Journal-Gazette Co. v. Bandido's, Inc.

712 N.E.2d 446, 27 Media L. Rep. (BNA) 2089, 1999 Ind. LEXIS 409, 1999 WL 418697

• Court: Indiana Supreme Court
• Decided: June 23, 1999
• Docket: 57S03-9709-CV-495
• Status: Published

Opinions

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 reputations, the Court of Appeals determined that Bandido’s failed 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 individuals 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 á health inspection of the north-side Bandido’s in Fort Wayne. In the report, the inspector identified several violations and made the following relevant 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 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 October 5, 1988, to Mr. Schindler, Dr. Irmscher, the Commissioner for 'the Board of Public Health, stated, “This permit was revoked after a full and complete hearing and review of all food inspections for 1988.”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 Garner. 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. Pinkley’s responsibility was to do a final edit of the story which required a word for word, line by line read. Pinkley’s job was also to make any necessary changes to meet the spacing guidelines. Finally, Pinkley wrote the headline and the subh’eadline which are at issue in this case. The story with the headline was then submitted to Pinkley’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 headline accurately summarized the story. The story then went to the Managing Editor, Ellen Garner.¹ 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, and the headline read:²

Health board shuts doors of Bandido’s Inspectors find rats, roaches at local eatery

While the story itself was accurate, the sub-headline inaccurately 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 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 correction 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, Ban-dido’s new attorney, sent the Journal-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 Ban-dido’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 determined that there were facts in dispute and conflicting 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 freedom of the press.⁴ It “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”⁵ New York 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 . The First Amendment has particularly protected the press because it is the means through which the public is informed of government actions and other matters of public interest. However, 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 interest in protecting attacks upon individual reputation, the law of defamation was created. A defamatory communication is defined as one that “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”⁶ 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. 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 pi’oves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80, 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 Rosen-bloom Court determined that the controlling issue in determining' when the New York Times standard of actual malice applied was whether the issue concerned a matter of public or general concern. Rosenbloom, 403 U.S. 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 reconsidered 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 individuals in federal court, but left it up to States to define for themselves the appropriate standard of liability for defamatoiy 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 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). 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 public or general 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 adopted by the Court of Appeals, this is our first opportunity to address the standard of liability required for private individuals claiming defamation.

I

Today, we expressly adopt the Aafco approach establishing an actual malice standard in matters of public or general concern for private individual plaintiffs.⁷ 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 place a high value on adherence to precedent as a primary instrument in providing the people of our state a predictable body of law.⁸ 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 586-87 (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 individuals and an actual malice standard to public figures “assumes that society has a greater interest in protecting ‘private’ reputation than safeguarding the community standing and repute of ‘public officials’ and ‘public figures.’ ” Id. at 587. 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 merit the same quantum of protection as those of private citizens.” Id.

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 statements.” 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 commend media attention which will provide a meaningful chance to rebut and defend against defamatory falsehood. Even in the rare ease where an adequate opportunity for reply is afforded, it is unlikely that the rebuttal statements 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 “public” 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).

Third, we do not find that public figures’ voluntary exposure to public scrutiny necessarily entitles non-public figures to greater protection from defamation.

The argument that public officials and public figures assume the risk of defamation by voluntarily 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 Rosen-bloom 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 distinction could easily produce the paradoxical result of dampening discussion of issues of public or general concern because they happen to involve private citizens while extending constitutional encouragement to discussion of aspects of the lives of “public figures” that are not in the area of public or general concern.

Rosenbloom, 403 U.S. at 48, 91 S.Ct. 1811.

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 reputations, 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 individuals likely would require the news media to censor stories 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. (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

For all of the foregoing reasons, we adopt the rule in Aafco and hold it to be the law in Indiana.

II

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. “General 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 (5th 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] themselves to the forefront of particular public controversies 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 limited-purpose public figure, and Bandido lodged no objection to this characterization.¹⁰ Given that no objection was made, we find this instruction to be binding on Bandido’s and sufficient to establish its status as a limited-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. 233, 390 S.E.2d 228, 230 (1989); Greer v. Columbus Monthly Publ’g Corp., 4 Ohio App.3d 235, 4 O.B.R. 426, 448 N.E.2d 157, 162 (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 restaurant.

