Little Rock Newspapers, Inc. v. Fitzhugh

LITTLE ROCK NEWSPAPERS, INC. 
v. J. Michael FITZHUGH

96-1050                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 13, 1997


1.   Appeal & error -- denial of motion for summary judgment -- not reviewable
     on appeal. -- The denial of a motion for summary judgment is not
     reviewable on appeal; such review is not available even after
     a trial on the merits; the final judgment must be tested upon
     the record as it exists at the time it is rendered rather than
     at the time the motion for summary judgment is denied.

2.   Motions -- directed verdict -- when granted -- review of denial. -- A
     motion for directed verdict should only be granted if the
     evidence is so insubstantial as to require that the jury's
     verdict be set aside; in reviewing the denial of a directed
     verdict, we give the evidence its highest probative value,
     viewing it in a light most favorable to the party against whom
     the verdict is sought.

3.   Torts -- defamation -- standard of review. -- The standard of review
     in cases of defamation, including factual findings, is whether
     the jury's verdict can be supported by substantial evidence.

4.   Torts -- defamation -- critical issue. -- An action for defamation
     turns on whether the communication or publication tends or is
     reasonably calculated to cause harm to another's reputation.

5.   Torts -- defamation -- elements. -- To establish a claim of
     defamation, a party must prove the following elements: (1) the
     defamatory nature of the statement of fact; (2) that
     statement's identification of or reference to the plaintiff;
     (3) publication of the statement by the defendant; (4) the
     defendant's fault in the publication; (5) the statement's
     falsity; and (6) damages.

6.   Torts -- defamation -- whether words implicate plaintiff in crime is
     question of fact for jury. -- In a defamation action, whether the
     words of the defendant, taken together with the attendant
     circumstances, implicate the plaintiff in the commission of a
     crime is a question of fact for the jury to resolve.

7.   Torts -- defamation -- sufficient proof to submit to jury issue of article
     as false statement of and concerning appellee. -- The supreme court
     concluded that there was sufficient proof for the trial court
     to submit to the jury the issue whether a newspaper article
     containing a photograph of appellee could be construed as
     being a false statement of and concerning appellee where,
     among other things, appellee's photograph was included in the
     article and the caption under the photograph gave only the
     subject's last name, which was shared by appellee and the
     person named in the article, as opposed to the full name of
     the subject of the article; where the subject of the article
     was referred to merely by his last name seven different times;
     and where several friends or acquaintances of appellee
     testified that they initially believed the article was about
     appellee due to the inclusion of appellee's photograph.

8.   Torts -- defamation -- First Amendment rights implicated -- damages not
     presumed. -- In a case such as this involving First Amendment
     rights, damages may not be presumed.

9.   Torts -- defamation -- proof of damage to reputation. -- Proof of
     damage to reputation may include (1) proof that people
     believed the plaintiff to be guilty of the conduct asserted in
     the publication or (2) proof that people thought less of the
     plaintiff as a result of the publication's defamatory content.

10.  Torts -- defamation -- proof of damage to appellee's reputation was
     sufficient. -- The supreme court concluded that the trial court
     did not err in denying appellant's directed-verdict motion
     where the proof presented at trial, including the testimony of
     various witnesses who believed that appellee was involved in
     a criminal investigation, was sufficient to sustain the jury's
     conclusion that appellee's reputation had been damaged as a
     result of appellant's negligent publication of his photograph
     with the article. 

11.  Torts -- defamation -- public official or figure -- mixed question of fact
     and law. -- Whether an individual is a public official or a
     public figure is a mixed question of fact and law that is for
     the trial court to determine.

12.  Torts -- defamation -- "public figures" defined. -- Public figures are
     those persons who have assumed roles of especial prominence in
     the affairs of society; some occupy positions of such
     persuasive power and influence that they are deemed public
     figures for all purposes; more commonly, those classed as
     public figures have thrust themselves to the forefront of
     particular public controversies in order to influence the
     resolution of the issues involved; in either event, they
     invite attention and comment. 

13.  Torts -- defamation -- "private individual" defined. -- A private
     individual has not accepted public office nor assumed an
     influential role in ordering society; a private individual has
     not relinquished his interest in the protection of his own
     good name and consequently has a more compelling case for
     redress of injury inflicted by defamatory falsehood.

14.  Torts -- defamation -- public-figure question -- nature and extent of
     individual's participation in controversy provides meaningful context. --
     In some instances, an individual may achieve such pervasive
     fame that he or she becomes a public figure for all purposes
     and in all contexts; more commonly, an individual voluntarily
     injects himself or is drawn into a particular public
     controversy and becomes a public figure for a limited range of
     issues; in either case, such persons assume special prominence
     in the resolution of public questions; absent 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 or
     her life; it is preferable to reduce the public-figure
     question to a more meaningful context by looking to the nature
     and extent of an individual's participation in the particular
     controversy giving rise to the defamation.

15.  Torts -- defamation -- appellee was not limited-purpose public figure. --
     The supreme court concluded that appellee was not a limited-
     purpose public figure within the context of the reported
     criminal investigation; the mere fact of an attorney's
     representation of a client involved in a matter of public
     controversy does not, in itself, automatically render the
     attorney a public figure within the context of the
     controversy; there was no evidence presented at trial showing
     that appellee had thrust himself into the vortex of the
     controversy at issue or that he had engaged the public's
     attention in an attempt to influence the outcome of the
     controversy.

16.  Torts -- defamation -- appellee was not all-purpose public figure. -- The
     supreme court determined that appellee did not, by virtue of
     his having been a federal prosecutor for eight years, occupy
     a position of persuasive power and influence or one of
     especial prominence in the affairs of society so that he could
     be labeled an all-purpose public figure; his public activities
     had nothing to do with the subject of the newspaper article;
     there was no clear evidence presented at trial showing that
     appellee had achieved such general fame and notoriety
     throughout the state, where the newspaper was circulated, to
     render him a public personality for all aspects of his life.

17.  Torts -- defamation -- appellee was private individual within context of
     lawsuit -- only required to prove negligence. -- Because the supreme
     court concluded that appellee was a private individual within
     the context of this lawsuit, it necessarily followed that the
     trial court did not err in instructing the jury that appellee
     was only required to prove negligence rather than actual
     malice.


     Appeal from Sebastian Circuit Court, Fort Smith District; Don
R. Langston, Judge; affirmed.
     Hardin, Dawson & Terry, by: Rex M. Terry; and Williams &
Anderson, by: Philip S. Anderson, John E. Tull III, and Leon
Holmes, for appellant.
     Everett Law Firm, by: Thomas A. Mars, for appellee.

     Donald L. Corbin, Justice.
     Appellant Little Rock Newspapers, Inc., appeals the judgment
of the Sebastian County Circuit Court imposing the jury's verdict
awarding $50,000 in damages to Appellee J. Michael Fitzhugh for his
defamation claim against Appellant's newspaper, the Arkansas
Democrat-Gazette.  Our jurisdiction of this appeal is pursuant to
Ark. Sup. Ct. R. 1-2(a)(15), as it presents questions concerning
the law of torts.  Appellant raises four points for reversal.  We
find no error and affirm.
     The record reflects that on Monday, June 20, 1994, the
Arkansas Democrat-Gazette printed an article on the front page of
its "Arkansas" section entitled, "Whitewater counsel kicks off
first prosecution."  There were two photographs included in the
article -- one of Charles Matthews, with the caption "Matthews"
beneath it and one of Appellee, with the caption "Fitzhugh" beneath
it.  The substance of the article is as follows:
        Whitewater counsel kicks off first prosecution

