Actual malice

Actual malice in United States law is a legal requirement imposed upon public officials or public figures when they file suit for libel (defamatory printed communications). Unlike other individuals who are less well-known to the general public, public officials and public figures are held to a higher standard for what they must prove before they may succeed in a defamation lawsuit.[1]


This term was adopted by the Supreme Court in its landmark 1964 ruling in New York Times Co. v. Sullivan,[2] in which the Court held that:

The constitutional guarantees require, we think, a Federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

Although defined within the context of a media defendant, the rule requiring proof of actual malice applies to all defendants including individuals. The standard can make it very difficult to prevail in a defamation case, even when allegations made against a public figure are unfair or are proved to be false.[3]

The term was not newly invented for the case but was a term from existing libel law. In many jurisdictions proof of "actual malice" was required in order for punitive damages to be awarded, or for other increased penalties. For example, Times v. Sullivan examined an existing Alabama statute that required proof of actual malice before an award of punitive damages would be permitted.[2] Since proof of the writer's malicious intentions is hard to ascertain, proof that the writer knowingly published a falsehood was generally accepted as proof of malice, under the assumption that only a malicious person would knowingly publish a falsehood. In Sullivan, the Supreme Court adopted the term and gave it constitutional significance, at the same time defining it in terms of the proof that had previously been usual.[4]

Proof of malice

Actual malice is different from common law malice, a term that indicates spite or ill will. It may also differ from malice as defined in state libel law, as reflected in the 1983 case of Carol Burnett v. National Enquirer, Inc., although states may not define a lower threshold for defamation claims than that required by the First Amendment.[5]

The existence of actual malice may be shown in many ways, as long as the claim is properly supported by admissible evidence.[6] Malice may be proved through any competent evidence, either direct or circumstantial. All of the relevant circumstances surrounding the transaction may be shown, provided they are not too remote, including threats, other defamatory statements, subsequent statements made by the defendant, any circumstances that indicate the existence of rivalry, ill will, or hostility between the parties, and facts that tend to show a reckless disregard of the plaintiff's rights on the part of the defendant.[6]

See also


  1. ^ Walker, Eric (1993). "Defamation Law: Public Figures - Who Are They". Baylor Law Review. 45. Retrieved 11 December 2017.
  2. ^ a b "New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710". Google Scholar. Google. Retrieved 11 December 2017.
  3. ^ Larson, Aaron (26 September 2016). "Defamation by Media Coverage". ExpertLaw. Retrieved 11 December 2017.
  4. ^ Lewis, Anthony (1991). Make No Law: The Sullivan Case and the First Amendment. pp. 147, 148, 149, 151, 158 166–68, 172–73. ISBN 0-679-73939-4.
  5. ^ " Burnett v. National Enquirer, Inc. (1983) 144 Cal.App.3d 991, 193 Cal.Rptr. 206". Google Scholar. Google. Retrieved 11 December 2017.
  6. ^ a b "Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979)". Google Scholar. Google. Retrieved 11 December 2017.
Bose Corp. v. Consumers Union of United States, Inc.

Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984), was a product disparagement case ultimately decided by the Supreme Court of the United States. The Court held, on a 6-3 vote, in favor of Consumers Union, the publisher of Consumer Reports magazine, ruling that proof of "actual malice" was necessary in product disparagement cases raising First Amendment issues, as set out by the case of New York Times Co. v. Sullivan (1963). The Court ruled that the First Circuit Court of Appeals had correctly concluded that Bose had not presented proof of actual malice.

The magazine Consumer Reports had published in 1970 a review of an unusual loudspeaker system manufactured by Bose Corporation, called the Bose 901. The review expressed skepticism of the system's quality and recommended that consumers delay purchase until they had investigated for themselves whether the loudspeaker system's unusual attributes would suit them. Bose objected to numerous statements in the article, including the sentences, "Worse, individual instruments heard through the Bose system seemed to grow to gigantic proportions and tended to wander about the room. For instance, a violin appeared to be 10 feet (3.0 m) wide and a piano stretched from wall to wall." Bose demanded a retraction when they learned that Consumer Reports changed what the original reviewer wrote about the speakers in his pre-publication draft, which the magazine refused to do.

Burnett v. National Enquirer, Inc.