Ill

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 reasonable 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.¹¹

In New York Times, the United States Supreme Court determined that because proof of actual malice was required for libel actions brought by public official plaintiffs, 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 following comments:

This Court’s duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across “the line between speech unconditionally guaranteed and speech which may legitimately be regulated.” In cases where that line must be drawn, the rule is that we “examine for ourselves the statements in issue and the circumstances under which they were made to see ... whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.” 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 Rosenbloom, 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 judgment 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)). “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 examination 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. Sullivan is a rule of federal constitutional law. It emerged from the exigency of deciding concrete eases; it is law in its purest form under our common law heritage. It reflects a deeply held conviction that judges — and particularly Members of this Court — must exercise such review in order to preserve the precious liberties established and ordained by the Constitution. The question whether the evidence in the record in a' defamation ease is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact. Judges, as expositors of the Constitution, 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 principle 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 constitutional law in defamation cases.

IV

In the final part of our analysis, we must review the evidence to determine whether there was sufficient evidence to support a finding of actual malice. We hold that the evidence was insufficient.

Actual malice must be shown by clear and convincing 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 exists when the defendant publishes a defamatory statement “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]eekless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.” St. Amant, 390 U.S. at 731, 88 S.Ct. 1323. To demonstrate reckless disregard, “[t]here must be sufficient evidence to permit the conclusion that the defendant 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 Communications, 491 U.S. at 668, 109 S.Ct. 2678.

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 Communications, 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 commitment 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 considered 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 inspection reports might result in improper inferences or interpretations 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 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 possessing 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 statement 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 produce a different effect on the audience than would have been produced had the literal truth been spoken.”); 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.”); McIlvain 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 [plaintiffs] 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 subheadline and the article should be read together or independently 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 unsupported in the body of the story, both headlines and story should be considered together for their total impression. However, where oversized 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 demonstrate that it was the intent of the publisher to 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 (1997) (citing cases). However, there are some jurisdictions 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 (1986); Schermerhorn v. Rosenberg, 73 A.D.2d 276, 426 N.Y.S.2d 274, 283 (1980); Hein v. Lacy, 228 Kan. 249, 616 P.2d 277, 286 (1980); Bray v. Providence Journal Co., 101 R.I. 111, 220 A.2d 531, 535 (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 (1956)), and that “[although ‘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 publication,’” id. (quoting Schermer-horn, 426 N.Y.S.2d at 283 (second alteration in original));¹² see Reardon v. News-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 follow 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 defamatory 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 defamatory headline will be actionable even if the story following 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.

The headline in this case read: “Health Board Shuts Doors of Bandido’s” and the subheadline read: “Inspectors find rats, roaches at local eatery.”¹³ One interpretation, 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 rats¹⁴ and roaches (or bugs) and in addition, conjures up a depiction of the restaurant which is not entirely accurate.¹⁵ As such, we are hard pressed to conclude that the subheadline was a fair index of the story. Consequently, we examine the subheadline independently to determine whether the subheadline is defamatory and actionable under libel principles.¹⁶

A-2

To determine whether the subheadline is defamatory, we must decide whether the substitution of the word “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, etc., 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.” Id. 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.¹⁷ (R. at 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” connotes dirtiness, filth, pestilence, disease, infection, and plague.¹⁸ (R. at 1609.)¹⁹ 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 “evidence 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.”²⁰ See 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.²¹ Ordinarily, only two types of rodents are perceived as habi-tating 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 conclude that there must be either mice or rats in the restaurant²² 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 the Journal-Gazette used the word “rodents” in the subheadline, it would have created substantially the same effect on a reader as was created with use of the word “rats.”²⁴ Either way, readers would have perceived Bandido’s as an unsanitary, dirty restaurant. See, e.g., Woodcock v. Journal Publ’g Co., 230 Conn. 525, 646 A.2d 92, 106 (1994) (“[T]he absolute truth — that [the developer] was a business associate of other members of the plaintiffs family, rather than of the plaintiff herself — would have had the same effect on the reader as the inaccurate subheadlines” in that “[ejither way, the reader would have perceived that the plaintiff had a conflict of interest.”); Ze-rangue, 814 F.2d at 1074 (In citing to numerous cases where a publisher had printed an inaccurate but substantially true article, the court determined that the “common thread” running through the cases was that while the defendant newspaper reported the substance of the criminal proceedings, the defendant erred in the use of legal terminology and that the average person would likely characterize the mistakes as a “technicality” and if the story had been free of error, the plaintiffs “would have been exposed to roughly the same amount of community opprobrium.”). While admittedly the word “rat” conjures up more bad connotations than “mice” does (or “rodents” for that matter), the sting of this inaccuracy was sufficiently similar to the gist of the truth — Bandido’s was closed and the inspectors did find evidence of rodents and evidence of rodent droppings in the restrooms. See Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir.1993) (“The falsity of a statement and the defamatory ‘sting¹ of the publication must coincide — that is, where the alleged defamatory ‘sting’ arises from substantially true facts, the plaintiff may not rely on minor or irrelevant inaccuracies to state a claim for libel.”). In this respect, we believe the inaccuracy did not create a falsehood, but rather was substantially true.

