Actual Malice: The Bit That Justice Thomas Left Out

The Supreme Court did not, in 1964, create a fundamental free speech protection out of thin air as Justice Thomas has argued. But will Thomas’ colleagues give him a chance to convince them it did?

Four votes to put a case reconsidering New York Times v. Sullivan in front of the Court?

One Branch of the Family Tree: A Lack Of Actual Malice As Mitigating Evidence At Common Law

Chief Justice James Eyre, the judge in Knobell v. Fuller
Chief justice William Tilghman, an early proponent for considering subjective intent in defamation cases.
Chief Justice Mansfield

Another Branch of the Family Tree: A Lack Of Actual Malice As A Privilege At Common Law

The first to suggest that honestly mistaken beliefs should be absolutely privileged when the plaintiff is a public official.
Judge Cooley, a proponent of the actual malice standard, wrote in one 1880s case, borrowing from the English, “The public convenience is to be preferred to private interests, and that communications which the interests of society require to be unfettered, may be made by persons acting honestly without actual malice, notwithstanding that they involve relevant comments commendatory of individuals.”

Conclusion

[I]f [the charges] are based upon some foundation in fact, written in a tone of moderation, and published in good faith, the publication is privileged, even though it contains false imputations upon the integrity of persons whose conduct is being considered.

Media Lawyer. Adjunct Professor/Mass Media Law at Fordham University School of Law.

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