[posted by Justin Levine] 

Another frightening attempt by the state to kill blogging in one fell swoop. Fortunately, the proposed bill has apparently died a quick death.  [Hat-tip:  Instapundit]
This sorry episode brings to mind a point that many don’t seem to appreciate regarding the definition of “actual malice”. The concept was created by the Supreme Court in order to insure a minimum level of protection under the First Amendment to the (federal) Constitution. As a result, I would contend that “actual malice” is not subject to being redefined by states in any manner. This seems elementary to me.

Naturally, a state is free to enact its own definition of “actual malice” that gives greater free speech protections than the federal Constitution, but it certainly cannot restrict or minimize the definition in any way. This would be like saying that an individual state has the ability to unilaterally redefine the phrase “unreasonable search and seizure” in such a way that it could essentially choose to ignore any Supreme Court rulings on the Fourth Amendment. Everyone knows it can’t do that. Yet for some reason, people seem to think that states should be free to disregard Supreme Court rulings related to the First Amendment. Quite bizarre in my view.

Perhaps the main problem is that the phrase “actual malice” still remains an amorphous legal concept in the eyes of many. The vagueness that attaches itself to the term allows a great deal of wiggle room for those who would wish to enact greater restrictions on speech. Attempts at restricting the Constitutional definition of “actual malice” deliberately feed off of this ignorance.  

Even subtle attempts at redefining the term can have very negative consequences. Take California’s attempt to define “actual malice” for instance [Civil Code 48(d)]:

“Actual malice” is that state of mind arising from hatred or ill will toward the plaintiff; provided, however, that such a state of mind occasioned by a good faith belief on the part of the defendant in the truth of the libelous publication or broadcast at the time it is published or broadcast shall not constitute actual malice.

While this definition might seem reasonable to many, it is actually at odds with how the federal courts have defined the term as a matter of Constitutional law (which, of course, is not subject to state revision). “Actual malice” requires (at the very least) a conscious suspicion of falsity by the defendant. In other words, a defendant can be completely agnostic regarding the truth of a claim, and still not meet the proper legal definition of “actual malice”.

Notice how California tries to ignore that important requirement? They claim that a defendant must pro-actively have a good faith belief in the truth of a claim in order to benefit from the “actual malice” standard of defense. This is a subtle but staggering shift in its attempt to redefine the law here. It not only restricts the definition of “actual malice” from what the federal courts have defined it as, but it also shifts the burden of proof on to the defendant (when in fact, it should properly be placed on the plaintiff). Once again, if Supreme Court cases on libel ground their decisions on First Amendment requirements, then I fail to see how states can be free to make up their own law in this area. I would therefore argue that even California’s defintion of “actual malice” is unconstitutional. 

I am still amazed at how many experienced lawyers and judges I come across who don’t seem to “get it” when it comes to defining what “actual malice” really means. Some still (wrongly) suggest that it has to do with the emotional state of the speaker. Others (wrongly) suggest that it has to do with a standard of “professional” journalism (i.e., if the average New York Times reporter would describe a writing as “reckless” because certain sources weren’t checked, then it must be “actual malice”). In nearly every libel complaint I have come across, plaintiffs’ attorneys regularly and casually toss out the claim that a defendant acted “recklessly” and “maliciously” without a shred of evidence to back it up. Once again, they deliberately feed off the ignorance regarding the definition of “actual malice” – hoping that they will score a judge who is similarly confused about the term.  

For quite some time, I have maintained that the best definition of “actual malice” comes from the case of Desnick v. ABC, Inc. written by Judge Richard Posner of the 7^th Circuit Court of Appeals in 1995. (For all of you law geeks – the legal citation of the case is 44 F.3d 1345 (7th Cir. 1995).)  It is the only definition that I have come across that is both (relatively) succinct yet thorough. I have been on a quest these many years to encourage the legal community to adopt it as the quasi-official definition of “actual malice” – something that would become the standard citation by judges and legal scholars alike so that everyone can finally get on the same page regarding this issue.

