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?

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Four votes to put a case reconsidering New York Times v. Sullivan in front of the Court?
  • Second, the historical evidence that the Founders and Reconstruction Congresses intended, by the First or Fourteenth Amendments, to place limits on state libel law.

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

Making an allegation without actual malice is another way to describe someone who believes the allegation to be true, but is ultimately mistaken. In Sullivan, the Supreme Court ruled that, when it comes to defamatory allegations about public officials, a lack of actual malice so reduced the level of fault relative to the societal benefit of that speech that it barred recovery.

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Chief Justice James Eyre, the judge in Knobell v. Fuller
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Chief justice William Tilghman, an early proponent for considering subjective intent in defamation cases.
  • Stow v. Converse (Conn. 1821): “The rule is now well settled, that any facts and circumstances, arising from the misconduct of the plaintiff . . . , which occasioned the speaking of the words, or afforded ground of suspicion of their truth, may be proved in mitigation of damages.”
  • Wilson v. Apple (Ohio 1827): “Any circumstance, therefore, tending to show that the defendant spoke the words under a mistake, or that he had some reason to believe they were true, is entitled to con­sideration, and is proper evidence to be received in mitigation.”
  • Root v. King & Verplanck (N.Y. 1827): “Had such evidence been offered . . . with a view to show the court and jury that there was no malice in the defendants, because in reality they only repeated what every one else did, and that the plaintiff’s conduct led them to believe it was the truth, a very different question would have been presented.”
  • Gilman v. Lowell (N.Y. 1832): Granting a new trial to allow defendant to submit evidence showing he “really believed that he had been deceived by the plaintiff.”
  • Beehler v. Steever (Pa. 1837): “If a person truly believes, although mistaken in point of fact, that he has a good cause, and in a moment of irritation and passion makes a criminal charge against another, he is surely not as culpable as where the accusation is made without any reason.”
  • Sanders v. Johnson (Ind. 1841): “There may, perhaps . . . be instances in which . . . the misconduct of the plaintiff may have been so glaring as to give the defendant reason to believe that the charge made by him, . . . in which case, it may be proper for the jury to consider the circumstances developed on the trial in mitigation of the damages.”
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Chief Justice Mansfield

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

Weatherston v. Hawkins

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The first to suggest that honestly mistaken beliefs should be absolutely privileged when the plaintiff is a public official.
  • Shurtleff v. Stevens (Vt. 1879) (Clergyman): “If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.”
  • Marks v. Baker (Minn. 1881) (City Treasurer): “The subject-matter of the communication in the case at bar was one of public interest in the city of Mankato . . . and one in which the defendants had an interest as residents and tax payers of the city. It was, therefore, a privileged communication within the rule mentioned, if made in good faith.”
  • Crane v. Waters (D. Mass. 1882) (Railroad Baron): “The public has a right to discuss, in good faith, the public conduct and qualifications of a public man, such as a judge, an ambassador, etc., with more freedom than they can take with a private matter . . . . They are not held to prove the exact truth of their statements, and the soundness of their inferences, provided that they are not actuated by express malice, and that there is reasonable ground for their statements or inferences.”
  • Miner v. Post & Tribune Co. (Mich. 1882) (Police Justice).
  • State v. Balch (Kan. 1884) (Candidate for County Attorney): “If the supposed libelous article was circulated only among the voters of Chase county, and only for the purpose of giving what the defendants believed to be truthful information, and only for the purpose of enabling such voters to cast their ballots more intelligently, and the whole thing was done in good faith, we think the article was privileged and the defendants should have been acquitted, although the principal matters contained in the article were untrue in fact, and derogatory.”
  • Kent v. Bongartz (R.I. 1885) (Police Officer): “The author or authors of the communication may make it, and press it upon the attention of others, honestly believing it to be true, and acting from the purest and highest motives, when in fact it is false, and therefore actual malice is not to be inferred from mere falsity.”
  • Express Printing Co. v. Copeland (Tex. 1885) (Candidate for Mayor): “Whatever pertains to the qualification of the candidate for the office sought is a legitimate subject for discussion and comment, provided that such discussion and comment is not extended beyond the prescribed limits. That is, all statements and comments in this respect must be confined to the truth, or what in good faith and upon probable cause is believed to be true . . . . In our form of government the supreme power is in the people; they create offices and select the officers. Then, in the exercise of this high and important power of selecting their agents to administer for them the affairs of government, are the people to be denied the right of discussion and comment respecting the qualification or want of qualification of those who, by consenting to become candidates, challenge the support of the people on the ground of their peculiar fitness for the office sought?”
  • Briggs v. Garrett (Pa. 1886) (Judge): “It is mistakes, not lies, that are protected under the doctrine of privilege. A communication, to be privileged, must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause. . . . If the voters may not speak, write or print anything but such facts as they can establish with judicial certainty, the right [to canvass and discuss qualifications of public persons] does not exist, unless in such form that a prudent man would hesitate to exercise it.”
  • McNally v. Burleigh (Me. 1897) (Deputy Sheriff): “To be privileged, the words must have been published without actual malice, in an honest belief of their truth, and with that belief based upon reasonable or probable cause, after a reasonably careful inquiry.”
  • Boucher v. Clark Publishing Co. (S.D. 1900): If defendant had reason to believe, and did believe, that the charges were true, and they were published, without malice, for the purpose of enabling voters to cast their ballots more intelligently, he should not be held liable in this action.”
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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.”


In 1888, Newspaper Libel, A Handbook for the Press hit the shelves. At a slim three hundred pages, it billed itself as the first “convenient [legal] reference [for] newspaper offices.”

[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.

Frustratingly, Justice Thomas must know much of this. One of the authorities he cites in his opinion in McKee, after all, is an 1889 law review article titled, Criticism of Public Officers and Candidates for Office. That article not only details some of the cases discussed in this article, it endorses their logic, finding that there is “much justification” for the actual malice rule devised by them, the precursor to the Sullivan rule.

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

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