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Everything you need to know about ‘actual malice’

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RCFP explains what actual malice really means, how the legal standard benefits journalists and the public, and more.
FILE - Davida Brook, left, Justin Nelson, center, and Stephen Shackelford, right, attorneys for Dominion Voting Systems, exit the New Castle County Courthouse in Wilmington, Del., after the defamation lawsuit by Dominion Voting Systems against Fox News was settled just as the jury trial was set to begin, Tuesday, April 18, 2023. (AP Photo/Julio Cortez, File)
Davida Brook, left, Justin Nelson, center, and Stephen Shackelford, right, attorneys for Dominion Voting Systems, exit the New Castle County Courthouse in Wilmington, Del., after the defamation lawsuit by Dominion Voting Systems against Fox News was settled just as the jury trial was set to begin, Tuesday, April 18, 2023. (AP Photo/Julio Cortez, File)

In the days and weeks leading up to the April defamation trial between Fox News and Dominion Voting Systems, journalists and media lawyers across the country were asking the same question: Would Dominion be able to win the case by proving that Fox News acted with “actual malice,” a legal rule that requires a public figure like Dominion to show in court that the defendant knew or strongly suspected that a statement it published was false?

We never learned the answer to that question, as the two sides reached a nearly $800 million settlement just before opening arguments were scheduled to begin. But the discussion about actual malice and what the legal standard requires for a public official or public figure to prevail in a defamation lawsuit won’t end anytime soon. In fact, Fox News currently faces another defamation lawsuit brought by Smartmatic over the news outlet’s coverage of the 2020 election.

Because the term “actual malice” is so widely misunderstood — even by many journalists — we wanted to take a moment to break the legal standard down a bit. In this piece, we’ll explain what actual malice really means (and, importantly, what it doesn’t mean), what it takes for a defamation plaintiff to establish actual malice, and how the legal standard benefits journalists and the public.

We’ll discuss New York Times v. Sullivan, the landmark U.S. Supreme Court case that recognized the actual malice standard. We’ll also highlight other cases that have shaped the law around actual malice, as well as some recent defamation cases in which attorneys for the Reporters Committee for Freedom of the Press have made arguments defending the legal standard (including one involving a pop star). And, lastly, we’ll explain why, despite a few recent calls to reconsider the actual malice standard, it’s probably not going away anytime soon.

The story behind New York Times v. Sullivan

Before we get into the details of the Supreme Court’s legal reasoning in Sullivan, we should first briefly explain its facts because that human story says a lot about why this case is so important for democracy.

In short, the case concerned a full-page advertisement that appeared in the March 29, 1960, edition of The New York Times. The ad, purchased by supporters of Dr. Martin Luther King Jr., decried the “Southern violators” who had responded to the peaceful civil rights movement with violence and intimidation and had sought to put its leader behind bars on perjury charges.

“The America whose good name hangs in the balance before a watchful world, the America whose heritage of Liberty these Southern Upholders of the Constitution are defending, is our America as well as theirs,” the ad read.

Echoing a line from an earlier New York Times editorial in support of the demonstrators, it continued, “We must heed their rising voices — yes — but we must add our own.”

The ad didn’t identify any officials by name. However, it did contain some factual errors, prompting L.B. Sullivan, the police commissioner of Montgomery, Alabama, along with other southern public officials, to sue The New York Times for libel. By the time all of these suits had been filed, The Times faced $3 million in total liability — roughly $30 million in 2023 dollars — a potentially existential threat to the paper.

As Gabe Rottman, director of the Reporters Committee’s Technology and Press Freedom Project, wrote in a much more detailed account of the facts of the case, “That’s the background behind Sullivan — a popular social reform movement of limited means facing not just the legal and literal firepower of the state, but a law of defamation unchecked by the common sense reality that ‘erroneous statements, honestly made,’ as Justice William Brennan put it, are inevitable in public debate and must be protected in a free society.”

The Sullivan case resolved what had been a subject of debate in courts and in public opinion as far back as the founding: to what extent the U.S. Constitution — the “supreme” law of the land — placed limits on state defamation laws that, expressly or implicitly, permitted civil or criminal cases against members of the public for criticism levied at government officials.