          The first case to be prosecuted by the office of
     Robert Fiske Jr., the special counsel in the Whitewater
     Development Corp. affair, is to start in U.S. District
     Court at Little Rock today.
          But don't look for the prominent political figures
     usually associated with Fiske's investigation.
          The defendants are Charles Matthews and Eugene
     Fitzhugh.  The men are little known outside Little Rock,
     and their attorneys argue the case doesn't belong under
     Fiske's jurisdiction.
          Matthews, Fitzhugh and former Pulaski County
     Municipal Judge David Hale were indicted by a federal
     grand jury last fall for conspiring to defraud the Small
     Business Administration of $900,000 through Hale's
     federally licensed lending company, Capital Management
     Services Inc. of Little Rock.
          Capital Management Services was supposed to raise
     capital to match money from the SBA and then make loans
     to socially and economically disadvantaged companies and
     individuals.
          Fitzhugh's attorney, Randy Satterfield of Little
     Rock, said his client's defense is that "he's pretty much
     a victim of some big scheme that Hale had going on."
          Hale helped fuel calls for the Whitewater
     investigation -- and Fiske's eventual appointment in
     January by Attorney General Janet Reno -- by alleging
     that then-Gov. Bill Clinton pressured him during the
     1980s to make a $300,000 loan to Susan McDougal.
          The president and first lady Hillary Rodham Clinton
     were partners with James and Susan McDougal from 1978-92
     in Whitewater, a 230-acre residential development along
     the White River in Marion County.
          James McDougal also owned Madison Guaranty Savings
     & Loan Association, which failed in 1989 at a cost to
     taxpayers of at least $47 million.  Fiske is
     investigating allegations that money was transferred
     illegally from Madison accounts to Whitewater accounts.
          Hale pleaded guilty to two felonies in March.  His
     sentencing is on hold while the government evaluates his
     cooperation with Fiske's investigation.
          Fitzhugh and Matthews have said that if anybody
     defrauded the SBA, it was Hale.  Yet their link to
     Whitewater -- however small -- will ensure national news
     coverage of their trial.
          Satterfield said he has been contacted by reporters
     from The New York Times, USA Today and other
     publications.  
          Fitzhugh has tried unsuccessfully to have Fiske
     disqualified from the case, arguing the Whitewater
     connection has turned the trial into a "media event." 
          The prosecution will be handled by two associate
     counsels in Fiske's office.
          Fitzhugh and Matthews are accused of using a wealthy
     Shreveport family's money to help Hale misrepresent the
     amount of private capital held by his company.  That
     misrepresentation allegedly allowed the company to
     qualify improperly for $900,000 from the SBA.
          Matthews and Fitzhugh split $250,000 as their
     payoff, the government contends.
          Fitzhugh, a Little Rock lawyer, represented a member
     of the Shreveport family.
          Matthews, a North Little Rock lawyer and former
     securities dealer, handled some of the family's
     investments.  Matthews was a state representative and
     chairman of the Arkansas Democratic Party in the late
     1960s.
          Court papers filed by the government and defense
     lawyers recently indicate how the trial may proceed.
          The government says it can make its case without
     testimony from Hale.
          Fiske's office, however, said it expects defense
     attorneys to call Hale as a witness to discredit him.
          Prosecutors have asked U.S. District Judge Stephen
     Reasoner to limit Hale's testimony about his crimes to
     prevent distracting the jury from the "relevant issues"
     in the case.
          "The obvious ploy is to set up Hale as a straw man,"
     prosecutors argued last week in a motion to limit
     testimony about Hale's confessed crimes.
          Satterfield said he has subpoenaed Hale.  
          "There's a lot of activity about limiting his
     testimony, so I don't know" whether to call him, the
     lawyer said.
          The government also has argued that unlimited
     examination of Hale could damage Fiske's investigation of
     other matters.
          A spokesman for Fiske's office said the prosecution
     hopes to present its case "within a week" but declined to
     respond to other questions.
          Satterfield said he expects the trial to last no
     more than a week.

     After receiving telephone calls from Appellee, the newspaper
printed a correction the following day.  The correction, which was
printed in the lower left corner of the front page of the
"Arkansas" section under the headline of "Getting it straight,"
included a true photograph of Eugene Fitzhugh.  The correction
read:
          On Monday on the front of the Arkansas section a
     photo of J. Michael Fitzhugh was run in place of a photo
     of Eugene Fitzhugh.  The correct photo of Eugene Fitzhugh
     is shown. 
     Appellee filed his complaint against Appellant on September 2,
1994, alleging that the juxtaposition of his photograph against the
headline and accompanying article was defamatory per se and was the
result of gross carelessness on the part of Appellant's employees. 
In its answer, Appellant asserted that Appellee was a public figure
and that, as such, it was necessary for Appellee to prove that its
employees acted with actual malice in placing Appellee's photograph
in the Whitewater article.  
                I.  Sufficiency of the Evidence
     For its first two points for reversal, Appellant argues that
the trial court erred in denying its motion for summary judgment
and for refusing to grant a directed verdict in its favor. 
Appellant contends that Appellee failed to prove that the article
in question was a false statement of fact of and concerning him and
that his reputation was actually harmed as a result of the
article's publication.  Appellant does not challenge the amount of
damages awarded to Appellee by the jury; rather, it challenges the
award of any damages.
     We first note that the denial of a motion for summary judgment
is not reviewable on appeal.  Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997); White v. Welsh, 327 Ark. 465, 939 S.W.2d 299
(1997).  Such review is not available even after a trial on the
merits, as the final judgment must be tested upon the record as it
exists at the time it is rendered, rather than at the time the
motion for summary judgment is denied.  Ball v. Foehner, 326 Ark.
409, 931 S.W.2d 142 (1996).  Hence, we review only Appellant's
argument as it pertains to the trial court's denial of its motion
for directed verdict.  
     A motion for directed verdict should only be granted if the
evidence is so insubstantial as to require that the jury's verdict
be set aside.  Dodson v. Dicker, 306 Ark. 108, 812 S.W.2d 97
(1991).  In reviewing the denial of a directed verdict, we give the
evidence its highest probative value, viewing it in a light most
favorable to the party against whom the verdict is sought.  Id. 
The standard of review in cases of defamation, including factual
findings, is whether the jury's verdict can be supported by
substantial evidence.  Thomson Newspaper Publishing, Inc. v. Coody,
320 Ark. 455, 896 S.W.2d 897, cert. denied, 116 S. Ct. 563 (1995). 
An action for defamation turns on whether the communication or
publication tends or is reasonably calculated to cause harm to
another's reputation.  Id.; Little Rock Newspapers, Inc. v.
Dodrill, 281 Ark. 25, 660 S.W.2d 933 (1983). 
     In order to establish a claim of defamation, a party must
prove the following elements:  (1) The defamatory nature of the
statement of fact; (2) that statement's identification of or
reference to the plaintiff; (3) publication of the statement by the
defendant; (4) the defendant's fault in the publication; (5) the
statement's falsity; and (6) damages.  Minor v. Failla, 329 Ark.
274, 946 S.W.2d 954 (1997) (citing Mitchell v. Globe Intern. Pub.,
Inc., 773 F. Supp. 1235 (W.D. Ark. 1991)).    
         A.  False Statement of and Concerning Appellee
     Appellant relies on this court's decision in Pigg v. Ashley
County Newspaper, Inc., 253 Ark. 756, 489 S.W.2d 17 (1973), for the
proposition that in determining whether an article is libelous, we
must construe the article in its entirety.  Appellant asserts that
in reading the present article as a whole, it cannot reasonably be
construed as being a false statement of fact of and concerning
Appellee.  Appellant asserts that the evidence demonstrated that
the article is clearly of and concerning Eugene Fitzhugh,
identified in the article as a Little Rock lawyer who is not a
prominent figure and is little known outside of Little Rock.  We
disagree.    
     Whether the words, taken together with the attendant
circumstances, implicate the plaintiff in the commission of a crime
is a question of fact for the jury to resolve.  Minor, 329 Ark.
274, 946 S.W.2d 954.  The question of whether a jury may reasonably
determine that the placement of a plaintiff's photograph in a
potentially defamatory article was a false statement of fact of and
concerning that plaintiff is an issue of first impression in this
State.  We thus look to other jurisdictions for guidance.     
     In Brown v. Tallahassee Democrat, Inc., 440 So. 2d 588 (Fla.
App. 1983), cited by Appellee in his brief, the article, headlined
"Prosecution rests case in Madison murder trial," described the
criminal defendant Larry Joe Johnson, but contained a photograph of
the appellant Brown with the caption "Johnson" beneath it.  The
Florida court noted at the outset that the "allegedly defamatory
publication must be considered in its entirety rather than with an
eye constrained to the objectionable feature alone."  Id. at 589. 
In so construing the article, the court concluded that it was error
for the trial court to have granted summary judgment to the
newspaper because, given the juxtaposition of Brown's photograph,
the ordinary reader may have been left with the sense that Brown
was guilty of or on trial for murder.  
     In James v. Fort Worth Telegram Co., 117 S.W. 1028 (Tex. Civ.
App. 1909), the Texas Court of Civil Appeals reviewed a defamation
case involving an article describing an ax-murderer, Daniel
Herring, which contained a photograph of the appellant James.  The
court held that the article "should be construed as imputing the
homicide to the man whose picture, forming a part of the
publication, was identified by references to it as that of the man
who did the killing."  Id. at 1029.  The court went on to hold that
because it was undisputed that the photograph was of James, the
publication clearly imputed the killing to him. 
     Similarly, in Farley v. Evening Chronicle Pub. Co., 87 S.W. 565 (1905), the Missouri Court of Appeals held that whether a
photograph of the appellant Farley included in a newspaper article
about a person of the same name, who was described as a
strikebreaker, was defamatory to Farley was a question for the jury
to resolve.  The court stated:
          If we scrutinize yet more closely the publication of
     the article and the picture, the conclusion cannot be
     escaped that the defendant's editor intended the readers
     of his paper to understand that the person whose picture
     was published was the person to whom the article alluded. 
     In that sense the article meant and referred to this
     plaintiff, and he was intended to be described by the
     writer.
Id. at 570.
     In accordance with the holdings espoused in the above-cited
cases, we conclude that there was sufficient proof for the trial
court to submit to the jury the issue of whether the article could
be construed as being a false statement of and concerning Appellee. 
It is undisputed that Appellee's photograph was contained in the
article and that the caption under the photograph stated
"Fitzhugh," as opposed to "Eugene Fitzhugh."  It is also undisputed
that the subject of the article was referred to as merely
"Fitzhugh" seven different times.  Several witnesses, all friends
or acquaintances of Appellee, testified that they initially
believed the article was about Appellee due to the inclusion of
Appellee's photograph in the article.  Additionally, one witness
indicated that he and his wife had wondered whether Appellee's
middle name was Eugene, which is Appellee's brother's name.  There
was thus sufficient evidence presented by Appellee's witnesses upon
which the jury could have reasonably determined that persons who
were not so personally acquainted with Appellee may have been left
with the permanent impression that Appellee was charged with a
crime in the Whitewater scandal.  We thus turn to the issue of
Appellee's proof of damages.
               B.  Damage to Appellee's Reputation
     Appellant argues that Appellee failed to prove specific,
actual injury to his reputation because none of the witnesses
testified that Appellee's reputation had actually suffered or that
they looked badly upon him as a result of the article's
publication.  Appellant argues further that although Appellee may
have produced evidence that generally established that any person
associated with the Whitewater scandal would have been harmed, he
failed to produce any evidence demonstrating that he, personally,
had suffered an injury to his reputation.  We disagree.
     In the landmark case of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court held that states may not permit
recovery of presumed damages in actions for defamation absent a
showing of knowledge of falsity on the part of the publisher or a
reckless disregard for the truth.  This holding applies equally to
those plaintiffs who are private figures and those who are
classified as public figures or officials.  On the issue of proof
of damages, the Court stated:
     We need not define "actual injury," as trial courts have
     wide experience in framing appropriate jury instructions
     in tort actions.  Suffice it to say that actual injury is
     not limited to out-of-pocket loss.  Indeed, the more
     customary types of actual harm inflicted by defamatory
     falsehood include impairment of reputation and standing
     in the community, personal humiliation, and mental
     anguish and suffering.  Of course, juries must be limited
     by appropriate instructions, and all awards must be
     supported by competent evidence concerning the injury,
     although there need be no evidence which assigns an
     actual dollar value to the injury.

