Full opinion text
RALPH B. GUY, Jr., Circuit Judge. Defendant, Fortune Magazine, appeals a $550,000 jury verdict in a libel suit brought by plaintiff, Marcus Bressler. Bressler’s claim stemmed from a 1986 Fortune article which reported allegations that Bressler, an official of the Tennessee Valley Authority, had attempted to cover up safety violations at TVA’s Watts Bar nuclear plant. Fortune argues that Bressler, a public official, failed to establish that the article’s statements were false and that the reporters acted with actual malice. Fortune also contends that the district court erred in instructing the jury that Bressler need only prove the article’s falsity by a “preponderance of the evidence,” rather than by “clear and convincing” evidence. Our thorough review of the record— which details the information provided by the various sources on which the Fortune reporters relied — reveals that the evidence falls short of demonstrating that the reporters realized their statements were false or had serious doubts as to the truth of their statements. We thus reach the contest over the article’s “falsity” only tangentially; we reach not at all the debate over the proper standard of proof for falsity in a public official’s libel suit. On the actual malice issue alone, we reverse and remand for entry of judgment in favor of Fortune. I. In October 1986, Fortune published an article focusing mainly on federal officials’ allegations that TVA’s chief of nuclear operations (not the plaintiff here) may have violated conflict-of-interest and salary rules. Seven of the article’s 33 paragraphs, however, reported on investigators’ “allegations about an attempted cover-up of safety questions at the Watts Bar plant.” Brian Dumaine, Nuclear Scandal Shakes the TVA, Fortune, Oct. 27, 1986, at 44. The article explained that Howard Hasten, an “authorized nuclear inspector” with Hartford Steam Boiler, which had contracted with TVA to inspect the construction of the Watts Bar plant, discovered that welds in pipes carrying water to and from the nuclear reactor containment area had not been tested in accordance with the governing engineering code. At that stage of construction, performing the necessary tests and inspection would have been extremely time-consuming and costly, since many of the pipes had already been insulated and installed. The article further stated that TVA had issued a safety report which recommended that the pipes be “used as is.” Hasten initially refused to sign this report, since the lack of proper testing violated minimum safety standards. “A burst pipe could set off a serious nuclear accident,” according to the article. The Fortune story then noted that a “campaign ... to force Hasten to sign the report” was mounted, and that an internal investigation at TVA revealed that managers at TVA’s engineering codes and standards office (of which plaintiff Bressler is a member) called Haston’s superiors at Hartford to complain about Haston’s intransigence. Haston’s supervisor, Harold Robi-son, pressured Haston to sign; Haston finally did so, but wrote that his signature was only at Robison’s direction. The article went on to state that TVA investigator Jerry Smith had received anonymous telephone calls about pressure on Hartford inspectors and that TVA had received an anonymous letter threatening to publicize the welding problems unless TVA persuaded Hartford to increase its inspectors’ salaries. “According to TVA investigators,” the article continued, “Marcus Bres-sler ... tried to cover up the breach of safety standards” and “warned Hartford Steam Boiler to get its inspectors in line or TVA would not renew its inspection con-tract_” The TVA Board of Directors assigned another internal investigator, Mansour Guity, to look into the origin of the anonymous extortion letter. Guity was unable to link the letter to Hartford inspectors, but, according to the article, Guity “did find out about the pressure Bressler had exerted to cover up the safety violation.” Investigators Smith and Guity later complained to the U.S. Labor Department that TVA management had harassed and intimidated them for voicing their safety concerns. The Labor Department ruled in their favor. The Fortune story added that the “Hartford Steam Boiler incident was confirmed in a draft report by the Nuclear Regulatory Commission’s office of investigation.” The article attributed this information to “congressional sources.” At Bressler’s ensuing libel trial, Fortune introduced the final report of the Nuclear Regulatory Commission which concluded, among other things, that TVA managers might have pressured Hartford to accept the “use as is” proposal in the report about the pipe welds even though the welds violated code requirements. Fortune also introduced the notes the reporters took during interviews with the private and federal investigators, who had identified Bressler as the source of the pressure, and the corroborating deposition testimony of two former TVA officials. The reporters’ testimony included explanations of how they developed the story and subjected it to the magazine’s pre-publication fact-checking process.. A journalism expert for plaintiff testified, over defendant’s objection, that the Fortune reporters’ investigation and writing “fell far below the standard of journalism” and that the reporters “knew [the article] was false.” We address this evidence more fully below. The jury found that the statements about Bressler were false and. that the reporters had acted with actual malice. Bressler was awarded $250,000 in compensatory damages and $300,000 in punitive damages. The district court denied Fortune’s. JNOV and new trial motions, and Fortune now appeals. II. The trial judge determined that Bressler was a public official; as such, Bressler could prevail only by showing that Fortune published the article with actual malice, New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964), and by demonstrating that the “gist” of the article was false, Masson v. New Yorker Magazine, Inc., — U.S. -, -, 111 S.Ct. 2419, 2433, 115 L.Ed.2d 447 (1991). In a recent public-figure libel case summarizing accepted formulations of the “actual malice” test, the Supreme Court stated that the test requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of “reckless disregard” “cannot be fully encompassed in one infallible definition,” we have made clear that the . defendant must have made the false publication with a “high degree of awareness of ... probable falsityf.]” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667, 109 S.Ct. 2678, 2685,105 L.Ed.2d 562 (1989) (citations omitted). The Court emphasized that the inquiry is “subjective,” focusing on whether the defendant “ ‘in fact entertained serious doubts as to the truth of his publication.’ ” Id. at 688, 109 S.Ct. at 2696 (citation omitted). Actual malice, defined in this way, must be established by “clear and convincing proof.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). The question whether the record may support a finding of actual malice is a question of law. Harte-Hanks, 491 U.S, at 685, 109 S.Ct. at 2694. The Harte-Hanks Court also set forth the duty of an appellate court considering a case such as this one. In determining whether the constitutional standard has been satisfied, the reviewing court must consider the factual record in full. Although credibility determinations are reviewed under the clearly-erroneous standard ... the reviewing court must “ ‘examine for [itself] 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 ... protect[.]’ ” Id. at 688, 94 S.Ct. at 2696 (citations omitted). Based on our review of the entire record — the several sources on which the Fortune reporters relied, the substance of those sources’ statements, and the content of the various documents consulted in preparing the article — we believe the evidence could not have supported a finding of actual malice under the "clear and convincing” standard. This determination obviates the need to address the proper standard by which a trier of fact must measure a publication’s falsity. Although our conclusion regarding actual malice in this case necessarily suggests that the gist of the article was substantially true, we do not reach this issue. The “gist” of the contested portion of the Fortune article was that plaintiff Bres-sler allegedly played a lead role in pressuring an independent inspector to certify, contrary to fact, that' certain safety-related welds in the Watts Bar plant met the engineering code requirements, and that Bres-sler also attempted to cover up that safety violation. We now examine the defendant’s basis for reporting such allegations. III. In the course of researching a story on TYA’s non-operating nuclear power reactors and allegations that TVA’s chief of nuclear operations may have violated federal conflict-of-interest standards, Fortune reporters Brian Dumaine and Brett From-son learned about Nonconforming Condition Report (NCR) 5609. Howard Haston, the inspector from the Hartford company, had discovered that certain welds on pipes within the plant’s penetration assemblies had not been visually inspected for leakage during the mandatory “hydrostatic” (water-pressure) testing. Such inspection was required under the code promulgated by the American Society of Mechanical Engineers (ASME). It was Haston’s duty, as an authorized nuclear inspector, to check for compliance with the ASME code. Given the welds’ location within the plant, they were considered “safety-related” components. Having discovered this noncompliahce, Haston prepared NCR 5609 describing the problem. TVA, so alerted, was supposed to suggest a means of solving the problem. Bressler, TVA’s specialist on the ASME code, discussed the matter with Haston’s superiors, Harold Robison and William Higginbotham. Haston did not know what Bressler said in these conversations, and thus could not say that Bressler made any threats regarding Hartford’s contract with TVA. Haston said, however, that given Higginbotham’s “volatile personality ... . any discussion between a client ... and that supervisor could have been construed as threatening because he was concerned about that.” Faced with NCR 5609, TVA engineer Dorwin Etzler consulted with Bressler and decided to recommend that the welds be “used as is.” Bressler was “instrumental in suggesting [this] disposition,” according to Etzler’s trial testimony. Inspector Ha-ston’s signature was then required on the report in order to approve the “use as is” disposition. If Haston failed to sign it, TVA would have to obtain approval from the Nuclear Regulatory Commission (NRC) — which could delay the plant’s start-up. Bressler later admitted to NRC investigators that the planned schedule for fuel loading affected the decision to forgo the required inspection of the welds. Haston initially refused to sign the report because to do so would be to certify that the welds met the ASME code, which they did not. Haston finally submitted to pressure from his superiors, but he also inscribed the “unprecedented” notation that his signature was only “per written and verbal direction of H.L. Robison.” Bressler conceded at trial that the welds did not meet the code. Several months later, after TVA had certified to the NRC that the Watts Bar plant was ready for an operating license, a subcommittee of the House Committee on Commerce and Energy had assigned an investigator, John William. Nelson, to look into allegations, as Nelson put it, of “collusion between T.V.A. and Hartford Steam Boiler ... to the effect their on-site nuclear inspectors were being intimidated or forced to sign off on systems that they felt were not safe.” Shortly thereafter, an engineer on TVA’s internal investigatory unit, the Nuclear Safety Review Staff (NSRS), wrote a memorandum to the TVA Board. The engineer, Jerry Smith, told the Board that anonymous telephone callers had complained that the nuclear inspectors had been “bought off" or “told to back off by their employers as a result of ‘TVA pressure.’ ” In response, the TVA Board hired an independent contractor, the Quality Technology Corporation (QTC), to investigate the matter raised in Smith’s memorandum. When an anonymous extortion letter arrived at TVA, threatening to inform the NRC of ASME code violations if Hartford inspectors were not given a raise, the TVA Board launched a second investigation. This second inquiry was headed by Mans-our Guity, also of the TVA’s internal investigatory unit (the NSRS). Guity reported to his TVA superiors that the evidence he had gathered showed that the extortion letter was written by a TVA employee and not a Hartford inspector; more importantly, Guity told the Board that there had been collusion between TVA and Hartford managers in coercing inspectors to accept nonconforming components. Guity told TVA Assistant General Counsel William Mason that Bressler had played a lead role in the apparent collusion by “using his position on various national code committees to cause Hartford to take positions on T.V.A. code technical issues that they wouldn’t otherwise take.” Guity apparently had some difficulty completing his investigation, however. TVA management initially told Mason that the inspectors were refusing to talk to Guity. Mason later learned that the inspectors were willing to provide information, “and that the only problem was that there was this either perception or fact that the code section in [TVA’s] office of engineering was having this communication outside the procedure with Hartford” in an attempt to pressure the inspectors not to talk. Bres-sler was the TVA official responsible for code compliance. During this time, Bressler met with Ha-ston’s superiors and other Hartford managers. Bressler told Hartford that he had lost confidence in the company as a result of the extortion letter, and he also complained that Hartford inspectors were communicating with QTC, the company the TYA Board had hired to investigate the origin of the anonymous phone calls and the extortion letter. Due in part to Bres-sler’s complaints, Hartford instituted new regulations restricting its inspectors’ ability to communicate with outside investigators. Robison, Haston’s supervisor at Hartford, also sent a memorandum to Hartford inspectors at Watts Bar warning them that “TYA has voiced a concern that the Authorized Nuclear Inspectors are spending too much time with the Quality Technology Corporation.” Before the NSRS investigation into the alleged collusion was finished, Guity resigned, claiming that his TVA superiors were exerting “undue pressure” on him as a result of his initial findings. Guity filed a retaliation claim against TVA; Jerry Smith, also of the NSRS, did the