Defining actual malice

The term actual malice is a bit of a misnomer. It does not require anything concrete or imminent, as the word “actual” might suggest. Nor does it require that a speaker have harmful intent, as may be implied by the word “malice.” It is most certainly not “malice aforethought,” a term that rolls off the tongues of those who have watched too much crime TV but has no relevance in a libel courtroom. (Malice aforethought is the standard for second degree murder and can be inferred from evidence that a criminal defendant has “a wanton and depraved spirit.”) And it does not require any sort of planning ahead. Finally, a speaker may intend to do harm when publishing the truth and be entirely protected under the law, as that is not what the courts mean when they refer to “malice.”

Instead, according to the Supreme Court’s decision in Sullivan, it requires a public official in a defamation case challenging a statement to show that the speaker knew or strongly suspected the statement was false when they made it. In other words, that the false statement was more than just an honest mistake. Because the term is not particularly descriptive, judges often refrain from using it when instructing juries tasked with applying it.

In fact, the Supreme Court itself has advocated this practice, because, in its words, “the term can confuse as well as enlighten.” A similar practice may make sense when writing about actual malice for a general audience. Using the term always requires an explanation of its meaning, so it’s often easier and more straightforward to simply state the standard — a plaintiff who is a public official or public figure must show that a publisher knew or strongly suspected that a statement was false — without using the term “actual malice.”

What it takes to prove actual malice

Public official and public figure plaintiffs in defamation lawsuits must show actual malice in order to be successful. The Supreme Court has recognized two kinds of public figures: those who may be considered public figures “for a limited range of issues” when they “voluntarily inject” themselves “into a particular public controversy,” and those who achieve “such pervasive fame or notoriety” that they are considered “a public figure for all purposes and in all contexts.” The actual malice standard applies to both kinds, and it requires plaintiffs to produce evidence that the publisher of an allegedly defamatory statement knew or actually suspected that the statement was false at the time of the publication. (By contrast, private plaintiffs can succeed just by showing a false statement was made with negligence.)

The Supreme Court explicitly rejected a test that judged actual malice based on a publisher’s adherence to so-called “professional standards” of journalism. It is not enough to merely allege that a reasonable publisher would have known the statement was false, or that falsity would have been uncovered with reasonable investigation. If, on the other hand, a publisher has “obvious reasons to doubt” the truth of a statement, that may be evidence of actual malice.

Courts have concluded that 1) failing to contact a witness that would have made for a better, more balanced story, 2) relying on biased sources, or 3) publishing misleading headlines do not automatically rise to the level of actual malice. (A quick lawyerly note of caution: While these examples may not be sufficient to show actual malice alone, they may be used collectively in connection with other facts as evidence that a publisher actually harbored doubts about the truth of a statement.)

Courts have found actual malice most often when the publisher 1) is aware that sources for a piece of information are known to be unreliable, 2) has information that contradicts the source’s statement but publishes the source’s statement anyway without qualification, or 3) has an extremely dubious or contrived basis for the statement. Purposefully avoiding the truth, as the Supreme Court has put it, is a hallmark of actual malice.

How the actual malice standard benefits journalists and the public

The First Amendment requires the actual malice standard because, as Justice Brennan wrote in the Sullivan majority opinion, “erroneous statement is inevitable in free debate” and “must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive.’” This resonates for journalists in particular, who often write quickly and on deadline in order to get out the news of the day to the public. Our fast-moving information ecosystem would not be possible if journalists routinely faced liability for careless mistakes in coverage of public officials or public figures.

This is especially true for journalists covering high-profile, powerful people with the resources to file a lawsuit over perceived bad press. To be sure, the actual malice framework does not always prevent those lawsuits from being filed. (Hence the need for laws allowing them to be dismissed speedily; for more information on these so-called anti-SLAPP laws, check out our legal guide.) But it does largely prevent them from succeeding.

Some have criticized the actual malice standard as overly protective of the press, and former President Donald Trump called for stripping journalists of these protections. But the actual malice standard also benefits the public as a whole. It allows people to communicate freely and openly, particularly when commenting about public officials and public figures, without fear that, with one wrong statement, they might end up in court.