Id. at 349-50 (emphasis added).  Thus, the Court left to the states
the question of what particular proof of damages must be offered by
the plaintiff in order to show that he or she had suffered "actual
injury" as a result of the defamation.  As pertains to such actions
in this State, part of that question was answered by this court in
Dodrill, 281 Ark. 25, 660 S.W.2d 933.   
     In Dodrill, which is relied upon heavily by Appellant, this
court rejected the notion expressed by the Court in Gertz and later
in Time, Inc. v. Firestone, 424 U.S. 448 (1976), that the
Constitution does not require proof of injury to reputation before
recovery for mental suffering can be had.  Instead, this court held
that in Arkansas, an action for defamation has always required
proof of reputational injury:
          It is settled law that damage to reputation is the
     essence of libel and protection of the reputation is the
     fundamental concept of the law of defamation.  The action
     turns on whether the communication or publication tends
     or is reasonably calculated to cause harm to another's
     reputation.  Such injury to reputation is a prerequisite
     to making out a case of defamation and an action lacking
     that claim becomes another cause of action. 

Id. at 28, 660 S.W.2d  at 935 (footnote and citations omitted).  In
support of its conclusion that there must be proof of injury to
reputation, and in accordance with the holding in Gertz that
damages to reputation may not be presumed in cases involving First
Amendment rights, this court stated:
     To allow recovery in a defamation action where the
     primary element of the cause of action is missing not
     only sets the law of defamation on end, but also
     substantially undercuts the impact Gertz seeks to effect. 
     The law of defamation has always attempted to balance the
     tension between the individual's right to protect his
     reputation and the right of free speech.  To totally
     change the character of defamation to allow recovery when
     there has been no loss of the former right, would be an
     unjustified infringement on the First Amendment.
Id. at 31, 660 S.W.2d  at 936.  Undeniably, the present case is one
involving First Amendment rights.  As such, damages may not be
presumed.  The question then is how much proof of actual injury to
reputation is sufficient to render the issue one for the jury to
resolve.   
     Appellee points to this court's subsequent decision in Hogue
v. Ameron, Inc., 286 Ark. 481, 695 S.W.2d 373 (1985), in support of
his assertion that there was sufficient evidence from which the
jury could have concluded that his reputation was damaged.  In
Hogue, the appellant, an Arkansas State Police trooper, filed an
action for defamation on the basis of a letter written to his
superiors stating that the appellant had been photographed driving
an unlicensed vehicle.  At trial, the appellant testified that his
reputation had been harmed by the ensuing investigation.  Another
witness testified vaguely that the appellant's reputation had
changed for the worse at about the time of the investigation. 
Concluding that the trial court erred in granting a directed
verdict against the appellant, this court held that where there was
some evidence of harm to the appellant's reputation, it was a
question for the jury to resolve.  Notwithstanding the holding in
Hogue, the question still remains as to what particular type of
proof is sufficient to sustain a jury's verdict in favor of a
plaintiff in a defamation action.  In order to resolve this
question, it is necessary to look beyond the decisions of this
court.         
     In Salomone v. MacMillan Publishing Co., Inc., 429 N.Y.S.2d 441 (N.Y. App. Div. 1980), the New York Supreme Court, Appellate
Division, held that the plaintiff in a libel suit, who was a
private individual, had failed to prove any damages compensable in
law.  The subject of the libel action was a parody of a children's
book of cartoons entitled Eloise.  The original children's book was
about a fictional six-year-old girl who lived at the Plaza Hotel
with her nanny.  One of the book's drawings showed a man bowing
from the waist and Eloise curtseying in return, with the caption
referring to the man as Mr. Salomone, the hotel manager.  In the
parody of the book, entitled Eloise Returns, the opening drawing
shows Eloise in the men's room of the hotel, where the walls are
now covered with graffiti.  On a large mirror, underneath where the
girl is writing "Eloise Returns," are the words "Mr. Salomone was
a child molester."  Plaintiff Salomone was the manager of the Plaza
Hotel when the original Eloise was written.  He filed suit for
libel against the publisher of Eloise Returns, who was shocked to
learn that Mr. Salomone was anything other than a fictional
character.  New York law required the plaintiff in such actions to
prove damage to his reputation; evidence that the plaintiff had
suffered embarrassment and mental anguish was not sufficient to
support an award of damages.  In concluding that the plaintiff's
damages were insufficient, the court held:
          He claims damages for loss of reputation and for
     mental anguish.  He has been unable to come forth with
     any proof of loss of reputation because he knows of no
     one who believes he was a child molester or thinks less
     of him due to the publication. . . .  While the U.S.
     Supreme Court, in Gertz, would appear to have allowed the
     states sufficient latitude to include in the definition
     of "actual injury" mental anguish unaccompanied by loss
     of reputation, this has not occurred in this state.

