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MALICE, ACTUAL

Publication of defamatory material "with knowledge that it was false or reckless disregard of whether it was false or not." The term originated in a landmark 1964 case in which the Supreme Court ruled that 'public officials' could not recover damages from defamatory material unless they established that it was published with actual malice. As opposed to "legal" or "common law malice", which connotes ill will, spite, etc.

Actual malice involves making a statement with "knowledge of falsity or reckless disregard as to truth or falsity." Masson, 501 U.S. at 511. See also Harte-Hanks Communications, Inc., 491 U.S. 657; Anderson v. Liberty Lobby, 477 U.S. 242, 244 (1986); New York Times, 376 U.S. at 279-280. A public figure must show by clear and convincing evidence that the defendant "in fact entertained serious doubts as to the truth of his [statements] or acted with a high degree of awareness of . . . probable falsity." Masson, 501 U.S. at 510 (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968); Garrison v. Louisiana, 379 U.S. 64, 74 (1964)) (internal quotations omitted).

The First Amendment requires a plaintiff who is a public figure to demonstrate actual malice by clear and convincing evidence. Masson v. New Yorker Magazine, Inc., 111 S. Ct. 2419, 2429 (1991). "The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law." Milkovich v. Lorain Journal Co., 497 U.S. 1, 17 (1990) (quoting Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685 (1989)).

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