Actual Malice

This week marks the 50th anniversary of the Supreme Court’s ruling in The New York Times Co. vs. Sullivan, 376 U.S. 254 (March 9, 1964). That case established the “actual malice” rule in defamation cases brought by public officials against a news organization. The opinion was a landmark in First Amendment law, and changed the slander and libel landscape with respect to commentary on pubic issues.

Some background is in order. The English common law of slander and libel required the person bringing suit to prove three things (1) that the speech or writing was defamatory; that is, it tended to bring disrepute upon the plaintiff; (2) that the statement was clearly about the plaintiff; and (3) that it was published; that is, uttered to a third party. The speaker or writer had a complete defense if he could prove the statement was true. If the defamatory statement was about the government or a government official, however, truth was not a defense. This was the seditious libel doctrine which held that publishing a libel about the king or his ministers, true or not, tended to provoke breaches of the peace.

The case of New York printer John Peter Zenger in 1735 changed the law in America. There a jury found that truth was a defense to seditious libel as well as to private defamation. This case established the legal principle of freedom of the press, which was later enshrined in the First Amendment to the United States Constitution.

While truth as a defense had been established in American jurisprudence for nearly 200 years, up into the 1960s the law of libel was still an inhibition to freedom of expression on public matters and about public officials and figures. The burden of proof was on the alleged defamatory speaker or writer. If sued for libel, he had to amass and present sufficient evidence to convince a judge or jury that, more likely than not, the statement was true.

In Sullivan the Court wrote “[I]t is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions at national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” (pp. 269-270)

Furthermore “[E]rroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’” (pp. 271-72)

The rationale explained: “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount — leads to a comparable ‘self-censorship.’ Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone.’ The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” (pp. 279-280).

There we have it. The Court shifted the burden of proof on truth or falsity of the alleged libelous statement from the defendant to the plaintiff. It went a step further. The plaintiff, if a public official, must prove not only the falsity of the statement, but that it was uttered with knowledge that it was false or that the writer acted recklessly in expressing an untruth.

Later cases extended this “actual malice” standard to public figures. The Court appears to have recognized that public policy demands that those who seek and obtain public office, or inject themselves into public controversy should, in the words of my fifth grade teacher, be big and ugly enough to fade the heat.

Those of us who mind our own business and stay out of the limelight have nothing to fear. The common law standard of slander and libel where the burden of proof as to truth is on the speaker or writer is still the law. The “robust and uninhibited” speech and debate the Supreme Court found was necessary to the maintenance of a free society is standard fare in the United States. It may be unpleasant and offensive, but expression of views, even at the risk that sometime the facts might not be completely true, or skewed, is one of our most effective guardians of liberty.

The opinion is available at numerous sites online, including this link.

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