Actual Malice Test

If you’re a public figure bringing a defamation case, you have to pass the actual malice test.

actual malice test
Pic: Shamia Casiano, Pexels

If you are a public figure bringing a defamation suit against someone, you must show that the defendant published the defamatory statement about you with “actual malice.”

What is “actual malice”?

Let’s assume you’re someone famous.  You’re in the tabloids all the time.  Some gossip rag publishes a story about you that is demonstrably false.  You decide you want to sue them.  Is it enough to show that the story was false?  Not really.

What you have to show is that the publisher acted with actual malice when it published the story about you.  This means that the publisher ran the story knowing that it was false, OR acted with reckless disregard as to whether the story was true or not.  Simple right?  Not so fast.

How do you prove actual malice?

First, and I know you guys hate it when we say this, but it depends.  Every case is fact-specific.  Questions you might ask yourself is did the publisher adequately investigate the story before publishing it?  What were the publisher’s motives?  Did it harbor ill-will toward the plaintiff?  Was it politically driven?  Did the story violate basic journalistic standards?  Did the publisher have information that contradicted the story and failed to publish it?

Proving a public figure defamation case is difficult and super fact-specific.

Preconceived notions.

Let’s assume that a reporter goes into a story with a preconceived notion about the plaintiff and the story reflects that.  Is that “actual malice?” Probably not.  The courts have said that if the piece was well-researched, a reporter’s adversarial stance is not dispositive.  You have to show more.

Post-publication conduct.

What if, after the story is published, the gossip rag acts in such a way that it’s obvious it acted with actual malice at the time it published the story?  Is that enough?  Well, you have to prove that the defendant had a particular, subjective state of mind at the time the statements were made.  Therefore, while post-publication conduct can possibly show what the defendant was thinking at the time it libeled the plaintiff, it probably won’t stand alone.

Plausibly allege.

The actual malice test makes the plaintiff “plausibly allege” the facts of his case.

In order to show actual malice, the courts have said a public figure plaintiff must “plausibly allege” facts that would show the same.  What the heck does that mean?  It’s a bit circular.

Essentially, public figure plaintiffs have to plead facts that could plausibly support a jury finding that the defendant knew the allegedly defamatory statements were false OR that the defendant entertained serious doubts as to the truth of its publication.

The plaintiff’s complaint must contain sufficient facts that, if accepted as true, state a claim for relief that is plausible on its face.  Are your eyes rolling to the back of your head yet?

What if the sources for the publication are unreliable?

What if someone publishes a story about you that is false, but that’s because he just had bad information?  Is that enough to show actual malice?  Likely not.

Again, you have to allege facts that the defendant subjectively believed, at the time of publication, that the story was false OR that the publisher had a “high degree of awareness” that the story was false.

As the courts have said, it’s a subjective standard that requires more than mere negligence (failure to exercise ordinary care).  You have to show that the story was either completely fabricated, or that there were obvious reasons  to doubt the truthfulness of the story.

If the publisher relies on what turn out to be unreliable source, but they appeared reliable at the time, and it had no subjective doubts about the story’s accuracy,  then you’ve got no case.  Even if a more thorough investigation might have prevented an admitted error.

A thorough pre-litigation investigation is the key.

The fact is that if you’re a public figure trying to bring a defamation suit, the bar is incredibly high.  From the outset, you must allege facts that make plausible either that the defendant knew the story was false at the time it published it; that it had sufficient reasons to doubt that the story was true; and/or that it deliberately shielded itself from the truth.

This means you’re going to need a legal team with experience in defamation law that can examine your case and do the investigation needed to win your case.

Contact us.

If you’re a public figure and you think you might have a defamation case, contact Jeff or Malissa at Marathon Law today for your case evaluation to see if you can pass the actual malice test.