What Is Actual Malice?

actual malice in defamation lawsuitsIf The Paper Chase doesn’t give you twitchy flashbacks or you’re not a graduate of Dick Wolf’s Law & Order Legal Academy, the phrase “actual malice” may leave you scratching your head. If so, we’re here to clear up any confusion.

High-Brow & Low-Brow Definitions Of Actual Malice


Black’s Law Dictionary defines actual malice thusly:

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 that legalese mean in plain ‘ole English?

If a room of middle school kids were my audience, 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 or a politician, the well-known person must prove that the defendant purposefully lied, and the lie resulted in material harm for the plaintiff.

Malice “In Action”: Hypothetical Actual Malice Lawsuits

Let’s take a look at a Few imaginary examples of actual malice in a defamation lawsuit.

Local Politician/Restaurateur v. Competing Restaurateur

Cathy’s Carnival of Crabs – a fictional Baltimore seafood restaurant – needs more customers. Cathy is impatient and devises a scheme to bad-mouth her competition, Larry, proprietor of Larry’s Lobsters & Crabs. Larry also happens to be on the town council. Mean ‘ole Cathy thinks that if enough people believe Larry’s a cad, they may frequent her eatery instead. So Cathy takes to the Web and embellishes on lies she had once heard about Larry, a blond and a plate of linguine. Within a week of Cathy’s postings, Larry’s was only pulling in a quarter of the amount of customers.  He also ended up losing the next town council election and he believes his loss is a result of Cathy’s quips.

In this scenario, Larry would most likely have to prove actual malice to win because he is a local politician and in most jurisdictions, public officials – no matter how local – automatically fall into the “public figure” category. As such, in order to prove actual malice to win the suit, Larry would have to prove that Cathy’s tales were false and only created to crush Larry’s reputation. He’d also have to prove that the statements in question led directly to his loss of the local election.

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 Twentysomething Teachers

Jane Doe is a teacher at an elementary school. 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 me and that b—- Dane. I hate her; I hope the powers that be see how terrible she is.” Dane says: “Jane is a b—. I hate her; I hope the powers that be find out that she gives her kids answers on standardized tests and that’s why her numbers are so high.”

In the hypothetical example above, let’s assume that Jane didn’t help her students cheat. Let’s also assume that the defamation laws in their state say that public school teachers are public figures. Under these assumed conditions, Dane is the only teacher in the above example that committed an act of online defamation. Why? It’s perfectly legal in the United States to give your opinion about another person – however unflattering it may be. But it is not legal to lie about someone if your lie causes material or reputational harm. Since Jane and Dane live in a state that says public school teachers are public figures for purposes of a slander or libel lawsuit, Jane would have to prove actual malice. Given the circumstances of the case, she could certainly argue that Dane knowingly lied in an attempt to make sure Jane didn’t get the job – doing such 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 in their print magazine. The headline read: Cecilia Celebrity Abandoned Her Daughter! Cecelia, however, insists she has seen her daughter and has not abandoned her. She decides to sue TPD Publications, distributors of Tear-Down Magazine, for libel.

In this phony scenario, Cecilia would have to prove actual malice in order to win the defamation case because she is a celebrity in the public eye. In order to prove actual malice, she’d have to provide evidence that the TPD Publications piece caused her material harm; she’d also have to prove that they knew what they were publishing was wrong, but did it anyway with the goal of hurting her.

Now, if our fair fake celebrity had an endorsement with a baby-care company and was fired over TPD’s accusation, she would be able to prove loss. If, however, Cecilia Celebrity simply doesn’t like the insinuation, but cannot provide any evidence that the article caused her material harm, she’ll have a much harder time winning. More than that, TPD Publications would most likely claim they have a reliable source and therefore had no reason to believe that their source was lying. As such, it would be difficult for Cecilia to prove malicious intent.

Let’s change the circumstances a bit. Let’s pretend that Cecilia is not a celebrity. If she were a private citizen, instead of having to prove actual malice, she’d have to meet the “negligence” standard. What is the negligence standard in defamation suits involving private persons? In said cases, plaintiffs simply have to prove that “a reasonable person” would not have published the material. Under those circumstances, private citizen Cecilia, may have a shot at winning.

The Most Important Actual Malice Case in United States History: New York Times Co. v. Sullivan

Arguably, the most important defamation case law in United States history took place in 1964 – New York Times Co. v. Sullivan. Perhaps the most preeminent United States Supreme Court decision regarding freedom of the press, New York Times established “actual malice” as a constitutional standard in cases where a public figure is the appellant.

