WINTERSHEIMER, Justice.
This appeal and cross-appeal are from an opinion of the Court of Appeals that reversed a judgment based on a jury verdict in a defamation action brought by Kentucky Kingdom against WHAS-TV. The jury originally returned a $3,975,000 verdict in the plaintiffs favor, but the $1 million award for damage to Kentucky Kingdom’s reputation was set aside by the trial judge.
A number of issues relating to a defamation action brought by a public figure against a news media defendant are presented. They include: the proper appellate standard of review of the findings by a jury regarding “falsity” and “actual malice”; whether the individual defamatory statements are supported by the evidence; whether a single telecast, although not defamatory, may become so when combined with other telecasts; whether “professional journalistic standards” evidence is relevant and admissible; whether a corporate plaintiff may recover for both lost profits and injury to reputation; whether the jury must be instructed on the meaning of “false” and the evidentiary standard by which the plaintiff may recover punitive damages.
On July 26, 1994, five passengers were injured when two cars collided in the dark during the operation of Kentucky Kingdom’s indoor steel roller coaster known as the “Starchaser.” The Starchaser was a major ride attraction at the amusement park. It had been in operation at various parks for more than twenty years since its manufacture. A then 7-year-old passenger suffered the most serious injury, a lacerated liver. The collision and investigation attracted immediate and continuing news coverage from WHAS-TV and a [788]*788number of Louisville area television and radio stations as well as from the print media.
The collision occurred after a Starchaser operator discovered that two cars had climbed the initial lift chain at the same time and were speeding down the track very close together. The operator activated an emergency stop button, but the cars were sharing an area of the track between two automatic brake points. When the lead car stopped at the next brake point, the second car, which was not slowed by a brake, struck the rear of the lead car, injuring passengers in both cars.
WHAS-TV broadcasted several reports in 1994 and 1996 regarding the accident and Kentucky Kingdom alleged that three statements made during those reports were libelous. First, after interviewing a passenger in one of the cars who stated: “I mean everybody should know about how dangerous this ride is,” WHAS-TVs reporter stated: “State inspectors also think the ride is too dangerous.” The second defamatory statement occurred during a story about the expected reopening of the Starchaser and referred to the ride as “the roller coaster ride that malfunctioned earlier this week.” Kentucky Kingdom claims that the third defamation occurred several years later when, describing evidence in a lawsuit filed on behalf of the injured passenger, WHAS-TV libelously reported, “Kentucky Kingdom removed a key component of the ride.”
In the trial of the defamation action, Kentucky Kingdom introduced evidence which in its opinion showed that all three of these statements were false and that WHAS-TV had made the statements knowing they were false or with reckless disregard as to whether they were false. The trial judge instructed the jury that it could find liability for the specific statements and/or the telecasts in which statements were made, “taken as a whole.” The jury actually found that each of the statements and each series of telecasts taken as a whole were defamatory. The damages award was not broken down so as to indicate specific damages for specific statements or telecasts.
The jury awarded Kentucky Kingdom $100,000 for lost profits in 1994; $375,000 for lost profits in 1996; one million dollars for damages to reputation; and $2.5 million in punitive damages. The trial judge granted a judgment notwithstanding the verdict with respect to the reputation damages, determining that any such loss beyond loss of profits was necessarily speculative. WHAS-TV appealed on various issues of liability, instructions and damages. Kentucky Kingdom cross-appealed in order to regain its one million dollars for injury to reputation. The Court of Appeals reversed and remanded for a new trial.
The Court of Appeals determined that the evidence clearly and convincingly established actual malice regarding the “too dangerous” comment. It was not convinced that WHAS-TV had acted with actual malice regarding the statements “the ride that malfunctioned” and “removed a key component.” Because the damages award did not differentiate between the claim that was judged valid and those considered unsupported, the Court of Appeals directed that a new trial was required. The panel also held that Kentucky Kingdom could recover general damages for injury to its reputation in addition to special damages for lost profits. However, it determined that a new trial would be necessary to determine such damages because the amount awarded by the jury did not itemize sufficiently proven claims and those which were insufficient.
