It’s everywhere in the news — but what is the “actual malice” standard? And does it matter for democracy? 

Every so often, a legal or constitutional provision has a spotlight moment: when circumstances conspire to elevate a concept beyond the courtroom and law schools and into the public eye. Right now, the “actual malice” standard — that public officials and powerful individuals cannot win libel cases without proving that a statement was made with knowing or reckless disregard of its falsity — is seemingly everywhere. 

On one hand, it is among the central defenses claimed by Fox News and other defendants facing suits for their role in spreading lies about the 2020 election. But it is also a growing target of some on the right, with Republican state legislators in Florida proposing drastic restrictions on the protections offered by the standard. 

But what exactly is the “actual malice” standard? Our new paper, released yesterday, explores the history, role, and purpose of the standard, and how exactly it fits into our democracy. Short answer: it plays a vital role. It must be preserved.

It’s more than defamation. It’s about democracy. 

The idea behind the “actual malice” standard is anchored in democracy’s first principles. In the U.S., we the people govern ourselves. This differs from monarchies, which claim sovereignty as divine right, and autocracies, which view sovereignty as solely an expression of power. The people’s will is sovereign and, by and large, public opinion governs. We elect officials to represent our will as best they can, and as part of that, public figures must expect and tolerate — as a job requirement — sharp criticism. The freedom to criticize our elected officials not only helps shape public opinion, it also holds politicians accountable to it. 

In practice, the “actual malice” standard protects criticism; it protects the unfettered speech essential to democracy. And it’s fair: it ensures that only those who knowingly or recklessly lie about powerful people and matters of public concern are liable. 

The standard keeps public debate robust and reasonably moored to facts, so that the branches of government can grapple appropriately with the issues of the day. It allows some slack for inadvertent lies (which are inevitable in modern society), but it holds tight for disinformation spreaders who intentionally use lies to skew public discourse. 

Eliminating or weakening the actual malice standard would set the United States on a course toward a more authoritarian form of government. Full stop. And those who care about free speech should unite in support of it. 

But what is the “actual malice” standard? 

The Supreme Court ruled in 1964’s New York Times v. Sullivan that the First Amendment requires defamation law to accommodate good-faith public debate. As the Court explained in Sullivan, the “actual malice” standard protects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

In practice, the “actual malice” standard protects criticism; it protects the unfettered speech essential to democracy.

In every defamation case, a plaintiff needs to prove four things in order to win: 

1. That the allegedly defaming statement(s) in question conveyed facts (as opposed to pure opinion); 
2. That the facts it stated or implied were false;
3. That the statement was delivered to others; and
4. That the plaintiff was harmed. 

In an “actual malice” case, a plaintiff must prove even more: that the defendant either knew that the statement was false at the time, or else demonstrated “reckless disregard” as to its falsity. To help demonstrate reckless disregard, plaintiffs can show that defendants were aware of facts that make clear they simply did not care about the truth of the statement in question. That includes evidence that defendants relied on sources they knew to be unreliable or had an ulterior motive for publishing the statement.

Did Sullivan make this idea up?

No! Tempering libel laws for press freedom and healthy public debate was an early American innovation in democratic governance. At the Constitution’s drafting, British libel law, according to legal scholar Ahkil Amar, was “all about protecting His Majesty … from criticism; it was the product of a residually monarchial, aristocratic, and deeply deferential legal and social order.” Even if a true statement harmed the reputation of a powerful person, the speaker could be punished for libel.

Americans chafed at this regime well before the Revolutionary War. Most notably, in the 1730s, two New York grand juries refused to indict John Peter Zenger for charges of seditious libel for criticizing colonial governor and crown authority William Cosby.

In 1804, a judge accepted Alexander Hamilton’s argument that libel “is a defamatory publication, made with a malicious intent” and opined that American press freedoms have the right to publish the truth “with good motives, and for justifiable ends,” even about government officials. 

As early as 1808, the Massachusetts Supreme Judicial Court held that the “publications of the truth on [the character and fitness of public officials and candidates for office], with the honest intention of informing the people, are not a libel.” Other early cases also reflected this American shift in libel law.

Many states adopted standards in the early 20th century that required a public official suing for defamation to prove that the allegations were not only false, but that they were published in bad faith. So while the Supreme Court’s 1964 Sullivan decision was a critical step forward, the idea that libel law should be curbed in service of democracy wasn’t new. 

What if the Supreme Court got rid of the “actual malice” standard?

Promoting robust public debate while protecting individuals against knowing lies is just as important today as it was in 1964. In recent cases, the “actual malice” standard still roughly strikes the correct balance in protecting the free press and public debate even in our contemporary media landscape: potentially worthwhile cases are proceeding to discovery and frivolous cases filtered out.

Despite arguments to the contrary, eliminating the standard would decidedly not benefit some partisans over others.

And the standard’s protections keep public officials in check. Today, in the U.K., where the standard is absent, publishers have declined to put out books critical of powerful politicians for fear of liability. In 2021, French President Emanuel Macron successfully sued the owner of a billboard that depicted him as Hitler, and Italian anti-mafia journalist Roberto Saviano is on trial for calling a government official “minister of the criminal underworld” on social media.

Despite arguments to the contrary, eliminating the standard would decidedly not benefit some partisans over others. MSNBC and CNN might face increased liability, but so would Fox (and Newsmax and OANN). More importantly, eliminating a federal actual malice standard would trigger a race to the bottom: the most defamation-friendly state would effectively dictate the limits on national public debate. With the erosion of local news and our nationalized media environment, that’s a much bigger concern today than it was in 1964.

Bottom line: eliminating the “actual malice” standard would weaken our democracy. It would make it much easier for the government and those with power to silence critics or unfriendly media coverage with the threat of defamation. Raising the stakes and the costs of criticism will mean politicians face less of it. 

In short, powerful people could benefit. Democracy would not.