Whatever distinction one might draw between a rat and rodent, we believe the difference “fits easily within the breathing space that gives life to the First Amendment.” Bose Corp., 466 U.S. at 513, 104 S.Ct. 1949. Even if we were to assume that the inaccuracy conceded to by the Journal-Gazette created a falsehood, “[s]ome degree of abuse is inseparable from the proper use of everything; and in no instance is this more true than in that of the press.” Gertz, 418 U.S. at 340, 94 S.Ct. 2997. “The First Amendment requires that we protect some falsehood in order to protect speech that matters.” Id. at 341, 94 S.Ct. 2997. “ ‘[T]o insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.’” Rosenbloom, 403 U.S. at 51-52, 91 S.Ct. 1811 (quoting St. Amant, 390 U.S. at 732, 88 S.Ct. 1323 (alteration in original)).

All that being said, we do not rest our decision in this case on the basis that the subheadline was substantially true. See St. Amant, 390 U.S. at 730-31, 88 S.Ct. 1323 (“ ‘Reckless disregard,’ it is true, cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law.”). For this reason, we examine the evidence which Bandido’s contends proves that the Journal-Gazette published the sub-headline with actual malice.

B

Bandido’s most compelling piece of evidence that the Journal-Gazette acted with actual malice is the Journal-Gazette’s use of the word “rats” instead of “rodents” in the subheadline. Bandido’s contends that because the word “rats” does not appear in the article, the mere fact that the word “rats” was erroneously used in the subheadline was more than an extreme departure from normal professional standards and in fact is indicative of actual malice.²⁵ We disagree with Bandido’s.²⁶

Contrary to Bandido’s assertion, “[m)alice cannot be deduced from the mere fact of publication alone.” LaBruzzo v. Associated Press, 353 F.Supp. 979, 985 (W.D.Mo. 1973) (citing Hurley v. Northwest Publications, Inc., 273 F.Supp. 967 (D.Minn.1967)). Consequently, Bandido’s cannot rely solely on the fact that there is a variance between what the article reported the health inspector found and what the Journal-Gazette printed in the subheadline as proof of actual malice. See Hodges v. Oklahoma Journal Publ’g Co., 617 P.2d 191, 196 (Okla.1980) (“[W]here there was no evidence that the publisher intended or was aware of a potentially defamatory meaning of an article, which meaning was admittedly at variance with the known truth, ‘malice’ as required by New York Times ... could not be inferred.”) (citing Tilton v. Cowles Publ’g Co., 76 Wash.2d 707, 459 P.2d 8 (1969)). As suggested supra,' Bandido’s must show that the Journal-Gazette was aware of the inaccuracy at the time of publication or had serious doubts as to its accuracy. Bandido’s has failed in this regard.

During trial, Sheila Pinkley, the author of the headline, testified that she thought the headline was accurate.²⁷ ■ She stated, “Well, at the time I thought it was accurate. A rat is a rodent. Um, if I would have just said rodent, that would have been accurate. So, to me, a rodent suggested rat. And it, that is why I wrote the word ‘rat.’ ” (R. at 2478.) There was no other evidence reflecting Pinckle/s state of mind or whether she “entertained serious doubts as to the truth of the headline” or had a “high degree of awareness” of the headline’s probable falsity. Our research has revealed several cases in which courts have determined that use of an inaccurate word as a result of a misconception or poor interpretation is not actual malice. We find the following cases particularly instructive.

In Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971), a news magazine reported on the Commission on Civil Rights Report entitled “Justice.” A part of the Commission’s Report described an alleged incident of police brutality. When the magazine published an article, it quoted the summary of the complaint but left out the word “alleged.” This created the impression that the facts described in the Commission’s Report were indeed true. Id. at 282-83, 91 S.Ct. 633. The detective who was the target of the police brutality complaint filed a libel suit. The author of the article testified that he knew the meanings of the words “alleged” and “complaint” and the researcher testified that she was aware of the omission of the word “alleged” in the article, but believed the article to have been true as written. Id. at 283, 91 S.Ct. 633. The Supreme Court determined that under the totality of the circumstances, the failure to mention that the incident described in the Commission’s Report was based on an allegation was not a “falsification” sufficient to sustain a jury finding of “actual malice.”²⁸ Id. at 289, 91 S.Ct. 633. The Court continued by stating that “Time’s omission of the word ‘alleged’ amounted to the adoption of one of a number of possible rational interpretations of a document that bristled with ambiguities. The deliberate choice of such an interpretation, though arguably reflecting a misconception, was not enough to create a jury issue of ‘malice’ under New York Times.” Id. at 290, 91 S.Ct. 633. “We have held that if ‘the freedoms of expression are to have the breathing space that they need ... to survive,’ misstatements of this kind must have the protection of the First and Fourteenth Amendments.” Id. at 292, 91 S.Ct. 633 (quoting New York Times, 376 U.S. at 271-72, 84 S.Ct. 710) (internal quotation marks omitted).