The Court of Appeals offered guidance to the trial judge on remand. First, it [789]*789determined that Kentucky Kingdom’s journalism-ethics expert was properly allowed to testify that WHAS-TV had violated professional standards. Next, the Court of Appeals advised that the “telecast taken as a whole” instructions were not presumptively erroneous because a single telecast, while not defamatory, could become so when combined with other telecasts. It also believed that Kentucky Kingdom had established its lost profits with reasonable certainty through its accountant’s analysis of lost attendance and diminished profits.
The Court of Appeals agreed with WHAS-TV that the jury should be instructed that the comments or telecasts only had to be “substantially true.” It found that including language from KRS 411.061 in the punitive damages instruction was superfluous. Finally, the Court of Appeals concluded that proof of actual malice so as to permit recovery at all would necessarily constitute proof sufficient to support an award of punitive damages. This Court accepted discretionary review.
I. Standard of Review
The constitutional standard of review applicable to a defamation case relates only to the findings of actual malice and not to other parts of the verdict. There is no constitutional requirement for a heightened review of the determination by the jury that the statements at issue are false or defamatory.
Section 8 of the Kentucky Constitution, “Freedom of speech and of the press,” provides in relevant part as follows:
Every person may freely and fully speak, write and print on any subject, being responsible for abuse of that liberty-
It is Kentucky law, consonant with the federal First Amendment, which governs the right to recover for defamation. Ball v. E.W. Scripps Co., 801 S.W.2d 684 (Ky.1990), cert. denied, 499 U.S. 976, 111 S.Ct. 1622, 113 L.Ed.2d 719 (1991). The constitutional requirement is that actual malice must be shown by clear and convincing evidence. The determination by the jury as to this aspect is independently reviewed.
Ball, supra, illustrates that the only part of the record on which this Court conducted an independent review was on the question of actual malice. This Court recognized in Ball
Free access — add to your briefcase to read the full text and ask questions with AI
WINTERSHEIMER, Justice.
This appeal and cross-appeal are from an opinion of the Court of Appeals that reversed a judgment based on a jury verdict in a defamation action brought by Kentucky Kingdom against WHAS-TV. The jury originally returned a $3,975,000 verdict in the plaintiffs favor, but the $1 million award for damage to Kentucky Kingdom’s reputation was set aside by the trial judge.
A number of issues relating to a defamation action brought by a public figure against a news media defendant are presented. They include: the proper appellate standard of review of the findings by a jury regarding “falsity” and “actual malice”; whether the individual defamatory statements are supported by the evidence; whether a single telecast, although not defamatory, may become so when combined with other telecasts; whether “professional journalistic standards” evidence is relevant and admissible; whether a corporate plaintiff may recover for both lost profits and injury to reputation; whether the jury must be instructed on the meaning of “false” and the evidentiary standard by which the plaintiff may recover punitive damages.
On July 26, 1994, five passengers were injured when two cars collided in the dark during the operation of Kentucky Kingdom’s indoor steel roller coaster known as the “Starchaser.” The Starchaser was a major ride attraction at the amusement park. It had been in operation at various parks for more than twenty years since its manufacture. A then 7-year-old passenger suffered the most serious injury, a lacerated liver. The collision and investigation attracted immediate and continuing news coverage from WHAS-TV and a [788]*788number of Louisville area television and radio stations as well as from the print media.
The collision occurred after a Starchaser operator discovered that two cars had climbed the initial lift chain at the same time and were speeding down the track very close together. The operator activated an emergency stop button, but the cars were sharing an area of the track between two automatic brake points. When the lead car stopped at the next brake point, the second car, which was not slowed by a brake, struck the rear of the lead car, injuring passengers in both cars.
WHAS-TV broadcasted several reports in 1994 and 1996 regarding the accident and Kentucky Kingdom alleged that three statements made during those reports were libelous. First, after interviewing a passenger in one of the cars who stated: “I mean everybody should know about how dangerous this ride is,” WHAS-TVs reporter stated: “State inspectors also think the ride is too dangerous.” The second defamatory statement occurred during a story about the expected reopening of the Starchaser and referred to the ride as “the roller coaster ride that malfunctioned earlier this week.” Kentucky Kingdom claims that the third defamation occurred several years later when, describing evidence in a lawsuit filed on behalf of the injured passenger, WHAS-TV libelously reported, “Kentucky Kingdom removed a key component of the ride.”
