“Actual malice”,
as defined by the U.S. Supreme Court in the New
York Times v. Sullivan case, is described as a defendant’s publication of a
statement either 1) knowing it was false; or 2) exercising reckless disregard
for the truth (Reporters Committee for Freedom of the Press). Additionally,
this case distinguished private citizens from public figures. This distinction
requires public figures to adhere to the actual-malic standard. Therefore, a
public figure must prove that the message source, “intended to to discourage
the communication of falsehoods that are deliberate or that result from
reckless disregard for the truth” (Tedford and Herbeck 92). Although this
definition and distinction was constructed in the 1960s during the Civil Rights
movement, it still remains influential in libel cases today.
In relation to proving “actual-malice”,
the case of Colonel Anthony Herbert is an example of when a public figure was
held to the actual-malic standard. In this instance, CBS aired a segment of 60 Minutes, which questioned the actions
of Colonel Herbert during the Vietnam War, in addition to a published article
in Atlantic-Monthly. As a result,
Herbert brought a libel action against Barry Lando, a CBS editor, and a few
other individuals. During the trial, Lando refused to answer questions, “about
why interviewed some persons but not others, how he judged the veracity of
those interviewed, and why he included or excluded certain material in the
program and in the essay” (Tedford and Herbeck 93). Eventually he was ordered
to answer those questions when the case reached the Supreme Court. This decision
by the Supreme Court to have Lando answer the questions shows that, “the First
Amendment does not protect one’s subjective thought processes from the
discovery process in libel actions” (Tedford and Herbeck 93). This meant that
if “actual malice” is to be proven by public figures, then “state of mind”
questions must be answered.
If we transition to today, we can
witness social media playing an interesting role in defamation and “actual
malice” cases. Donna Francavilla, contributor to the Radio Television Digital
News Association, wrote an article titled A
Closer Look at Defamation in the Social Media Era. In the article, she
discusses the relationship between social media and defamation and focuses particularly
on a case between Trump and Cheri Jacobus. In the current case, Jacobus v. Trump, Jacobus filed a libel lawsuit against Trump after
remarks he made on Twitter about her. Just like in other cases before her,
Jacobus had to prove “actual malice” by Trump because she is considered a
public figure. In the case, the judge determined that since both parties had
published other tweets about one another, they were engaged in a quarrel.
Additionally, Trump’s, “characterization that Jacobus ‘begged’ for her job is
figurative and loose”, meaning that it is considered an opinion and is not
presented as a fact. So essentially, Trump was not communicating falsehoods,
but his opinion, according to the judge. This case is also especially important
and interesting because it deals with the issue of defamation on social media. Professor
Evans at the Cumberland School of Law in Birmingham, Alabama discusses how the,
“interactive nature of social media creates difficultly in determining when a
statement might meet the actual malice standard” (author). Unfortunately, it is
not always clear the intentions of those who use social media, which could make
it easier for social media users to lie about their true intentions.
Social media gives everyone access
to the public, which could blur the lines between private citizens and public
figures in the future. Nevertheless, public figures are held to higher
standards of proving malice because they generally have greater access to media
and other outlets in responding to defamatory statements. In all, I believe
that in the future, traditional notions of who is considered a public figure for
purposes of defamation are going to be obscured by social media.
“Defining ‘Actual
Malice’”. Reporters Committee for Freedom
of the Press, 26 Oct. 2011,
Francavilla,
Donna. “A Closer Look at Defamation in the Social Media Era.” Radio Television
Digital News Association, 15 May 2017,
Tedford, Thomas
L., and Dale A. Herbeck. Freedom of
Speech in the United States. Strata
Publishing,
Inc., 2017.
You did a great job describing the nuances of what might be considered actual-malice, Megan. In today's age of social media, this distinction of actual-malice becomes even more difficult. I want to expand a little bit on your last paragraph, that talks about the idea of a public sphere on social media. Facebook users, depending on who you can ask, believe that what their posting as private. Nowadays, you see companies increasing their privacy measures and making sure others can't see what we're sharing unless we want them to. But if you asked a majority of Facebook users, most users know that their activity is always tracked and stored (possibly even sold). Which begs the question, what does it really mean to be "public"? Even if you made your account private, limited your audience to your Facebook friends, would you be considered a private figure? But Facebook, a global entity, has stores and stores of your personal data. Once you post anything on the internet, it's out there forever. In that case, would you be considered a public figure? If one agreed with the latter, those who participate in social media at any capacity could be subject to any type of defamation. Much like the example of Internet Service Providers being held responsible for allowing slander and libel on their platforms, I believe that social media giants like Facebook would have a responsibility as well. In any case, the current defamation laws should be adjusted to the new rise of different communication mediums.
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