In Bose Corp. v. Consumers Union of United States, Inc., an engineer for a consumer product testing organization prepared a report on a loudspeaker system suggesting that instruments had a tendency to “wander about the room.” 466 U.S. at 493, 104 S.Ct. 1949. At trial, it became clear that what the engineer really perceived was that the sound wandered “along the wall,” although the engineer refused to admit that there was any inaccuracy in his description.²⁹ The trial court concluded that it was impossible “to believe that [the engineer] interprets a commonplace word such as ‘about’ to mean anything other than its plain ordinary meaning.” Id. at 487, 104 S.Ct. 1949. Relying on Time, Inc., v. Pape, the Bose Court determined that the engineer’s “choice of such language, though reflecting a misconception, does not place the speech beyond the outer limits of the First Amendment’s broad protective umbrella.” Id. at 513, 104 S.Ct. 1949. The Court additionally stated that this case “represents the sort of inaccuracy that is commonplace in the forum of robust debate to which the New York Times rule applies.” Id.; see Chester, 553 N.E.2d at 140 (A negligent interpretation of public records or misconstruction of a statement from a person interviewed falls short of the constitutional requirement of actual malice.).

The circumstances in Schwartz v. Worrall Publications, Inc., 258 N.J.Super. 493, 610 A.2d 425 (1992),³⁰ are somewhat similar to the circumstances of the case at hand. In Schwartz, a reporter wrote a story on the investigation of a school board association. After completing the story, the reporter left it with the copy editor and then left town. The copy editor found the article to be confusing and after reading it several times, thought he “knew what [the writer] was trying to say.” Id. at 427. The editor revised the article in the mistaken belief that the attorney of the school board association was the target of the investigation. The editor provided the following, explanation:

I was under the assumption that because there was a local angle, that the reason the story was being written was that the local person was the gist of the story.... I was confused. So in my confusion, I saw a local person; and I assumed that oh, this local person must be the primary focus of the story and I was trying to simplify it.

Id. The editor never spoke with the writer during the editing process even though there was opportunity to do so and also did not have access to the information upon which the writer relied in drafting the story. The court determined that a review of the record revealed “no indication that anyone at [the newspaper] knew that the facts being published were false.” Id. at 429. Additionally, the court commented that while the record ‘“would justify a finding of an irresponsible and uncaring attitude on [the newspaper’s] part,” id., this was not the same as reckless disregard, since there must be clear and convincing proof that the statements, were published with a “high degree of awareness of their probable falsity,” or with “serious doubts as to the truth of [the] publication,” id. at 430 (citations omitted) (alteration in original).³¹

In Woodcock v. Journal Publishing Co., 230 Conn. 525, 646 A.2d 92, 98 (1994), a newspaper printed an inaccurate subhead-line. The subheadline read: “Developer claims Woodcock aim to aid business associate.” Id. at 95. The author of the article admitted that this statement was inaccurate, but that he did not write the subheadline. He also testified that “the author of the subheadlines could conclude that they were accurate because of the reference in the story to ... business connections with the Woodcock family.” Id. at 98. The court concluded that “[b]ecause the record fails to reveal anything that would have caused the author of the subheadlines to ‘[entertain] serious doubts as to the truth of [the subhead-lines]’; we cannot say that it has been demonstrated with convincing clarity that the subheadlines were-prepared or printed with actual malice.” Id. (citation omitted) (second and third alterations in original). Additionally, the court commented that the “most that can be said of the inaccurate subheadlines is that the defendants were negligent in their preparation and publication.” Id. “ ‘[A] merely negligent misstatement of fact about a public official retains the constitutional protection afforded free expression.’ ” Id. (quoting Holbrook v. Casazza, 204 Conn. 336, 528 A.2d 774, 779 (1987)).

