What is the Actual Malice Standard and Why Does it Matter?

As we recently covered in a post on our blog, Justice Clarence Thomas sent shockwaves through the First Amendment legal community by questioning the constitutionality of the actual malice requirement, which found its genesis in the seminal libel case of New York Times v. Sullivan, and even advocating for New York Times v. Sullivan’s outright reversal. According to Thomas, the actual malice requirement has no basis in the Constitution. “New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote. The cases that created and refined the actual malice standard, argues Thomas, did not apply “the First Amendment as it was understood by the people who ratified it.” Instead, libel and defamation laws, according to Thomas, should be left to the states to decide on a state-by-state basis.

Most people may not truly understand what the actual malice standard actually is or its crucial role in protecting the freedom to discuss important topics or share controversial opinions without liability for defamation, libel, or slander. In defamation law, a public figure plaintiff cannot prevail in a defamation claim without proof that the defendant made the statement with actual malice. Even defamation claims by nonpublic figure plaintiffs require proof of actual malice to recover punitive or exemplary damages.

The Supreme Court has defined actual malice as actual knowledge that the statement is false or reckless disregard for the truth. The Supreme Court has clarified that reckless disregard means subjective evidence that the defendant entertained serious doubts about the truth of the statement and cannot be established by proof of a mere failure to research a statement before making it. The purpose behind the actual malice requirement is to balance libel and defamation laws against the freedoms of the First Amendment. The Supreme Court and legal scholars have argued that, without adequate protections, the prospect of libel judgments would chill speech and the press’s willingness to cover controversial issues.

DiTommaso Lubin ’s DuPage County defamation and slander lawyers with offices close to Evanston and Schaumburg have substantial experience litigating defamation and libel suits. Our Naperville business, commercial, class-action, and consumer litigation lawyers represent individuals and businesses in pursuing or defending libel, defamation and slander claims and protecting First Amendment free speech rights. From our offices in Chicago, Elmhurst and Wilmette, we serve defamation, slander and libel clients throughout Illinois. You can contact us online here.