Carol Burnett v. National Enquirer, Inc., was a decision by the California Court of Appeals, which ruled that the "actual malice" required under California law for imposition of punitive damages is distinct from the "actual malice" required by New York Times v. Sullivan to be liable for defaming a "public figure" and that the National Enquirer is not a "newspaper" for the purposes of California libel law.

The case resulted from a brief 1976 report in a gossip column, in the leading U.S. gossip tabloid, the National Enquirer, incorrectly implying that actress-comedienne Carol Burnett had been drunk and boisterous in a nightclub encounter with U.S. Secretary of State Henry Kissinger. Burnett, a passionate campaigner against alcoholism, sued the National Enquirer for libel, persistently, over several years, ultimately settling out-of-court for a reported $200,000. Though offering no witnesses to its defense, initially, the Enquirer argued that it was exempt from liability on legal grounds—particularly on grounds arising from the First Amendment to the United States Constitution. Initially Burnett sought $10 million, but her attorney sued in California courts for $1.6 million—which a jury awarded Burnett, in actual and punitive damages. However, the presiding court cut the award, and in subsequent appeals the award was reduced to $200,000—though the final settlement was out-of-court. The case was widely regarded as a watershed event in tabloid journalism, and some analysts suggest it may have increased celebrities' willingness to sue tabloids for libel, and dampened tabloids' recklessness in reporting—though others contend it did little to reduce a profitable industry's flouting of the laws against libel.

C. Dickerman Williams

Charles Dickerman Williams (October 1, 1900 – August 12, 1998) was an American lawyer who was known as a freedom of speech advocate. In 1951, the president appointed him chief legal officer for the U.S. Commerce Department.In 1922, Williams graduated from Yale University, and in 1924 from Yale Law School. Williams served for a year as a clerk to Chief Justice William Howard Taft of the U.S. Supreme Court.

He was an Assistant United States Attorney in Manhattan fighting bootleggers as head of a prohibition enforcement unit in 1926.In private practice with firm of Baker, Nelson & Williams he successfully argued in district court the case of Linus C. Pauling v. National Review, relying on the reasoning behind the case New York Times Co. v. Sullivan that public figures were unable to sue for libel except when there was actual malice.In 1954, Williams joined the board of directors of the American Civil Liberties Union.

He appeared as chairman during the first few seasons of Firing Line, the television program moderated by William F. Buckley (founder of the National Review).

Williams died in Hamden, Connecticut, on August 12, 1998. He was the father of Senior Circuit Judge Stephen F. Williams.


A dun is an ancient or medieval fort. In the British Isles it is mainly a kind of hillfort and also a kind of Atlantic roundhouse. The term comes from Irish dún or Scottish Gaelic dùn (meaning "fort"), and is cognate with Old Welsh din (whence Welsh dinas "city" comes).

In some areas duns were built on any suitable crag or hillock, particularly south of the Firth of Clyde and the Firth of Forth. There are many duns on the west coast of Ireland and they feature in Irish mythology. For example, the tale of the Táin Bó Flidhais features Dún Chiortáin and Dún Chaocháin.

Duns seem to have arrived with the Celts in about the 7th century BC. Early duns had near vertical ramparts made of stone and timber. Vitrified forts are the remains of duns that have been set on fire and where stones have been partly melted. Use of duns continued in some parts into the Middle Ages.

Duns are similar to brochs, but are smaller and probably would not have been capable of supporting a very tall structure. Good examples of this kind of dun can be found in the Outer Hebrides of Scotland, on artificial islands in small lakes.

Early duns had near vertical ramparts that were built from stone and timber. There were two walls, an inner wall and the outside one.

Fair comment

Fair comment is a legal term for a common law defense in defamation cases (libel or slander). It is referred to as honest comment in some countries.

False light

In law, false light is a tort concerning privacy that is similar to the tort of defamation. The privacy laws in the United States include a non-public person's right to protection from publicity which puts the person in a false light to the public. That right is balanced against the First Amendment right of free speech.

False light differs from defamation primarily in being intended "to protect the plaintiff's mental or emotional well-being", rather than to protect a plaintiff's reputation as is the case with the tort of defamation and in being about the impression created rather than being about veracity. If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.

