Hanks Communications, 491 U.S. at 668, 109 S.Ct. 2678. Hence, a defendant's actual state of mind is a critical factor in the analysis. See Herbert v. Lando, 441 U.S. 153, 160, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); see also Woods v. Evansville Press Co., 791 F.2d 480, 485 (7th Cir.1986); Long v. Arcell, 618 F.2d 1145, 1147 (5th Cir.1980). A defendant's state of mind is a subjective fact and may be shown by indirect or circumstantial evidence. See Zerangue v. TSP Newspapers, 814 F.2d 1066, 1070 (5th Cir.1987) (citing Herbert v. Lando, 441 U.S. 153, 165, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979)); Harte-Hanks Communi- cations, 491 U.S. at 668, 109 S.Ct. 2678. App. 22 The question of whether there is sufficient evidence to support a finding of actual malice is a question of law to be determined by the court. See Harte-Hanks Communi- cations, 491 U.S. at 685, 109 S.Ct. 2678 (citing Bose Corp., 466 U.S. at 510-11, 104 S.Ct. 1949}-This rule is premised on two important considerations: (1) the “national com- mitment to the free exchange of ideas, as enshrined in the First Amendment;” and (2) the recognition that “ ‘[j]udges as expositors of the Constitution’ have a duty to ‘independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of “actual malice.” ’ ” Id. at 686, 109 S.Ct. 2678 (quoting Bose Corp., 466 U.S. at 511, 104 S.Ct. 1949 (alteration in original)). We discussed supra in Part III the need to conduct an examination of “the factual record in full.” Id. at 688, 109 S.Ct. 2678. In an independent review, each piece of evidence may be con- sidered cumulatively. See id. at 689, 109 S.Ct. 2678. Bandido’s contends that there were five significant pieces of evidence indicating that the Journal-Gazette published the inaccurate newspaper subheadline with actual malice: (1) printing a subheadline using the word “rats”; (2) a warning provided by the Allen Superior Court when it ruled “that public disclosure of the inspec- tion reports might result in improper inferences or inter- pretations as to the seriousness of the violations noted;” (3) job evaluations of two Journal-Gazette employees; (4) the Journal-Gazette’s failure to publish a retraction in accordance with Ind.Code § 34-4-15-1; and (5) the sub- headline appeared in the first and final editions of the Journal-Gazette, but not in the second edition. We review App. 23 each piece of evidence to determine whether any of these items alone shows by clear and convincing evidence that the Journal-Gazette acted with actual malice or whether the evidence cumulatively suggests actual malice. A It is a question of law for the court to decide whether a statement considered in its entirety is capable of pos- sessing a defamatory meaning or implication. Woods, 791 F.2d at 486 (citing Rose v. Indianapolis Newspapers, Inc., 213 F.2d 227, 229 (7th Cir.1954)). If a statement is susceptible to both defamatory and non-defamatory meanings, the matter of interpretation should be left to the jury. Id. In order to impose liability for defamation, the United States Constitution requires a false statement of fact. Heeb, 613 N.E.2d at 421 (citing Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988)); see Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) (noting that a statement on matters of public concern must be provable as false before there can be liability under state defamation law). “[T]he state- ment is not considered false unless it ‘would have a different effect on the mind of the reader from that which the pleaded truth would have produced.’ ” Masson, 501 U.S. at 517, 111 S.Ct. 2419 (quoting R. Sack, Libel, Slander, and Related Problems 138 (1980)); see Heeb, 613 N.E.2d at 421 (citing AIDS Counseling & Testing Centers v. Group W Television, Inc., 903 F.2d 1000 (4th Cir.1990)) (“The test for determining whether a statement is substantially true is whether any inaccuracies caused the statement to pro- duce a different effect on the audience than would have been produced had the literal truth been spoken.”); App. 24 Cochran, 372 N.E.2d at 1217 (“In determining whether a defamatory meaning is possible, the test is the effect which the article is fairly calculated to produce and impression it would naturally engender in the mind of the average person.”); MclIlvain v. Jacobs, 794 S.W.2d 14, 16 (Tex.1990) (Substantial truth is an absolute defense in defamation actions and the test is “whether the alleged defamatory statement was more damaging to [plaintiff's] reputation, in the mind of the average listener, than a