We similarly believe that while the Journal-Gazette may have exhibited an “irresponsible and uncaring attitude” in meeting its goal of accuracy, the evidence did not demonstrate awareness of the inaccuracy in the subheadline. Pinkley (author of the headline) testified that she spent “ten minutes tops” reading the article prior to writing the headline. She stated that “[w]hen I wrote the headline, I considered them to be accurate.” (R. at 24-25.) “I looked at the words rodent droppings and I came up with rats.” (R. at 25.) This evidence indicates nothing more than a misconception. Bill Leonard who was Binkley’s supervisor and responsible for checking the accuracy of her work testified that when editing the story, he did not read it line by line, word for word. He relied on the copy editor, Pinkley, to do those kinds of edits. Leonard also testified that “[t]here was nothing on this story that told me that I should, you know, that we were doing anything wrong in terms of the accuracy or anything. As far as I knew the story was accurate and the headline was accurate.” (R. at 42-53.) Leonard also said that he did not observe that the word “rats” did not appear in the story. (R. at 58.) This evidence, while clearly indicating that the Journal-Gazette was careless and negligent, was not indicative of actual malice. Additionally, the article and headline was read by at least three other employees before being published and there is no evidence suggesting that any of these employees had serious doubts about the accuracy of the subheadline or that they were aware that the word “rats” did not appear in the story. While the chances of this mistake occurring after five people had reviewed the story suggests serious quality control concerns, it alone is not sufficient to support a finding of actual malice.³² See Chester, 553 N.E.2d at 140 (“ ‘The publisher who maintains a standard of care designed to avoid knowing or reckless falsehood must be accorded sufficient assurance that those factual errors which nonetheless occur will not expose him to indeterminate liability.’ ”) (quoting Aafco, 321 N.E.2d at 591).

c

Bandido’s contends that the Journal-Gazette’s failure to heed Judge Sheldon’s warning about the dangers inherent in misinterpreting the inspection reports suggests that the Journal-Gazette acted with actual malice. Our review of the record indicates that Ban-dido’s has misinterpreted Judge Sheldon’s findings of fact and conclusions of law.

Prior to 1988, inspection reports prepared by the Board of Health were not accessible by the general public in Fort Wayne-Alien County. In order to obtain access to the Food Establishment Inspection Reports, the Journal-Gazette filed a lawsuit against the Board of Health arguing that the reports were public records to which the newspaper was entitled. Journal-Gazette Co. v. Fort Wayne-Allen County Bd. of Pub. Health, No. 02D01-CT-8802-302 (Allen Sup.Ct. filed Feb. 26, 1988). On March 1, 1988, Judge Sheldon conducted a hearing in connection with the Journal-Gazette’s application for a Preliminary Injunction and Order of Mandate requesting the Board of Health to disclose certain public records. The court ordered the Fort Wayne — Allen County Board of Public Health to disclose all records dealing with the inspection of Allen County restaurants and food establishments because such records were public records within the meaning of Ind.Code § 5-14-3-1 et. seq. (R. at 17Ó2.) The court made the following relevant findings which Bandido’s interprets as a warning:

There is no question in the Court’s mind that the Defendant, Fort Wayne — Allen County Board of Public Health, in denying disclosure, acted in good faith and pursued an established policy it had adopted many years ago. Nearly all its concerns, which it suggested were the basis for its policy, were reasonable. For example, there is a possibility that public disclosure of the inspection reports might result in improper inferences or interpretations as to the seriousness of the violations noted. However, such policy considerations clearly fall outside the exceptions to disclosure authorized in Section 4 of the Access to Public Records Act.

(R. at 1702.) (emphasis in original). We view these findings to be neither a warning nor the opinion of the court, but instead a recitation of the Board of Public Health’s policy reason for not disclosing its inspection re-r ports. Even if were to assume for the sake of argument that this was a warning to the Journal-Gazette, such warning reveals nothing with respect to the newspaper’s state of mind when the headline was published. Indeed, Pinkley testified that she never participated in any discussions at the Journal-Gazette relating to the standard of care to be used when dealing with matters concerning restaurants and Board of Public Health inspection reports. Craig Klugman, a news editor, testified that Pinkley was never given any directions or precautions to be taken when dealing with Board of Public Health inspection reports of restaurants. The record also indicates that Leonard was never advised of any limitations, or cautions, that the Journal-Gazette allegedly received from Judge Sheldon. Leonard also testified that he did not give the story more careful consideration than any other story and did not take special precautions to insure that the word “rats” appeared in the story. Cf. McDowell v. Paiewonsky, 769 F.2d 942, 951 (3d Cir. 1985) (Where among other things, plaintiff claimed actual malice existed because “several people apparently warned, defendant to check his facts before making his broadcasts,” the court stated that defendant’s “failure to verify his facts may have been negligent, but does not rise to the level of actual malice.”) (emphasis added). Similarly, even if the court’s statements can be construed as a warning, the Journal-Gazette’s failure to check more thoroughly the accuracy of its headline did not rise to the requisite level of actual malice.

