7.16 Fault: Defining the Standards

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

7.16 FAULT: DEFINING THE STANDARDS

7.1601 Introduction.

Because defamation is no longer a "strict liability" tort, defendants may not be held liable unless they acted with a requisite degree of fault. Before turning to the different standards governing defamation actions by various categories of plaintiffs (public or private), it is worth explaining the two basic fault standards: constitutional malice (sometimes called "actual malice") and negligence.

7.1602 Constitutional Malice.

A. In General.

"Constitutional malice" plays a critical role in the application of constitutional principles, as well as in several state common law contexts.

B. Defining the Terms.

1. Federal Courts.

In 1964, the United States Supreme Court ruled that public officials may not recover for a media defendant's defamation unless they establish with "convincing clarity" that the media defendant communicated the statement with "knowledge that it was false or with reckless disregard of whether it was false or not." ⁴⁶⁴⁷ The Court defined its new standard as "actual malice," ⁴⁶⁴⁸ which provided little guidance to lower courts wrestling with the issue.

At least one Supreme Court Justice has confessed his regret at having selected the term "malice" to define a standard that has nothing to do with hostility or ill will. ⁴⁶⁴⁹ Even federal courts continue to be confused by this term. For instance, one Eastern District of Virginia court held that a qualified privilege can be overcome with evidence of common law malice, but then used the term "actual malice" in discussing common law malice. ⁴⁶⁵⁰

For clarity, this discussion refers to New York Times "actual malice" as "constitutional malice." Constitutional malice differs dramatically from the common law "malice" with which most lawyers are familiar. Constitutional malice focuses only on the defendants' belief in the truth of what they say, without any consideration of their motives. ⁴⁶⁵¹ In essence, constitutional malice examines the state of the defendant's head, while common law malice examines the state of the defendant's heart.

Constitutional malice consists of either (i) knowledge of falsity; or (ii) "reckless disregard of whether [a statement is] false or not." ⁴⁶⁵² The former concept seems clear, but the "recklessness" prong of the test has generated confusion.

The word "reckless" as used in the United States Supreme Court's definition of constitutional malice does not follow the traditional tort law definition of "reckless." Rather than being a greater form of negligence, "reckless" behavior in defamation law must amount to intentional disregard, that is, purposely ignoring the possible falsity of the statement with awareness that the statement is probably false. ⁴⁶⁵³ The United States Supreme Court has used a number of terms to describe the awareness of falsity that must underlie the defendant's "reckless disregard." The Court has referred to:

· A "high degree of awareness of probable falsity"; ⁴⁶⁵⁴

· "[S]ubjective awareness of probable falsity"; ⁴⁶⁵⁵

· "[E]ntertain[ing] serious doubts as to the truth of his publication"; ⁴⁶⁵⁶

· "[T]he publisher's awareness of probable falsity"; ⁴⁶⁵⁷ and

· A "high degree of awareness of [its] probable falsity." ⁴⁶⁵⁸

2. State Courts.

Virginia courts apply the standard definition of "constitutional malice." ⁴⁶⁵⁹ In discussing the "reckless disregard" prong of constitutional malice, the Virginia Supreme Court has adopted two of the United States Supreme Court's variations on the theme: the defendant must have "entertained serious doubts as to the truth of his publication" and must have had "a high degree of awareness of probable falsity." ⁴⁶⁶⁰

In 2007, the Virginia Supreme Court issued an opinion dealing with constitutional malice. Jackson v. Hartig ⁴⁶⁶¹ arose in the classic scenario lying at the heart of the First Amendment protections—a political candidate's defamation case against a newspaper editorial writer. The editorial criticized the candidate's tenure in a previous office. When the defendants (the editorial writer and his newspaper) asked in an interrogatory for the plaintiff's evidence supporting his claim of constitutional malice, the plaintiff answered that the defendants' "editorial board failed to even review their own newspaper files concerning . . . my record." ⁴⁶⁶²

Based on this response, the defendants obtained summary judgment. The plaintiff appealed, but the Virginia Supreme Court upheld the summary judgment. The court explained that

In order to establish actual malice, a plaintiff "must demonstrate by clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubts as to the truth of his statement." ⁴⁶⁶³