Id. at 442-43 (citations omitted) (emphasis added).  
     The holding in Salomone thus indicates that proof of damage to
reputation may include:  (1) Proof that people believed the
plaintiff to be guilty of the conduct asserted in the publication,
or (2) proof that people thought less of the plaintiff as a result
of the publication's defamatory content.  We view that language as
persuasive authority on the issue presented in this case, given
that the law applied in Salomone parallels the applicable law in
this State, requiring proof of injury to reputation above and
beyond that of mental suffering or anguish.  Hence, the pertinent
question now before us is whether it was sufficient proof that the
witnesses who read the article initially believed that Appellee was
the subject of the stated Whitewater investigation.  After
reviewing the testimony, we conclude that the proof was sufficient. 
     Appellee testified that he believed that the article's
publication throughout the state had damaged his reputation.  In
this respect, Appellee indicated that he was aware of this because
people had told him it had had an effect.  He gave numerous
examples of how he was harmed by the article.  He stated that a
fellow lawyer had driven by him and made a comment about the
article and how Appellee was the subject of conversation in that
lawyer's law firm.  He stated that a friend of his, Gilbert Travis,
had called and wanted to know what Appellee's middle name was and
that Travis had told him that he had seen the article and thought
it was about Appellee because his photograph was attached.  He
stated that a childhood friend, Mackie Watson, had seen him at a
soccer tournament and had loudly inquired as to whether Appellee's
name was "Michael Eugene" or "J. Michael."  He stated that Watson
then told him that she had spoken to Jeannie Luttrell about the
article.  Appellee stated further that he had been kidded about the
article by some people but that he had never thought it was funny. 
He stated that he did not want to be connected with the Whitewater
prosecution because it is a stain on the State of Arkansas and the
legal profession in general.  Additionally, he stated that he had
had difficulty sleeping and that he would wake up during the night
thinking about the article.  
     Jeannie Luttrell, a childhood friend of Appellee's, testified
that when she saw the article and Appellee's photograph, she
believed it was about him, even though she indicated that it was
hard for her to believe that about Appellee because of his high
moral character.  When asked what she believed had happened to
Appellee, she explained:
     I believed that he probably lost his job as a federal
     prosecutor when the administration changed, and that
     perhaps he had moved to Little Rock, and he somehow got
     involved with these people.  It was hard for me to
     believe that because they were Democrats and Mike was
     Republican, but I believed it.

Luttrell stated that she had talked to some people about the
article and that she had continued to believe that the article was
about Appellee until she was told by Mackie Watson, some months
later in the fall of 1994, that the article was not about him.
     Dr. Cole Goodman, Appellee's friend, stated that at the time
Appellee went into private practice in Fort Smith, he had an
excellent reputation.  He stated that when he had initially seen
the June 20, 1994 article and Appellee's photograph, he thought
that Appellee must have been prosecuting the case.  He stated that
when he remembered that Appellee was no longer a prosecutor, he
read the article.  Upon seeing the name "Eugene Fitzhugh," he
stated that he thought the newspaper had confused Appellee's name
with that of his brother Eugene.  In explanation of his reaction to
the article, he stated:  "And then I read through this and saw
where these people had defrauded a significant amount of money, and
my initial response then was to get perturbed at Mike for doing
this."  He stated that upon rereading the article, however, he
realized that it was not about Appellee. 
     Gilbert Travis, another friend of Appellee's, testified that
he was reading the newspaper on June 20, 1994, when he saw
Appellee's photograph with the article describing Eugene Fitzhugh. 
He stated that he then called to his wife and asked her what other
name Appellee went by besides Mike, to which his wife responded
that she did not know.  He stated that he had concluded from the
article that Appellee was in trouble.  He stated that he then
called Appellee to see if he could do anything to help him. 
     Similarly, Howard Pearson, the principal at Ramsey Junior High
School and Appellee's wife's boss, stated that he had viewed the
article as a whole as indicating that Appellee had done something
wrong.  He stated that he had trouble believing it, but that he did
believe it because it contained Appellee's photograph.     
     Asa Hutchinson, former United States Attorney and Appellee's
former boss, testified generally as to the effect of such an
article on a lawyer's reputation.  When asked to relate to the jury
his experience in trying to establish a private law practice in
Fort Smith after having been employed as a federal prosecutor,
Hutchinson stated that it takes a significant amount of time to
build up a client base and that the way to generate clients was
through experience and personal reputation.  Hutchinson stated that
from both a personal and professional standpoint, a lawyer's chief
asset is his reputation.  When asked if he felt that being accused
of wrong-doing in connection with Whitewater would have damaged his
reputation, Hutchinson stated that "[i]t would harm anyone's
reputation." 
     Robert Lutgen, managing editor of the Arkansas Democrat-
Gazette, testified that the article had caused some damage to
Appellee and was embarrassing to him, but that it was the
newspaper's position that the article had not caused "significant
damage" to Appellee.  Lutgen admitted that Whitewater was the
biggest news story that the newspaper had covered since 1992.  When
asked to explain how much damage had been caused to Appellee,
Lutgen echoed Appellee's earlier testimony that there was probably
not any way of actually measuring the damage done to him.  Lutgen
finally stated that it was the newspaper's position that the
article had caused "minor damage" to Appellee.  
     Appellee contends that Lutgen's testimony alone is sufficient
proof of damage to his reputation.  Appellant, on the other hand,
attempts to shrug off Lutgen's testimony by arguing that he never
specifically testified that the article had caused damage to
Appellee's reputation, but rather, only that the article had caused
damage in general.  We are not persuaded by Appellant's argument. 
Instead, we conclude that a fair reading of Lutgen's testimony in
toto indicates that the damage to which he was referring was damage
to Appellee's reputation.  A review of Lutgen's testimony
demonstrates that prior to his answering questions concerning the
amount of damage sustained by Appellee, he stated that Appellant's
newspaper had the ability to severely damage a person's reputation
by printing false information about that person.   
     The foregoing testimony demonstrates that Appellee's
reputation was injured as a result of Appellant's publication of
the defamatory article.  This proof is most evident through the
testimony of the various witnesses who believed that Appellee was
involved in the Whitewater investigation.  The fact that some of
the witnesses' beliefs were held only for a short period of time is
of no consequence to Appellant.  What is significant is that those
persons believed that Appellee was the subject of the article and
was, thus, the target of a criminal investigation.  We reject
Appellant's argument that Appellee failed to show that people
thought less of him as a result of the article.  The fact that the
witnesses believed that Appellee was charged with a crime involving
the Whitewater scandal demonstrates that they thought less of
Appellee as a result of the article.  Moreover, we are persuaded by
Appellee's assertion that none of the witnesses who were personally
acquainted with him would have thought badly of him on a permanent
basis because they were able to personally verify that he was not
the person being charged with the Whitewater crimes.  On the other
hand, persons who were not personally acquainted with Appellee
would not have been capable of verifying the truth nor would they
have been known to Appellee so that he could secure their testimony
for trial.  We thus conclude that the trial court did not err in
denying Appellant's directed-verdict motion, as the proof presented
at trial was sufficient to sustain the jury's conclusion that
Appellee's reputation had been damaged as a result of Appellant's
negligent publication of his photograph with the article.      
               II.  Public Figure / Actual Malice
     For its final two points for reversal, Appellant argues that
the trial court erred in refusing to declare Appellee to be a
public figure and, correspondingly, in refusing to instruct the
jury that Appellee had the burden of proving that the newspaper
acted with actual malice in publishing the defamatory falsehood. 
Appellant's contention that Appellee is a public figure is based
upon the fact that he had been a United States Attorney for a
period of some eight years.  Appellee concedes that he was and
still is a public figure for the limited purpose of any article or
news story concerning his actions as a federal prosecutor.  He
disputes, however, that he was a public figure within the context
of the Whitewater investigation, which was the subject of the
defamatory article.    
     Evidence presented at trial established that Appellee became
an Assistant United States Attorney for the Western District of
Arkansas in May 1974.  Appellee remained in that position until
November 1985, when he was appointed as temporary or acting United
States Attorney for the Western District of Arkansas, replacing Asa
Hutchinson, who had resigned to run for the United States Senate. 
Appellee was later appointed permanently as United States Attorney
for that district, a position he held until he resigned in
March 1993.  During his tenure as United States Attorney, Appellee
had participated in several press conferences, had been named in
numerous newspaper articles, and had routinely issued press
releases pertaining to investigations that his office was
conducting.  Appellee had also been the subject of a local
television news broadcast, detailing his life and work in the Fort
Smith community.  Additionally, Appellee had twice submitted his
name for appointment to a federal judgeship approximately three to
four years before the article was printed, although he was not
successful in that endeavor.  Appellee had never sought elective
office.  Appellee joined the Bethell law firm in Fort Smith in
August 1993.  A telephone book advertisement for the Bethell law
firm identified Appellee as a former United States Attorney. 
Appellant asserts that such evidence demonstrates that Appellee was
a public figure under the standard established in Gertz.  We
disagree.
     Whether an individual is a public official or a public figure
is a mixed question of fact and law that is for the trial court to
determine.  See, e.g., Gertz, 418 U.S. 323; Cornett v. Prather, 293
Ark. 108, 737 S.W.2d 159 (1987).  In Gertz, the Supreme Court held
that public figures normally enjoy greater access to effective
channels of communication and, thus, have more realistic
opportunities to counteract false statements than do private
individuals.  The Court described public figures as those persons
who:
     have assumed roles of especial prominence in the affairs
     of society.  Some occupy positions of such persuasive
     power and influence that they are deemed public figures
     for all purposes.  More commonly, those classed as public
     figures have thrust themselves to the forefront of
     particular public controversies in order to influence the
     resolution of the issues involved.  In either event, they
     invite attention and comment.
Id. at 345.   A private individual, on the other hand, has not
accepted public office nor assumed an "influential role in ordering
society."  Id. (citing Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Warren, C. J., concurring in result)).  A private
individual has not relinquished his interest in the protection of
his own good name, and consequently has a more compelling case for
redress of injury inflicted by defamatory falsehood.  Id.  Holding
that the designation of a public figure may rest on either of two
alternative bases, the Court stated:
     In some instances an individual may achieve such
     pervasive fame or notoriety that he becomes a public
     figure for all purposes and in all contexts.  More
     commonly, an individual voluntarily injects himself or is
     drawn into a particular public controversy and thereby
     becomes a public figure for a limited range of issues. 
     In either case such persons assume special prominence in
     the resolution of public questions.