truthful statement would have been.”). A-l Our first inquiry is to decide whether the sub- headline and the article should be read together or inde- pendently in order to determine whether the subheadline was defamatory. Both Bandido’s and the Journal-Gazette rely on Sprouse v. Clay Communication, Inc., 158 W.Va. 427, 211 S.E.2d 674 (1975), as authority for the determination of whether the subheadline and the article should be read together or separately. In Sprouse, the court made the following statements: Generally where the headline is of normal size and does not lead to a conclusion totally unsup- ported in the body of the story, both headlines and story should be considered together for their total impression. However, where over- sized headlines are published which reasonably lead the average reader to an entirely different conclusion than the facts recited in the body of the story, and where the plaintiff can demon- strate that it was the intent of the publisher to App. 25 use such misleading headlines to create a false impression on the normal reader, the headlines may be considered separately with regard to whether a known falsehood was published. Id. at 686 (emphasis added). The Sprouse court viewed the headline independently of the article but emphasized that its reason for doing so was “because the plaintiff proved that the newspaper abdicated its traditional role of fairly reporting the news and became a participant in a scheme or plan, the object of which was to employ grossly exaggerated and patently untrue assertions, embodied primarily in headlines, to destroy the character of Sprouse.” Id. at 691. In this case, there is no evidence that the Journal-Gazette engaged in such conduct. “The majority of jurisdictions support the rule that headlines are to be construed in conjunction with their accompanying articles.” Molin v. Trentonian, 297 N.J.Super. 153, 687 A.2d 1022, 1024 (N.J.Super.Ct.App. Div.1997) (citing cases). However, there are some jurisdic- tions which hold that a newspaper headline alone is libelous. See, e.g., Las Vegas Sun, Inc. v. Franklin, 74 Nev. 282, 329 P.2d 867, 870 (Nev.1958) (Because the “public frequently reads only the headline,” the headline may be construed apart from its accompanying article.). Some minority jurisdictions have adopted what is known as the “fair index” rule. See Burgess v. Reformer Publ’g Corp., 146 Vt. 612, 508 A.2d 1359, 1363 (Vt.1986); Schermerhorn v. Rosenberg, 73 A.D.2d 276, 426 N.Y.S.2d 274, 283 (N.Y.App.Div.1980); Hein v. Lacy, 228 Kan. 249, 616 P.2d 277, 286 (Kan.1980); Bray v. Providence Journa! Co., 101 R.1. App. 26 111, 220 A.2d 531, 535 (R.1.1966). Under the fair index rule: “If the headline is a fair index of an accurate article, it is not actionable. If it is not a fair index [- does not fairly indicate the substance of the matter to which it refers -] then the headline must be examined independently to determine whether it is actionable under general principles of libel.” Burgess, 508 A.2d at 1363 (quoting Schermerhorn, 426 N.Y.S.2d at 283 (alteration in original)). In deciding to follow the fair index rule, the Burgess court remarked that it “cannot ignore the fact that ‘many people in a hurried and busy society are headline readers,’” id. (quoting Cross v. Guy Gannett Publ’g Co., 151 Me. 491, 121 A.2d 355, 358 (Me.1956)), and that “[aJlthough ‘the defamatory meaning of the headline may be dispelled by a reading of the entire article . . . , [a] headline is often all that is read by the casual reader and therefore separately carries a potential for injury as great as any other false publica- tion,’ ” id. (quoting Schermerhorn, 426 N.Y.S.2d at 283 (second alteration in original));!2 see Reardon v. News- 12 The Burgess court also agreed with the following comments made by the court in Black v. Nashville Banner Publishing Co., 24 Tenn.App. 137, 141 S.W.2d 908 (Tenn.Ct.App.1939): “The headline of an article or paragraph, being so conspicuous as to attract the attention of persons who look casually over a paper without carefully reading all its contents, may in itself inflict very serious injury upon a person, both because it may be the only part of the article which is read, and because it may cast a graver imputation than all the other words following App. 27 Journal Co., 53 Del. 29, 164 A.2d 263, 265 (Del.1960) (“[T]he sting of a libel may sometimes be contained in a word or sentence used in a headline to the body of the article, even though the facts are correctly set forth in the body.”). We agree with the