same. Their claims were upheld. The NRC then launched its own investigation into the allegations of collusion and intimidation of inspectors. Fortune reporter Fromson learned from Henry Myers, an advisor to a subcommittee of the House Committee on Commerce and Energy (whom the NRC had briefed on its investigation), that the NRC had uncovered evidence corroborating the NSRS findings. According to Fromson’s notes on his interview with Myers, Myers said the NRC had discovered “[t]hat there was a violation of the ASME code. That Bressler at TVA pressured Higginbotham [at Hartford].... That Higg[inbotham] told Robison tó pressure Haston. That Robison did so. Bres-sler is the guy who pressured Hartford....” Meanwhile, as the NRC pursued its investigation, Fortune reporter Brian Du-maine interviewed Owen Thero, a former investigator for QTC — the company the TVA Board had hired to look into the allegations of collusion and intimidation raised by Jerry Smith. Thero told Dumaine that Bressler had warned Hartford management, “If you don’t play ball — Hartford could lose [its] contract.” Dumaine also interviewed Guity and Smith, the two NSRS investigators who had successfully sued TVA for retaliation. Dumaine’s interview notes indicate that Guity told the reporter that “the TVA management and Hartford managers forced (other) Hartford managers to sign off on pipes despite objections of Hartford inspectors[.]” Fortune reporter Brett Fromson also interviewed Guity on several occasions. According to Fromson’s interview notes, Guity informed him that “TVA pressured the home office of Hartford to accept the work.” “There was apparent collusion between the Hartford regional managers and the TVA managers to persuade the ANI [inspector] to approve penetration welds which were not hydro-statically tested.” Guity also said that TVA officials had attempted to thwart his investigation. The reporters also examined transcripts of deposition testimony taken as part of Guity’s and Smith’s labor claims against TVA. Mason, TVA’s lawyer, had testified that there “was a serious question, whether there was an improper T.V.A. link that was defeating the purpose of the [Hartford inspection] contract[.]” Mason also testified that Guity had told Michael Kidd, who had headed the NSRS, “that Mark Bressler ... was using his position on various national code committees to cause Hartford to take positions on T.V.A. code technical issues that they wouldn’t otherwise take.” Mason further testified that Guity had told Mason that Bressler would contact the Hartford regional office about code compliance problems raised at the nuclear plant sites, and the regional office would then contact the sites and proceed to “explain away or order the resolution of the code issues ... despite the fact that the code or the required engineering and substitution for the code may not have been in fact done.” Both Mason and Kidd, whose deposition the reporters also studied, testified that Guity enjoyed a reputation as one of TVA’s top investigators. Fromson interviewed another QTC investigator, William Kemp, who also pointed to Bressler as the TVA official pressuring Hartford on code issues. Kemp told From-son that when inspector Haston refused to sign NCR 5609, Bressler called Higginbotham, and Higginbotham then called Robison (Haston’s more immediate supervisor), complaining that, “[Y]our guy [Haston] is raising hell,” and instructing Robison to make Haston sign the report. Fromson also spoke with Haston himself who, though initially reluctant to talk, stated that he had indeed signed the report only when Robison compelled him to, and that “Higginbotham was getting calls from Bressler, the guy in charge of ASME codes and standards[.]” Haston also told From-son that he didn’t think that Bressler had “ever directly threatened ... to pull the contract, but the fear that it might be pulled was always there for Hartford.” When Fromson tried to reach Haston’s supervisors for comment, he was referred to Hartford’s attorney who said only that Hartford “has done nothing wrong.” Fromson claims he made repeated attempts to reach Bressler for comment, leaving messages with TVA’s public relations department and at Bressler’s own office. At trial, Bressler acknowledged receiving only one call from the reporter, which he did not return. Fromson said he read the relevant portions of the article to TVA’s public relations officer, who ultimately responded that TVA would have no comment. Once Dumaine and Fromson had completed a first draft of the article, Fortune editors subjected it to the magazine’s standard fact-checking process, during which the reporters would read passages of the article to the sources from whom they had gleaned the information. None of these sources — including Guity, Myers, Kemp, Thero, and Smith — found the article inaccurate. IV. The record, as summarized above, demonstrates that the Fortune reporters relied on a variety of mutually corroborative sources and materials. The reporters’ research revealed that four separate investigations — by QTC, the NRC, TVA’s own NSRS, and the House Committee on Commerce and Energy — had uncovered evidence that TVA, through Hartford management, had exerted pressure on Hartford inspectors. Three of these investigatory sources (Guity, Kemp, and Myers) specifically identified Bressler as the source of the pressure on Hartford, and a fourth (Thero) told Dumaine about a specific threat by Bressler regarding Hartford’s contract with TVA. The interview with inspector Hasten also confirmed that he signed NCR 5609 only under duress, that Bressler had had contact with Haston’s superiors while this report was being considered, and that any communication with Bressler, as a Hartford client, would have been deemed a threat to Hartford’s contract. The reporters also examined the deposition testimony of TVA Assistant General Counsel William Mason and former NSRS chief Kidd which confirmed that Bressler was the source of pressure on the inspectors to accept nonconforming items, and that the inspectors had felt inhibited about talking to the outside investigators — due to pressure emanating from the “code section in the office of engineering” (Bressler’s domain). Finally, the pre-publication checking process failed to reveal any inaccuracies, and the reporters sought comment from Hartford, TVA, and Bressler in particular. Based on our detailed examination of the evidence on which Dumaine and Fromson relied in reporting the allegations — identified as such — in the Fortune article, we are convinced that the finding of actual malice in this case is unsupportable. The variety of the sources, their corroborative statements and apparent reliability, and the pre-publication scrutiny to which the sources’ information was subjected, all contribute to our conclusion. If the .televised reading of another’s affidavit accusing an official of bribery does not constitute actual malice even when the reader relies solely on the affidavit and makes no attempt to verify the accusation, then the comparatively extensive research effort by the Fortune reporters here, which gleaned consistent statements from multiple reliable sources, compels us to conclude that actual malice cannot be found on this record. There simply is not enough evidence to show that the defendant actually “entertained serious doubts as to the truth of [the] publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). We also reject Bressler’s attempt to analogize this case to Harte-Hanks. In that case, the Supreme Court found actual malice in the publisher’s failure to consult a key witness and listen to a readily available tape recording of a contested conversation. These efforts would have verified or contradicted the informant’s “highly improbable” charges, which five other witnesses had cast into serious doubt. Harte-Hanks, 491 U.S. at 691-92, 109 S.Ct. at 2697-98. Given the consistent stories which Fortune’s several sources had provided, and those sources’ apparent reliability, Fortune’s decision not to gain additional comment from Harry Jackson — whom Kemp had identified as an expert on code issues— cannot be equated with the Journal News’ failure in Harte-Hanks to interview Patsy Stephens and'listen to the tape recording of her interview with COnnaughton. Unlike in Harte-Hanks, we can find no evidence here of a “purposeful avoidance of the truth.” Id. at 692, 109 S.Ct. at 2698. The judgment in favor of the plaintiff is REVERSED, and the case is REMANDED for entry of judgment in favor of the defendant. . The dissent suggests that we have required Bressler, a minor figure in the article, to demonstrate the falsity of the entire article. Our analysis reveals, however, that we have done no such thing. We have focused solely on the discrete passages in dispute. . The dissent relies on Masson in criticizing our purported rewriting of the article’s defamatory statements. Masson, however, in addition to confirming that it is the "gist” of the statements which must be examined, — U.S. at-, 111 S.Ct. at 2433, considered the significance of rewriting, or misquoting, by a defendant-publisher, and not by a reviewing court. Further, there has been no allegation that the Fortune reporters altered or fabricated any quotations. .Before the Nuclear Regulatory Commission would allow Watts Bar to operate, inspectors like Haston had to certify that the plant complied with the ASME code, or that there had been a satisfactory "disposition" of any noncomplying materials or components. . Nelson was deposed as a witness in a suit brought by a TVA investigator, Jerry Smith, against TVA. The Fortune reporters reviewed his deposition as part of their research for the article at issue here. . The article states that Myers, identified as a "congressional source[],” had said the allegations were confirmed in a draft NRC report. The final NRC report, issued one month after the Fortune article appeared, confirmed that Hasten had been "coerced, pressured, harassed, threatened and/or intimidated by Higginbotham [or] Robison” into accepting TVA’s "use as is” disposition “which did not meet the minimum requirements of the ASME Code.” The NRC report also states that Bressler admitted the ASME code was violated when the welds were not visually examined during the hydrostatic testing, and that the fear of delaying the start-up of the reactor contributed to the decision to forgo such inspection. Significantly, the report concluded: The decision by [Hartford] management to agree to the "accept as is” disposition of NCR 5609 may have been influenced by discussions between [Hartford] management and TVA personnel, [Hartford] management's sensitivity to TVA’s needs and desires, and the apparent perceived concern by [Hartford] management personnel that the actions of their ANIs [inspectors] could jeopardize their contract with TVA. The report also stated that ”[t]here is testimonial evidence to support that TVA, through [Hartford], attempted to discourage the site ANIs from talking to QTC and NSRS personnel.” Bressler was one of only three TVA officials referred tp in this portion of the report; the other two were Dorwin Etzler, who had prepared the “use as is” recommendation after consulting Bressler, and Walter Joest, an engineer in TVA’s Codes, Standards, and Materials Group. Bressler was the TVA official in charge of code compliance. As the dissent correctly notes, the final NRC report cannot be deemed probative of the reporters’ state of mind, as it was issued only after the article was published. (It is, however, pertinent to the falsity issue.) The draft of this report is properly considered in the actual malice inquiry in that Myers disclosed its conclusions to Fromson during the article’s preparation. . Although the notes taken during this fact-checking routine were lost before trial, plaintiff did not offer any evidence — such as testimony by the sources purportedly consulted during this process — -to show that such checking never occurred. . Bressler argues that Guity and Smith, major sources for the article, were obviously biased against TVA, having sued it for retaliatory discharge. However, these investigators’ success in their labor dispute bolsters the credibility of their claim that TVA thwarted their investigation into improper pressure exerted on Hartford inspectors. Further, the depositions of Mason and Kidd indicated to the reporters that Guity, considered one of TVA’s best investigators, was a credible source. Finally, as is evident from our decision in Perk v. The Reader's Digest Association, 931 F.2d 408, 411-12 (6th Cir.1991), reliance on hostile sources does not of itself necessarily constitute actual malice.
BATCHELDER, Circuit Judge, dissenting. Because I believe that the majority’s analysis of the question of actual malice is fundamentally flawed in two ways, I dissent. First, as I read the majority’s opinion, it purports not to decide whether the allegedly defamatory statements in the Fortune article are substantially true or substantially false. Rather, the opinion focuses exclusively on whether Fortune made the statements with actual malice. However, the majority does not analyze whether Fortune made the statements as they appeared in the article with actual malice. Rather, the majority first homogenizes the article’s statements into a single sentence that it calls the “gist” of the article, and then asks and answers the question whether that “gist” of the article was published with actual malice. In revising the article’s statements in this manner, the majority purports to follow the Supreme Court’s decision in Masson v. New Yorker Magazine, Inc., — U.S. -, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991). However, nothing in Masson authorizes a reviewing court to revise an article’s allegedly defamatory statements in any way before the court analyzes whether the statements were false or whether they were made with actual malice. Second, although I agree that as the appellate court we must make an independent review of the facts in this defamation case, I cannot agree with the manner in which the majority has performed this task. Two fairly recent Supreme Court cases, Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), and Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989), establish the procedures for performing such an independent review. One aspect of this process that is absolutely central is the requirement that we accord great deference to the jury’s credibility determinations while we perform our independent review of the allegedly defamatory statements and the circumstances under which they were made. In the present case, however, my reading of the majority opinion convinces me that this requirement