“Actual Malice”: Examining Libel in American Law

By Musa Kamara (PO’22)

On February 19, the Supreme Court refused to hear a defamation suit filed by Kathy McKee, an actress active in the 1970s who appeared in The Bill Cosby Show, Saturday Night Live, and Sanford and Son. The suit McKee filed was particularly notable in that it was filed against Bill Cosby, a prominent public figure of the last fifty years who was convicted of numerous sex-related offenses in 2018. McKee, who also accused Cosby of sexual assault, contended that Cosby had defamed her by indirectly calling her a liar through his attorneys. Supreme Court Justice Clarence Thomas agreed with the court’s decision purely on a legal basis, acknowledging established precedent. However, Thomas also wrote an opinion calling for a reexamination of the very legal principle responsible for the court’s decision to not hear McKee’s case. In doing so, Thomas joins the late Justice Antonin Scalia and President Donald Trump in calling for a reevaluation of libel in American law.

In early 1960, amidst the Civil Rights Movement, the New York Times published an advertisement with the stated goal of raising money to help defend Martin Luther King Jr., who was being accused of perjury. The ad contained a number of factual inaccuracies about interactions between Dr. King and the police force in Montgomery, Alabama; as a result, L.B. Sullivan, one of Montgomery’s Commissioners of Public Safety, sued the Times on charges of libel. Although the ad did not explicitly mention Sullivan, he claimed that its inaccuracies had damaged his reputation in his community. Upon review by an Alabama court, Sullivan was awarded $500,00, and the Times was thus held responsible for libel. The Times subsequently appealed their case to the Supreme Court, in what would become the case dubbed New York Times Company v. Sullivan.

In a unanimous decision, the Supreme Court proved amenable to the arguments made by the Times that the ad had no intention of hurting Sullivan. Seeing as there was no reason to believe that the ad’s content was libelous, the Times felt no need to check for the ad’s accuracy. The Times argued that if they had to check the accuracy of each criticism of a public figure, their rights under the First Amendment protection of a free press would be “severely limited.” Justice William Brennan Jr. wrote in the majority opinion of the court that in order for a public official to be successful in a libel case, they must prove that the allegedly libelous party acted “with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard” for truth. This opinion effectively established a check for libel that has yet to be significantly revised.

The Court’s reasoning in establishing “actual malice” certainly makes sense; in order for American public discourse to proceed, citizens must be able to criticize public figures, and in order to criticize public figures, citizens must be able to state their opinions on these figures, be they positive or (more importantly) negative. In this sense, the press must be protected from rampant claims of libel from public figures each time these public figures are criticized.  

Under the definition of libel established in New York Times Company v. Sullivan, “actual malice,” and thus agency on the part of the publishing party, must be proven in order for a publication to be considered libelous. This definition more strongly favors the media, as public figures must prove that malice was involved in the publication in question. Some, like President Trump, have criticized this intention requirement of the libel standard as too stringent. A possible alternative definition sometimes referenced, for example, establishes libel as “a method of defamation expressed by [a publication]… [that] exposes a person to public hatred, contempt or ridicule, or injures a person in his/her business or profession,” notably omitting the presence of agency. In this definition, libel need only be “injurious to a person’s reputation” to be considered as such. This definition more strongly favors public figures, seeing as any publication that hurts the reputation of a public figure could be considered libelous.

That being said, the “actual malice” test has shown some evidence of being difficult for plaintiffs in libel cases to achieve. In an interview with National Public Radio following Justice Thomas’ statements, Sonja West, a professor at the University of Georgia School of Law, addressed the state of libel law in America. West, who has criticized President Trump’s attacks of the press, stated that the “actual malice” bar “is a very difficult standard for plaintiffs to meet.” Further, the American Bar Association in 2010 details a decreasing trend in libel trials in America, falling from 266 in the 1980s to nine in 2009. It is likely that this trend suggests not that the fact that incidences of libel have decreased, but rather the fact that as time has passed, plaintiffs in libel cases have found less incentive to bring libel cases to trial.  

Seeing as the First Amendment does guarantee the right to a free press, the court’s decision to tip the scales in favor of the press was likely the most constitutionally appropriate. The press must be allowed to publish criticisms of public figures. In that sense, the tenets of libel law must protect the press from threats of libel lawsuits from public figures. That being said, the “actual malice” standard does seem to be a particularly high bar for libel case plaintiffs to reach, and more protection for the press could mean less protection for public figures. In calling for a reexamination of New York Times Company v. Sullivan, Justice Thomas reignites a debate that centers on questions of how the Constitution—and more specifically, the First Amendment—should be interpreted: should libel law favor the press or should they favor public figures?

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