minority of jurisdictions that fol- low the “fair index” rule for the reasons mentioned herein and adopt this approach when determining whether a headline is defamatory. We believe this to be the best approach because in many respects, a defama- tory headline may be much more injurious to a party than a defamatory article where the false statement may be buried in the story and go unnoticed by the average reader. This is especially true when an individual reads only the headline and not the story. In Indiana, a defama- tory headline will be actionable even if the story follow- ing it is accurate, unless the headline is a fair index of the accurate article. “[I]n determining whether a headline fairly indicates the substance of the matter to which it refers, the headline and article must be considered together.” Burgess, 508 A.2d at 1363. it. There is no doubt that in publications . . . claimed to be libelous, the headlines directing attention to the publication may be considered as a part of it, and may even justify a court or jury in regarding the publication as libelous when the body of the article is not necessarily so.” Burgess, 508 A.2d at 1363 (quoting Black, 141 S.W.2d at 912 (omission in original)). App. 28 The headline in this case read: “Health Board Shuts Doors of Bandido’s” and the subheadline read: “Inspec- tors find rats, roaches at local eatery.”1> One interpreta- tion, and perhaps the most logical, of the subheadline is that Bandido’s was shut down because the health board found rats and roaches (or bugs) at the restaurant. The article which has been deemed to be accurate states that the restaurant was closed “because of health violations including evidence of insects and rodents.” The article goes on to mention some of the significant violations cited by the health board. The subheadline clearly creates the impression that Bandido’s was closed solely because of the discovery of rats!4 and roaches (or bugs) and in addition, conjures up a depiction of the restaurant which is not entirely accurate.!5 As such, we are hard pressed to 13 This is how the subheadline read in the first edition. As mentioned earlier, the subheadline was deleted from the second edition and the third edition contained the following subheadline: “Investigators finds [sic] rats, bugs at north-side eatery.” We do acknowledge that the headline as published is in bold type face and oversized and the subheadline, while smaller than the headline, is somewhat larger than the text of the article. 14 The subheadline’s reference to the discovery of rats in and of itself is not entirely accurate, but is at least substantially true. See infra Part A-2 for a discussion of this issue. 15 Jan Ashburn, a witness for Bandido’s, provided the following testimony when asked what he: reaction to the subheadline was: Uh, I was, uh, in shock and I was really upset thinking about rats. I envisioned rats running through. I envisioned sitting at a restaurant much like, uh, as I say in my deposition, I’ve done some, uh, quite a bit of traveling, so I envisioned some, some places that we have been in some third world countries where there was just, uh, you couldn’t eat a meal because of, ee ee App. 29 conclude that the subheadline was a fair index of the story. Consequently, we examine the subheadline inde- pendently to determine whether the subheadline is defamatory and actionable under libel principles. 1¢ A-2 To determine whether the subheadline is defamatory, we must decide whether the substitution of the word of the bugs and the filthy conditions. And so that’s what I, when I looked at the headline that’s what I envisioned. Was just completely filthy conditions. With rats, I equate rats with, with filth. _ (R. at 1991.) Beverly Zuber, another witness for Bandido’s, testified that when she read the subheadline, she “was appalled” and “imagined bowls [of] white rice and rats jumping from bowl to bowl.” (R. at 2014.) 