what is actual malice?

8/3/2019 What is Actual Malice?

1/3

speechandprivacy.com http://www.speechandprivacy.com/2011/05/what-is-actual-malice.html

Exceptions: What is Actual Malice?

Image bycliff1066 via FlickrFree Speech Issue: Is societybetter served on issues of public concern when reporters are held

liable for statements which later are proven to be incorrect orshould some other standard be used?

DiscussionWhile knowing lies and intentional misstatements are not protectedforms of speech, sometimes, in the course of gatheringinformation, reporters make claims or inferences which later turnout to be inaccurate or false. Were reporters required to have all oftheir facts 100% above reproach, few stories of importance couldbe published. In fact, for stories where time is of the essence, it isnear impossible for reporters to have all the necessary facts

available or at hand. For stories about political corruption, wherepowerful people have the ability to shade and hide necessary facts,one is never certain to have all the information that is needed tomake conclusive statements.

When reporters make mistakes, it is only natural that the people who have been affected the mostwish to have their day in court. While that might seem like the only fair thing to do, there are otherconsiderations. For instance, suppose a person under investigation is truly guilty of wrong doing,but the reporter is factually wrong on a few pieces of evidence, is it more important to expose thewrong doing or hold the reporter liable for a few factual inaccuracies? Were journalists held to strict

standards of falsity, stories of important concern would not be reported for fear of legal action. Thecourts have held that society is better served by a press that actively seeks to protect its public thanby prosecuting for mistakes or imperfect conclusions. Therefore, the courts have held that formatters of public concern, reporters are held liable only for a "reckless disregard of the truth" andactual malice. These legal terms are defined below.

Reckless DisregardHere is the Merriam-Webster Dictionary of Lawdefinition of "reckless disregard of the truth."

1: disregard of the truth or falsity of a defamatory statement by aperson who ishighly aware of its probable falsity or entertainsserious doubts about its truth orwhen there are obvious reasons todoubt the veracity and accuracy of a sourcereckless disregard ofthe truth, do not enjoy constitutional protection Garrison v.Louisiana , 379 U.S. 64 (1964)

2: a reckless lack of attention to the truth that misleads ordeceives another (as amagistrate) reckless disregard of the truthin support of the warrant State v.O'Neil , 879 Pacific Reporter,Second Series 950 (1994)

Example of Reckless Disregard As an example, Joseph Farah, editor ofWorldNet Daily (WND),is suing Esquire Magazine for remarks it made about Jerome Corsi's book, Where's the BirthCertificate? Over the past year WND has been circulating news stories and investigative accountsstating that President Obama was not born in the United States. When the president has released
http://en.wikipedia.org/wiki/Joseph_Farahhttp://www.worldnetdaily.com/http://scholar.google.com/scholar_case?q=State+v.+O%27Neil+,+879+&hl=en&as_sdt=2,37&case=11986234170213986394&scilh=0http://scholar.google.com/scholar_case?q=State+v.+O%27Neil+,+879+&hl=en&as_sdt=2,37&case=11986234170213986394&scilh=0http://scholar.google.com/scholar_case?q=State+v.+O%27Neil+,+879+&hl=en&as_sdt=2,37&case=11986234170213986394&scilh=0http://scholar.google.com/scholar_case?q=State+v.+O%27Neil+,+879+&hl=en&as_sdt=2,37&case=11986234170213986394&scilh=0http://scholar.google.com/scholar_case?q=State+v.+O%27Neil+,+879+&hl=en&as_sdt=2,37&case=11986234170213986394&scilh=0http://draft.blogger.com/goog_695412703http://www.speechandprivacy.com/2011/05/what-is-actual-malice.htmlhttp://www.esquire.com/http://www.worldnetdaily.com/http://en.wikipedia.org/wiki/Joseph_Farahhttp://scholar.google.com/scholar_case?q=State+v.+O%27Neil+,+879+&hl=en&as_sdt=2,37&case=11986234170213986394&scilh=0http://scholar.google.com/scholar_case?q=Garrison+v.+Louisiana+,+379+U.S.+64+(1964)&hl=en&as_sdt=2,37&case=6463657344879720774&scilh=0http://draft.blogger.com/goog_695412703http://en.wikipedia.org/wiki/Recklessness_%28law%29http://www.flickr.com/photos/28567825@N03/5223926661http://www.speechandprivacy.com/2011/05/what-is-actual-malice.html


2/3

his birth certificate, Esquire magazine published a parody news story claiming that Farah andCorsi are burning all of their forthcoming books. WND, the publisher for this book, claims thatEsquire showed a reckless disregard for the truth by publishing a "sham news story" with falseinformation (seriously, Farah can't seem to tell the difference between a real news and parody--orperhaps doesn't want to for financial reasons).

Although the courts constantly surprise us, Farah's suit is most likely headed for failure because,Esquire's story clearly qualifies as parody, which is a protected form of speech in this country. In the

meantime, Farah will spend a lot of money and bluster trying to extract a modicum of retribution fromEsquire for making him the embarrassing butt of a series of current events.

Actual MaliceActual Malice is a legal term and should not be confused with the common definition of malice whichmeans to do something out of ill will or spite. US Legaldefines actual malice as:

A statement made with a reckless disregard for truth. Actual malice can beestablished through circumstantial evidence. High degree of awareness of falsityis required to constitute actual malice. If the plaintiff is a public figure, the plaintiff

should prove by convincing evidence that the defendant published a defamatorystatement with actual malice, i.e. with knowledge that it was false or with recklessdisregard of whether it was false or not. If the plaintiff is unable to prove actualmalice, then the plaintiff cannot recover. Masson v. New Yorker Magazine, 501U.S. 496 (U.S. 1991)

One of the standards required for actual malice is that the plaintiff mustdemonstrate that the author in fact entertained serious doubts as to the truth of hispublication, or acted with a high degree of awareness of probable falsity. Such

evidence can overcome a defendant's insistence that it acted in good faith andwith the honest belief that the statement was true. Medure v. Vindicator PrintingCo., 273 F. Supp. 2d 588 (W.D. Pa. 2000)

Example of Actual Malice In Anniston, Alabama, a local City Councilman sued the localnewspaper, The Anniston Star, for libel when it reported on Councilman Little in a 2009 storyinvestigating practices in the city's human resources unit. The story reported on a rumoredrelationship that Little had with a woman who was later hired by the city. Little denied the chargesand sued the newspaper for libel. Since Little was a public official and the story was one ofimportant community, it was necessary for him to prove actual malice in the writing of the story. Little

believed that the paper's reprint of a rumor constituted the reckless disregard of whether it was trueor notportion of the actual malice statute. In the end, Little lost his libel claim and the appeals courtupheld the lower court's ruling. Councilman Little says he will appeal the ruling to the State SupremeCourt.

Free Speech Exceptions

To be found guil ty of libel, plaintiffs must prove actual malice against reporterswhen their stories concern public officials and/or important community concerns.

For More Information
http://www.annistonstar.com/http://scholar.google.com/scholar_case?q=Medure+v.+Vindicator+Printing+Co.,+273&hl=en&as_sdt=2,37&case=1343920893842757773&scilh=0http://scholar.google.com/scholar_case?q=Masson+v.+New+Yorker+Magazine,+501+U.S.+496+(U.S.+1991)&hl=en&as_sdt=2,37&case=15073454428774944905&scilh=0http://definitions.uslegal.com/a/actual-malice/http://en.wikipedia.org/wiki/Actual_malice


3/3

what is actual malice?

Documents