Public Figures Bear a Heavy Burden to Show Actual Malice for Defamation in California
Many public figures have trouble understanding that they enjoy very limited protection from defamation. Instead, they are required to meet a heavy burden to establish actual malice, which can rarely be proven.
“To show actual malice, plaintiffs must demonstrate [that the defendant] either knew his statement was false or subjectively entertained serious doubt his statement was truthful.” Christian Research (2007) 148 Cal.App. 4th 71, 84 (citing Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 511).
The law is that: “Unlike the falsity requirement, plaintiffs must demonstrate actual malice by clear and convincing evidence. This requirement presents a heavy burden, far in excess of the preponderance sufficient for most civil litigation. The burden of proof by clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. To show actual malice, plaintiffs must demonstrate [that the defendant] either knew his statement was false or subjectively entertained serious doubt his statement was truthful. The question is not whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” Christian Research Inst. v. Alnor (2007) 148 Cal. App. 4th 71, 84.
“A failure to investigate, anger and hostility toward the plaintiff, reliance upon sources known to be unreliable, or known to be biased against the plaintiff—such factors may, in an appropriate case, indicate that the publisher himself had serious doubts regarding the truth of his publication. Thus, malice may be inferred where, for example, a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Similarly, an inference of malice may be drawn “when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation, … or where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. Conversely, the failure to conduct a thorough and objective investigation, standing alone, does not prove actual malice, nor even necessarily raise a triable issue of fact on that controversy. Similarly, mere proof of ill will on the part of the publisher may likewise be insufficient.”Christian Research Inst. v. Alnor (2007) 148 Cal. App. 4th 71, 84-85.
Citing New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964), the California Supreme Court explained that “public officials must sometimes bear scathing and even false attacks subject only to those narrowly circumscribed exceptions embodied in the concept of actual malice. The public’s interest in reports of official misconduct, even if they are factually erroneous and damaging, outweighs the reputational interest of any individual.” McCoy v. Hearst Corp. (1986) 42 Cal. 3d 835, 859–60.
When the plaintiff is a “public figure,” “they have the burden of proving both that the challenged statement is false, and that [the defendant] acted with ‘actual malice” as required by New York Times Co. v. Sullivan (1964) 376 U.S. 254, 280. This is the same standard under California law. See Christian Research Inst. v. Alnor (2007) 148 Cal.App. 4th 71, 81.
“In this context, a defendant acts with ‘actual malice’ when publishing a knowingly false statement or where he ‘entertained serious doubts as to [its] truth.’” Christian Research Inst. v. Alnor (2007) 148 Cal. App. 4th 71, 81 (quoting Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256). The requirement that a public figure plaintiff prove malice by clear and convincing evidence arises from First Amendment concerns that freedom of expression be provided “the breathing space that [it] need[s] … to survive….” New York Times Co. v. Sullivan, 376 U.S. 254, 272 (1964)
“The actual malice standard of New York Times Co. v. Sullivan is based on a recognition that ‘erroneous statement is inevitable in free debate’ and ‘must be protected’ to give freedom of expression the ‘breathing space’ it needs to survive.” Annette F. v. Sharon S (2004) 119 Cal. App. 4th 1146, 1168.
“This requirement presents a heavy burden, far in excess of the preponderance sufficient for most civil litigation. The burden of proof by clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind.” Christian Research Inst. v. Alnor (2007) 148 Cal. App. 4th 71, 84.
The bottom line is that public figures and public officials are rarely successful in defamation suits, often losing these cases on an Anti-SLAPP motion due to the burden they must meet and the defamation defense of rhetorical hyperbole. If a public figure doesn’t understand these rules, contact a business litigation attorney with experience in First Amendment and Media lawyer in California to understand your rights.
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