          . . . Absent 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. 
     It is preferable to reduce the public-figure question to
     a more meaningful context by looking to the nature and
     extent of an individual's participation in the particular
     controversy giving rise to the defamation. 

Id. at 351-52 (emphasis added).

     The facts of that case demonstrated that Gertz was an attorney
representing the family of a juvenile who had been shot and killed
by a Chicago police officer.  The officer had been convicted of
second-degree murder, and his conviction had generated considerable
publicity.  The civil litigation, brought by the family against the
officer, received national attention when the respondent published
an article in American Opinion, a monthly magazine espousing the
views of the John Birch Society, that contained numerous
inaccuracies about Gertz.  The article labeled Gertz as a criminal,
a Leninist, a Communist-fronter, an official of the "Marxist League
for Industrial Democracy," and an instigator of the riots that had
occurred at the 1968 Democratic National Convention in Chicago. 
The Court concluded that based upon the facts of that case, Gertz
was not a public figure, as he did not "thrust himself into the
vortex of this public issue, nor did he engage the public's
attention in an attempt to influence its outcome."  Id. at 352. 
Rather, the Court declared that Gertz's participation in that
public issue related solely to his representation of a private
client.   
     Since Gertz, courts have construed the term "public figure"
narrowly, with a greater emphasis on the plaintiff's status as it
relates to the subject of the defamation.  In Time, Inc. v.
Firestone, 424 U.S. 448 (1976), the Court held that the respondent,
the ex-wife of Russell Firestone (the descendent of the wealthy
Firestone Tire family), was not a public figure for purposes of an
article in Time magazine about the Firestones' divorce.  The Court
held that notwithstanding that there may have been public interest
in the wealthy couple's divorce, Mrs. Firestone was not a public
figure because she had not assumed "any role of especial prominence
in the affairs of society, other than perhaps Palm Beach society,
and she did not thrust herself to the forefront of any particular
public controversy in order to influence the resolution of the
issues involved in it."  Id. at 453.   
     In the initial Dodrill appeal, Dodrill v. Arkansas Democrat
Co., 265 Ark. 628, 590 S.W.2d 840 (1979), cert. denied, 444 U.S. 1076 (1980), this court held that the plaintiff, a Little Rock
attorney who had been previously suspended from the practice of law
pending his retaking the bar examination, was not a public figure
for purposes of an article published in the Arkansas Democrat
reporting that Dodrill had failed the exam.  The evidence showed
that Dodrill had not failed the exam, only that his name had been
initially withheld from publication pending further investigation
of his readmission by the Board of Bar Examiners.  The newspaper
had argued that Dodrill was a public figure within the context of
the public controversy surrounding his suspension from the bar. 
This court rejected that argument, holding that there was no
evidence that demonstrated that Dodrill had thrust himself into the
vortex of public controversy or that he had taken steps to attract
public attention or to achieve a degree of public acclaim.      
     In Ryder v. Time, Inc., 557 F.2d 824 (D.C. Cir. 1976), a case
of mistaken identity, the United States Court of Appeals for the
District of Columbia held that the plaintiff, Richard J. Ryder, a
lawyer and former Virginia state legislator, was not a public
figure for purposes of an article in Time magazine reporting that
Virginia attorney Richard Ryder (actually referring to Richard R.
Ryder) had been suspended from the practice of law because he had
concealed stolen money and a sawed-off shotgun belonging to his
client.  The court held that while it was true that the plaintiff
had been a public official and had been a candidate for public
office, his public activities had nothing to do with the reference
to Richard Ryder's illegal activities mentioned in the article.   
     The Supreme Court of New Mexico concluded that the appellant
Marchiondo, a well-known attorney and member of the Democratic
Party, was not a public figure for purposes of his action against
a journal for defamation in connection with an article containing
his photograph and detailing organized crimes' interest in New
Mexico.  Marchiondo v. Brown, 649 P.2d 462 (N.M. 1982).  The court
so held because Marchiondo had not voluntarily injected himself
into the controversy on organized crime.
     Likewise, the Texas Court of Appeals held that an attorney who
had been appointed as a special counsel to a court of inquiry, and
had served as such until about two months prior to the defamatory
news broadcast, was not a public figure in connection with a news
story linking him to the Chicken Ranch, a local club used as a
front for various activities including orgies and prostitution. 
The court noted that the fact that the plaintiff had held a number
of press conferences as special counsel for the court of inquiry
did not render him a public figure within the limited context of
his alleged involvement with the Chicken Ranch.  Durham v. Cannan
Communications, Inc., 645 S.W.2d 845 (Tex. App. 1982).  
     Even well-known Wyoming defense attorney Gerry Spence was
deemed not to have been a public figure within the context of his
defamation suit against Hustler magazine.  Spence v. Flynt, 816 P.2d 771 (Wyo. 1991), cert. denied, 503 U.S. 984 (1992).  The
article, which was more like an editorial, blasted Spence for his
representation of Andrea Dworkin in her pornography suit against
publisher Larry Flynt.  The Supreme Court of Wyoming held that
although Spence may have been a public figure for some purposes, he
was not a public figure for his representation of a client in a
lawsuit.  
     Based upon the above-recited case law and the circumstances of
this case, we conclude that Appellee was not a public figure for
all purposes, nor was he a limited-purpose public figure within the
context of the Whitewater investigation.  Although Appellee did
have some connection to the Whitewater investigation through his
representation of two witnesses, the evidence revealed that he had
not actually represented one of those witnesses until after the
article in question had been published.  Moreover, as noted by the
Supreme Court in Gertz and the Wyoming Supreme Court in Spence, the
mere fact of an attorney's representation of a client involved in
a matter of public controversy does not, in itself, automatically
render the attorney a public figure within the context of the
controversy.  In short, there was no evidence presented at trial
showing that Appellee had thrust himself into the vortex of the
Whitewater controversy, or that he had engaged the public's
attention in an attempt to influence the outcome of the
controversy.
     Furthermore, Appellee did not, by virtue of his having been a
federal prosecutor for eight years, occupy a position of persuasive
power and influence or one of especial prominence in the affairs of
society, such that he could be labeled an all-purpose public
figure.  While it is true that Appellee had been a public official
and may have had some influence over societal affairs in Fort Smith
during his tenure as United States Attorney, his public activities
had nothing to do with the subject of the newspaper article.  In
short, there was no clear evidence presented at trial showing that
Appellee had achieved such general fame and notoriety throughout
the state, where the newspaper was circulated, such that would
render him a public personality for all aspects of his life.
     Because we conclude that Appellee was a private individual
within the context of this lawsuit, it necessarily follows that the
trial court did not err in instructing the jury that Appellee was
only required to prove negligence, rather than actual malice.  
     Affirmed.       
     Special Justices Truman Yancey and Pat Hall join in this opinion.
     Arnold, C.J., Newbern and Thornton, JJ., dissent.
     Brown and Imber, JJ., not participating.

