There is a myth that it is virtually impossible for a public figure to successfully sue the media for defamation. This myth is based on a perceived insurmountability of the requirement imposed on public figures to prove "actual" or "constitutional" malice by clear and convincing evidence when suing for defamation. In reality, the courts have provided an almost step-by-step guide for finding and proving constitutional malice. The guide is the badges of malice. The phrase "badges of malice" is adapted from the badges of fraud used in tax evasion and fraudulent conveyance cases to categorize types of circumstantial evidence that may support an inference of a subjective intent to defraud.
No doubt showing constitutional malice is an obstacle. Public figures must show constitutional malice to maintain their claim. The requirement of proving constitutional malice is not limited to public figures. Plaintiffs that are not public figures still must show constitutional malice to recover punitive damages.
Constitutional malice, also called actual malice, is the publishing of a defamatory statement either knowing it is false or with reckless disregard for its truth or falsity. (1) Requiring a showing of constitutional malice for a public figure to sue for defamation, or to impose greater than actual damages (i.e., presumed and punitive damages) on the media, is intended to prevent a chilling effect on news reporting and protect First Amendment rights. (2) The concept of "knowledge of falsity" is familiar to all attorneys in multiple contexts. Recklessness as to falsity, however, has evolved definitions and inferences unique to defamation law.
Twenty-Four Badges of Constitutional Malice: A Guide
The Supreme Court articulated the parameters of "reckless disregard" in St. Amant v. Thompson, 390 U.S. 727, 731 (1965): "Reckless conduct is not measured by whether a reasonably prudent man would have published or would have investigated before publishing. There must be evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication."
Accordingly, St. Amant reasoned that recklessness may be inferred when "there are obvious reasons" to doubt the veracity of the defamatory statement. (3)
In Mason v. New Yorker Magazine, 501 U.S. 496 (1991), the Supreme Court summarized that, for proof of constitutional malice, "mere negligence does not suffice," and that the plaintiff must demonstrate that the author "in fact entertained serious doubts as to the truth of his publication ... or acted with a high degree of awareness of probable falsity." (4)
Knowledge of falsity or reckless disregard for falsity is a subjective mental state of the person responsible for publishing the defamatory statement. Consequently, absent an admission by the media, showing constitutional malice is based on circumstantial evidence. The courts have recognized certain fact patterns of circumstantial evidence as probative of constitutional malice. These "badges of malice," some alone and some in combination with others, have been held sufficient to support a jury inference of constitutional malice. There are 24 badges of malice. (5)
* failure to conduct a thorough investigation before publishing serious and damaging allegations that are not Identifying every defamatory statement about the plaintiff made by a news out let is the first step. This includes defamatory statements that were made before and after the defamatory publication. In some cases, the sheer number of false statements made may support an inference of malice. "hot news";
* failure to give the plaintiff a fair opportunity to reply to defamatory allegations;
* failure to report exculpatory facts;
* omitting pertinent information to create a false impression;
* destruction, loss, or unavailability of a reporter's notes or research;
* the reporter's knowledge of a quoted source's animosity toward the plaintiff;
* the alteration of quotes to maximize a story's impact;
* a reporter's knowledge of facts conflicting with the report;
* emphasizing unimportant events to support a defamatory statement;
* continued reliance on a source that had proven unreliable in other respects;
* a preconceived determination to disparage a plaintiff or a preconceived slant or view;
* repetitive media attacks on the plaintiff;
* failure to contact key witnesses;
* a reporter's ill will toward the plaintiff;
* competitive pressure for "hot news" story;
* discrepancies, inconsistencies, and equivocation in the testimony of media witnesses;
* a reporter's departure from professional standards;
* failure to supervise the reporter's preparation of the story;
* refusal to publish a retraction upon learning of errors in a story;
* the use of deception to obtain a defamatory story;
* a reporter's lack of credibility;
* prior and subsequent defamatory statements;
* that an investigative agency with the same information as a reporter declined to prosecute or take any action against the plaintiff; and
* making threats in connection with a story.
These badges of malice are a guide and nothing more. The possible scope of evidence that may support an inference of malice is unlimited. The badges are useful because they summarize actual events that tend to repeat themselves in media defamation cases. Evidence of the badges in discovery will support a strong and well-precedented argument for constitutional malice. For each badge developed in discovery, the media will have an explanation. Developing multiple badges of malice can expose the media's serial excuses as pretextual and increase the chances of successfully arguing constitutional malice.
Malice Typically Is Evaluated from the Accumulation of Circumstantial Evidence
The badges of malice are consistent with the extremely broad scope of evidence that the Supreme Court held must be discoverable by plaintiffs to prove malice. In Herbert v. Lando, 441 U.S. 153 (1979), the Supreme Court observed that the First Amendment protections given to the media were balanced by the corollary that the fact finder could consider an extremely broad scope of evidence in determining malice. "[A]ny competent evidence either direct or circumstantial, can be resorted to, and all the relevant circumstances surrounding the transaction may be shown ..." to show malice. (6) The specific items of relevant evidence favorably itemized in Herbert include 1) all information known to the defamer showing the falsity of defamatory statements; 2) the defamer's thought process and reasons for crediting or discrediting information; 3) the defamer's thought processes and reasons for incorporating only certain information into a press statement; 4) threats made by the defendant; 5) prior defamations by the defendant; 6) subsequent defamations made by the defendant; 7) subsequent statements made by the defendant; and 8) circumstances indicating rivalry, ill will, or hostility. (7)
In Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989), the Supreme Court emphasized that a jury may infer malice from a series of factors none of which alone would have been sufficient. In that case, a newspaper published witness' allegations that a judicial candidate had been bribed. The candidate sued for defamation, and the newspaper argued that it had no knowledge that the bribery allegations were false. The jury found malice, and the newspaper appealed.
Harte-Hanks emphasized numerous factors in evaluating the entire record. The newspaper was involved in heated competition with another local paper and was under pressure to "scoop it" on local news (i.e., profit motive for the defamation). After hearing the obviously damaging bribery allegations, the newspaper conducted an investigation, but it failed to contact key witnesses. Numerous taped witness interviews were available to the newspaper, but the editorial director did not listen to...