was not met. For these reasons, I must dissent. Unlike some other defamation cases in which public figure plaintiffs have prevailed both in trial and on appeal, in this case plaintiff-appellee Marcus Bressler cannot simply rely upon one facet of the case as the “key” to demonstrating malice. Nevertheless, when the facts and circumstances surrounding the investigation are closely examined, it becomes clear that the reporters’ claims of an “extensive” investigation are negated by the overwhelming evidence which shows that Fortune’s reporters wrote an article with reckless disregard for the truth of many of its accusations. Because I would hold that the jury was entitled to find from the evidence presented that many of the article’s actual statements were false and were published with actual malice, I must also address the arguments by the defendant-appellant, Fortune Magazine, that the statements in the article were not false and that the trial court erred in instructing the jury as to the burden of proof on the issue of falsity. First, however, I shall set out a brief factual introduction, followed by a discussion of what I believe to be the most significant aspect of this case, the manner in which the majority has approached the actual malice determination. 1. Factual Introduction Because the legal issues in this case are so heavily dependent on the facts, I shall present a more detailed discussion of the facts in the sections of this dissent where they are most pertinent, and offer only a brief factual background here at the outset. In late August and early September of 1986, Fortune reporters Brian Dumaine and Brett Fromson were working on an article about mismanagement at the Tennessee Valley Authority (“TVA”), the focus of which was TVA’s chief, Admiral Steven White. In the course of their investigation, the reporters received some information about a report (“NCR 5609”) that concerned certain welds at the Watts Bar Nuclear Power Plant in Tennessee. After performing an investigation of the circumstances surrounding that report, the reporters included in their article on the TVA a discussion of NCR 5609 and Marcus Bres-sler’s involvement with it. NCR 5609 is what is known as a non-conformance report or a non-conforming condition report (“NCR”). Such reports document conditions during construction of a nuclear facility which do not meet the requirements of certain construction codes. The report is created after an Authorized Nuclear Inspector (“ANI”) indicates to TVA that there is a non-conformity. At Watts Bar, TVA contracted with Hartford Steam Boiler Inspection and Insurance Company (“Hartford”) to supply ANIs to inspect construction of the facility. The testimony presented at trial indicates that NCRs were commonplace (J.A. at 619), and were in TVA’s public files. (J.A. at 408-09, 412). The testimony further established that NCR 5609 had been marked “significant” by the very persons who prepared it, which ensured that it would be sent to the Nuclear Regulatory Commission for their approval (J.A. at 369 (Dumaine); J.A. at 1212), and would be reviewed by TVA’s Nuclear Licensing Staff. (J.A. at 718-22 (Bressler)). ANI Howard Haston, an employee of Hartford, initially documented that certain welds on pipes leading to the containment area of the Unit 1 reactor at Watts Bar had not been visually inspected during hydrostatic testing. Since such viewing is required by the Code of the American Society of Mechanical Engineers (“ASME”), an NCR . had to be prepared to document the variance from the Code. NCR 5609 was prepared for that purpose and specifically recommended that even though the visual inspection had not been performed, the welds should be “used as is,” since the hydrostatic test had been performed and radiographic tests had also been performed. (J.A. at 1211-12). Among the persons to “sign off” on NCR 5609 was Bressler. II. Discussion A. Majority’s Rewriting of the Fortune Article I believe that the approach adopted by the majority of rewriting the content of the Fortune article and then discussing whether that rewritten version was published with actual malice represents a significant change in the constitutional law of defamation. In my view, the majority has fashioned this approach without support from any case law. Since this issue is integral to the discussion of both the falsity and aetual malice issues, it requires discussion at the outset of this dissent. The majority begins its analysis by citing Masson v. New Yorker Magazine, Inc., — U.S.-, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991), for the proposition that a public official plaintiff in a libel case must prove that the “gist of the article” is false. Opinion at 1228 (emphasis supplied). From its statement in a footnote, I shall assume that the majority means by this sentence that a plaintiff must prove that the “gist” of the statements about him were false. The majority looks next to the tests for establishing actual malice, noting that its conclusions in that regard obviate the need to address whether the article’s “gist” was false, and proceeds to analyze whether this gist of the article was published with actual malice. I do not believe this approach is supported by Masson or any other case of which I am aware. The majority opinion states: The “gist” of the contested portion of the Fortune article was that plaintiff Bressler allegedly played a lead role in pressuring an independent inspector to certify, contrary to fact, that certain safety-related welds in the Watts Bar plant met the engineering code requirements, and that Bressler also attempted to cover up that safety violation. We now examine the defendant’s basis for reporting such allegations. Opinion at 1229 (emphasis supplied; footnotes omitted). In my view, the most obvious flaw in this approach is that this Court cannot possibly examine Fortune’s basis for reporting this capsulized “gist” because it is not what the Fortune article actually said. Rather, the article contained numerous, specific falsehoods about Bressler. The Fortune article did not state that Bressler “played a lead role” in pressuring Authorized Nuclear Inspector Howard Hasten; it stated that an ANI (Hasten) “was forced by TVA and superiors of his own company to approve a safety report against his will.” (J.A. at 10, 1687) (emphasis supplied). Significantly, the reporters conceded at trial that TVA here meant Bres-sler. (J.A. at 255-251). The article did not merely say that the welds did not meet “engineering code requirements”; instead it alleged that “TVA failed to test welds on [56] crucial steam and water pipes” (J.A. at 14, 1691) (emphasis supplied). Furthermore, the article did not say that the welds were “safety-related”; it referred to them as welds on “crucial” pipes (J.A. at 14, 1691), and stated that “[a] burst pipe could set off a serious nuclear accident” (J.A. at 14, 1691). The article did not simply state that Bressler was involved in “pressuring” an inspector to certify that the welds met code requirements; rather, the article reported, “Bressler, the head of TVA’s engineering codes office, ... warned Hartford Steam Boiler to get its inspectors in line or TVA would not renew its inspection contract, ...” (J.A. at 15, 1692) (emphasis supplied). Finally, although the Fortune article did state that Bressler attempted to “cover up that safety