               David Newbern, Justice, dissenting.

     In seeking a directed verdict at the close of Mr. Fitzhugh's
case-in-chief, Little Rock Newspapers argued, among other things,
that Mr. Fitzhugh had offered no evidence to show that the article
published by the Arkansas Democrat-Gazette actually injured his
reputation.  Little Rock Newspapers was correct in this assertion,
and its motion for directed verdict should have been granted.
     With respect to the damages question in this case, the
majority perceives the issues to be "what particular type of proof
is sufficient to sustain a jury's verdict in favor of a plaintiff
in a defamation action" and "how much proof of actual injury to
reputation is sufficient to render the issue one for the jury to
resolve."
     Since 1983, the "type" of proof of damages that we have
required in a defamation case such as this one is proof of actual
injury to reputation.  Little Rock Newspapers, Inc. v. Dodrill, 281
Ark. 25, 660 S.W.2d 933 (1983).  See generally Howard W. Brill,
Arkansas Law of Damages  33-9, at p. 577 (3d ed. 1996) (stating that,
in a case against a media defendant, "damages to reputation are not
presumed.  In the absence of a showing of actual malice, no damages
may be recovered without proof of some actual injury to the
reputation.  Recovery for the mere humiliation, mental suffering or
sorrow of the plaintiff, standing alone without injury to
reputation, is not permitted")(footnotes omitted); David A.
Anderson, Reputation, Compensation, and Proof, 25 Wm. & Mary L. Rev.
747, 758 (1984)("If a plaintiff suffers no demonstrable harm to his
reputation, however, he should have no cause of action for
defamation.").
     In order to create a jury question on the issue, a plaintiff
simply must introduce substantial evidence, or evidence "of
sufficient force and character to induce the mind of the factfinder
past speculation and conjecture," Allred v. Demuth, 319 Ark. 62,
64, 890 S.W.2d 578, 580 (1994), that the publication of the
defamatory statement has in fact injured his reputation.  In Hogue
v. Ameron, Inc., 286 Ark. 481, 695 S.W.2d 373 (1985), which did not
involve a media defendant, we said the issue of reputational injury
should have gone to the jury where the plaintiff had testified that
his reputation had been harmed as a result of the publication of
the allegedly defamatory statement and another witness had
testified, albeit "rather vaguely," that the plaintiff's reputation
had "changed for the worse" following publication of the statement. 
Id. at 483, 695 S.W.2d  at 374.  Citing the Hogue case, a federal
district court and a commentator have suggested that the burden of
proving reputational injury in this jurisdiction is not difficult. 
See Mitchell v. Globe Intern. Pub., Inc., 773 F. Supp. 1235, 1237
(W.D. Ark. 1991)("The showing of actual damage to reputation
required by other Arkansas cases has been slight."); Brill, supra
("The amount of evidence of damage to reputation necessary to take
the case to the jury appears to be easily satisfied.").  Regardless
of how one characterizes the quantum of proof necessary to sustain
a verdict, the proof, at least in this type of defamation case,
must establish, as a threshold matter, that the statement actually
injured the plaintiff's reputation.
     Our cases since Little Rock Newspapers, Inc. v. Dodrill,
supra, have not prescribed a clear method by which a plaintiff may
prove that his reputation has been injured by the publication of a
defamatory statement.  Able commentators have made several good
suggestions, however.  A student commentator has noted that a
plaintiff's interest in his reputation

     is a "relational interest" that involves the opinions
     which others in the community may have of the plaintiff. 
     The most important relations that people have are family
     relations, social relations, trade relations, and
     professional relations.  The plaintiff's task is to prove
     the defamatory statements have been communicated to
     others who reacted to the detriment of these relations.

