§ 6.4.5.9 PROVING ACTUAL MALICE

• Jurisdiction: Arizona

§ 6.4.5.9 Proving Actual Malice. The courts have accepted various types of evidence to prove the existence of actual malice. Generally, it takes more than one of the following factors to prove actual malice.

(1) Spite and ill will: In Ross v. Duke,²⁰⁹ it was held that a showing of bad motive or personal ill will, standing alone, was not sufficient evidence to prove malice. However, since then, the courts have found that ill will is one factor which can be used with other evidence to prove actual malice.²¹⁰

(2) The role of negligence: Although courts have also held that negligence, standing alone, is not sufficient evidence of malice,²¹¹ it is also clear that evidence of negligence, with other factors, can be used as circumstantial evidence to prove malice.²¹²

(3) Notice of disputed facts: A third type of evidence often used to prove malice occurs when the defamer has been put on notice of the falsity of the charges yet continues to print false statements; such evidence, even standing alone, is sufficient to prove actual malice.²¹³

(4) The role of fabrication: It has long been held that fabrication is evidence of malice.²¹⁴

(5) Failure to retract: "Evidence of a refusal to retract is, at most, circumstantial evidence tending to show malice in the original publication."²¹⁵

(6) Lying: Proof that a defendant lied, of course, is nothing more than saying that he or she made a statement knowing it was false. As a result, courts have often found that lying proves malice.²¹⁶

(7) Altered quotations: In Masson v. New Yorker Magazine, Inc.,²¹⁷ the Court found that the use of material fabricated quotations by a reporter could prove malice.

(8) Deadlines and the need for haste: There are cases in the context of media defamation which have held that the reporter's deadline can be considered; when there is no "hot news," the courts have been more willing to find actual malice.²¹⁸

(9) Highly unreliable sources of information: It has long been held that actual malice can be found "where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports."²¹⁹

(10) Inherent improbability: In St. Amant v. Thompson,²²⁰ the Supreme Court also recognized that actual malice can be proved where the statements made "are so inherently improbable that only a reckless man would have put them in circulation."²²¹

(11) A pattern of defamation: In Lewis v. Oliver,²²² the court recognized "a pattern of defaming and intimidating individuals who criticized"...