As Reporters Committee Executive Director Bruce Brown told PBS NewsHour in an interview last year, the requirement that public officials must overcome a more stringent standard to win a libel lawsuit is a “core protection for journalists in U.S. constitutional law.”

“[I]t’s essential for the protection of journalism in this country that, at a time when we are focused on the role that accountability journalism and investigative reporting plays in keeping people informed, we have to have a standard that allows journalists some room, essentially, to make an honest mistake,” he said.

Recalling Justice Brennan’s opinion in Sullivan, where the Court spoke about the immunities shielding public officials from defamation, Brown added, “if we are to have popular sovereignty in this country, then a world in which government officials are protected from libel suits when they are sued in their official capacity must be mirrored with a world in which speakers themselves, the citizens, the people, are also protected from libel suits.”

Key actual malice cases

We’ve already mentioned New York Times v. Sullivan, the 1964 Supreme Court case that recognized the actual malice standard. But here are some other important cases that have helped shape the standard over the years.

  • Curtis Publishing Co. v. Butts (1967): In this decision, the Supreme Court extended the actual malice standard to defamation actions brought by public figures, such as corporate leaders and celebrities. Even though, unlike public officials, public figures do not enjoy legal protections from suit, they “play an influential role in ordering society” and “have as ready access as ‘public officials’ to mass media.” First Amendment protections vis-a-vis public figure lawsuits are important for, among other things, accountability reporting on public health, environmental issues, and business.
  • St. Amant v. Thompson (1968): The Supreme Court made clear that the actual malice standard “is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.” Instead, the Court held that “sufficient evidence” showing that the publisher “entertained serious doubts as to the truth of his publication” is required to demonstrate actual malice.
  • Gertz v. Robert Welch, Inc. (1974): The Supreme Court held that private figures are not required to establish actual malice in order to prevail in a defamation claim. “Public officials and public figures usually enjoy significantly greater access to the channels of effective communication, and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy,” Justice Lewis F. Powell Jr. wrote in the majority opinion. “Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.” A private figure must still show some degree of fault by the speaker, however. In other words, a “strict liability” standard punishing the mere act of publishing, without more, would violate the First Amendment even with respect to private figures.
  • Philadelphia Newspapers v. Hepps (1986): The British common law tradition requires a libel defendant to prove truth. That is a notable burden in a hotly contested libel trial. Under the First Amendment, when the actual malice rule is applied, the plaintiff must prove falsity, another significant departure from our common law roots. In Hepps, the Supreme Court held that even private figures making defamation claims about matters of public concern are required to show that the statement was false in order to prevail, which may make a difference when the question of truth is difficult to ascertain. “[W]here the scales are in such an uncertain balance,” the Court reasoned, “the Constitution requires us to tip them in favor of protecting true speech.”
  • Harte-Hanks Communications, Inc. v. Connaughton (1989): In a unanimous decision, the Supreme Court held that even conduct representing a major departure from “professional standards” of “responsible publishers” does not necessarily suffice to sustain a finding of actual malice. Instead, the Court instructed, the statements must, “at a minimum” have been “made with a reckless disregard for the truth.” Mere “failure to investigate” is not enough, but “the purposeful avoidance of the truth” may be. The Supreme Court called the standard “a subjective one” that depends on the state of mind of the publisher and the information at its disposal.
RCFP’s involvement in actual malice cases

As an organization that protects the legal rights of the press, the Reporters Committee frequently authors friend-of-the-court briefs in support of journalists and others who face defamation lawsuits. Our attorneys also directly represent journalists in some libel cases. In many of the briefs they file in court, Reporters Committee attorneys vigorously defend the actual malice standard and highlight why its protections are so important for the public. Here are a few recent defamation cases in which the Reporters Committee has weighed in:

  • Palin v. The New York Times Company: In this high-profile case, former Alaska Gov. Sarah Palin claimed that The New York Times defamed her in a 2017 editorial about mass shootings. After a district court judge said he would dismiss the lawsuit, a jury issued its verdict that Palin failed to show that The Times acted with actual malice. The former vice presidential candidate then appealed to the U.S. Court of Appeals for the Second Circuit, claiming, in part, that the actual malice standard should not apply to her case. In a friend-of-the-court brief in support of The Times, the Reporters Committee, joined by 52 news media organizations, urged the appeals court to affirm the district court’s ruling, highlighting the importance of the protections established in the actual malice standard.
  • Amin v. Winslow: In 2020, news outlets reported that the Department of Homeland Security had launched an inquiry into a whistleblower complaint against Dr. Mahendra Amin, an OB/GYN contracted by U.S. Immigration and Customs Enforcement to perform medical services for detainees at a Georgia detention facility. The complaint alleged that Amin was performing high rates of unnecessary surgeries and other invasive medical procedures. Author Don Winslow later published a Twitter post about Amin, prompting the doctor to sue for defamation. The district court denied Winslow’s anti-SLAPP motion to dismiss the lawsuit against him, finding that the doctor was not a public official for purposes of defamation law and therefore did not need to plead facts sufficient to show actual malice. In a friend-of-the-court brief, the Reporters Committee, joined by 32 news organizations, urged the U.S. Court of Appeals for the Ninth Circuit to find that Amin is a “public figure” for the purposes of a libel lawsuit.
  • Gottwald v. Sebert: In 2014, music producer Lukasz Gottwald, aka Dr. Luke, filed a defamation lawsuit against singer Kesha Rose Sebert, aka Kesha, in response to the pop star’s accusation that he had sexually assaulted both her and singer Katy Perry. A New York trial court largely sided with Dr. Luke, ruling, among other things, that the producer is not a public figure. On appeal, the Reporters Committee, represented by the UCLA School of Law First Amendment Clinic and Holwell Shuster & Goldberg LLP, filed multiple friend-of-the-court briefs arguing that Dr. Luke is a public figure who should be required to prove actual malice to prevail in the case. “In recent years, the #MeToo movement has revealed sexual assault and harassment in Hollywood, the music industry, business, and beyond. Journalists have played an important part in uncovering wrongdoing, highlighted by award-winning investigative reporting from outlets such as The New York Times and The New Yorker,” the Reporters Committee stated in one of its briefs. “But the lower court’s decision in this case — that even powerful and famous alleged abusers are private figures in the eyes of the law so long as they have not inserted themselves into the public debate about sexual assault — threatens to chill this essential reporting.” In June 2023, the New York Court of Appeals held that Dr. Luke is a limited-purpose public figure “who must prove by clear and convincing evidence that [Kesha] acted with actual malice.”
Why the actual malice standard is here to stay

In recent years, there’s been a lot of speculation about whether the Sullivan standard may be ripe for reappraisal in the courts, especially after two U.S. Supreme Court justices expressed interest in revisiting the decision. But, at least based on how the rule works in real-world defamation cases, Sullivan doesn’t appear to be in danger of being overturned.

That’s according to a Reporters Committee review of more than 100 rulings citing Sullivan that were authored or joined by Trump-appointed judges. As Brown and Rottman wrote in a guest essay for Time in 2022, the Reporters Committee’s survey shows that “there’s little appetite” for revisiting the Supreme Court’s 1964 decision.

“What is true among the Trump appointees is largely true on the bench as a whole, across ideologies,” Brown and Rottman noted. “Unlike the fall of Roe v. Wade — which followed a concerted decades-long campaign to carve away at the 1973 abortion rights precedent — genuine opposition to Sullivan’s unanimous holding is rare.”

That doesn’t mean there won’t be efforts to challenge it. In Florida, for example, state lawmakers, at the urging of Republican Gov. Ron DeSantis, introduced legislation that would have chipped away at the actual malice standard, making it much easier for powerful people to win defamation lawsuits. As the Reporters Committee wrote in a special analysis, the bills introduced in the state House and Senate would have significantly harmed journalism in Florida.

Fortunately, the legislation ultimately died, buried by a deluge of criticism from people and organizations across the political spectrum, including press freedom groups, Republican politicians, and conservative news outlets. Such criticism clearly showed that the media protections established in Sullivan are not partisan — they equally shield news outlets at all points along the ideological spectrum against defamation claims brought by powerful figures.

While there is always the next legislative session to worry about, the muted support and furious opposition to the Florida proposal suggests that Americans as a whole still embrace constitutional protections for vigorous political debate, a cause for cautious optimism for the news media and public at large.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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