Steve Garner, Little Rock Newspapers, Inc. v. Dodrill:  Proving
Damage to Reputation in a Libel Action, 38 Ark. L. Rev. 889, 908
(1985)(emphasis added).  See also Prosser & Keeton on the Law of Torts
 111, at p. 771 (5th ed. 1984)(stating "defamation is an invasion
of the interest in reputation and good name.  This is a
`relational' interest, since it involves the opinion which others
in the community may have, or tend to have, of the plaintiff.").
     The plaintiff's "evidence must focus upon proving damages to
relational interests" and demonstrate "the impact the statements
had upon others to the detriment of the plaintiff's relationships
with them."  Garner, supra, at 911.  Toward this end, the plaintiff
may introduce testimony bearing on his "standing and reputation
prior to the libel" and the "effect the libel had on his family,
business, and social relations."  Id. at 908.  Testimony showing
any "specific instances of social ostracism and rebuke," as well as
testimony "concerning the impression and effect which the libel had
on the minds of other persons," would also be relevant.  Id. at
909.  See also Brill, supra ("Specific instances of rebuke,
humiliation and insults may aid in demonstrating post-defamation
reputation.").  Other approaches to proving reputational injury are
discussed in David A. Anderson, Reputation, Compensation, and
Proof, 25 Wm. & Mary L. Rev. 747, 764-78 (1984); Rodney A. Smolla, Law of
Defamation  9.06[6], at pp. 9-15 to 9-16 (1993); and 2 Dan B. Dobbs,
Law of Remedies  7.2(5), at p. 274 (1993).
     Based on the evidence introduced by Mr. Fitzhugh, reasonable
men and women could not have concluded that the article published
in the Arkansas Democrat-Gazette caused actual harm to Mr.
Fitzhugh's reputation.  Mr. Fitzhugh's case for damages rested on
his own testimony as well as that of his wife and his friends and
acquaintances who had read, or heard about, the article.  Mr.
Fitzhugh maintained at trial that the publication of the article
had damaged his reputation "because people have told me it has an
effect."  Mr. Fitzhugh testified that, following the publication of
the article, some 25 to 30 friends and acquaintances, family
members, or colleagues in the legal profession had either
telephoned him or approached him at various times and places to
inquire or comment about the article or the status of his lawsuit
against the newspaper.
     According to Mr. Fitzhugh, these individuals made a variety of
comments.  Some indicated to Mr. Fitzhugh that they had seen the
article and had discussed it with others.  Some asked whether there
would be a retraction or whether a lawsuit would be filed.  Others,
according to Mr. Fitzhugh's very general testimony, just "made
comments" about the case or "inquired" about it.  Mr. Fitzhugh
mentioned certain individuals who had told him that they were glad
he was not involved in the Whitewater investigation; that they were
concerned for him; or that they did not believe the story was about
him.  One individual wondered if the article had used Mr.
Fitzhugh's middle name, and he called Mr. Fitzhugh to ask what his
middle name was.  Some individuals "tried to kid" Mr. Fitzhugh
about the article.
     The majority suggests that Mr. Fitzhugh's testimony helped
establish that his reputation was injured as a result of the
publication of the article.  The majority's analysis, however,
overlooks the remainder of Mr. Fitzhugh's testimony.  On cross-
examination, Mr. Fitzhugh conceded that he did not think that the
individuals he had mentioned believed that he was being prosecuted
for a Whitewater-related crime.  Mr. Fitzhugh conceded that none of
these individuals ever shunned or avoided him.  He testified that
he had remained friends with his "close friends" and that he knew
of no one who had "quit seeing [him] because of this article."  Mr.
Fitzhugh said that he knew of no lawyers who had quit speaking to
him, or referring clients to him, on account of the article. 
Furthermore, Mr. Fitzhugh never claimed that publication of the
article had deleteriously affected his law practice or income or
had hindered his ability to maintain or expand his client base.  He
specifically testified that he was not seeking special damages of
this kind, and there was no evidence of such damages introduced at
trial.
     Although Mr. Fitzhugh testified that he was upset and
embarrassed by the article and that he had experienced difficulty
sleeping, such evidence of mental anguish, in the absence of proof
of an actual reputational injury, cannot support an award of
damages in a defamation action.  Little Rock Newspapers, Inc. v.
Dodrill, supra.  Absolutely nothing in Mr. Fitzhugh's testimony
supports the conclusion that his reputation was harmed as a result
of the article in question.  Mr. Fitzhugh cited no relationships
that were actually injured on account of the article, and he could
not name one person who held him in lower esteem after having read
the story.  Mr. Fitzhugh could not recall one instance of rebuke,
"shunning," or social ostracism that occurred as the result of the
article's publication.  Although Mr. Fitzhugh had testified that
"people," whom he never identified, had told him that publication
of the story would have the "effect" of damaging his reputation, he
did not point to any conversation in which he was told that the
article had in fact injured his reputation.  Nothing that Mr.
Fitzhugh said suggests that anyone actually held him in lower
esteem after having read the article in the Arkansas Democrat-
Gazette.  The relationships that Mr. Fitzhugh did discuss were
clearly unaffected by publication of the article.
     Likewise, the testimony of the other witnesses called by Mr.
Fitzhugh did nothing to establish that the publication of the
article caused an actual injury to Mr. Fitzhugh's reputation.  Mr.
Fitzhugh's wife testified that Mr. Fitzhugh was upset and had lost
sleep over the article and that he was worried about his
reputation.  Ms. Fitzhugh testified she, too, had "worried about
the people we didn't know that thought it was him."  This
testimony, however, showed only the emotional harm that the
Fitzhughs suffered as a result of the article's publication and did
not show any reputational injury.  Ms. Fitzhugh testified that
people would inquire and ask her and her husband "what was going
on."  However, Ms. Fitzhugh conceded that none of Mr. Fitzhugh's
relationships had suffered because of the publication.  On cross-
examination, she testified, as abstracted, that "[n]one of his
friends avoided him to my knowledge, and none of our couple friends
avoided us.  We were never asked to leave the country club as a
result of this article."  Like Mr. Fitzhugh, Ms. Fitzhugh referred
to no instances of social ostracism that occurred as a result of
the article's publication.  Her testimony did nothing to show any
injury to Mr. Fitzhugh's reputation.
     Testimony was also given by Jeannie Kay Luttrell, Cole
Goodman, Gilbert Travis, Philip Merry, Howard Pearson, Ben Barry,
and Asa Hutchinson.  Ms. Luttrell and Messrs. Goodman and Travis
testified that they initially believed the article was about Mr.
Fitzhugh.  Ms. Luttrell testified that she was under this
impression from June until some point in the fall when she learned
the truth from a friend.  Mr. Goodman testified that he initially
believed Mr. Fitzhugh had been indicted in the Whitewater case and
was "perturbed" with him for a few moments until he immediately
reread the article and realized it was about someone else.  Mr.
Travis stated he initially believed Mr. Fitzhugh was "in trouble"
until he phoned Mr. Fitzhugh to ask what was going on.
     Although these three witnesses initially believed the story
and concluded that Mr. Fitzhugh had in fact been indicted for
fraud, they did not testify that they, or anyone else, held Mr.
Fitzhugh in lower esteem or thought less of him as a result of the
article's publication.  As Ms. Luttrell testified, "I was friends
with Mr. Fitzhugh before this occurred and am still."  In no manner
did she indicate that her opinion of Mr. Fitzhugh wavered during
the time that she believed he was a criminal defendant in the
Whitewater case.  She admitted she never called the Fitzhughs
during this time but explained that she had not wanted to embarrass
them with questions.  Likewise, Mr. Coleman testified that the
article had not damaged his relationship with Mr. Fitzhugh, and Mr.
Travis testified that the article would not prevent him from going
to Mr. Fitzhugh for legal advice if he needed to change attorneys. 
     The testimony of the remaining witnesses also failed to
establish any injury to Mr. Fitzhugh's reputation.  Mr. Merry
testified that he had not even read the article in question, and he
stated that Mr. Fitzhugh has "always" had a good reputation in the
community.  Mr. Pearson testified that he understood the article
"as a whole" to suggest that Mr. Fitzhugh had "done something
wrong," but he indicated that he had not believed the article.  Mr.
Barry testified that he knew the article was not about Mr. Fitzhugh
and that the article had not impaired his friendship with Mr.
Fitzhugh.  Finally, Mr. Hutchinson testified that he, too, had not
believed the article was about Mr. Fitzhugh and that the article
had not affected his friendship with Mr. Fitzhugh or prevented him
from referring clients to Mr. Fitzhugh.
     These witnesses specifically testified that publication of the
article in question had no impact on their own relationships with
Mr. Fitzhugh or their opinions of him.  Not one of them identified
anyone else who held Mr. Fitzhugh in low esteem as a result of the
article's publication, and not one of them referred to an actual
present or potential relationship between Mr. Fitzhugh and any
other person that suffered on account of the article's publication. 
Moreover, none of them mentioned any instances of rebuke or social