False light privacy claims often arise under the same facts as defamation cases, and therefore not all states recognize false light actions. There is a subtle difference in the way courts view the legal theories—false light cases are about damage to a person's personal feelings or dignity, whereas defamation is about damage to a person's reputation.

The specific elements of the tort of false light vary considerably, even among those jurisdictions which do recognize this Tort. Generally, these elements consist of the following:

A publication by the defendant about the plaintiff;

made with actual malice (very similar to that type required by New York Times v. Sullivan in "Defamation" cases);

which places the Plaintiff in a false light; AND

that would be highly offensive (i.e., embarrassing to reasonable persons).

Some U.S. state courts have ruled that false light lawsuits brought under their states' laws must be rewritten as defamation lawsuits; these courts generally base their opinion on the premises that a) any publication or statement giving rise to a false-light claim will also give rise to a defamation claim, such that the set of statements creating false light is necessarily, although not by definition, entirely within the set of statements constituting defamation; and b) the standard of what would be "highly offensive" or "embarrassing" to a reasonable person is much more difficult to apply than is the state's standard for defamation, such that the potential penalties for violating the former standard would have an unconstitutional or otherwise unacceptable chilling effect on the media. However, "most states do allow false light claims to be brought, even where a defamation claim would suffice." Roughly two-thirds of states do not recognize the false light claim. The states that do recognize it will not allow a plaintiff to maintain suit for both false light and defamation.

Gertz v. Robert Welch, Inc.

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), was a case in which the Supreme Court of the United States established the standard of First Amendment protection against defamation claims brought by private individuals. The Court held that, so long as they do not impose liability without fault, states are free to establish their own standards of liability for defamatory statements made about private individuals. However, the Court also ruled that if the state standard is lower than actual malice, the standard applying to public figures, then only actual damages may be awarded.

The consequence is that strict liability for defamation is unconstitutional in the United States; the plaintiff must be able to show that the defendant acted negligently or with an even higher level of mens rea. In many other common law countries, strict liability for defamation is still the rule.

Harte-Hanks Communications, Inc. v. Connaughton

Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657 (1989), was a case in which the Supreme Court of the United States supplied an additional journalistic behavior that constitutes actual malice as first discussed in New York Times Co. v. Sullivan (1964). In the case, the Court held that departure from responsible reporting and unreasonable reporting conduct alone were not sufficient to award a public figure damages in a libel case. However, the Court also ruled that if reporters wrote with reckless disregard for the truth, which included ignoring obvious sources for their report, plaintiffs could be awarded compensatory damages on the grounds of actual malice.

Hill v Church of Scientology of Toronto

Hill v Church of Scientology of Toronto February 20, 1995- July 20, 1995. 2 S.C.R. 1130 was a libel case against the Church of Scientology, in which the Supreme Court of Canada interpreted Ontario's libel law in relation to the Canadian Charter of Rights and Freedoms.

After consideration, the Supreme Court of Canada determined that it would not follow the actual malice standard set forth in the famous United States Supreme Court case of New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

Marianas Variety

Marianas Variety is a daily newspaper published in Saipan, Northern Mariana Islands, five times per week. It is owned by Younis Art Studio Inc. Marianas Variety is a member of the Associated Press, Reuters, and the Pacific Islands News Association.

New York Times Co. v. Sullivan

New York Times Co. v. Sullivan, 376 U.S. 254 (1964), was a landmark United States Supreme Court case that established the actual malice standard that must be met for press reports about public officials to be considered libel. The decision defended free reporting of the civil rights campaigns in the southern United States. It is one of the key decisions supporting the freedom of the press. The actual malice standard requires that a plaintiff alleging defamation who is a public official or public figure prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, and the difficulty of proving the defendant's knowledge and intentions, such claims by public figures rarely prevail.

Before this decision, there were nearly $300 million in libel actions from the southern states outstanding against news organizations, as part of a focused effort by southern officials to use defamation lawsuits as a means of preventing critical coverage of civil rights issues in out-of-state publications. The Supreme Court's decision, and its adoption of the actual malice standard, reduced the financial exposure from potential defamation claims, and thus frustrated the efforts of public officials to use these claims to suppress political criticism.