16 We note that in Woodcock v. Journal Publishing Co., 230 Conn. 525, 646 A.2d 92, 106 (Conn.1994), the plaintiff alleged that a subheadline was libelous because it indicated that a developer who benefited by plaintiff’s proposal was a business associate whereas the truth was that the developer had a business relationship with other members of plaintiff’s family. The court determined that the inaccuracy was clarified in the first paragraph of the article and that although the subheadline mischaracterized the relationship between the plaintiff and the developer, it was “not libelous as a matter of law in view of the accompanying clarification.” Similarly, in Contemporary Mission, Inc. v. New York Times, Co., 842 F.2d 612, 624-25 (2d Cir.1988), a subheadline inaccurately stated that certain priests’ ordinations were forged when the truth was that the documentation Supporting the ordinations had been forged. The court determined that even though the subheadline mischaracterized the controversy, the subheadline was followed by the article which accurately clarified the subheadline and thus held that the statement was not defamatory. App. 30 “rats” for “rodents” was false. Webster’s New World Dictionary (3d ed.1988) defines rodent as “any of a very large order (Rodentia) of gnawing mammals including rats, mice, squirrels, beavers, et. [sic], characterized by —— constantly growing incisors adapted for gnawing or- nibbling; esp., in popular usage, a rat or mouse.” (emphasis added). Rat is defined as “any of numerous long-tailed rodents . . . , resembling, but larger than, the mouse; . . . rats are very destructive pests and carriers of highly contagious disease, as bubonic plague, typhus, etc.” As indicated by the definition, every rat is a rodent although every rodent is not necessarily a rat. Rodent is a more generic term whereas rat denominates a specific type of rodent. During trial, Bandido’s contended that if the headline had used the words “evidence of rodent droppings” instead of “rats,” there would be no dispute and the impact would not have been nearly the same.!7 (R. at 17 After an in depth cross-examination of Mr. Schindler, the owner of Bandido’s restaurant, regarding all the health violations of the restaurant in recent years and the other violations noted by the Board of Health in the September 13, 1988, inspection which discovered the evidence of rodent droppings, the following colloquy occurred: Q: Alright. Don’t you think, Sir, that those are all things that might influence whether or not people want to eat in a restaurant? A: I don’t think it would have near the impact as rat headline, if that’s the question. Q: So you think you’d been a lot better off if the headline wouldn’t sai -, would have said, inspectors find rodent droppings, roaches at local eatery? App. 31 1346.) During the direct examination of June Remley, author of the article and not the subheadline, Bandido’s had the witness agree that the word “rat” connotates dirtiness, filth, pestilence, disease, infection, and plague.’® (R. at 1609.)!9 We would agree that the word “rat” connotes such ideas and find that the definition of rat supports such a belief. However, we do not agree that use of the word “rat” is so distasteful that it created an impression that was so different than would have been created had the Journal-Gazette used the words “evi- dence of rodents” or “evidence of rodent droppings.” See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (providing that a “false” statement will have a different effect on the reader’s mind). One might say that the word “rat” is common usage for the more proper term “rodent” or that “rat” is often used in colloquial speech to refer to “rodent.”29 See A: Uh, they didn’t find it. It would be mis -, it would still be wrong. Read the report. On the back it says “evidence of”. They never found the first one. (R. at 1346.) ‘8 When asked whether she could think of anything by way of connotation from rat that is nice, June Remley responded, “Well, sir, I’m aware that some people do keep them as pets so in some circles they are considered very acceptable pets.” (R. at 1609.) 19 June Remley’s deposition was read into the record with another witness reading her responses. 20 We take judicial notice that the words “rats” and “rodents” are frequently used interchangeably. See, e.g., Lynn Snowden, Attack of the Giant Rats, George, July, 1998, at 90, 92 (“[C]onditions for rodents were so favorable that a rat blithely App. 32 Simonson v. United Press Int'l, Inc., 654 F.2d 478, 481, 482 (7th Cir.1981) (determining that “ ‘rape’ as defined by common usage is incorporated into second-degree sexual assault under Wisconsin law” and the publications “were in no manner made false by substituting the word in common usage for an exact legalism”) (footnote omitted); Orr v. Argus-Press Co., 586 F.2d 1108, 1112 (6th Cir.1978) (conceding that while use of the “word ‘swindle’ may imply more serious wrongdoing than was involved ..., the word is frequently used in colloquial speech as a substitute for ‘defraud’ ”). Clearly, if the subheadline had read “investigators find evidence of rodents,” the average reader would infer that there were rodents in the restaurant.2! Ordinarily, only two types of rodents are perceived as habitating in a restaurant — rats and mice. Thus, if the subheadline had used the words “evidence of rodents” and the average reader inferred from this that the restaurant contained rodents, then the average reader would just as likely wandered up to Mayor Rudolph Giuliani. . . . [T]he mayor announced the $8 million Comprehensive Rodent Control Initiative, an all-out war against rats.”). 