After examining all the evidence, the Virginia Supreme Court held that the facts were "insufficient as a matter of law to establish clear and convincing evidence" of actual malice:

The mere presence of news stories in a newspaper's files containing information that contradicts an allegedly defamatory statement by the news organization is insufficient to establish actual malice. . . . [I]n the context of the actual malice inquiry, a duty to investigate the accuracy of one's statements does not arise until the publisher of those statements has a high degree of subjective awareness of their probably falsity. ⁴⁶⁶⁴

The plaintiff also pointed to one of the defendant's postpublication comments as a sign of ill will. The court rejected the relevance of this additional fact:

Equally unavailing is Jackson's [plaintiff] reference to Hartig's [editorial writer] alleged comment to him, saying Jackson "had to pay for the deficit." This fact does not speak to Hartig's state of mind at the time he published the editorial three days earlier. Moreover, this statement, at most, suggests that Hartig harbored some kind of ill will toward Jackson. While "it cannot be said that evidence concerning motive or care never bears any relation to the actual malice inquiry," proof of a media defendant's ill will toward a public figure plaintiff is, without more, insufficient to establish knowledge of falsity or reckless disregard for the truth. ⁴⁶⁶⁵

The Virginia Supreme Court upheld summary judgment for the defendants.

3. Continuing Confusion.

One Virginia Supreme Court decision includes a potentially confusing characterization of New York Times malice as an "intermediate standard" between negligence and the type of malice that the Supreme Court labels "actual malice" (but which seems to be common law malice based on the court's description). ⁴⁶⁶⁶

New York Times (constitutional) malice represents a different type of malice from common law malice. When compared to a negligence standard, which also focuses on knowledge rather than emotion, constitutional malice would properly be characterized as an extreme form of malice, with negligence being the lesser form and "gross negligence" being an intermediate form.

C. Applying the General Rules.

1. In General.

Although the constitutional malice standard focuses on defendants' knowledge at the time they communicated the statement, defendants may not escape liability simply by denying that they acted with knowledge of falsity or with awareness of probable falsity.

2. Defamer's Awareness of Falsity.

Because the constitutional malice requirement essentially takes a "snapshot" of the defamer's brain each time he or she publishes a statement, the plaintiff must plead and prove that the defamer knew of the falsity (or acted recklessly) when he or she published the allegedly defamatory statement. It is helpful to consider this important principle as having a temporal component and a horizontal component.

First, the temporal component requires that the defamer have the requisite state of mind at the time he or she publishes the statement. As the Virginia Supreme Court explained in Jackson v. Hartig, ⁴⁶⁶⁷ the defendant's statement about the plaintiff that supposedly exhibited ill will toward the plaintiff was irrelevant in examining the defendant's state of mind at the time he wrote the allegedly defamatory editorial—three days earlier. ⁴⁶⁶⁸

This is not to say that poststatement evidence is always irrelevant. It can, in some circumstances, be probative of actual malice at the time of a statement's publication. For instance, after making the allegedly defamatory statement, the defamer might tell other folks that "I really nailed the plaintiff last week—I knew at the time that I was lying, but I said it anyway." In that situation, the defamer's later statement sheds light on his or her knowledge of falsity at that time. The Virginia Supreme Court has recognized this principle. ⁴⁶⁶⁹ However, the plaintiff cannot establish constitutional malice by showing that the defendant had knowledge of falsity (or reckless disregard) at some other time, especially after publishing the defamatory statement. This is the basis for the general rule discussed immediately below.

Second, the "horizontal" component of the constitutional malice doctrine requires that the same person in an organization who published the statement (or who authorized its publication) also have the requisite constitutional malice. In other words, a defamation plaintiff suing an organization cannot plead or prove his or her case by combining defamatory words published by one employee and constitutional malice by another employee.

In New York Times Co. v. Sullivan, ⁴⁶⁷⁰ the United States Supreme Court rejected the plaintiff's argument that the New York Times acted with constitutional malice because its own files contained evidence that the defamation contained false factual information.

[T]here is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times' own files. The mere presence of the stories in the files does not, of course, establish that the Times "knew" the advertisement was false, since the state of mind required for

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