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Constitutional Law • First Amendment - Free Speech
CONLAW#137
Legal Definition
Under the New York Times v. Sullivan standard, a public official or figure may recover only by proving falsity of the statement and actual malice.
Plain English Explanation
You generally can't make false statements that seriously hurt someone's reputation. However, when it comes to public officials or public figures like celebrities, the law sets a higher bar. Since they are in the public eye, they need to have thicker skin and tolerate more criticism, even if it's harsh or unfair.
To balance free speech with protecting reputations, the Supreme Court ruled that if a public official or figure wants to sue someone for defamation, they have to prove the statement was false AND that it was made with "actual malice." Actual malice means the person either knew it was false or recklessly disregarded whether it was true - they can't just have been careless.
This protects the ability to openly discuss and criticize public officials and figures, who have a lot of influence in society. At the same time, it still allows them to fight back against malicious lies. Private citizens have an easier time suing for defamation since they don't have to prove actual malice. But for public individuals, questioning their actions is vital for democracy, so more latitude is given to speak about them, even if statements turn out to be false.
One of the best, and most recent, examples of this standard being tested by courts is when Dominion Voting Systems sued Fox News for broadcasting various lies about Dominion's machines being rigged to steal the 2020 US presidential election from then-president Donald Trump. Generally speaking, given the notoriety and public involvement of Dominion, it would prove extremely difficult for them to recover for defamation under the New York Times standard, since actual malice is a high-bar to establish. However, Dominion was able to show clearly through e-mails, memos, and other evidence that Fox News and its anchors were aware that their statements were untrue when they made them, and yet decided to still broadcast them. As a result, Fox News agreed to settle with Dominion and pay a record $787.5 million in damages and acknowledged that they had indeed broadcasted false statements about Dominion.
To balance free speech with protecting reputations, the Supreme Court ruled that if a public official or figure wants to sue someone for defamation, they have to prove the statement was false AND that it was made with "actual malice." Actual malice means the person either knew it was false or recklessly disregarded whether it was true - they can't just have been careless.
This protects the ability to openly discuss and criticize public officials and figures, who have a lot of influence in society. At the same time, it still allows them to fight back against malicious lies. Private citizens have an easier time suing for defamation since they don't have to prove actual malice. But for public individuals, questioning their actions is vital for democracy, so more latitude is given to speak about them, even if statements turn out to be false.
One of the best, and most recent, examples of this standard being tested by courts is when Dominion Voting Systems sued Fox News for broadcasting various lies about Dominion's machines being rigged to steal the 2020 US presidential election from then-president Donald Trump. Generally speaking, given the notoriety and public involvement of Dominion, it would prove extremely difficult for them to recover for defamation under the New York Times standard, since actual malice is a high-bar to establish. However, Dominion was able to show clearly through e-mails, memos, and other evidence that Fox News and its anchors were aware that their statements were untrue when they made them, and yet decided to still broadcast them. As a result, Fox News agreed to settle with Dominion and pay a record $787.5 million in damages and acknowledged that they had indeed broadcasted false statements about Dominion.
Hypothetical
Hypo 1: Bob, a U.S. Senator, is running for re-election. Sam, his opponent, runs a TV ad stating: "Bob embezzled money from a charity and used it to buy a new sports car." In reality, the charity's funds were misused by Bob's campaign treasurer without Bob's knowledge. Bob sues Sam for defamation after losing the election. Result: As a Senator, Bob is clearly a public official. To win his defamation suit, he needs to prove that Sam's statement was false and made with actual malice. Here, the statement was false since Bob didn't embezzle the money himself. However, Bob would also need to show that Sam knew it was false or recklessly disregarded whether it was true. If Sam had reliable sources and sincerely believed the embezzlement claim, then Bob's suit would fail even though the statement was inaccurate.
Hypo 2: Sam, the mayor of a big city, sues a newspaper for defamation over an article that criticized his handling of the city budget. The article accuses Sam of "gross fiscal mismanagement" and "betraying the public trust" but doesn't make any specific false factual claims. Result: As mayor, Sam is a public official. To win a defamation suit, he would need to show the newspaper made false factual statements, not just harsh opinions. Here, terms like "gross mismanagement" and "betraying the public trust" are vague opinions and rhetoric, not specific, provably false facts. A public official can't successfully sue over criticism and unfavorable opinions about their performance, only false facts. So Sam's suit would fail.
Hypo 4: Bert, a private citizen, is publicly accused by Bob of being a "convicted child molester" in social media posts and flyers distributed around town. In fact, Bert has no criminal record and has never been accused of any crime. Bert sues Bob for defamation. Result: This does not involve a public official or public figure - Bert is a private citizen. So he does not need to prove actual malice. Stating that someone is a convicted criminal when it's not true is defamatory. As long as Bert can show Bob's statement was false and damaged his reputation, he can prevail in his defamation suit without proving Bob knew it was false or recklessly disregarded the truth. Bert has an easier case than if he were a public figure.
Hypo 5: Sam, a famous singer, is the subject of a negative review of his new album published in an online music magazine. The critic writes that Sam's "atrocious autotune butchers classic love songs and assaults the eardrums with sonic sewage." Sam is humiliated and sues the magazine for defamation. Result: This scenario demonstrates an important limitation of defamation law. As a famous singer, Sam is a public figure, but that's actually irrelevant here. The magazine published a harshly critical opinion about the quality and merit of Sam's album. They did not make any false statements of fact, just strongly worded opinions. No matter how much it offends Sam, you cannot sue for defamation over someone's opinion, no matter how mean or unflattering it is. Statements of pure opinion are not considered defamatory. Only false statements of fact can be defamation - and even then, public figures need to show actual malice. So Sam has no case.
Hypo 2: Sam, the mayor of a big city, sues a newspaper for defamation over an article that criticized his handling of the city budget. The article accuses Sam of "gross fiscal mismanagement" and "betraying the public trust" but doesn't make any specific false factual claims. Result: As mayor, Sam is a public official. To win a defamation suit, he would need to show the newspaper made false factual statements, not just harsh opinions. Here, terms like "gross mismanagement" and "betraying the public trust" are vague opinions and rhetoric, not specific, provably false facts. A public official can't successfully sue over criticism and unfavorable opinions about their performance, only false facts. So Sam's suit would fail.
Hypo 4: Bert, a private citizen, is publicly accused by Bob of being a "convicted child molester" in social media posts and flyers distributed around town. In fact, Bert has no criminal record and has never been accused of any crime. Bert sues Bob for defamation. Result: This does not involve a public official or public figure - Bert is a private citizen. So he does not need to prove actual malice. Stating that someone is a convicted criminal when it's not true is defamatory. As long as Bert can show Bob's statement was false and damaged his reputation, he can prevail in his defamation suit without proving Bob knew it was false or recklessly disregarded the truth. Bert has an easier case than if he were a public figure.
Hypo 5: Sam, a famous singer, is the subject of a negative review of his new album published in an online music magazine. The critic writes that Sam's "atrocious autotune butchers classic love songs and assaults the eardrums with sonic sewage." Sam is humiliated and sues the magazine for defamation. Result: This scenario demonstrates an important limitation of defamation law. As a famous singer, Sam is a public figure, but that's actually irrelevant here. The magazine published a harshly critical opinion about the quality and merit of Sam's album. They did not make any false statements of fact, just strongly worded opinions. No matter how much it offends Sam, you cannot sue for defamation over someone's opinion, no matter how mean or unflattering it is. Statements of pure opinion are not considered defamatory. Only false statements of fact can be defamation - and even then, public figures need to show actual malice. So Sam has no case.
