Actual Malice

Actual Malice, a burden of proof imposed on public officials and public figures suing for defamation and falsity, requiring them to prove with clear and convincing evidence that an offending story was published with knowing falsehood or reckless disregard for the truth. The Supreme Court said in New York Times Co. v. Sullivan (1964) that the First Amendment required proof of actual malice in order to protect a wide open and robust debate about government affairs. Proof of falsity and negligence are not sufficient to establish actual malice. The Court said in Garrison v. Louisiana (1964) that the proof of actual malice requires plaintiffs to establish that defamatory statements were made with a “high degree of awareness of their probable falsity.” Actual malice usually requires proof of a combination of factors including dependence on an unreliable source and failure to check factual assertions in the face of substantial reasons to doubt their accuracy. Findings that can contribute to actual malice include minimal deadline pressures, inconsistencies within a story, a failure to check important sources, evidence that journalists knew information contrary to what was published, a desire to increase circulation, and political motivations. The Court has said that actual malice is distinct from common‐law malice, which requires proof of hatred or ill will. In Masson v. New Yorker Magazine, Inc. (1991), the Court reaffirmed its commitment to the principles of actual malice but said that use of the term “actual malice” can be confusing and that judges therefore should use the phrases “knowledge of falsity” and “reckless disregard as to the truth” when giving jury instructions. Since public officials and public figures have been required to prove actual malice, they have rarely won libel suits.

See also Speech and the Press.

Bill F. Chamberlin