How news organizations are protected from the actual malice principle

When a public official or public figure, the plaintiff, files a lawsuit for defamation or libel, he or she has the burden to show actual malice — in other words, that the speaker knew or strongly suspected that a statement was false when they made it. It's more than an honest mistake.”

Emily Hockett, fellow, Reporters Committee for Freedom of the Press

Freedom of speech is one of the greatest achievements of the Founding Fathers. They understood that if the people were the ultimate rulers, not kings or despots, they must be able to criticize the government and its officials. Like the other freedoms embodied in the U.S. Constitution, freedom of speech has some limits. Using that freedom to defame or libel another party can lead to being sued. These concepts are taught in journalism schools, and publishers, editors and journalists understand where to draw the line.

The concept of “actual malice” is more nuanced, but it is just as important for news professionals to understand what it means. The Reporters Committee for Freedom of the Press’ Technology and Press Freedom Project Fellow Emily Hockett said actual malice relates to “the information the speaker had at the time.”

“Actual malice doesn’t require any harmful intent, which is malice. Actual malice requires showing a speaker had knowledge or a reckless disregard for the falsity of a statement at the time he or she made it. If a private individual makes a defamation claim, then he or she doesn’t have to prove actual malice but just show negligence by the defendant. It’s a much lower standard. Actual malice is the standard governing defamation and libel claims by public officials and public figures,” Hockett said.

“When a public official or public figure, the plaintiff, files a lawsuit for defamation or libel, he or she has the burden to show actual malice — in other words, that the speaker knew or strongly suspected that a statement was false when they made it. It's more than an honest mistake.”

The first steps to defining and setting the legal standards of actual malice occurred when America was still a group of British colonies and during the years since, resulting in the 1964 U.S. Supreme Court landmark decision, New York Times v. Sullivan. Without explaining the case in full, Justice William Brennan said at the time, “Erroneous statements, honestly made, are inevitable in public debate and must be protected in a free society.”

The U.S. Supreme Court, as well as 33 states and the District of Columbia, have provided additional protection with anti-SLAPP laws or Strategic Lawsuits Against Public Participation.

“Anti-SLAPP laws address the abusive litigation filed by public figures and public officials that very clearly doesn’t meet the standard of actual malice. They file those lawsuits to silence their critics and use their resources to force someone to defend a meritless lawsuit for months if not years. The actual malice standard is also a primary protection against those lawsuits,” Hockett said.

Hockett added that local news organizations can be particularly vulnerable to abusive defamation lawsuits because they tend to have fewer resources and no in-house counsel or insurance to protect them from defamation liability. In those cases, the anti-SLAPP laws can help to shield them from drawn-out litigation.

Although most laws pertaining to actual malice were established before the digital age, Hockett said they apply equally regardless of which platforms information is published or the devices where people read, listen or watch that content. The implications of AI-generated text and the actual malice standard are of more concern.

“The potential for ChatGPT-generated news articles to be the subject of defamation lawsuits is a very concerning prospect. I think it highlights a very significant downside for a news organization to use that technology because it hasn’t been litigated yet. Hockett said that lawyers don’t know how a court might apply the principles of defamation law differently in those circumstances.

Bob Sillick has held many senior positions and served a myriad of clients during his 47 years in marketing and advertising. He has been a freelance/contract content researcher, writer, editor and manager since 2010. He can be reached at bobsillick@gmail.com.