What is “actual malice” in defamation law?

In personal injury law, defamation occurs when someone publishes a false statement that ends up harming the injured person’s reputation, resulting in damages. To prove that defamation occurred, the plaintiff in a defamation case must prove all of the following:

  • The defendant made a statement (spoken or written);
  • The statement was false;
  • The defendant published the statement by speaking it or sending it in writing to a third person; and
  • The publication of the false statement injured the plaintiff’s reputation, making the plaintiff entitled to damages.

Injured plaintiffs who are private citizens only have to prove the four elements listed above. An injured plaintiff who is a “public figure,” however, has to prove these four elements plus one more: that the defendant published the statement with “actual malice.”

The name “actual malice” is misleading. Although the phrase conjures up images of defendants hatching evil plots to harm the plaintiff, a nefarious purpose isn’t required to prove actual malice. Rather, actual malice occurs when:

  • The defendant publishes a statement about the plaintiff he knows is false; or
  • The defendant publishes a statement about the plaintiff with reckless disregard for whether it is false or true.

In other words, defendants who make statements about public figures are expected to do some background research if they doubt the statement is true. They are also expected not to publish any statement that they know is not true.

For example, suppose that a newspaper reporter receives an anonymous phone call. The person on the other end tells the reporter that the city’s mayor hires illegal immigrants at sub-minimum wages to run her pickle factory. The reporter puts this statement in his feature article about the mayor without bothering to check whether it’s true, even though he’s pretty sure it’s false. In this case, the reporter may be liable for defamation, because his failure to double-check the statement even though he had actual doubts whether it was true meets the “actual malice” requirement.

Actual malice is based on what the defendant was actually thinking at the time he published the defamatory statement. In this way, public-figure defamation cases differ from private-figure defamation cases. Private individuals only have to show negligence, or that a reasonable person would have researched the statement before publishing it. Public figures, however, must show not what a “reasonable person” would have done, but what this defendant actually did.

In order for the actual malice standard to apply, the plaintiff must be a “public figure.” Who counts as a “public figure” often depends on the facts in a particular case. “Public figures” usually fall into one of three categories: the public official, the all-purpose public figure, and the limited-purpose public figure.

A “public official” is someone who holds a government office. Public officials can be either elected, such as the President, governor or legislators, or they can be appointed, such as the heads of federal and state departments. A public official who sues for defamation will have to meet the “actual malice” standard in nearly every case. Since public officials run things, courts have held that their actions are matters of public interest, even after the official has left office.

An “all-purpose public figure” is someone whose fame or position regularly puts them in the public eye. Celebrities, sports stars, and the heads of well-known companies are often all-purpose public figures. Like a public official, an all-purpose public figure nearly always has to prove “actual malice.” Even if an all-purpose public figure has retired, he remains a public figure as long as the source of his fame is of interest to the public.

Finally, a “limited-purpose public figure” is one whose work on or relationship to a particular topic or issue brought her into the spotlight, but who remains a private citizen in most other regards. For instance, an activist who fights for clean water protections or a researcher known for her work on a certain disease may be a limited-purpose public figure when their specialty comes up. A limited-purpose public figure has to prove “actual malice” when a statement applies to her involvement in their topic or issue, but not when a statement refers to her personal life.

For instance, suppose that the college roommate of a famous zoologist makes a statement claiming that the zoologist actually flunked her freshman biology class and that therefore her degree is a fake. The zoologist will likely have to prove “actual malice” because the comment relates to the area for which she is known, which is zoology. However, if the roommate stated that the zoologist was cheating on her spouse, the zoologist would probably not have to prove “actual malice,” because statements about her infidelity are not related to her career as a famous zoologist.

All three types of public figures must prove “actual malice” in certain cases, whether they are still in the public eye or have retired.  Generally, the doings of a public figure, especially those that relate to his fame, are considered to be matters of public interest even if the public figure is not in the spotlight at the particular moment a statement is made.

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