Defining "actual malice"

The case that established “actual malice” as the degree of fault with which the media must have published a defamatory statement about a public official for him or her to successfully sue was a product of the civil rights struggle in the South in the early 1960s. A discussion of the facts of the case is instructive in helping define the standard.

L.B. Sullivan, the Montgomery, Ala., city commissioner responsible for supervising the police department, sued The New York Times for publication of a March 29, 1960, advertisement purchased by a committee of civil rights activists. The full-page ad, titled “Heed Their Rising Voices,” described how nonviolent, civil rights protests were met with an “unprecedented wave of terror," and solicited support for the movement and its leader, Dr. Martin Luther King Jr., who was facing a perjury charge in Alabama.

The ad contained several false statements, some of them minor inaccuracies, including the following:

• Nine student leaders were expelled, not for singing at the state capitol, but rather for demanding service at a Montgomery courthouse lunch counter;

• The dining hall at the Alabama State College campus had not been padlocked, and there was no attempt “to starve” students into “submission”;

• The police did not "ring" the campus, though they were present;

• King had been arrested four times, not seven, and he faced seven years of incarceration for perjury, not 10; and

• The students at one demonstration sang “The Star-Spangled Banner,” not “My Country, ‘Tis of Thee.”

The Times ad staff did not check the accuracy of statements in the ad against the paper’s news stories of the same events. Sullivan sued, alleging the ad’s inaccurate criticisms of police conduct defamed him, even though he was not named, because of his position and duty to supervise the department.   

The U.S. Supreme Court ruled the ad had not been published with actual malice, which it defined as a defendant’s publication of a statement either 1) knowing it was false; or 2) exercising reckless disregard for the truth. Specifically, the Court made the following observations about the ad:

• The existence in the Times’ own files of stories contradicting the ad did not mean that employees responsible for the ad knew it was false, and one employee’s belief that the advertisement was “substantially correct” was reasonable and suggested a lack of knowing falsity;

• The paper’s reliance for the accuracy of the ad on the strong reputation of those listed as its sponsors was satisfactory; and

• The failure to retract the errors in the ad was not evidence of actual malice, and the paper’s response to Sullivan’s request for such by asking him why he believed the ad referred to him was reasonable.  

The Court has visited the issue of actual malice and provided some additional guidance about the standard since 1964, when it issued its opinion in New York Times Co. v. Sullivan, which remains the seminal libel case. Under this jurisprudence, which examines a reporter's newsgathering techniques, the following activities likely do not in themselves constitute what has come to be known as New York Times actual malice:

• ill will or intent to harm;

• extreme deviation from professional standards;

• publication of a story to increase circulation;

• carelessness;

• failure to

• investigate facts;

• contact a subject for comment; or

• correct or retract false statements after publication;

• reliance on a single biased source; and

• inclusion of edited quotations that do not materially change the meaning of the speaker's words.

Conversely, purposefully avoiding the truth or publishing information despite entertaining serious doubts about its truth could be considered reckless. Two recent court opinions provide helpful examples:

A federal appeals court held that a television station broadcast that reported “serious allegations of abuse and neglect” at a daycare, but omitted the fact that the single incident involved child-on-child contact and no adult involvement, could have been published with actual malice. Specifically, the reporter had a copy of a report, prepared by the state Health and Human Services official who investigated the allegation, which indicated that a boy was accused of inappropriately touching another boy. However, the reporter omitted this “most important exculpatory detail” from the broadcast, and her decision to “air a news report suggesting that an adult abused a child, despite her knowledge that there was no allegation of adult on child abuse” could lead a jury to conclude that the story was aired with New York Times actual malice, the court ruled.

On the other hand, the failure to investigate the truth behind a rumor does not constitute actual malice, according to the Alabama Court of Civil Appeals. In that case, a newspaper article accurately quoted the rumor’s source -- who made the statements during a public city council meeting and post-meeting interview with the reporter -- included a denial by the rumor’s subject and made clear that the allegation was unverified.

The reporter stated in an affidavit that she “was simply reporting the words of [the rumor’s source] as told to her as part of her job as a reporter, which included covering the meetings of the city council.”

“[F]ailing to investigate the truth behind [the] assertions … in the manner [the rumor’s subject] believed should have been done before the article was published is insufficient to demonstrate that [the reporter] acted with reckless disregard for the truth,” the Alabama court ruled.