violation,” as the majority states, it says much more. The article’s second paragraph explicitly stated, “FORTUNE has uncovered evidence that the TVA tried to suppress inspection records showing that one of the plants — in Watts Bar, Tennessee — could be unsafe.” (J.A. at 10, 1687) (emphasis supplied). Bressler and his counsel spent almost two weeks in trial (and months, if not years, in pretrial preparation) trying to prove both that the article’s specific statements were false and that the Fortune reporters made them with actual malice. Having won the battle by proving these issues (and the others he was required to prove) to the satisfaction of a jury and a district court judge, Bressler nonetheless loses the war because the majority has changed the statements which he must prove false, by rewriting them into the “gist” of the article. It is also worth noting that Bressler has never had an opportunity to attempt to prove false this revised version of the article’s statements. I can find no case that authorizes a court, for purposes of analyzing whether statements are defamatory, to revise the statements first — leaving only innocuous generalizations — and then determine whether the revised statements are defamatory. Masson, the only case on which the majority appears to rely in adopting this approach, certainly does not authorize such an approach. In Masson, the Court addressed the standards for proving falsity. Minor inaccuracies do not amount to falsity so long as “the substance, the gist, the sting, of the libelous charge be justified.” Put another way, the 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. ” Our definition of actual malice relies upon this historical understanding. — U.S. at-, 111 S.Ct. at 2433 (citations omitted; emphasis supplied). I am nonplussed that the panel majority in the present case can read that direction from the Supreme Court as a license to rewrite allegedly defamatory statements before subjecting them to the test of actual malice. Of course, it is unfortunate that the Supreme Court in Masson used the word “gist” at all. Even as the Court recognized the confusion that has resulted from the use of the term “actual malice” in the law of defamation, — U.S. at-, 111 S.Ct. at 2429-30, the Court appears to have placed its imprimatur on another term — “gist”— that is almost certain to generate similar confusion and difficulty in application. In my view, the Court added nothing beneficial to its opinion by stating that a plaintiff must show that the “gist” of an article is false. It is enough to say that a “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.” — U.S. at-, 111 S.Ct. at 2433 (citation omitted). The present case is a good example of how the term “gist” can cause confusion. The majority here has seized upon the term “gist,” which was used by the Court, and extrapolated from it that the reviewing court should set forth its own version of the article’s content and subject that version to the falsity and actual malice tests. However, the actual language of Masson is, Minor inaccuracies do not amount to falsity so long as “the substance, the gist, the sting, of the libelous charge be justified.” Put another way, the 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.” — U.S. at-, 111 S.Ct. at 2433 (citations omitted; emphasis supplied). These standards do not permit the reviewing court to forego an analysis of whether each allegedly defamatory statement was false by revising the statements into a generalized “gist,” and subjecting the revised version to the requisite analysis. Rather, the reviewing court is to determine whether those actual statements are “minor inaccuracies” within the context of the relevant portions of the entire article such that they do not render the actual substance of those portions of the article false. Put another way, the reviewing court must determine whether the article’s actual statements would have a different effect on the mind of the reader than the pleaded truth would produce. But these tests for determining falsity must be applied to the actual words used in the article to determine whether they are minor inaccuracies or something more than that. If those statements are more than merely minor inaccuracies, or if they would produce a different effect than would the truth, the court must then determine whether the actual statements were made with actual malice. Thus, the Supreme Court’s standards guide the reviewing court in performing this task. While the Supreme Court’s use of the term “gist” is unfortunate, it is even more unfortunate that the majority in the present case has chosen to focus exclusively on that term, without considering the context in which it was used. My difficulty with the majority’s treatment of Masson is perhaps most clearly pointed up by the footnote in the majority opinion which observes: The dissent relies on Masson in criticizing our purported rewriting of the article’s defamatory statements. Masson, however, in addition to confirming that it is the “gist” of the statements which must be examined, — U.S. at-, 111 S.Ct. at 2433, considered the significance of rewriting, or misquoting, by a defendant-publisher, and not by a reviewing court. Further, there has been no allegation that the Fortune reporters altered or fabricated any quotations. Opinion at 1229 n. 2. First of all, in Mas-son, the Supreme Court made it clear that it was “rejectpng] any special test of falsity for quotations,” choosing instead to use the case before it to “illuminate a broader principle” of falsity. — U.S. at-, 111 S.Ct. at 2432. Secondly, it is not to be wondered at that the Supreme Court did not consider the significance of rewriting or misquoting by the reviewing court. Neither the trial court nor the appellate court in Masson undertook to rewrite the allegedly libelous words published by the defendants. Unless the lower courts had engaged in such a rewriting, the Supreme Court would have had no occasion even to contemplate the idea, since the issue in that case, (as in any libel case,) was the extent to which the expression of the defendant-publisher, not the expression of the reviewing court, is protected by the First Amendment. I believe that by revising the article’s accusations into the two simple statements which the majority characterizes as the article’s “gist,” the majority has simply eliminated the stinging accusations contained in the article, the very statements that Bres-sler alleges are defamatory. The statements in the article are detailed and specific. It is impossible to determine whether those specific statements are false and, if so, whether they were made with actual malice, by analyzing only the generalized gist of the article as summarized by the majority instead of analyzing the statements themselves. I find nothing in Mas-son which even implies that a court may determine the merits of a libel action by doing so. My continual emphasis in this dissent on what the Fortune article actually says, in contrast to what both Fortune and the majority say it says, is not an overly restrictive approach. Minor misstatements must not be treated as materially false, as the Supreme Court made clear in Masson. However, there is a world of difference between inquiring whether the “substance, the gist, the sting” of a statement is false and was published with actual