In ordinary defamation cases, proving malice is a straightforward affair because the statement at issue is only capable of being understood in a defamatory sense and the only question is whether the speaker knew the statement was false (or acted with reckless disregard to its falsity). Conversely, in defamation-by-implication cases, the allegedly defamatory statement has two possible meanings: one that is defamatory and one that is not. This complicates the malice inquiry because the speaker may or may not have intended to imply the defamatory meaning.
Recently, the Third Circuit had the opportunity to consider (1) whether the actual malice standard applies differently in defamation-by-implication cases such that more than knowledge of falsity or reckless disregard for truth is required and (2) if the standard is different, can a plaintiff can satisfy the actual malice standard by showing defendant's mere awareness of a defamatory implication and reckless disregard of that implication or whether plaintiff must show actual intent to convey a defamatory meaning.
The Third Circuit agreed with several other circuits that plaintiffs in defamation-by-implication cases must show something beyond knowledge of, or recklessness in regard to, the FALSITY of the statement's defamatory
meaning. Plaintiff must show that defendant acted with improper motive. In ordinary defamation cases, plaintiff can show intent to defame solely through knowledge that the statement was false. In defamation-by-implication cases where the statement can have a non-defamatory meaning, showing falsity alone is inadequate to establish intent to defame. In these cases, plaintiff must show something that establishes defendants' intent to communicate the defamatory meaning.
The Third Circuit apparently breaks down the malice requirement into two elements in defamation by implication cases, separating out a falsity element with a "communicative intent" element. According to the court, the falsity element refers to the extent to which a defendant must be aware that the defamatory meaning of his statement is false, and the communicative-intent element refers to the extent to which defendants must be aware of the defamatory meaning of their statement.
To me, that sounds like an unnecessarily confusing way to describe the malice test. After all, if a defendant was aware the defamatory meaning was false, then he necessarily knew the defamatory meaning existed. The test makes more sense if you examine communicative intent first. Thus, in defamation-by-implication cases, falsity shouldn't even come into play until a threshold determination has been made that the defendant intended to communicate a statement with defamatory meaning (or, as this court held, at least knew the statement was capable of being understood in a defamatory sense).
The court held that a plaintiff can show communicative intent by demonstrating that the defendant either intended to communicate that defamatory meaning or knew of the defamatory meaning and acted in reckless disregard of it. The court found that this approach follows from the Supreme Court's inclusion of recklessness in the actual malice standard. The Supreme Court has noted that actual malice is a term of art, a shorthand phrase used to describe the First Amendment protections for speech injurious to reputation. The Court has described reckless disregard as the line between protected false communications and unprotected false communications. The Third Circuit found that recklessness is the outer limit of actual malice and that the communicative intent element of actual malice in defamation-by-implication cases can be satisfied by reckless disregard for the defamatory meaning of a statement.
Other circuits also support this approach, stating that to find actual malice in defamation-by-implication cases, the plaintiff must show that defendants intended or knew of the implication that the plaintiff attempts to draw from the allegedly defamatory material. The Third Circuit interpreted the phrase "knew of" to imply recklessness and used the term "recklessness" in its own standard believing that it conforms more closely to the Supreme Court's definition of actual malice. The court found that recklessness requires that the defendants knew that the defamatory meaning was not just possibly but likely and still made the statement despite the knowledge of that likelihood.