“[T]hese definitions distort common English . . . . When the Supreme Court uses a word, it means what the Court wants it to mean. ‘Actual malice’ is now a term of art having nothing to do with actual malice.”

I. INTRODUCTION

“Actual malice” has long been an important concept in libel suits. As early as 1837, courts used it as a common law “element of a libel plaintiff’s burden of proof.” At common law, actual malice had many different definitions, but “ill will [was] very much at the heart of the concept.”

Then, in 1964, the U.S. Supreme Court decided New York Times Co. v. Sullivan and transformed “actual malice” from a common law matter to a constitutional one. In New York Times, the Court held that, pursuant to the First Amendment, a public official cannot recover “damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice.’” The Court did not define actual malice in terms of ill will. Instead, a publisher makes a statement with “actual malice” if the publisher acts “with knowledge that [the statement] was false or with reckless disregard of whether it was false or not.”

In New York Times, Justice Goldberg concurred in the result stating in part that, “[i]f the constitutional standard is to be shaped by a concept of malice, the speaker takes the risk not only that the jury will inaccurately determine his state of mind but also that the jury will fail properly to apply the constitutional standard set by the elusive concept of malice.” Justice Goldberg was here rather prescient, for actual malice has proved to be an “elusive concept,” though jurors have not been the only ones confused.

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