In the trial of the defamation action, Kentucky Kingdom introduced evidence which in its opinion showed that all three of these statements were false and that WHAS-TV had made the statements knowing they were false or with reckless disregard as to whether they were false. The trial judge instructed the jury that it could find liability for the specific statements and/or the telecasts in which statements were made, “taken as a whole.” The jury actually found that each of the statements and each series of telecasts taken as a whole were defamatory. The damages award was not broken down so as to indicate specific damages for specific statements or telecasts.
The jury awarded Kentucky Kingdom $100,000 for lost profits in 1994; $375,000 for lost profits in 1996; one million dollars for damages to reputation; and $2.5 million in punitive damages. The trial judge granted a judgment notwithstanding the verdict with respect to the reputation damages, determining that any such loss beyond loss of profits was necessarily speculative. WHAS-TV appealed on various issues of liability, instructions and damages. Kentucky Kingdom cross-appealed in order to regain its one million dollars for injury to reputation. The Court of Appeals reversed and remanded for a new trial.
The Court of Appeals determined that the evidence clearly and convincingly established actual malice regarding the “too dangerous” comment. It was not convinced that WHAS-TV had acted with actual malice regarding the statements “the ride that malfunctioned” and “removed a key component.” Because the damages award did not differentiate between the claim that was judged valid and those considered unsupported, the Court of Appeals directed that a new trial was required. The panel also held that Kentucky Kingdom could recover general damages for injury to its reputation in addition to special damages for lost profits. However, it determined that a new trial would be necessary to determine such damages because the amount awarded by the jury did not itemize sufficiently proven claims and those which were insufficient.
The Court of Appeals offered guidance to the trial judge on remand. First, it [789]*789determined that Kentucky Kingdom’s journalism-ethics expert was properly allowed to testify that WHAS-TV had violated professional standards. Next, the Court of Appeals advised that the “telecast taken as a whole” instructions were not presumptively erroneous because a single telecast, while not defamatory, could become so when combined with other telecasts. It also believed that Kentucky Kingdom had established its lost profits with reasonable certainty through its accountant’s analysis of lost attendance and diminished profits.
The Court of Appeals agreed with WHAS-TV that the jury should be instructed that the comments or telecasts only had to be “substantially true.” It found that including language from KRS 411.061 in the punitive damages instruction was superfluous. Finally, the Court of Appeals concluded that proof of actual malice so as to permit recovery at all would necessarily constitute proof sufficient to support an award of punitive damages. This Court accepted discretionary review.
I. Standard of Review
The constitutional standard of review applicable to a defamation case relates only to the findings of actual malice and not to other parts of the verdict. There is no constitutional requirement for a heightened review of the determination by the jury that the statements at issue are false or defamatory.
Section 8 of the Kentucky Constitution, “Freedom of speech and of the press,” provides in relevant part as follows:
Every person may freely and fully speak, write and print on any subject, being responsible for abuse of that liberty-
It is Kentucky law, consonant with the federal First Amendment, which governs the right to recover for defamation. Ball v. E.W. Scripps Co., 801 S.W.2d 684 (Ky.1990), cert. denied, 499 U.S. 976, 111 S.Ct. 1622, 113 L.Ed.2d 719 (1991). The constitutional requirement is that actual malice must be shown by clear and convincing evidence. The determination by the jury as to this aspect is independently reviewed.
Ball, supra, illustrates that the only part of the record on which this Court conducted an independent review was on the question of actual malice. This Court recognized in Ball that a court reviewing disputed facts on which a jury had already decided that actual malice existed, must accept the verdict of the jury. The Court stated:
We accept the jury’s finding as to disputed facts when there is supporting evidence because we claim no superior ability to divine the truth by reason of judicial office, and we question the good judgment of any judge who thinks he has such special powers.
Ball, 801 S.W.2d at 688.
In Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), it was the finding of actual malice that the United States Supreme Court subjected to a standard of constitutional review. The U.S. Supreme Court did not disturb the use of the clearly erroneous standard of review on a finding of falsity. See also Bartimo v. Horsemen’s Benevolent & Protective Ass’n., 771 F.2d 894 (5th Cir.1985). Bose, supra, indicated that in reviewing whether actual malice existed, the Court must examine the evidence and independently determine whether the judgment is supported by clear and convincing proof of actual malice. The finding of actual malice is subject to independent review by an appellate court. Not all findings of fact in an actual malice [790]*790matter are subject to de novo review. As observed in Bose:
Indeed, it is not actually necessary .to review the ‘entire record’ to fulfill the function of independent appellate review on the actual-malice question; rather, only those portions of the record which relate to the actual-malice determination must be independently assessed.
466 U.S. at 514, 104 S.Ct. 1949, 1967 FN 31.
Similarly, the U.S. Supreme Court in Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991), recognized that the falsity and defamation elements are based on common law libel not affected by the constitutional element of actual malice. The U.S. Supreme Court noted that “whether the ‘intellectual gigolo’ quotation is defamatory is a question of California law. To the extent that the Court of Appeals based its conclusion on the First Amendment, it was mistaken.” Masson, supra at 522, 2436, 111 S.Ct. 2419.
It is beyond question that the function of the jury in interpreting the evidence and finding the ultimate facts is a fundamental American tradition which should merit constitutional recognition. Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382 (Ky.1985). Clearly, the sanctity of the jury verdict is fundamental in our judicial system. Hanson v. American Nat’l Bank & Trust Co., 865 S.W.2d 302 (Ky.1993). See also Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562. (1989). In considering all the evidence of actual malice, we must accept all subsidiary facts that the jury could have found, including those disputed facts which constitute the proof of actual malice.
II. Actual Malice
It is the obligation of this Court to review all evidence of malice in the record even beyond the words actually spoken. As to whether malice was shown by the falsity of the word spoken alone, the United States Supreme Court has indicated that where the record contains substantial additional evidence, it should also be considered in an independent review. Masson at 521, 2435, 111 S.Ct. 2419. Following the suggestions of Masson, a review of this evidence in a light most favorable to this plaintiff indicates that this Court should consider the natural and probable effect of the words on the mind of the average listener, and not subject them to “critical analysis of the legal mind.” See 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). Proof of actual malice is frequently circumstantial so that the reckless disregard of truth or falsity or the actual knowledge of falsity can generally be inferred only, rather than proven directly. As noted in Harte-Hanks, supra, the plaintiff is entitled to prove the state of mind of the defendant through circumstantial evidence. See also Warford v. Lexington Herald-Leader Co., 789 S.W.2d 758 (Ky.1990).
Kentucky Kingdom has gone to considerable detail in its brief to recite a variety of factual situations indicating actual malice. Among other items of evidence are the following three examples: 1) WHAS-TV broadcast the “too dangerous” allegation after it received specific knowledge that the claim was false and after flagging its scripts questioning the accuracy; 2) It broadcast that the “ride malfunctioned” three times after its own records reflected that state inspectors had not said the ride malfunctioned, and twice after acknowledging to the amusement park [791]*791that this charge was wrong and that it would be corrected; and 3) The reporter for the TV station admitted that his “removed a key component” report concerning the dispatch motor brake was false and that he misrepresented a tire motor brake as a reducing brake that stops the cars.
Certainly, the burden on a plaintiff in a libel action is significant. The evidence presented by Kentucky Kingdom sufficiently demonstrated that there was clear and convincing evidence of actual malice. The proof submitted was more than adequate.
III. Broadcasts as a Whole
A jury in this type of action must consider the broadcasts in their entirety when determining whether the statements and inferences within it are false and defamatory. Ball, 801 S.W.2d at 688. A defamatory publication must be considered as a whole because the cumulative effect of the facts may support the finding by the jury of actual malice. See Mucci v. Dayton Newspapers, Inc., 71 Ohio Misc.2d 71, 654 N.E.2d 1068 (Ohio Com.Pl.1995). In Ball, the jury was asked to consider the entire publication, some of which contained false and defamatory material and some of which did not. Ball, 801 S.W.2d at 686 (a related article which was not in itself defamatory was significant as it related to the malice which can be inferred from the heavy-handed way in which it was written.) See also Harte-Hanks.
