What Is Actual Malice: Defamation Law Definitions

cartoon graphic of two men yelling at each other to accompany a blog post on what is actual malice

What is actual malice? Let’s get to it.

High-Brow & Low-Brow Definitions Of Actual Malice


Black’s Law Dictionary defines actual malice:

The deliberate intent to commit an injury, as evidenced by external circumstances. Also termed express malice; malice in fact. Cf. implied malice. 2. Defamation. Knowledge (by the person who utters or published a defamatory statement) that a statement is false, or reckless disregard about whether the statement is true. To recover for defamation, a plaintiff who is a public official or public figure must overcome the defendant’s qualified privilege by providing the defendant’s actual malice. And for certain other types of claims, a plaintiff must prove actual malice to recover presumed or punitive damages.


What does it all mean in plain English?

If I were talking to middle school students, I’d probably go with something like this:

Actual malice is when someone lies, on purpose, to damage another person’s reputation. In court cases where the person suing for defamation is famous, the well-known person must prove that the defendant purposefully lied, and the lie resulted in material harm.

What Is Actual Malice? Hypothetical Actual Malice Lawsuits

Let’s take a look at a few hypothetical actual malice case studies.

Local Politician/Restaurateur v. Competing Restaurateur

Cathy’s Carnival of Crabs – a fictional Baltimore seafood restaurant – needs customers. Cathy is impatient and devises a scheme to bad-mouth her competition, Larry, proprietor of Larry’s Lobsters & Crabs. (Larry is also a town councilor.) Cathy thinks that if people believe Larry’s a cad, they’ll frequent her eatery instead. So, Cathy starts spreading rumors about Larry, online and off. Within a week of Cathy’s postings, Larry’s business suffers, and he is voted off the Town Council.

In this scenario, Larry would most likely have to prove actual malice to win because he is a local politician; in most jurisdictions, public officials – no matter how local – automatically fall into the “public figure” category.

Now, let’s say that Larry still won the local election, but his business bombed because of Cathy’s Internet lies. In this scenario, Larry may not have to prove actual malice, as the case would have nothing to do with his standing as a local official, but instead a private business owner.

The Case Of The Feuding Twenty-something Teachers

Jane Doe is an elementary school teacher. Her nemesis, Dane Joe, also teaches at the school. Cutbacks are announced; either Jane or Dane must be let go. Both go home and post a message on their respective Facebook pages. Jane says:  “It’s between Dane and me. I hate her; I hope the powers that be see how terrible she is.” Dane says: “Jane is a witch. Hate her; Hope TPTB  realizes she lets her students cheat on standardized tests.”

Before we get to the discussion, let’s assume that Jane didn’t help students cheat. Let’s also assume the state’s defamation laws define public school teachers as public figures (which is the case in various jurisdictions).

Under these conditions, Dane is the only teacher that could be at fault for defamation. Why? Under U.S. law, opinions aren’t censored – however unflattering. But harmfully lying about an individual, group, or business is a civil wrong. Since Jane and Dane live in a state that treats public school teachers as public figures, to win, Jane would have to prove actual malice. Given the circumstances, she could argue that Dane knowingly lied in an attempt to make sure Jane didn’t get the job, which would satisfy the actual malice standard.

Celebrity v. Gossip Magazine

Tear-Down Magazine published an unflattering article about Cecilia the Celebrity’s recent child custody issues. The piece appeared on both Tear-Down’s website and print edition. The headline read: Cecilia Celebrity Abandoned Her Daughter! Cecelia, however, insists she regularly spends time with her daughter. She decides to sue TPD Publications, distributors of Tear-Down Magazine, for libel.

In this phony scenario, Cecilia, having celebrity status, would have to prove actual malice to win the defamation case. To prove actual malice, she’d have to provide evidence that TPD Publications caused her material harm; she’d also have to prove the magazine knew it was publishing false information, but did it anyway.

Now, if a diaper company paid Cecilia to endorse products, and said company fired Cecilia over TPD’s accusation, Cecilia could, theoretically, prove loss. If, however, Cecilia simply doesn’t like the insinuation, but cannot provide evidence of falsity and harm, she’d have a tough time winning. More than that, TPD Publications would likely cite “a reliable source” and argue it had no reason to doubt the accusation’s authenticity.

Let’s change the circumstances. Let’s pretend Cecilia isn’t a celebrity. As a private citizen, instead of having to prove actual malice, Cecilia would probably be required to meet the “negligence” standard, meaning she’d have to prove that “a reasonable person” wouldn’t have published the accusation.

What Is Actual Malice? Case Study: New York Times Co. v. Sullivan

One of the most famous United States Supreme Court defamation cases, New York Times Co. v. Sullivan – 1964, established “actual malice” as a parameter in slander and libel lawsuits filed by public figures.

On March 29, 1960 the New York Times ran a full-page advertisement, in support of Dr. Martin Luther King, Jr., called “Heed Their Rising Voices.”

The ad claimed Alabama police had arrested King seven times when he’d only been arrested four times. Offended by the mistake, and even though the ad didn’t mention him name, then Montgomery public safety commissioner L.B. Sullivan wrote a retraction request letter to the Times. Why? At the time, Alabama statutes prevented plaintiffs from collecting punitive damages without proof of a retraction request denial.

The New York Times opted not to retract, but instead sent Sullivan a letter expressing puzzlement why he thought “the statements in any way reflected on [him].”

Unsatisfied, Sullivan sued for libel.

Eventually, the case went before the United States Supreme Court. SCOTUS’ ultimately was tasked with determining the constitutionality of Alabama’s defamation law. In a unanimous vote, the Justices ruled in favor of the New York Times because Alabama’s slander and libel statutes didn’t provide enough free speech safeguards.

To ensure a healthy free press, the justices also declared that “actual knowledge of falsity” must be proven in defamation cases, involving matters of public interest, which are filed by public figures.

We hope we’ve answered the question: what is actual malice? If you still have questions, get in touch here.