Obsidian Finance Group, LLC v. Cox

Obsidian Finance Group, LLC v. Cox is a 2011 case from the United States District Court for the District of Oregon concerning online defamation. Plaintiffs Obsidian Finance Group and its co-founder Kevin Padrick sued Crystal Cox for maintaining several blogs that accused Obsidian and Padrick of corrupt and fraudulent conduct. The court dismissed most of Cox's blog posts as opinion, but found one single post to be more factual in its assertions and therefore defamatory. For that post, the court awarded the plaintiffs $2.5 million in damages. This case is notable for the court's ruling that Cox, as an internet blogger, was not a journalist and was thus not protected by Oregon's media shield laws, although the court later clarified that its ruling did not categorically exclude blogs from being considered media and indicated that its decision was based in part upon Cox offering to remove negative posts for a $2,500 fee. In January 2014 the Ninth Circuit Court affirmed in part and reversed in part the district

court's judgment awarding compensatory damages to the bankruptcy trustee. It also ordered a new trial on the blog post at issue.

Public figure

A public figure is a person, such as a politician, celebrity, social media personality, or business leader, who has a certain social position within a certain scope and a significant influence and so is often widely concerned by the public, can benefit enormously from society, and is closely related to public interests in society.In the context of defamation actions (libel and slander) as well as invasion of privacy, a public figure cannot succeed in a lawsuit on incorrect harmful statements in the United States unless there is proof that the writer or publisher acted with actual malice by knowing the falsity or by reckless disregard for the truth. The legal burden of proof in defamation actions is thus higher in the case of a public figure than in the case of an ordinary person.

Rickert v. Public Disclosure Commission

Rickert v. Pub. Disclosure Comm'n (2007) was a Washington State Supreme Court case dealing with the First Amendment to the United States Constitution and the regulation of political speech. The case invalidated a Washington law that allowed for sanctions for statements made about a candidate for political office, if those statements were found by the State's Public Disclosure Commission to be false and to have been made with actual malice. The Court's decision was divided 5-4.

Rosenblatt v. Baer

Rosenblatt v. Baer, 383 U.S. 75 (1966), was a United States Supreme Court case regarding the First Amendment to the United States Constitution.

Baer, a supervisor of a county recreation area, brought a civil libel claim in New Hampshire state court against the petitioner Rosenblatt. The recreation area had been used primarily as a ski resort. The column in question had criticized the fiscal management of the area by Baer, stating "What happened to all the money last year? and every other year?" Between the trial and an appeal brought by petitioner, the Court had decided New York Times Co. v. Sullivan, in which they held that a State cannot award damages to a public official for a defamatory falsehood relating to official conduct unless the official can show actual malice. The New Hampshire Supreme Court had affirmed the award in the original case.

Substantial truth

Substantial truth is a legal doctrine affecting libel and slander laws in common law jurisdictions such as the United States or the United Kingdom.

Under the United States law, a statement cannot be held to be actionable as slanderous or libelous if the statement is true; the substantial truth doctrine extends this protection by holding that a statement with "slight inaccuracies of expression" do not make the alleged libel false.This doctrine is applied in matters in which truth is used as an absolute defense to a defamation claim brought against a public figure, but only false statements made with "actual malice" are subject to sanctions. A defendant using truth as a defense in a defamation case is not required to justify every word of the alleged defamatory statements. It is sufficient to prove that "the substance, the gist, the sting, of the matter is true."

Westmoreland v. CBS

Westmoreland v. CBS was a $120 million libel suit brought in 1982 by former U.S. Army Chief of Staff General William Westmoreland against CBS, Inc. for broadcasting on its program CBS Reports a documentary entitled The Uncounted Enemy: A Vietnam Deception. Westmoreland also sued the documentary's narrator, investigative reporter Mike Wallace; the producer, investigative journalist and best-selling author George Crile, and the former CIA analyst, Sam Adams, who originally broke the story on which the broadcast was based.

Westmoreland's claims were governed by the landmark New York Times Co. v. Sullivan decision, which held that, in order to recover for defamation, a "public figure" like Westmoreland must prove that the defendant made the statements in question with "actual malice" (essentially, with knowledge, or reckless disregard, of falsity).The suit was originally filed in state court in South Carolina, but was transferred to the United States District Court for the Southern District of New York.

The trial ended in February 1985 when the case was settled out of court just before it would have gone to the jury.

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