21 See Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1073 (5th Cir.1987) (“In determining whether the gist and sting of a story is true, the court must view the story through the eyes of the average reader or member of the audience.”); Molin v. Trentonian, 297 N.J.Super. 153, 687 A.2d 1022, 1023 (N.J.Super.Ct.App.Div.1997) (In determining whether a statement is defamatory, one “must evaluate the language in question ‘according to the fair and na‘*»ral meaning which would be given it by reasonable persons of ordinary intelligence.’ ”) (quoting Herrmann v. Newark Morning Ledger Co., 48 N.J.Super. 420, 138 A.2d 61 (N.J.Super.Ct.App.Div.1958)). App. 33 conclude that there must be either mice or rats in the restaurant.*? We doubt that the use of the word “mice” in the subheadline would have been less damaging than use of the word “rats.”23 Additionally, we believe that had 2 During a deposition, one of Bandido’s witnesses stated that when she hears the term “rodents,” she thinks of rats. (R. at 2018.) Another Bandido witness stated during a deposition which was admitted at trial that when she sees the word “rodents,” she thinks of mice; however, even if the headline had used the word “rodents,” she still would not have gone back to the restaurant. (R. at 2024.) *3 At trial, Bandido’s admitted into evidence its October 18, 1988, letter to the Journal-Gazette expressing dissatisfaction with the Journal-Gazette’s fottow (1) full and fair retraction of any factual statement alleged to be false and defamatory was ~~ published in the regular issue of the newspaper or transmitted to its members or subscribers by the news service: (A) within three (3) days by a news service; App. 52 acted with actual malice. The Court of Appeals appro- priately noted that Indiana’s retraction statute does not place a duty upon the Journal-Gazette to publish a retrac- tion, but only permits a mitigation of damages if the Journal-Gazette had opted to print a retraction in accor- dance with the specification required in Ind.Code § 34-4-15-1. The Journal-Gazette did in fact publish an article correcting its inaccurate headline and apologized for its mistake. Although the correction did not meet the standards of the Indiana retraction statute, we do not find such failure dispositive of the issue of actual malice. In New York Times, 376 U.S. at 286, 84 S.Ct. 710, after stating that the failure to retract is “not adequate evi- dence of malice for constitutional purposes,” the Court left open the question of “[wJhether or not a failure to retract may ever constitute such evidence.” Since New York Times, some courts have determined that the failure to retract is not sufficient proof of actual malice whereas other courts have found that a retraction negates proof of actual malice. See Zerangue, 814 F.2d at 1071 (“[RJeadiness (B) within five (5) days, if the newspaper is a daily publication; or (C) within ten (10) days, if the newspaper is a weekly publication; after the mistake or misapprehension was brought to the knowledge of the publisher or bureau chief; and (2) the retraction was published in as conspicuous a place and type as the original item appeared in the newspaper or was transmitted by a news service to all members or subscribers to whom the original item was transmitted. App. 53 to retract tends to negate ‘actual malice.’ ”); Hoffman v. Washington Post Co., 433 F.Supp. 600, 604 (D.D.C.1977) (Publication of a retraction of the indisputably inaccurate statement is “significant and tends to negate any infer- ence of actual malice.”), aff'd, 578 F.2d 442 (D.C.Cir.1978); Trans World Accounts, Inc. v. Associated Press, 425 F.Supp. 814, 823 n. 6 (N.D.Cal.1977) (Publication of a retraction “may create a large obstacle to plaintiff's efforts to prove actual malice.”); Gonzales v. Hearst Corp. 930 S.W.2d 275, 277 (Tex.Ct.App.1996) (“Refusal to print a retraction is evidence of an action after the publication, but it can lend support to a claim that reckless disregard of knowledge existed at the time of publication.”) (emphasis in origi- nal). Under the circumstances of this case, because the Journal-Gazette has admitted without hesitation from the very beginning that it made a mistake and because it printed a correction story the next day along with an apology, albeit not in compliance with the retraction stat- ute, we find the refusal to print a headline retraction not to be sufficient proof of actual malice.3 © During trial, the Journal-Gazette claimed that its decision not to print a retraction pursuant to the statute was based on its understanding that at least Bandido’s first attorney was satisfied with the follow-up story. We make no comment on the reasonableness of the justification provided by the Journal- Gazette. See Connelly v. Northwest Publications, Inc., 448 N.W.2d 901, 905 (Minn.Ct.App.1989) (A failure to retract is not probative evidence of actual malice but instead is evidence that the publisher reasonably believed that the plaintiff had not been defamed.). App. 54 F Lastly, Bandido’s argues that the fact that the inaccu- rate subheadline appeared in the first edition, was removed from the second edition, and then revised and added back into the third edition is proof of actual mal- ice. We attach no significance to the deletion of the sub- headline in the second edition. Publishing the sub- headline in all editions would be more probative of malice. In any event, Leonard testified that he was unaware of who made the decision to delete the sub- headline from the second edition.%” Leonard also testified that he requested a change be made from the first to the third edition. Leonard asked that “local eatery” be changed to “north-side eatery” because he wanted to make a distinction since he “was aware that Bandido’s had three restaurants” and wanted the “readers to know that it was not the entire chain.” Although Leonard requested the change, he did not re- write the headline. The subheadline in the third edition was also altered from the first edition in that the word “inspector” was substituted for “investigator” and the word “bugs” was substituted for “roaches.” Leonard pro- vided no explanation for these changes. Pinkley testified, “Well, I believe if you look at the second line, north side 37 The Court of Appeals noted that a “plausible explanation is that the item was not as newsworthy in areas serviced by the second edition.” Bandido’s, 672 N.E.2d at 974. We find that another plausible explanation may be that there was less space to publish the article in the second edition and thus the subheadline was removed to make the article fit. App. 55 takes up more room than local, so roaches was shortened to bugs.” (R. at 2508.) She did not explain why “inspec- tors” was changed to “investigators,” but when asked if there wasn’t enough room for rodents on the first line of the subheadline, she responded, “No, Sir, my testimony is, I looked at the word “rodent” .. . “rodent droppings” and I wrote the word “rats.” (R. at 2508.) We do not find these changes in any way indicative of malice. Nothing about them suggests that either Pinkley or Leonard were aware or had become aware of the inaccuracy in the subheadline. Neither change required that the article be re-read and neither Pinkley nor Leonard testified that they re-read the article before revising the subheadline Conclusion Having previously granted transfer, we adopt Aafco and hold that both private individuals and public figures must prove actual malice to recover in a defamation suit involving matters of public or general concern. We also hold that Bandido’s has failed to prove that Journal- Gazette acted with actual malice and hereby reverse the judgment of the trial court. ~~ SELBY, J., concurs. BOEHM, J., concurs with separate opinion. SHEPARD, CJ., dissents with separate opinion in which DICKSON, J., concurs. DICKSON, J., dissents with separate opinion in which SHEPARD, C_J., concurs. BOEHM, Justice, concurring. App. 56 For the reasons set forth in Justice Sullivan’s opinion, | agree that the free flow of ideas and information requires giving the press considerable latitude in report- ing on matters of public concern. Specifically, I agree that the “actual malice” standard should be applied to reports on matters of public concern, and that clear and convinc- ing evidence should be required for a defamation recov- ery on a matter of public concern. I agree that this standard should apply to discourse on matters of public concern irrespective of the characterization of the plain- tiff as a public or private