D

Bandido’s also contends that job evaluations of Pinkley and Leonard indicate that the newspaper acted with actual malice. At trial, Bandido’s introduced the job evaluations of both Pinkley and Leonard. A job evaluation of Pinkley provided the following relevant information:

While you can write an excellent feature headline, news headlines remain your weak area. You are prone to overuse cliches, and the tone of some headlines comes uncomfortably close to slang (“folks” should be used rarely, for instance). Bill has worked with you on these points and reports some improvement, but your headline performance lacks consistency. There have been instances when you’ve produced inaccurate heads — and this is something we just can’t have. For instance, on a story about the Boeing jet that lost part of its roof over the Pacific, you referred to a jet “crash.” That flight did not crash. You are very responsive to redoing a head when you are asked, but you need to work on accuracy and tone in the next review period. Please don’t lose your lovely touch for feature heads, however — especially the heads you give to newsmaker stories. Those heads are superb examples of good headline writing.

(R. at 1625.) A performance review of Leonard was also introduced at trial because of its reference to Pinkley. The following statements are relevant:

You have done good work in the past year in the development of several of the new copy editors. Now its time to concentrate on Sheila [Pinkley], giving her one-on-one feedback sessions at least three times a week. She has potential and needs a guiding hand, particularly in headline writing. Despite all the successes in the headline area, there are still headlines that are vague, off-target or inappropriate.[³³] Sometimes those heads appear when you are in slot; more often they appear on your days off....

(R. at 1632.)

Bandido’s contends that this circumstantial evidence reflecting Pinkley’s difficulties in writing accurate headlines suggests that the newspaper acted with actual malice when it allowed the headline to be printed. Although not stated in Bandido’s brief, we assume based upon the direct examination of Leonard at trial, Bandido’s argument is that Leonard acted with actual malice by failing to check more thoroughly Pinldey’s work. In other words, since Leonard was at least aware of Pinkley’s alleged problem with writing inaccurate headlines,³⁴ Bandido’s contends that Leonard was on notice and should have taken more care in reviewing her work, rather just relying on Pinkley to do her job.

We disagree with Bandido’s that this circumstantial evidence rises to the level of actual malice. In Washington Post Co. v. Keogh, 365 F.2d 965, 971 (D.C.Cir.1966), an allegedly defamed politician filed an affidavit containing a series of excerpts from various magazine and newspaper articles attempting to demonstrate that the author’s “ ‘reputation for accuracy and veracity¹ was such ‘that mere reliance upon his word is grossly negligent and reckless.’ ” Id. at 969. The newspaper employees filed affidavits indicating there was no evidence causing them to suspect the information contained in the article to be false. Id. The court found the unim-peached newspaper employee depositions dispositive that no genuine issue of facts existed that the article was published with actual knowledge of falsity. Additionally, the court stated that

[pjroof of isolated instances of inaccuracy, therefore, in a 35-year career during which [the author] has published well over 10,000 columns, cannot be accorded significance, since the relevant rule of law contemplates that “erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the breathing space they need to survive.”

Id. at 971-72 (quoting Garrison, 379 U.S. at 74, 85 S.Ct. 209 (omission in original)). Similarly, we find Pinkley’s isolated instances of inaccuracy not to be indicative of whether she was aware of the inaccuracy at the time she wrote the subheadline. Additionally, even if Leonard was aware of Pinkley’s suggested problem of writing inaccurate headlines, his decision to rely on her work without checking it more carefully is at most negligent.

E

Bandido’s argues that the Journal-Gazette’s failure to retract the subheadline in the manner prescribed by Ind.Code § 34-4-15-1(1988)³⁵ suggests the Journal-Gazette acted with actual malice. The Court of Appeals appropriately noted that Indiana’s retraction statute does not place a duty upon the Journal-Gazette to publish a retraction, but only permits a mitigation of damages if the Journal-Gazette had opted to print a retraction in accordance 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 evidence of malice for constitutional purposes,” the Court left open the question of “[w]hether 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 (“[R]eadiness 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 inference 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 plaintiffs 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 original).

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 statute, we find the refusal to print a headline retraction not to be sufficient proof of actual malice.³⁶

F

Lastly, Bandido’s argues that the fact that the inaccurate 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 malice.

We attach no significance to the deletion of the subheadline in the second edition. Publishing the subheadline 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 subhead-line from the second edition.³⁷

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 provided no explanation for these changes. Pinkley testified, “Well, I believe if you look at the second line,'north side takes up more room than local, so roaches was shortened to bugs.” (R. at 2508.) She did not explain why “inspectors” 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, C.J., dissents with separate opinion in which DICKSON, J., concurs.

DICKSON, J., dissents with separate opinion in which SHEPARD, C.J., concurs.

