Wednesday, February 27, 2013

Defamation, Public Firgures and the First Amendment: Part II

In the last post, I discussed the Supreme Court's decision that in cases involving public figures, the plaintiff must show more than falsity.  The plaintiff must show the statement was made with malice.

But what does that mean?

The most confusing part of this constitutional test is use of the term "malice."  In a footnote in a later-decided case, the Supreme Court even expressed some regret at choosing that term.

Ask most people what "malice" means, and they will say "ill will" or something to that effect.  But for purposes of constitutional defamation requirements, "malice" does not mean ill will.  In fact the court has been emphatic that ill will has nothing to do with the constitutional test.  So much so, that ill will is not evidence of constitutional malice.

So what is it?

The Court defines constitutional malice as knowledge of falsity, or reckless disregard as to whether the statement was true of false.   Knowledge of falsity is pretty easy to understand.  But not so with reckless disregard, which again has a meaning different than the way it is commonly understood.

Knowledge of falsity means just that.  A person knew the statement was not true, but stated it anyway.  Example:  Writer of a celebrity biography reports that a movie star provided drugs to Whitney Houston  despite knowing it was not true, but suspecting that the allegations will get publicity for the book.  If sued, the writer faces liability for defamation, even under the constitutional standard.

But reckless disregard is more problematic.  That's the topic for my next post.

photo credit: <a href="">einalem</a> via <a href="">photopin</a> <a href="">cc</a>

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