Actual malice is an important concept in Virginia defamation law. Public figures, public officials, and limited-purpose public figures all must prove that a defamatory publication was made about them with actual malice as part of their case in chief in any defamation action brought on the basis of that publication. Even private plaintiffs often seek to prove actual malice, such as when trying to show that a defendant lost or abused a qualified privilege. As discussed earlier on this blog, “actual malice” in this context means something different than spite or ill will. When a defendant publishes a false and defamatory statement with actual malice, it means the defendant knew the statement was false or, at a minimum, acted with reckless disregard as to truth or falsity. Recklessness amounting to actual malice may be found, for example, where a publisher fabricates an account, makes inherently improbable allegations, relies on a source where there is an obvious reason to doubt its veracity, fails to pursue the most obvious available sources for corroboration, or deliberately ignores evidence that calls into question his published statements.
So how do you prove actual malice? As you might imagine, it’s not very often that the defendant openly admits to intentionally lying. Therefore, most of the time, plaintiffs must resort to indirect and circumstantial evidence to prove their claims. They can do this by using
all the relevant circumstances surrounding the transaction…provided they are not too remote, including threats, prior or subsequent defamations, subsequent statements of the defendant, circumstances indicating the existence of rivalry, ill will, or hostility between the parties, facts tending to show a reckless disregard of the plaintiff’s rights, and, in an action against a newspaper, custom and usage with respect to the treatment of news items of the nature of the one under consideration.
(See Herbert v. Lando, 441 U.S. 153, 164 n.12 (1979) (quoting 50 Am. Jur. 2d Libel and Slander § 455 (1970))). To obtain such evidence in advance of trial, parties may resort to the discovery process, using tools such as interrogatories, requests for production of documents, and third-party document subpoenas.
Courts tend to allow fairly broad discovery. The general rule is that parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. In determining proportionality, courts will look at factors such as the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. (See Fed. R. Civ. P. 26(b)(1)).
If you’re trying to collect evidence relevant to actual malice, here are some considerations as you draft your discovery requests:
1. Don’t limit yourself to documents pre-dating the publication date.
Sure, it seems to make sense that when trying to prove the defendant’s state of mind at the time of publication, you’d want to focus on evidence that existed prior to that time. Many courts, however, have allowed discovery of evidence that arose after the fact, such as the defendant’s own statements. If a defendant posts a false and defamatory comment on Facebook and then later brags to a friend in a text message about spreading lies about the plaintiff, that text message might be probative of actual malice even though the text didn’t come into existence until after the defamatory statement was written. In a New York case a few years ago, a book author met with her sources after getting sued and offered to pay them for affidavits supporting the allegations in her book. The court found this evidence relevant to the question of actual malice. (See Stern v. Crosby, 645 F. Supp. 2d 258 (S.D.N.Y. 2009)). What you’re trying to prove is the defendant’s state of mind at the time of publication, but there’s no rule limiting you to evidence pre-dating the publication to prove this.
2. Determine whether the defendant had a profit motive to lie about you or your business.
Having a general profit motive, without more, is not sufficient to show actual malice. Virtually every newspaper publishes articles to make money; nothing about that indicates malicious intent. On the other hand, you may be able to uncover information about the defendant’s specific profit motive to publish stories about you, the plaintiff. At a minimum, you should be able to seek discovery into any evidence of a profit motive to publish stories about you irrespective of truth. Most courts apply a broad relevance test during the discovery phase and would likely find such documents relevant and discoverable.
3. Look for evidence of a preconceived narrative.
Remember the Rolling Stone case? Rolling Stone published a story a few years ago about a supposed gang rape at a University of Virginia fraternity house. The magazine eventually retracted the story after a Columbia Journalism School report that said the magazine failed to take basic journalistic steps to verify the account of the main witness, a woman identified only as “Jackie.” A UVA administrator sued the magazine and won $3 million after arguing to the jury that the author of the story had a preconceived narrative and set out to write an article about institutional indifference to claims of sexual assault and rape. The author was so focused on telling the story she wanted to tell, the plaintiff argued, that she paid little attention to the actual facts, willfully ignoring any that disproved her preconceived storyline. Evidence of a preconceived narrative may be relevant to the actual malice inquiry (See Harris v. City of Seattle, 152 F. App’x 565, 568 (9th Cir. 2005) (“[E]vidence that a defendant conceived a story line in advance of an investigation and then consciously set out to make the evidence conform to the preconceived story is evidence of actual malice, and may often prove to be quite powerful evidence.”) (quoting Rodney A. Smolla, Law of Defamation § 3:71 (2d ed. 2005)).
4. Investigate the defendant’s fact-checking process.
When you’re trying to prove that an article or other statement was published with a subjective awareness of probable falsehood, it stands to reason that you should be permitted to inquire into the publisher’s fact-checking and editorial practices. While true that actual malice cannot be proven merely by showing that a “reasonably prudent” publisher would have conducted a more thorough investigation before publishing, evidence showing a departure from journalistic standards would still be relevant to the inquiry and therefore discoverable. (See Hatfill v. New York Times Co., 532 F.3d 312, 325 (4th Cir. 2008) (explaining that although the mere “failure to exercise ordinary care” does not show actual malice, “evidence of the publication of a completely fabricated story, or of one based entirely on an unverified anonymous telephone call; or publication where there are obvious reasons to doubt the veracity of the informant” can show actual malice)).
I’ll add to this blog post as I come up with more suggestions. Just remember that defendants rarely confess to making a statement or publishing a story known to be false. You’re going to need to rely on circumstantial evidence of negligence, motive, and intent such that an accumulation of the evidence and appropriate inferences support the existence of actual malice.