malice, and rewriting allegedly defamatory statements into some other, watered-down version and asking if that version is false and was published with actual malice. A hypothetical will help to illuminate this point. Assume a newspaper published an article stating that John Doe, a bank manager and public figure, was discharged by his employer for having embezzled $250,000. If, in fact, Doe had embezzled only $220,000, we would not treat that discrepancy, as rendering false the entire article under the law of defamation. This article would have the same effect on the reader as would the truth — both advise the reader that John Doe was discharged for embezzling a very substantial sum of money from his employer. In contrast, assume again that the newspaper published the story that John Doe was discharged for embezzling $250,000. In fact, Doe was discharged because he authorized $250,000 in loans which immediately went into default, and the newspaper published the embezzlement story with knowledge only of Doe’s authorizing the bad loans. Were Doe to sue the newspaper for falsely reporting that he had embezzled money, would it be appropriate for the reviewing court to summarize the gist of the story as being that “John Doe was discharged by his employer because he was responsible for the employer’s incurring large losses of money,” and to determine the presence or absence of malice by examining the newspaper’s basis for reporting that statement? Surely not. If that were what the newspaper had reported, it probably could not be found to be false or malicious since the paper had information about Doe’s responsibility for the bad loans. But, of course, the newspaper did not report that “John Doe was discharged by his employer because he was responsible for the employer’s incurring large losses of money.” The newspaper published the statement that Doe was fired for embezzling money. If the court examines the newspaper’s basis for reporting that Doe was fired for embezzling money, very likely it would find malice, since the newspaper had no information to support that statement, and certainly that statement would have a very different effect on the mind of the reader than the truth would have had. It is one thing to be called incompetent. It is quite another to be labelled a thief. By rewriting or recharacterizing allegedly defamatory statements into a “gist,” a court may end up with a statement (the “gist”) that lies somewhere between the truth and what was actually published. Subjecting this “gist” to the tests of falsity and actual malice will often produce different results from those which would be produced if the actual statements at issue in the case were subjected to those same tests. The victim of such an approach will always be the defamed party, for the more generalized and innocuous the “gist” becomes, the greater the likelihood that there will be evidence justifying the publication of those more innocuous statements. In my view, the majority’s approach produces just such results. It has reviewed its own rewritten version of the article, what it calls the “gist,” and concluded that there was justification for the Fortune reporters to have reported the gist, and thus there was no malice. From that', the majority concludes, but does not hold, that the “gist of the article was substantially true.” Without belaboring the further watering down of the test for falsity which would result from looking to see whether the rewritten “gist”' is “substantially true,” I shall demonstrate in some detail below that if the article’s actual statements are examined, it becomes clear that they were both false and published with actual malice. B. Falsity 1. Burden of Proof on Falsity Fortune contends that the district court “erred in instructing the jury that the plaintiff was obliged to prove falsity by a mere preponderance of the evidence.” (Brief of Appellant, at 43). Instead, Fortune asserts that a proper charge would have instructed the jury that Bressler was required to prove falsity by “clear and convincing evidence.” Fortune’s argument is as follows: The “clear and convincing” standard follows ineluctably from the requirement, imposed by the Supreme Court in New York Times Co. v. Sullivan [376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686], that actual malice be established by “convincing clarity.” 376 U.S. at 285-86 [84 S.Ct. at 729]; Gertz v. Robert Welch, Inc., supra, 418 U.S. [323] at 342 [94 S.Ct. 2997 at 3008, 41 L.Ed.2d 789], If knowledge of falsity must be established by clear and convincing evidence to satisfy the actual malice standard, so too must the falsity. If the underlying falsity could be established by a mere preponderance, proof of the knowledge of such falsity could rise no higher, i.e., the proof of knowledge could, by definition, be no better than the proof of the underlying alleged falsity. This would gut the Supreme Court’s requirement that actual malice be established by clear and convincing evidence. (Brief of Appellant, at 43-44). Essentially, Fortune argues that if a jury, applying a preponderance of the evidence standard, errs by concluding that a statement was false, their determination that the statement was published with actual malice would be undermined, thereby compromising the First Amendment protection that the actual malice standard was meant to guarantee. To begin with, the logic of Fortune’s argument suffers from a fatal flaw. Nothing in the Supreme Court’s decisions indicates that a public figure libel plaintiff must prove knowledge of falsity. In fact, many of the Court’s decisions recognize that actual malice may be proved by showing that the publisher acted with reckless disregard for or in purposeful avoidance of the truth. See generally New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964); Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666, 109 S.Ct. 2678, 2685, 105 L.Ed.2d 562 (1989). Fortune cites several cases that it contends support its position. In Buckley v. Littell, 539 F.2d 882 (2d Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977) — the only appellate case that supports Fortune’s position — the court stated, “The appellee, a public figure, must rather have demonstrated with convincing clarity not only that appellant’s statements were false, but that appellant knew that they were false or made them with reckless disregard of their truth or falsity.” 539 F.2d at 889-890. The court cited Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974), and New York Times, 376 U.S. at 279-80, 285-86, 84 S.Ct. 710, 725-26, 728-29, in support. The Supreme Court, however, has taken no position on the standard of proof for falsity. See Harte-Hanks, — U.S. at-n. 2, 109 S.Ct. at 2682 n. 2. Thus, the Buckley court’s conclusion, made without further analysis or explanation, provides little guidance or persuasive force on the question. Fortune also cites Judge Griffin Bell’s concurring opinion in Firestone v. Time, Inc., 460 F.2d 712, 721-24 (5th Cir.), cert. denied, 409 U.S. 875, 93 S.Ct. 120, 34 L.Ed.2d 127 (1972), in which Judge Bell stated, The Supreme Court has not expressly added the requirement of clear and convincing proof of falsity to the plaintiff’s burden of proof. As stated, the burden of showing falsity has been imposed upon the plaintiff in First Amendment cases. Garrison [v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)]; Rosenblatt [v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966)]. Such a standard of proof seems implicit however, in the stated requirement in New York Times that plaintiff has the burden of showing by clear and convincing proof that publication was with knowledge of falsity or with reckless disregard as to falsity vel non. I conclude for the same constitutional reasons giving rise to this stringent proof requirement that the clear and convincing proof standard would also apply to proving that the statement was false in the first instance. 