Is “Actual Malice” Really Not an Insurmountable Hurdle?

Published May 2023

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

This column has repeatedly discussed the numerous attacks on the landmark New York Times v. Sullivan precedent and the “actual malice” standard that it added to American libel law.

Under the “actual malice” standard, public officials and public figures suing for defamation must prove not only that the defendant(s) made a false statement that harmed the plaintiff’s reputation, but also that the defendant(s) made the statement with “actual malice:” either knowing that the statement was false or with “reckless disregard” for whether it was true or false, meaning that the statement was such that the defendant should have harbored serious doubts about the truth of the statement.

This is generally considered a high hurdle for libel plaintiffs: so high, some (including U.S. Supreme Court Justice Clarence Thomas) argue, that it essentially makes it impossible for public officials and public figures to ever win a defamation case.

But some recent cases in which public figure plaintiffs were able to show “actual malice” may indicate that the Sullivan standard is not insurmountable, and that public officials and public figures can indeed win in defamation cases.

The most recent of these cases is the jury verdict for E. Jean Carroll in her lawsuit against Donald Trump. While the jury’s award of civil damages to Carroll for what the jury unanimously determined was sexual abuse by Trump got most of the attention, the jury also held that Trump had libeled Carroll in an Oct. 12, 2022 post on his Truth Social site about the case. Specifically, the jury held that Trump had made the statement with “actual malice.” Of the total $5 million awarded by the jury in the case, $2.98 million was for defamation: $1 million in compensatory damages, $1.7 million to rehabilitate Carroll’s reputation, and $280,000 in punitive damages. Trump continued to disparage Carroll after the verdict, which could be the basis of another libel claim. Meanwhile, Trump has appealed the jury verdict.

Another recent case that seems to show that the “actual malice” is not invincible is the last-minute settlement of the Dominion v. Fox News defamation case. The settlement of course means that no jury will determine whether Fox News acted with “actual malice” in broadcasting claims that Dominion’s voting machines facilitated manipulation of results of the 2020 presidential election. But most observers believed that the internal Fox e-mails and text messages that Dominion uncovered through discovery in the case were strong evidence of “actual malice,” and that this was a major reason why Fox offered the settlement. But the settlement also means that some important questions over the meaning and applicability of the “actual malice” standard remain unresolved.

Yet another case which shows that “actual malice” can indeed be proven was the result in the 2022 lawsuit between Johnny Depp and his ex-wife Amber Heard, in which they both won defamation claims against each other. The couple married in 2015 but divorced two years later. Depp sued Heard over a Washington Post column she wrote identifying herself as a victim of domestic violence, although the column did not name a perpetrator. Depp sued Heard for libel, and she countersued when his lawyer said that Heard’s abuse allegations against Depp were a hoax.

Since both Depp and Heard are public figures, they both had to prove “actual malice” in their libel claims against each other. And the jury found that they had done so, awarding Depp $10 million in compensatory damages and $5 million in punitive damages—reduced by the judge to $350,000 due to Virginia’s limits on punitive damages—for his libel claim against Heard and also awarding Heard $2 million in compensatory damages, but no punitive damages, in her libel counterclaim. Heard appealed, but the parties then settled with an agreement that Heard pay Depp $1 million.

These cases show that public officials and public figures can indeed prove “actual malice” in a libel case, undercutting the argument that it is an unrealistic, impossible standard to meet.

Updates on other issues:

Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and in an “of counsel” position at Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 25 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.

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