Where an otherwise defamatory statement is subject to a qualified privilege, a plaintiff can overcome that privilege by showing that the defendant acted with actual malice. However, “actual malice” in the context of a defamation action–also known as “New York Times malice,” is a different concept than the common-law malice ordinarily required to support an award of punitive damages. Actual malice does not require evil intent, spite, or ill will. A speaker acts with actual malice when he knows that his statement is false or acts with reckless disregard as to its truth. Mere dislike of the plaintiff is not sufficient to indicate a speaker acted with actual malice.
The standard for whether a defendant has uttered a defamatory statement with actual malice is a subjective one. In a lawsuit against a newspaper, for example, the plaintiff would not necessarily prevail merely by showing that the publisher failed to conduct a sufficient factual investigation or that a “reasonably prudent” publisher would not have published the story. Reckless disregard for the truth requires more than just a departure from professional journalistic standards. (See Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 666 (1989)). Rather, the court must get into the mind of the publisher and determine its state of mind at the time of publication. Reckless disregard for truth requires a high degree of awareness of probable falsity, such as when a publisher entertains “serious doubts as to the truth of his publication” but publishes the story anyway. (See St. Amant v. Thompson, 390 U.S. 727, 731 (1968)).
The distinction between actual malice and common-law malice was explained last month in the Texas case of Tyson v. Austin Eating Disorders Partners, LLC. Edward Tyson worked for Austin Eating Disorders Partners (AED) as medical director of AED’s Austin eating disorder treatment center. After Tyson was removed from his position, he asked his accountant to inquire about AED’s improved financials. Mark McCallum, CFO of AED, responded to the inquiry with an email to Tyson, AED’s Board of Directors, AED’s attorney, and AED’s accountant stating that AED’s financials had improved because Tyson had been a bad medical director who had no idea how to run the treatment center and took kickbacks for referring patients to other facilities. In a Second Amended Complaint asserting various defamation theories, Tyson conceded that McCallum’s email was subject to a qualified privilege, but argued that he overcame the privilege by alleging that McCallum acted with actual malice. AED and McCallum moved to dismiss the claim.
The court noted that actual malice is shown where a statement is made with knowledge that it is false or with reckless disregard as to its truth. Actual malice is not the same as ill will. The key to an actual malice showing, the court held, is evidence that the speaker knew or had reason to know that his statements were false.
Tyson’s Second Amended Complaint failed to allege facts showing that McCallum made any of the statements in the email with knowledge that they were false or with reckless disregard of their truth. Instead, Tyson attempted to show that McCallum disliked Tyson and acted with animus towards him. The court held that such allegations were insufficient to show actual malice because, as controlling case law has made clear, actual malice and evil intent are two different things. The court went on to note that although evidence of ill will may support an allegation of malice, ill will alone is not sufficient.
Moreover, merely showing that the statement is false or that the speaker failed to investigate the truth or falsity of the statement is not enough to show actual malice, nor is mere negligence sufficient. Rather, a plaintiff must show that the defendant entertained serious doubts as to the truth of his statements. Here, Tyson failed to allege facts showing that McCallum knew or had reason to know that any of his statements were false or had serious doubts about the truth of his statements and therefore did not overcome the qualified privilege.
In short, although the actual malice inquiry requires consideration of the state of mind of the speaker, the relevant state of mind is whether the speaker knew or had reason to believe the statement was false, not whether the speaker harbors ill will towards the plaintiff. Because Tyson failed to overcome the qualified privilege, the court granted defendants’ Motion to Dismiss. The court further dismissed Tyson’s claims with prejudice as he had amended his pleading multiple times without being able to plead any facts in support of actual malice.