ostracism encountered by Mr. Fitzhugh as a result of the article's
publication.
     Ms. Luttrell and Mr. Goodman said that they "would think" that
the article "would harm" Mr. Fitzhugh's reputation or "would have
a damaging effect" on it and that the article "might" cause
potential clients to seek legal assistance elsewhere.  Mr. Travis
added that some "people" who saw the article and were seeking to
hire counsel "might have second thoughts" about hiring Mr.
Fitzhugh.  Mr. Hutchinson similarly predicted that an article like
the one in question "would harm anyone's reputation."  These
witnesses did not testify, however, that Mr. Fitzhugh's reputation
in particular had in fact been damaged by the article's publication
or that the article had in fact turned potential clients away.  Dr.
Goodman conceded on cross-examination that he did not know whether
Mr. Fitzhugh had lost clients or potential clients on account of
the article, and Mr. Hutchinson conceded that he had no personal
knowledge of Mr Fitzhugh's law practice.  These witnesses did no
more than testify that they presumed an injury to Mr. Fitzhugh's
reputation had resulted from publication of the article.  This was
clearly insufficient under our holding in the Dodrill case. 
     The last bit of evidence cited by the majority is the
testimony of Robert Lutgen, a managing editor at the Arkansas
Democrat-Gazette.  The majority endorses Mr. Fitzhugh's position on
appeal that Mr. Lutgen's apparent "admission" that publication of
the article caused "minor damage" to Mr. Fitzhugh suffices as proof
of injury to his reputation.  The majority rejects Little Rock
Newspapers' argument that Mr. Lutgen was not talking about Mr.
Fitzhugh's reputation when he made that statement.
     After conceding that a newspaper has the power to damage a
person's reputation by printing false information about him or her,
Mr. Lutgen moved on to discuss other issues in the case.  Counsel
for Mr. Fitzhugh later asked him whether the newspaper believed Mr.
Fitzhugh had suffered any "damage" as a result of the article's
publication.  Mr. Lutgen answered that the publication had not
caused "significant damage" because the newspaper had printed a
retraction.  Mr. Lutgen conceded that the article had caused "some
damage" and that "the question is how much," but he never indicated
whether he was referring to damage to Mr. Fitzhugh's reputation or
some other type of damage such as emotional distress.  Counsel for
Mr. Fitzhugh asked Mr. Lutgen to state "how much damage you believe
this caused to Mike Fitzhugh," and Mr. Lutgen answered, "We
understand it was embarrassing to him.  We understand that it was
a mistake er--I don't suspect there is any way of actually
measuring the damage."  Counsel then suggested that Mr. Lutgen
could not "put a dollar figure on your reputation," and Mr. Lutgen
answered, "right."  Mr. Lutgen later discussed his estimate of the
number of readers who had recognized Mr. Fitzhugh and stated that
it had been difficult to "assess the overall damage."  Counsel
asked Mr. Lutgen to describe once more the amount of "damage" that
he believed Mr. Fitzhugh had suffered, and Mr. Lutgen responded
that publication of the article had caused "minor damage."
     The record does not clearly establish, one way or the other,
whether Mr. Lutgen made the statement that publication of the
article had caused "minor damage" in reference to damage to
reputation.  Mr. Lutgen did not specifically indicate that he was
referring to any reputational injury, and his statement that the
article had been "embarrassing" to Mr. Fitzhugh suggests he was
referring only to damages for mental anguish.  Other portions of
the testimony, however, particularly Mr. Fitzhugh's estimate of the
number of readers who might have recognized Mr. Fitzhugh, could
suggest that Mr. Lutgen was assessing the impact of the article on
Mr. Fitzhugh's reputation.
     Given the obvious ambiguity in the testimony, we should not
assume that Mr. Lutgen was necessarily giving an opinion as to the
effect of the article on Mr. Fitzhugh's reputation.  However,
whether or not Mr. Lutgen was in fact stating a belief that the
article's publication had injured Mr. Fitzhugh's reputation, his
testimony was not sufficient to establish such an injury.  The
statement in question was no more than a guess that Mr. Fitzhugh's
reputation had suffered as a result of the article's publication. 
Like the other witnesses, Mr. Lutgen pointed to no relationship
that was actually harmed by the publication of the story, and he
did not mention any person who in fact held Mr. Fitzhugh in lower
esteem after having read the story.
     In sum, none of the witnesses who testified on Mr. Fitzhugh's
behalf established that the Arkansas Democrat-Gazette's publication
of the article in question had in fact (1) negatively affected
their own relationships with, or opinions of, Mr. Fitzhugh; (2)
negatively affected any other person's relationship with, or
opinion of, Mr. Fitzhugh; (3) caused Mr. Fitzhugh to experience any
type of rebuke or social ostracism from any person; or (4) caused
Mr. Fitzhugh to suffer any "special damages," such as loss of
income to his law practice.  Little Rock Newspapers' motion for
directed verdict therefore should have been granted. See Richie v.
Paramount Pictures Corp., 544 N.W.2d 21, 26-27 (Minn. 1996)
(affirming summary judgment in defendants' favor where plaintiff
could "point to no specific facts demonstrating that her reputation
has been affected" and where proof showed, among other things, that
no one thought less of plaintiffs on account of defamatory
broadcast and that there was no "change in behavior" in those
plaintiff regularly encountered in his employment).
     At most, the evidence introduced by Mr. Fitzhugh showed that
some witnesses who read the article thought it had the tendency or
propensity to injure Mr. Fitzhugh's reputation or that some
witnesses believed that Mr. Fitzhugh had been implicated in the
federal Whitewater investigation.  However, as our holding in the
Dodrill case makes clear, the proof of damages must show an actual
injury to reputation, not merely that the publication of the
article "could have" harmed or "had the tendency to harm" the
plaintiff's reputation.  See also Reveley v. Berg Publications,
Inc., 601 F. Supp. 44, 46 (W.D. Tex. 1984)(". . . the court
concludes that in the wake of Gertz even if evidence was heard that
the article tended to injure plaintiff, that a mere tendency to
injure without proof of actual injury cannot support a finding of
defamation . . . ."). 
     Moreover, none of our defamation cases, and no defamation case
from any other state that has adopted, as we did in the Dodrill
case, a requirement of reputational injury, see, e.g., Richie v.
Paramount Pictures Corp., 544 N.W.2d 21 (Minn. 1996); Gobin v.
Globe Publishing Co., 649 P.2d 1239 (Kan. 1982); France v. St.
Clare's Hospital and Health Center, 82 A.D.2d 1, 441 N.Y.S.2d 79
(A.D. 1st Dept. 1981); see generally Annotation, Proof of Injury to
Reputation as Prerequisite to Recovery of Damages in Defamation
Action--Post-Gertz Cases, 36 A.L.R.4th 807, 811-13 (1985 & Supp.
1997), has ever held that proof of reputational injury may be
established by testimony showing that, for a brief amount of time,
a witness believed that the publication was true.  Other than the
barest obiter dicta from Salomone v. MacMillan Pub. Co., Inc., 77 A.D.2d 501, 429 N.Y.S.2d 441 (A.D. 1st Dept. 1980), nothing is
cited by the majority to support its novel position that a
reputational injury occurs whenever an individual, if only for a
fleeting moment, believes the truth of a defamatory publication.
     The majority essentially presumes that Mr. Fitzhugh's
relationships with Ms. Luttrell and Messrs. Goodman and Travis were
harmed by the article's publication simply because they said they
initially believed Mr. Fitzhugh had been indicted in the Whitewater
case.  Not only does this position lack the support of a holding of
any defamation case, but it also blatantly ignores the testimony of
these very witnesses who plainly stated that their high opinions of
Mr. Fitzhugh remained unchanged despite their initial belief in the
truth of the publication.  These witnesses' testimony directly
refutes the majority's assertion that "[t]he fact that the
witnesses believed that Appellee was charged with a crime involving
the Whitewater scandal demonstrates that they thought less of
Appellee as a result of the article."
     More troubling, however, is the majority's statement that
"persons who were not personally acquainted with Appellee would not
have been capable of verifying the truth nor would they have been
known to Appellee so that he could secure their testimony for
trial."  The suggestion seems to be that there might have been
individuals who read the story and, as they did not know Mr.
Fitzhugh and were therefore unable to inquire with him about the
truth of the article, must have held him in lower esteem as a
result of having read the article.  The mere possibility that
readers of the Arkansas Democrat-Gazette think less of Mr. Fitzhugh
on account of the article, the majority seems to say, is additional
proof that his reputation was actually injured by the publication
of the article.
     The majority pays lip service to the rule from Gertz v. Robert
Welch, Inc., 418 U.S. 323 (1974), that damages may not be presumed
in cases against media defendants absent evidence of malice, and
yet it sustains the award of damages in this case based in part on
a hunch that readers who did not testify at trial might have seen
the article and might have thought less of Mr. Fitzhugh as a
result.  The majority presumes damages in direct contravention of
the Gertz case and our holding in the Dodrill case and bases that
presumption upon unknown readers' presumed reactions to the
article.
     I respectfully dissent.
     Arnold, C.J., and Thornton, J., join this dissent.