460 F.2d at 722-23 (Bell, J., specially concurring). Judge Bell, however, went no further in analyzing the question, relying only upon the Supreme Court’s reasoning in New York Times, Garrison, and Rosen-blatt. As noted above, however, the Supreme Court has not ruled on the extent of the burden of proof on falsity in those cases or any others. A somewhat more persuasive argument that the proper standard of proof is that of clear and convincing evidence is found in Robertson v. McCloskey, 666 F.Supp. 241, 248-50 (D.D.C.1987), the third case cited by Fortune. In Robertson, the court noted that in Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986), the Supreme Court con-stitutionalized the falsity element of defamation in cases involving public figure plaintiffs by striking down the common law presumption that defamatory statements are also false. 666 F.Supp. at 248; see Hepps, 475 U.S. at 776, 106 S.Ct. at 1563. The district court in Robertson accepted the defendants’ argument that the Court’s holding in Hepps supported a conclusion that falsity should be proved by clear and convincing evidence, reasoning as follows. [A] clear and convincing standard of proof for falsity would resolve doubts in favor of speech when the truth of a statement is difficult to ascertain conclusively. Indeed, as a practical matter, public-figure plaintiffs already bear such a burden, for in order to prove malice they must, of necessity, show by clear and convincing evidence that the defendant knew the statement was false or acted in reckless disregard of its truth. Finally, defendants’ argument has more than merely a logical or symmetrical appeal. To instruct a jury that a plaintiff must prove falsity by a preponderance of the evidence, but must also prove actual malice, which to a large extent subsumes the issue of falsity, by a different and more demanding standard is to invite confusion and error. 666 F.Supp. at 248. The court thus supported its holding with three separate justifications: (1) the need to resolve doubts in favor of speech; (2) the fact that actual malice practically subsumes falsity; and (3) potential jury confusion. But these reasons are not sufficient to justify elevating the burden of proving falsity to the level of clear and convincing evidence. First, as noted above, I do not believe that actual malice subsumes falsity. Public figure plaintiffs need not show knowledge of falsity to prove malice, as Fortune contends they must; it is enough that they show reckless disregard for the truth. Second, merely requiring a public figure plaintiff to prove by a preponderance of the evidence that the statements were false is to resolve doubts in favor of speech. The Supreme Court’s discussion of this issue in Hepps makes this clear. There will always be instances when the factfinding process will be unable to resolve conclusively whether the speech is true or false; it is in those cases that the burden of proof is dispositive. Under a rule forcing the plaintiff to bear the burden of showing falsity, there will be some cases in which plaintiffs cannot meet their burden despite the fact that the speech is in fact false. The plaintiffs suit will fail despite the fact that, in some abstract sense, the suit is meritorious. Similarly, under an alternative rule placing the burden of showing truth on defendants, there would be some cases in which defendants could not bear their burden despite the fact that the speech is in fact true. Those suits would succeed despite the fact that, in some abstract sense, those suits are unmeritorious. Under either rule, then, the outcome of the suit will sometimes be at variance with the outcome that we would desire if all speech were either demonstrably true or demonstrably false. This dilemma stems from the fact that the allocation of the burden of proof will determine liability for some speech that is true and some that is false, but [for] all of such speech [that] is unknowable true or false. Because the burden of proof is the deciding factor only when the evidence is ambiguous, we cannot know how much of the speech affected by the allocation of the burden of proof is true and how much is false. In a case presenting a configuration of speech and plaintiff like the one we face here, and where the scales are in such an uncertain balance, we believe that the Constitution requires us to tip them in favor of protecting true speech. 475 U.S. at 776, 106 S.Ct. at 1563-64 (emphasis supplied). This discussion, couched in the traditional language of the preponderance of the evidence standard, i.e., “scales,” “balance” and “tip [the scales] in favor,” and containing no reference to the clear and convincing standard, indicates that the Court has already made a judgment to resolve doubts in favor of speech by assigning the burden of proof to plaintiffs on the falsity issue. In addition, when the Court in Hepps assigned public figure plaintiffs the burden of proving falsity, it indicated that it was not making any significant shift in the allocations of burdens between plaintiffs and defendants. We note that our decision adds only marginally to the burdens that the plaintiff must already bear as a result of our earlier decisions in the law of defamation. The plaintiff must show fault. A jury is obviously more likely to accept a plaintiff’s contention that the defendant was at fault in publishing the statements at issue if convinced that the relevant statements were false. As a practical matter, then, evidence offered by plaintiffs on the publisher’s fault in adequately investigating the truth of the published statements will generally encompass evidence of the falsity of the matters asserted. 475 U.S. at 778, 106 S.Ct. at 1565. In contrast, requiring that plaintiffs prove falsity by clear and convincing evidence, as Fortune and amici urge this Court to do, certainly would result in a significant change in the burdens on plaintiffs, a shift I view as unwise because it would upset the balance between the competing interests involved in defamation litigation. There are two sets of interests at stake in constitutional decisions on the law of defamation, the states’ interest which un- derlies the law of libel in “compensation of individuals for the harm inflicted on them by defamatory falsehood,” Hepps, 475 U.S. at 773, 106 S.Ct. at 1562, and the First Amendment interest in providing “breathing space” for freedom of expression in order to avoid self-censorship. Id. at 772-73, 106 S.Ct. at 1561-62. Requiring plaintiffs to prove falsity by clear and convincing evidence would result in the unnecessary sacrifice of state law protection against defamation, while securing extremely marginal gains in constitutional protection. See, e.g., Time, Inc. v. Firestone, 424 U.S. 448, 456, 96 S.Ct. 958, 966