Actual Malice and Media Accountability: What Minnesota Businesses Should Know

While truth is an absolute defense to a defamation claim, establishing defamation liability requires more than proving that the charge was false and defamatory. It additionally requires an element of wrongful intent which varies depending on the nature of the plaintiff, the nature of the defamatory statement, and the nature of the plaintiff's relief sought. Often, the plaintiff must show "actual malice," i.e., that the defendant either knew the statement was false or acted in reckless disregarded of the truth.

Litigating actual malice is no easy feat. While the inquiry is into the good or bad faith of the publisher, it is not foreclosed by professions of good faith. Rather, as with any other inquiry into a defendant's intent, the determination is to be inferred by the jury based on circumstantial evidence--what the publisher said and did around the time of the publication. The circumstantial evidence be interpreted in the aggregate. Just as a brick is not a wall, no single piece of evidence must prove the issue.

My recent Second Circuit opening brief in TST v. Newsweek offers a textbook example of how circumstantial evidence supports an inference of actual malice. In Newsweek, the defendant published a defamatory per se charge of sexual abuse and coverup based solely on a hostile source's characterization of anonymous internet hearsay. The source disclaimed personal knowledge, and the veteran journalist made no effort to verify the claim. These facts showed that the author had obvious reason to doubt the charge, and willfully omitted an investigation. Under New York law, an investigation is required when publishing a defamatory per se statement. Worse yet, Newsweek ignored its own editorial standards, which required fact-checking the charge. Further evidence showed that the defamatory charge was presented as true in the original pitch for the article, despite that the author had no basis to make the claim. This showed that Newsweek was pre-determined to publish the charge. And all of this was explainable by evidence of bias on the parts of both the author and the editor of the defamatory article.

For clients facing reputational harm, media accountability is more than a moral issue. The Fourth Estate, no less so than any other big industry, must be forced to remediate the harm they cause in the course of their business. When courts close the courthouse doors to harmed plaintiffs, they only encourage extra-judicial means of retaliation. That completely undermines the purpose of civil justice.