Can Famous People Sue You for Criticizing Them? Actual Malice Explained

On March 29, 1960, an advertisement created by several ministers titled “Heed Their Rising Voices” was published in The New York Times seeking funds to support the Civil Rights Movement. The 10-paragraph ad cited several examples of retaliation against civil rights protesters by Alabama law enforcement.

Though he wasn’t mentioned by name, L.B. Sullivan, the public safety commissioner of Montgomery, Alabama, seized on several minor errors. He filed a defamation lawsuit to not only punish the ministers and the newspaper but also to send a message to anyone else who might speak out in favor of civil rights. In fact, Sullivan’s attorney told the jury to send a message to the Northern media by hitting them in the pocketbook. The jury did so, calling the article defamation and awarding Sullivan $500,000.

But the United States Supreme Court eventually overturned this verdict in the famous 1964 case New York Times Co. v. Sullivan, setting a new high standard for such defamation cases called “actual malice.”

In this post, we highlight everything you need to know about actual malice, including what it is, when it may (and may not) apply, examples from throughout history, and much more.

What is actual malice?

Defamation laws, which include both libel and slander, vary from state to state. But to win a defamation lawsuit, the person who believes they were defamed generally must prove several factors, including that a false statement about them was made with some degree of fault — either that the speaker negligently, recklessly or knowingly got it wrong. Honest errors that are the product of best efforts will not be penalized.

Actual malice is one of the two levels of fault that apply in a defamation case. It means the speaker knew they were making a materially and substantially false statement. They spoke with knowledge that what they said was false, or they spoke with reckless disregard to whether it was false or not.

Actual malice is a high standard to meet for several reasons:

• There must be clear and convincing evidence to support a finding of actual malice.
• It is more than just a departure from normal or reasonable behavior. Instead, it must be shown that the person speaking or publishing engaged in a highly unreasonable, even extreme, deviation from normal standards of research and/or reporting.
• It is a subjective standard where the focus is not on how the statement was received or understood but what the speaker or writer meant to convey. This subjectivity often requires getting into the mind of the speaker at the time of publication. The plaintiff needs to show that the speaker seriously doubted the truth of what they were about to say or write before they said or wrote it.

When does the actual malice standard apply?

A plaintiff who is a private figure – an average person – only needs to show that the person they are suing damaged them by publishing a materially and substantially false and defamatory assertion of fact and were negligent in doing so. This means the person got it wrong because they didn’t do everything a reasonable person would and should have done to make sure they were being accurate. For a journalist, it often means that they departed from one of the many codes of journalism ethics that exist.

But some people and many corporations must prove that the statement was made with actual malice. These include:

• Public officials. Government employees who have decision-making responsibility at any level of government. The term applies well beyond people like the president, members of Congress, governors, mayors, etc. It would include staff that are involved in drafting, passing and enforcing laws like Congressional staff, executive branch attorneys, judicial clerks, police officers, school board members and school administrators. It would generally not include employees like secretarial staff, janitorial staff and security guards.
• All-purpose public figures. People instantly recognizable and well-known in the community where the dispute arose (including celebrities and other famous people).
• Limited-purpose public figures. People who inject themselves into public debate or spotlight on a certain topic. If they are suing about statements made on that particular topic, the actual malice standard applies. If they are suing based on a statement unrelated to the controversy they jumped into, the negligence standard applies. For instance, if a teacher writes a letter to the editor defending the high quality of local schools and someone falsely states in response that this teacher was never certified to teach by the state, the teacher would have to show that the false allegation was made with actual malice. But if the teacher is falsely criticized for something completely unrelated to teaching and education, they would only have to show that statement was negligently made.
• Corporations are considered public figures if they are publicly traded or if the controversy revolves around a matter of public concern.

Why is actual malice important to the First Amendment?

Actual malice applies to public officials and public figures because of the First Amendment maxim, “The answer to bad speech is more speech.” It deters lawsuits from people who don’t need to use the court system to correct what they believe are false criticisms about them, steering them instead to responding through other public channels. Arguments in support of allowing more leeway for speech that scrutinizes and criticizes public officials and public figures include:

• They have more power in society. Public officials make and enforce laws. Their decisions and actions require oversight to ensure they don’t abuse this power. Public figures set the unofficial rules of society, acting as thought leaders and role models for many.
• They have access to the media and don’t need the court system to defend themselves. Instead of filing a lawsuit to set the record straight, they can issue a news release or call a news conference.
• They have benefits that the average person doesn’t. They have financial resources and access to lawyers that the average person may not, which enables them to leverage the court system to silence others.
• In cases involving involuntary public figures, there is a “Well, they started it” argument. When someone speaks out on a matter of public concern, they should expect that someone will respond in kind.

Without actual malice, reporters would be deterred from scrutinizing powerful people, and people might decide not to speak out on matters of public concern.