1 . Ordinarily, Sylvia Smith'worked as the Managing Editor but was off that evening.

2 . 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.”

3 . 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.)

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.

5 .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, "[fjreedom of speech also acts as a safety valve, reducing the 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.

6 . “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 (1947)).

7 . 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.” Bandidos, 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 public or general 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 Bandi-do’s is a limited-purpose public figure and Ban-dido'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.

8 . 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.”).

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 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. Not 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) (alteration added).

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 of public interest at least for the purpose of the statements at issue.” (R. at 850.)

11 . 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.

12 . The Burgess court álso 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 (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 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)).

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 subhead-line: “Investigators finds 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 her 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, 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 sub-headline, 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 (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 subhead-line 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.

17 .After an in depth cross-examination pf 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?

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.

os at 1346.)

18 . 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]on-ditions for rodents were so favorable that a rat blithely 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 (1997) (In determining whether a statement is defamatory, one "must evaluate the language in question ‘according to the fair and natural 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 (1958)).

22 . 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's 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.)

23 . At trial, Bandido's admitted into evidence its October 18, 1988, letter to the Journal-Gazette expressing dissatisfaction with the Journal-Gazette’s follow-up correction story. In the letter, Bandido’s alleged that if the Journal-Gazette had interviewed inspectors at the Board of Health, it would have discovered that "as a matter of course, use of the term ‘rodents' means ‘mice’ and use of the term ‘rats' means ‘rats.’ " (R. at 1272.) At trial, Bandido's often used the words "rodent” and "mice” interchangeably, (R. at 1450), and even tried to elicit testimony suggesting that a headline using the word "mice” would have been far less damaging. (R. at 1227.) Ban-dido’s called the health inspector who observed the Bandido’s restaurant on October 4, 1988, in order to gather information for the revocation hearing testified at trial. The inspector testified that before inspecting Bandido’s, she reviewed the September 13, 1988, health inspection report which noted the discovery of "evidence of rodent droppings” and talked with the inspectors who did the report. The conversation revealed that the rodent droppings were small and indicative of mouse droppings instead of rat droppings which are much larger. (R. at 1533.) Bandido’s contends that if the Journal-Gazette had spoken with these inspectors, it would have uncovered this truth. Without delving into the merits of this claim, we simply state that numerous courts have determined that the failure to investigate or verify facts is not sufficient evidence of actual malice. See Chester v. Indianapolis Newspapers, 553 N.E.2d 137, 140 (Ind.Ct.App.1990); see also St. Amant v. Thompson, 390 U.S. 727, 733, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 84, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967); New York Times Co. v. Sullivan, 376 U.S. 254, 287, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Herbert v. Lando, 781 F.2d 298, 308 (2d Cir.1986); Bartimo v. Horsemen's Benevolent & Protective Ass'n, 771 F.2d 894, 898 (5th Cir.1985); McDowell v. Paiewonsky, 769 F.2d 942, 951 (3d Cir.1985); Smith v. A. Pocono, 686 F.Supp. 1053, 1061 (M.D.Pa. 1987); Live Oak Publ'g Co. v. Cohagan, 234 Cal.App.3d 1277, 286 Cal.Rptr. 198, 205 (1991); Tagawa v. Maui Publ'g Co., 50 Haw. 648, 448 P.2d 337, 340 (1968); Sweeney v. Prisoners' Legal Servs., 84 N.Y.2d 786, 622 N.Y.S.2d 896, 647 N.E.2d 101, 104 (1995).

24 . We acknowledge that one of Bandido's expert witnesses, Professor Dennis Hale, who teaches Journalism testified that "the word ‘rats' is much more damaging, much more threatening. The word 'rodents' is more general, uh, vague, simply as, not as potentially derogatory." (R. at 1964.)

25 . During trial, Bandido’s attempted to show that the Journal-Gazette had a general rule that for a word to appear in a headline, the word must appear in the article. According to Bandi-do’s, the failure to apply this rule is proof that the Journal-Gazette departed from its professional standards. However, we find that even if the Journal-Gazette did maintain such a rule (and the record appears to reflect that it did), the Journal-Gazette's failure to apply the rule in this case may be evidence of an extreme departure from professional standards, but is not evidence of actual malice. See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 665, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (The New York Times actual malice standard plainly requires a public figure plaintiff to "prove more than an extreme departure from professional standards.”); see also Travelers Indem. Co. v. Armstrong, 442 N.E.2d 349, 362 (Ind. 1982).

26 . In its brief to this Court, Bandido’s states that the evidence at trial showed that the Journal-Gazette's publication of the headline was an "extremely careless error.” (Appellee's Br. at 5-6.) Careless error is not the equivalent of actual malice.

