WHITE, J., concurring 398 U.S. be other than what you believe. And when the chips are down, this is exactly what you'll do." Pilski asked if anyone in the audience cared to speak in support of Bresler's proposal. Only James Martin took the floor. He suggested that Bresler's action was not "blackmail" but the legitimate advance of his rights to develop his land. Martin suggested, by way of example, that GHI's long-range planning committee had been doing much the same thing some months ago. He alleged that the density of the "frame homes (GHI) is far more atrocious than anything Bresler's considering." MR. JUSTICE WHITE, concurring. I concur in the judgment of reversal and join the opinion of the Court insofar as it rests reversal on the erroneous definition of malice contained in the instructions given to the jury. I do not, however, join the remainder of the Court's opinion. Respondent Bresler charged that he had been libeled by at least four statements published in petitioners' newspaper: (1) a statement that Bresler's conduct amounted to "a slight case of blackmail," accompanied by the use of the word "blackmail" as a column subheading; (2) a charge that Bresler had engaged in an “unethical trade"; (3) an allegation that Bresler had been guilty of "skulduggery," a word used by the newspaper to characterize statements made by others about Bresler; and (4) a statement that Bresler had had legal proceedings "started against him for failure to make construction corrections in accordance with county standards." Petitioners contended that the use of the word blackmail had not been intended in the criminal sense and was not libelous and that in any event the newspaper had not made its publications with malice, that is, with knowl 6 WHITE, J., concurring edge that any of the statements were false or with reckless disregard of the falsity of any of them. In instructing the jury the trial court defined libel as: "the publication of words, pictures or symbols which imputes to a person a crime or a disgraceful or dishonest or immoral conduct or is otherwise injurious to the private character or credit of the person in the minds of a considerable and respectable class in the community. "[T]he burden is upon the plaintiff to establish by a preponderance of the evidence that the publication imputed to him a crime, or disgraceful, dishonest or immoral conduct or was otherwise injurious to his private character or credit . . . ." App. E. 189. With respect to the dispute over the sense with which the charge of blackmail had been used the court told the jury: "[I]f you are unable to conclude from the preponderance of the evidence that the publication bears a meaning ascribed to it by the plaintiff, or if you find that the evidence is equally balanced on that issue, then your verdict must be for the defendant. "In considering the publication complained of, you must consider the publication as a wholethe Court would say in this case we are talking about serious, [sic] number of publications and determine the meaning of the publication and how it would be understood by ordinary readers from the entire context thereof with the other facts and circumstances shown by the evidence. "Where a publication is susceptible of two meanings one of those which would be libelous and the WHITE, J., concurring 398 U.S. other not, it is up to you to say which of the two meanings would be attributable to it, by those to whom it is addressed or by whom it may be read. In reaching your decision you can consider all the circumstances surrounding the publication, which includes all of the evidence which has been admitted." Id., at E. 189-190. The court also defined the crime of blackmail and told the jury that in this sense the defendant newspaper did not claim that the allegations were true. Petitioners took exception to none of the foregoing instructions although in their motion for judgment n. o. v. or for a new trial, error was claimed in not instructing the jury that the failure to plead truth meant only that the defendants did not adopt the meaning of the words alleged by the plaintiff. See App. E. 10-11. The jury returned a verdict for plaintiff, and judgment was entered on the verdict for both compensatory and punitive damages. The Court of Appeals of Maryland affirmed. The court held that aside from federal constitutional protections urged by petitioners, the jury's verdict and subsequent judgment thereon were supported by the evidence. With respect to the blackmail charge the court said: "In the instant case the word 'blackmail' was used as a sub-heading without qualification. The charge of blackmail was stated in the News Review issue of October 14, 1965, and was again repeated in the next week in the issue of October 21. The appellants argue that the word 'blackmail' was used in a noncriminal sense, but the intended meaning was for the jury to determine. American Stores v. Byrd, supra. The jury found against the appellants. 6 WHITE, J., concurring "The charging of Mr. Bresler with having committed blackmail could be found by the jury (as it was) to charge him with the commission of a crime." 253 Md. 324, 351–352, 252 A. 2d 755, 770 (1969). The court also dealt with the other publications: "In addition to the publications that Mr. Bresler had committed blackmail, there were publications that he had engaged in 'An unethical trade,' had been guilty of 'skulduggery,' had had legal proceedings 'started against him for failure to make construction corrections in accordance with county standards.' These allegations were injurious to Mr. Bresler in his business as a contractor and were libelous per se.” Id., at 354, 252 A. 2d, at 772. As for the issue of malice, the Court of Appeals noted that the newspaper knew the blackmail charge was false in the criminal sense. With reference to the charge of "skulduggery" the court pointed out that the newspaper had not quoted another source in using that word; rather, it was the publishers' own characterization of the events. "There is little doubt that the word 'skulduggery' was intended to indicate dishonest conduct on the part of Bresler and to hold him up to ridicule and contempt. . . . The jury could properly conclude that the reports of the hearing were not accurately reported and were, also, published with a knowledge of their falsity or with serious doubt of their truthfulness." Id., at 360, 252 A. 2d, at 775. The court also held that the allegations that homeowners had started legal proceedings against Bresler in regard to construction defects in their homes built by him had been made with reckless disregard for the truth. In reversing the Maryland Court of Appeals, the Court does not deny that the Constitution would permit recov WHITE, J., concurring 398 U.S. ery for charging the crime of blackmail, or even for falsely accusing one of "blackmail" in a noncriminal but derogatory sense "injurious to the private character or credit of the person." The Court does not deny that the jury was told it had the authority to decide in what sense a word was used or understood, nor does the Court question the conclusion of the Court of Appeals that the jury had found that the word had been used and understood in the criminal sense. What the Court does hold on the cold record is that the trial judge, the jury, and the Maryland Court of Appeals were quite wrong in concluding that "ordinary readers" could have understood that a crime had been charged. If this conclusion rests on the proposition that there was no evidence to support a judgment that the charge of blackmail would be understood by the average reader to import criminal conduct, I cannot agree. The very fact that the word is conceded to have a double meaning in normal usage is itself some evidence; and without challenging the reading of the jury's verdict by the Maryland Court of Appeals, I cannot join the majority claim of superior insight with respect to how the word "blackmail" would be understood by the ordinary reader in Greenbelt, Maryland. Although the Court does not so hold, arguably the newspaper should not be liable if it had no intention of charging a crime and had a good-faith, nonreckless belief that it was not doing so. Should New York Times Co. v. Sullivan, 376 U. S. 254 (1964), be extended to preclude liability for injury to reputation caused by employing words of double meaning, one of which is libelous, whenever the publisher claims in good faith to have intended the innocent meaning? I think not. The New York Times case was an effort to effectuate the policies of the First Amendment by recognizing the difficulties of ascer |