figure. In the vast majority of cases involved, it may make little practical difference whether this higher standard is based on the activity rather than the persons because a matter of public con- cern seems to generate a finding of public or “quasi public” figure. Nevertheless, in considering the extent to which we should tip the scales in favor of free expression, I believe it is helpful to think in terms of the activity rather than the persons involved. Finally, I agree with Justice Sullivan that the fair index test, generously con- strued, is the proper standard for evaluating a headline. I reach all of these conclusions purely as a matter of Indiana defamation law. I agree with Justice Sullivan that this case can be resolved under existing federal constitu- tional precedent and that this analysis produces the same result as I reach under state law and the Court of Appeals reached under Aafco Heating & Air Conditioning v. North- west Publications Inc., 162 Ind.App. 671, 321 N.E.2d 580 (1974). I do not agree with Justice Dickson that the avail- ability of a federal constitutional resolution renders it inappropriate to express an opinion on these state law issues. To the contrary, I believe this Court should first eT ENE s ae SE EST Ne App. 57 address the state law issues. In my view their resolution disposes of this case consistent wii): justice Sullivan’s opinion. However, I disagree with Jue Sullivan’s anal- ysis in some respects. The “Fair Index” Test First, I would conclude that the “fair index” test is met on the facts of the case. The fair index test requires a court to determine whether the headline fairly indicates the substance of the matter to which it refers. Maj. op. at 458 (quoting Burgess v. Reformer Publishing Corp., 146 Vt. 612, 508 A.2d 1359 (Vt.1986)). The substance of the article was that the restaurant had been ordered to close because of health concerns including “evidence of insects and rodents.” The subheadline read: “Inspectors find rats, roaches! at local eatery.” In my view, giving reasonable license to editorial choice of words, this subheadline fairly captured the topical sentence of the article and that is the end of the analysis.2 ' Another edition used “bugs” instead of “roaches.” * The conclusion that this headline meets the fair index test is supported by application of the test in other cases. Compare Hein v. Lacy, 228 Kan. 249, 616 P.2d 277 (Kan.1980) (headline that Senator Hein voted to “legalize homosexuality” accurately reflected the content of the text where Hein had voted to remove the “legal prohibition of consensual homosexual relationships”) with Burgess, 508 A.2d at 1359 (headline “Grand Jury Probes Embezzlement: Burgess denies getting funds” failed the fair index test because it conveyed the false impression that Burgess was being investigated by a grand jury when in fact he was only a witness). App. 58 The Meaning of “Actual Malice” and “Reckless Disre- gard” Even if the headline were not a fair index of the article, I agree that Bandido’s failed to demonstrate that the paper acted with actual malice. I reach that conclu- sion under state law alone, applying the clear and con- vincing evidence standard. For the reasons Justice Dickson explains in Part B.5. of his dissent, state law should adhere to the conventional standard of appellate review of jury verdicts. Applying that standard, I none- theless agree with Justice Sullivan’s ultimate resolution of this case. The Journal Gazette may properly adopt an internal rule that headlines should be comprised of terms taken from the story, but failure to observe that guideline is not in itself evidence of malice or reckless disregard for the truth. To the contrary, in my view a headline writer’s translation of “rodents” to “rats” does not by itself come close to supporting a finding of actual malice. I base that conclusion not on the testimony of the headline writer but on ordinary usage. As a matter of law some latitude in choice of language is required and substitution of rats for rodents in this context is within that permissible range. I also write separately to make clear my view that Indiana law need not parallel federal public figure law in all respects. The federal constitution may require a higher degree of malice for claims by a public official or public figure. However Gertz v. Welch, 418 U.S. 323, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), explicitly gives the states latit [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0079%3A1. Public record. Not legal advice.