27 .Testimony by a defendant that he or she published in good faith or believed the publication to be true is not sufficient to dispel the notion that the defendant acted with actual malice. See St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) ("The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true.”).

■ In St. Amant, the Court set forth several circumstances in which profession of a good faith by the defendant would not be persuasive; (1) where a story is fabricated by the defendant; (2) where the story is the product of defendant’s imagination; (3) where the stoiy is based wholly on an unverified anonymous telephone call; (4) where the defendant’s allegations are so inherently improbable that only a reckless person would have put them in circulation; and (5) where there are obvious reasons to doubt the veracity of the informant or the accuracy of the informant’s reports. Id., 88 S.Ct. 1323. The circumstances of this case do not fall within any of the scenarios mentioned in St. Amant.

28 . The Court also supported its conclusion with the following comments:

The author of the Time article testified, in substance, that the context of the report of the [police brutality] incident indicated to him that the Commission believed that the incident had occurred as described. He therefore denied that he had falsified the report when he omitted the word "alleged.” The Time researcher, who had read newspaper stories about the incident and two reports from a Time reporter in Chicago, as well as the accounts of [the police detective's] earlier career, had even more reason to suppose that the Commission took the charges to be true.

Time, 401 U.S. at 289, 91 S.Ct. 633.

29 . The Court made the following comments with respect to the engineer’s refusal to admit his mistake:

"[The engineer] displayed a capacity for rationalization. He had made a mistake and when confronted with it, he refused to admit it and steadfastly attempted to maintain that no ’ mistake had been made — that the inaccurate was accurate. That attempt failed, but the fact that he made the attempt does not establish that he realized the inaccuracy at the time of publication."

Bose Corp., 466 U.S. at 512, 104 S.Ct. 1949.

30 . Schwartz was an appeal from the denial of summary judgment for the defendant newspaper.

31 . The court in Schwartz also made the following comments:

[Plaintiff! presented no evidence to contradict or throw doubt on [the editor’s] testimony that, in his haste to edit the article while managing multiple responsibilities, he pared [the writer's] text down to make it more readable, without realizing that his snap conclusions had actually changed the story's intended focus. That explanation does not excuse the unfortunate result, but also does not provide clear and convincing evidence of reckless disregard for the truth.

Schwartz, 610 A.2d at 430. Similarly, in this case, Bandido’s did not present any evidence at trial disputing the fact that; Pinkley truly had the misconception that a rodent is a rat.

32 . When courts have found the defendant to have published statements with actual malice, the evidence has been far more compelling than the evidence presented in this case. See, e.g., Carson v. Allied News Co., 529 F.2d 206 (7th Cir. 1976) (The defendant completely fabricated defamatory quotations and printed defamatory allegations which were contradicted by a prior publication which was the source of the article.); Buckley v. Littell, 539 F.2d 882, 896 (2d Cir. 1976) (The defendant admitted he did not believe that plaintiff engaged in the conduct alleged in his book.); Goldwater v. Ginzburg, 414 F.2d 324, 339 (2d Cir. 1969) (The defendant wrote that presidential candidate was mentally ill with knowledge that the statement was false.); Curtis Publ'g Co. v. Butts, 388 U.S. 130, 157, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (In the course of publishing an article accusing an athletic director of conspiring to fix a football game, the magazine recognized the need for a thorough investigation of serious charges and realized that the source of the story was on probation for bad check charges but published the story without viewing the source’s notes, without substantial independent support, without interviewing a friend who was allegedly with the source when the defamatory conversation was overheard, and without reviewing the game to see if the source’s information was accurate.); Rinaldi v. Viking Penguin, Inc., 52 N.Y.2d 422, 438 N.Y.S.2d 496, 420 N.E.2d 377, 383 (1981) (The editor discovered that allegations in the hardback book were false but failed to correct the book prior to publication in a paperback edition.).

33 . Leonard testified that he interpreted the statements to mean that Pinkley’s headlines were vague, off-target or inappropriate as opposed to his own. (R. at 1634.)

34 . Leonard's testimony suggests that he does not recall ever seeing the job evaluation of Sheila Pinkley. (R. at 1627.) There was also some debate as to whether this was really a job evaluation.

35 . Ind.Code§ 34-4-15-1 (1988) provides in relevant part:

(b) If it appears at the trial of the action that the article was published or transmitted in good faith, and that its falsity was due to mistake or misapprehension of the facts, the plaintiff in the case is entitled to recover only actual damages if:

(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;

(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.

36 . 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.).

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.

1 . Another edition used "bugs” instead of "roaches.”