Justin’s proposed quasi-official legal definition of “actual malice” as uttered by Judge Posner is as follows (in slightly edited form):

[“Actual malice”] is a term of legal art that means not what it seems to mean but that the defendant either knew that the defamatory statement was false or was recklessly indifferent to whether it was true or false. E.g., Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991); Milsap v. Journal/Sentinel Inc., 100 F.3d 1265, 1270 (7th Cir. 1996) (per curiam). “Reckless indifference” denotes the same state of mind that must be proved to establish liability for infringement of a federal right under color of state law or for violation of the federal mail fraud statute: knowledge by the defendant that there was a high risk of harm to the plaintiff coupled with a failure to take any feasible measure to counter the risk, either by investigating further to see whether there really is a risk and how serious it is or by desisting from the risky activity. See, e.g., Farmer v. Brennan, 511 U.S. 825, 837-38 (1994); Tesch v. County of Green Lake, 157 F.3d 465, 474-75 (7^th Cir. 1998); Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 788-89 (7th Cir. 1995); Archie v. City of Racine, 847 F.2d 1211, 1219
(7th Cir. 1988) (en banc); United States v. Dick, 744 F.2d 546, 551 (7th Cir. 1984); Chance v. Armstrong, 143 F.3d 698, 703-04 (2d Cir. 1998); United States v. DeSantis, 134 F.3d 760, 764 (6^th Cir. 1998); Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997).

 In a defamation case by a public figure, therefore, “the plaintiff must demonstrate that the author ‘in fact entertained serious doubts as to the truth of his publication,’ . . . or acted with a ‘high degree of awareness of . . . probable falsity,'” Masson v. New Yorker Magazine, supra, 501 U.S. at 510 (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968), and Garrison v. Louisiana, 379 U.S. 64, 74 (1964), respectively), or, while suspecting falsity, deliberately avoided taking steps that would have confirmed the suspicion. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 692-93 (1989) (“intent to avoid the truth,” id. at 693); Eastwood v. National Enquirer, Inc., 123 F.3d 1249, 1251 (9th Cir. 1997); McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1510 (D.C. Cir. 1996). (For the analog to this “ostrich” or “willful blindness” principle in cases under 42 U.S.C. sec. 1983, see West v. Waymire, 114 F.3d 646, 651 (7th Cir. 1997).) In other words, the defendant must either know that his published statement was probably false or, suspecting that it may be false, deliberately close his eyes to the possibility.

This is the criminal sense of recklessness, Farmer v. Brennan, supra, 511 U.S. at 839-40; Hill v. Shobe, 93 F.3d 418, 421 (7th Cir. 1996); Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (per curiam), or, if a little broader, is so only by a hair, West v. Waymire, supra, 114 F.3d at 650-52, whereas in tort cases the term sometimes denotes little more than gross negligence. Farmer v. Brennan, supra, 511 U.S. at 836 n. 4; Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir. 1985); In re New York City Asbestos Litigation, 678 N.E.2d 467 (N.Y. 1997) (per curiam); W. Page Keeton et al., Prosser and Keeton on the Law of Torts sec. 34, p. 213-14 (5th ed. 1984). Negligence, the standard in defamation suits brought by private rather than public figures, does not require proof of a state of mind at all, but only that the defendant failed to exercise the care that a reasonable person in his position would have exercised. The contrast with recklessness in the strong sense in which the term is used to denote the standard in constitutional, mail-fraud, and public-figure defamation cases is stark. “Reckless conduct [in a public-figure defamation case] is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” St. Amant v. Thompson, supra, 390 U.S. at 731.”

Now that’s what I call a definition of “actual malice”!

When consulting with other attorneys involved in defamation defense work, I always encourage them to cite this passage from the Desnick case in their briefs and get them to drill it into the judge’s brain.

Desnick v. ABC, Inc.  Read it…Know it…Live it.

So help me spread the free speech love and understanding my brothers and sisters! Don’t let some state legislative hacks dumb down the definition of “actual malice”. Otherwise, we will be forced to face the legal superstorm that would surely follow.

[posted by Justin Levine]