This case is full of evidence from which the jury could conclude that WHAS-TV acted with actual malice. Among the evidence was the following: that there was a failure to correct any inaccuracies; that there was a continuing commitment to running and rerunning the same story line; that there was a significant failure to investigate or verify credibility; and the general makeup and presentation of the story exhibited hostility. A reasonable trier of fact could determine that there was defamation. Cf. Yancey v. Hamilton, 786 S.W.2d 854 (Ky.1989).
TV. “Not Substantially True”
The use of the word “false” in the instructions in this case was recognized by this Court in Ball and noted with approval by the United States Supreme Court in Harte-Hanks. WHAS-TV contends that the broadcasts were substantially true and that the instructions given to the jury should have reflected that kind of situation. We cannot agree.
Any reliance by WHAS-TV on Bell v. Courier-Journal & Louisville Times Co., 402 S.W.2d 84 (Ky.1966), is misplaced. That case is a common law defamation and contains no discussion of any First Amendment issues. It is a holding on summary judgment that the testimony of the plaintiff showed the truth of each item published. The court in that case characterized the truth as “at least substantially true.” That is not the situation here where a jury has determined that the statements and implications of the story were false and defamatory. E.W. Scripps Co. v. Cholmondelay, 569 S.W.2d 700 (Ky.App.1978), instructed the jury to determine if the publications were “false.” In response to the contention that the article was “substantially true” the court indicated that there was certainly substantial evidence for the jury to find that the article was false.
The doctrine of “substantially true” is a convenient and necessary phrase invented by lawyers and judges to apply in very narrow and limited circumstances and relates only to incidental information and not to essential content. Bell, supra, states that a newspaper is not to be held to exact facts or to the most minute details of [792]*792the transaction it reports, but only to what is “substantially true.” That is not the case here. Truth is a relatively easy concept to ascertain. It is generally defined as accuracy or correctness. Here, the broadcasts were fundamentally inaccurate as it related to the comments “too dangerous,” “ride malfunctioned” and “removed a key component.” Truth as contrasted to falsehood is the basis for a defamation claim.
Further, an instruction that defines falsity as “not substantially true” would be in contradiction to the barebones approach used in jury instructions in Kentucky. See Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814 (Ky.1992). It is well settled that the meaning of the instructions may be developed during closing argument. The legal authorities relied upon by WHAS-TV are unconvincing.
V. Damages
The verdict of the jury as to compensatory damages for loss of profits was supported by the evidence presented at trial. On the question of loss of reputation by á corporation, in addition to specific damages for loss of profit, we agree with the order of the circuit court in’ setting aside that part of the jury verdict due to a loss of reputation. It may well be that a corporation could suffer loss of reputation, but in this case, the jury had to speculate on ánything other than the loss of profits. Thus, the judgment notwithstanding the verdict on that issue only was correct. Furthermore, under the standards set out in TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993), the amount of punitive damages is consistent with compensatory damages even when the adjustment is made for a deletion of the loss of reputation award. •
VI. Other Issues
We find no error in the instructions on punitive damages given to the jury. In this case, the jury found actual malice and also malice and oppression as those terms are defined in KRS 411.184, all by clear and convincing evidence. There was no error in the inclusion of the KRS 411.061 language in the instructions. Nor is there any basis to reverse the jury’s verdict on this ground.
The journalism expert was properly allowed to testify about journalism standards and ethics. Actual malice cannot be based solely on expert evidence that WHAS-TV deviated from accepted journalistic practices. Harte-Hanks. However, a journalism expert’s testimony may assist the fact-finder in understanding the circumstantial evidence of actual malice. Consequently, the trial judge did not err in admitting the testimony of the journalism expert.
Media and broadcast outlets have no First Amendment protection to publish false information with actual malice. Those who do so must be accountable for the damages caused by their actions. Here, the jury found against WHAS-TV on all of the controverted facts. The necessity to make an independent review of the record does not include a fiat to substitute the reviewing authority’s opinion for that of the jury.
It is the decision of this Court that the opinion of the Court of Appeals is reversed, and the judgment of the circuit court is reinstated.
LAMBERT, C.J., JOHNSTONE and SCOTT, JJ., concur.
COOPER, J., dissents in part by separate opinion and is joined by GRAVES, J.
ROACH, J., also dissents in part by separate opinion.