The actual malice standard has been extended beyond defamation lawsuits to other claims based on speech, including the intentional infliction of emotional distress, the public disclosure of private facts, and portraying someone in a false light. All these types of claims could be abused by powerful people filing lawsuits to silence critics.

Here are some cases where the actual malice standard protected reporters who were sued:

• The Wall Street Journal was sued by a senior Venezuelan official in 2015 after a story alleged that he was involved in cocaine trafficking and money laundering. The case was dismissed, and the United States Department of Justice charged the official.
• Former West Virginia mining executive Don Blankenship unsuccessfully sued multiple journalists and media companies in 2019 who reported on prior criminal charges after he lost his race for the U.S. Senate.
• Joe Arpaio unsuccessfully sued The New York Times in 2018 after it criticized his treatment of prisoners while he was sheriff of Maricopa County, Arizona.
• A staffer for the presidential campaign of Ye, formerly known as Kanye West, unsuccessfully sued CNN after the network reported he had previously engaged in voter fraud.
• Former Virginia Lt. Gov. Justin Fairfax unsuccessfully sued CBS after it reported that two women had accused him of sexual assault.

What are some examples where actual malice did not exist?

Actual malice is difficult to prove. Once a plaintiff is designated as a public official or public figure, their chance of winning their lawsuit drops dramatically.

That’s because actual malice requires the person suing for defamation to show more than that the article was mean, unfair or even slanted. It requires showing that the person being sued knew that they were writing something false, or they had serious doubts about whether it was true or false.

Here are some examples of author or publisher actions or errors that don’t meet the actual malice standard:

• Changing quotes to clean up grammar or syntax or remove profanity, unless the edits substantially change the meaning and the impact on the subject’s reputation.
• Failing to be perfectly neutral or balanced.
• Presenting information believed to be true but that later turns out to be false.
• Failing to investigate all possible alternatives to the stated conclusion (because a plaintiff will often be able to point to other ways a reporter could have pursued the story).
• Failing to contact the subject of the article before publication, unless the reporter knew the subject had pertinent information that would contradict stated facts and intentionally decided not to get the subject’s side of the story. Defamation law does not require a right of reply.
• Knowing the subject has denied the allegations but publishing anyway (because the subject often denies the allegations).
• Demonstrating bias or dislike of the subject of the story.
• Failing to retract a statement or make a correction when asked.

What are some examples of the actual malice standard being met?

Though it presents a high barrier, the actual malice standard is not insurmountable.

Here are some examples of actions that courts found to be actual malice:

• Fabricating an interview (or any other facts).
• Deliberately leaving out key facts because they don’t fit the story’s preferred narrative.
• Intentionally editing audio or video to create a false impression.
• Exaggerating facts to make them seem more damaging to the subject of the story.
• Willfully deciding not to interview a person with an opposing viewpoint to your piece.
• Discussing that a headline may be misinterpreted, agreeing that this outcome is likely and publishing the headline anyway.
• Distorting the contents of a key document relied upon in the story.
• Relying on a document described in the story as a “secret document” that the reporter has not seen firsthand and has every reason to doubt even exists.
• Making claims about the psychological fitness of a political candidate even though the candidate’s doctor disputes the claims, and no independent experts support it.
• Republishing an allegation after it had been discredited.

Differing views around actual malice

In creating the actual malice standard, the court cited the need for “breathing space” for free speech to survive; the idea that speakers should not have to stress over every word for fear of being sued and emphasized that this was most important when discussing matters of public concern.

In other words, the First Amendment is crucial to protecting the free political discussion necessary to ensure the government acts in the best interests of the people.

To ensure this breathing space existed, the court created the actual malice standard of fault, which makes it harder for powerful people to sue their critics and win.

The actual malice standard provides significant protection for the news media – and everyone – to speak freely and critically about those individuals and prominent corporations knowing that a minor error, made accidentally and without the intention of being wrong or harming someone’s reputation, won’t result in being forced to pay thousands – or millions – of dollars. The high bar created by the actual malice standard often deters these people from bringing a lawsuit in the first place, protecting their critics from having to defend themselves in court.

There is a growing movement to revisit New York Times Co. v. Sullivan. Some critics of the actual malice standard – including Supreme Court Justices Clarence Thomas and Neil Gorsuch – have called to rescind it, water it down or limit to whom it applies.

Those who support this movement argue:

• The actual malice standard was written when media looked very different than it does today. The rise of social media and instantaneous news reporting has decreased the number of editors and fact-checkers, resulting in more inaccurate reporting that cannot be refuted by a responsive statement, even from a prominent person.
• The First Amendment has never required the heightened protection offered by the actual malice standard, which is why it did not exist until 1964.
• Everyone has the right to privacy and reputation in a way that stands on more equal footing with the First Amendment than actual malice allows.

To date, the Supreme Court has not accepted a case that will allow it to review the actual malice standard, so this protection for freedom of speech and freedom of the press remains intact for now.