New York Times Co. v. Sullivan was born out of the civil rights 60s. Back then, Southern politicians regularly sued Northern publications that reported on Jim Crow atrocities, because the defamation laws were loose and varied from state to state. Prior to the decision, $300 million worth of defamation lawsuits against newspapers were pending across the nation.

On March 29, 1960 the New York Times ran a full-page advertisement called “Heed Their Rising Voices.” The goal of the ad was to raise money for an upcoming lawsuit against Dr. Martin Luther King, Jr.

A few of the facts in the ad were inaccurate, including a claim that Alabama police had arrested King 7 times when he had only been arrested 4 times. Then Montgomery Public Safety Commissioner, L.B. Sullivan, took offense to the accusation of 7 arrests. Sullivan wrote a formal letter to the New York Times asking for a retraction of “Heed Their Voices.” The reason Sullivan wrote the letter was because at the time, Alabama statutes said a plaintiff couldn’t sue for punitive damages unless a formal request for retraction was sent and denied. Even though the advertisement didn’t mention Sullivan by name, he felt the material inherently defamed him since he was the public safety commissioner and therefore responsible for certain law enforcement activities in the state.

When the New York Times received Sullivan’s letter, they didn’t retract their statement, but instead sent him back a letter saying they were “somewhat puzzled as to how [Sullivan thought] the statements in any way reflected on [him].” Since no retraction appeared in the paper, Sullivan sued for libel. The Alabama public safety commissioner also included 4 black ministers mentioned in the ad to the defendant’s list. Long story short, an Alabama Court awarded Sullivan 500,000.

Lawyering ensued and eventually New York Times Co. v. Sullivan ended up in the United States Supreme Court. Since the Supreme Court’s prime directive is to rule on constitutional matters, their goal was to determine whether or not Alabama’s defamation law was constitutional. In a unanimous vote, the Court ruled in favor of the New York Times because they determined Alabama’s slander and libel statutes did not provide enough free speech safeguards. To ensure a permanently healthy free press, the justices also declared that “actual knowledge of falsity” must be proved if the defamation plaintiff is a public figure.

New York Times Co. v. Sullivan is not the first U.S. court case to mention “actual malice.” In 1930, a judgment in Hoeppner v. Dunkirk Printing Co. mentions the phrase. But it was New York Times v. Sullivan that gave the term “constitutional significance.”

Is Actual Malice The Standard In Commonwealth Countries Like the UK and Canada?

Generally speaking, the United States, Canada and the United Kingdom have similar cultures and worldviews. When it comes to actual malice, however, the United States stands alone. Here’s the main difference:

In the U.S., plaintiffs must prove that the material in question is not true and that the defendant knew it was false before publishing. In common law countries, however, the burden of proving truth falls on the defendant. As such, common law countries are considered to have more plaintiff-friendly slander and libel laws, while the U.S. is credited with having more defendant-friendly defamation laws.

Hill v. Church of Scientology: Canada Rejects Adoption of Actual Malice Standards

Hill v. Church of Scientology Toronto is the Canadian Supreme Court decision which rejected actual malice as an aspect of Maple Leaf defamation law. The case was significant in that the Supreme Court of Canada ultimately had to determine if Ontario’s provincial libel laws were contradictory to the Canadian Charter of Rights and freedoms.

The fracas began in 1984 when a lawyer working for the Church of Scientology and several spokespeople from the organization held a press conference in Toronto to announce a criminal contempt lawsuit against then Crown Attorney Casey Hill. The church and their attorney accused Hill of misleading a judge and breaching a court order relating to another Scientology lawsuit. To make a long story teeny, at the hearing all the charges against Hill were found to be “untrue and without foundation” (#scinetologyfail) and the Church of Scientology, et al were ordered to fork over $1,600,000 in damages and fees.

Unhappy with the outcome, the church appealed and the case went all the way to the highest court in the land. Always creative with their lawyering, Scientology argued that “common law defamation statutes failed to evolve with Canadian society.” If Canada wanted to be a true democratic society, the church argued, then Canada had no other option than to adopt the “actual malice” standard outlined in New York Times Co. v. Sullivan.

The Canadian Supreme Court justices weren’t hearing it and ruled against Scientology. The bench reasoned that the Canadian Charter can’t rewrite common law, but should be interpreted according to its principles. That fact, however, did not mean that Canada had to appropriate the actual malice standard.

So there you have it — the low down on actual malice. If you still have questions, please take a look at the links below. If you need to speak with a slander or libel lawyer, you can get in touch here.