“ACTUAL MALICE” IS NOT ACTUALLY MALICE: CLARIFYING AND SOLVING ONE

OF THE SUPREME COURT’S ENDURING PARADOXES

Jesse L. Jenike-Godshalk

“[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.”1

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.”2 At common

law, actual malice had many different definitions,3 but “ill will [was] very much at the heart of

the concept.”4

Then, in 1964, the U.S. Supreme Court decided New York Times Co. v. Sullivan5 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.’”6 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

1
Reliance Ins. Co. v. Barron’s, 442 F. Supp. 1341, 1350 (S.D.N.Y. 1977).
2
W. WAT HOPKINS, ACTUAL MALICE: TWENTY-FIVE YEARS AFTER TIMES V. SULLIVAN 47 (1989) (citing
State v. Burnham, 9 N.H. 34, 36 (1837)).
3
See generally id. at 47-74.
4
Id. at 52. See also ROBERT D. SACK & SANDRA S. BARON, LIBEL, SLANDER, AND RELATED PROBLEMS §
5.5.1.1, 278 (2d ed. 1994) (noting that “[a]t common law, actual malice had a meaning akin to spite or ill will – a
wrongful motivation on the part of the defendant”); 1 RODNEY A. SMOLLA, LAW OF DEFAMATION § 3:46 (2d ed.
2010) (“traditional common-law malice [is] usually articulated in the form of ill will, spite, or hatred”).
5
376 U.S. 254 (1964).
6
Id. at 279-80.

1
knowledge that [the statement] was false or with reckless disregard of whether it was false or

not.”7

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.”8 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.

Following New York Times, lower courts were unsure what the relationship was between

common-law malice and the Court’s newly-minted constitutional standard of “actual malice.”9

Were they equivalent concepts? Could a court define actual malice in terms of ill will? Could

litigants prove actual malice with evidence of ill will? The Supreme Court subsequently

answered some of these questions,10 but it also left other questions open. Thus, the lower federal

courts and the state courts have adopted a variety of different stances on these questions,11 and

the relationship between common-law malice and actual malice remains an unsettled area of the

law.

This lack of clarity is no minor issue. Although the Supreme Court originally applied

actual malice only where the plaintiff in a defamation case was a public official, the Court has

7
Id. at 280.
8
Id. at 302 n.4 (Goldberg, J., concurring in the result).
9
This paper will refer to the traditional, common-law concept of actual malice as simply “common-law
malice.” It will refer to the constitutional concept of actual malice, adopted in New York Times, as “actual malice.”
This usage may seem odd, because this paper ultimately argues against usage of the term “actual malice.” But by
using the term “actual malice,” this paper impresses on the reader how confusing this terminology can be, thus
showing the urgent need for the solution that this paper ultimately endorses.
10
See infra Part II.A.
11
See infra Part II.B. See also Sheldon W. Halpern, Of Libel, Language, and Law: New York Times v.
Sullivan at Twenty-Five, 68 N.C. L. REV. 273, 279 (1990) (noting that, because of terms such as “actual malice,”
“the courts have had to struggle mightily, and often clumsily, with problems of definition and meaning”).

2
imported this concept into more and more areas of First Amendment jurisprudence.12 In

addition, one must understand the relationship between common-law malice and actual malice,

because the two concepts often arise in the same case.13

This paper seeks the clarity that this area of the law so desperately requires. This paper

has three main parts. In Part II, this paper first discusses Supreme Court jurisprudence that sheds

light on the relationship between common-law malice and actual malice. This paper then

discusses the reactions of lower federal courts, state courts, and scholars to the Supreme Court

jurisprudence. In Part III, this paper argues that Supreme Court jurisprudence, properly

understood, declares that: (1) common-law malice and actual malice are separate concepts with

unrelated definitions, but (2) courts may consider evidence of common-law malice on the issue

of actual malice. Still, this paper shows that, under the Federal Rules of Evidence, evidence of

common-law malice should rarely be admissible to prove actual malice. Having clarified what

the law currently is, this paper then considers what the law should be. In order to bring greater

lucidity to the law of defamation, this paper argues that the Supreme Court should abandon the

term “actual malice” and should adopt, in its place, the phrase “knowing or reckless falsity.”

Finally, Part IV concludes this paper.

12
See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 335-36, 349 (1974) (noting that the actual malice
standard now applies to “public figures” and holding that the standard applies where a plaintiff seeks punitive or
presumed damages); Time, Inc. v. Hill, 385 U.S. 374, 390 (1967) (applying the actual malice standard in a case of
false light invasion of privacy); Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988) (applying the actual malice
standard in a case of intentional infliction of emotional distress); 1 SMOLLA, supra note 4, § 3:31 (noting that some
“states have adopted the actual malice standard in private figure cases in which the allegedly defamatory speech
involves matters of public or general interest”). But see Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 570-
76 (1977) (holding that New York Times and its progeny do not apply to the tort of appropriation of a right of
publicity).
13
Halpern, supra note 11, at 278-79 (citing Cantrell v. Forest City Publ’g Co., 419 U.S. 245 (1974)).

3
 II. BACKGROUND

A. Supreme Court Jurisprudence

In the decade that followed New York Times, the Supreme Court repeatedly granted

certiorari in defamation cases so that the Court could clarify for the lower federal courts and state

courts what actual malice meant and how it related to common-law malice.14 In many such

cases, a judge had given jury instructions that defined actual malice with terms like ill will,

hatred, or spite.15 The Court consistently found such instructions erroneous.16 In so doing, the

Court made clear that actual malice was not tantamount to common-law malice17 and that the

lower courts could not define actual malice by using a definition derived from the common law.

Instead, the lower courts had to employ the definition that the Court had provided in New York

Times: “with knowledge that it was false or with reckless disregard of whether it was false or

14
Old Dominion Branch No. 496 v. Austin, 418 U.S. 264 (1974); Cantrell v. Forest City Publ’g Co., 419
U.S. 245 (1974) (this was a false light invasion of privacy case, but the Court discussed actual malice); Monitor
Patriot Co. v. Roy, 401 U.S. 265 (1971); Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971) (plurality),
abrogated by Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Greenbelt Co-op. Publ’g Ass’n v. Bresler, 398 U.S.
6 (1970); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967) (per curiam); Rosenblatt v. Baer, 383 U.S. 75
(1966); Henry v. Collins, 380 U.S. 356 (1965) (per curiam); Garrison v. La., 379 U.S. 64 (1964).
15
Old Dominion, 418 U.S. at 281 (noting that “both courts thought that instructions which defined malice
in the common-law sense—as ‘hatred, personal spite, ill will, or desire to injure’—were adequate”); Greenbelt, 398
U.S. at 10 (“The judge . . . defined ‘malice’ to include ‘spite, hostility or deliberate intention to harm.’”); Beckley,
389 U.S. at 82 (“The jury was instructed . . . that it could find for the respondent if it were shown that petitioner had
published the editorials ‘with bad or corrupt motive,’ or ‘from personal spite, ill will or a desire to injure
plaintiff.’”); Henry, 380 U.S. at 357 (noting that “[t]he jury might well have understood the[] instructions to allow
recovery on a showing of intent to inflict harm”). See also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472
U.S. 749, 754-55 (1985) (trial court did not define “actual malice,” but did provide a general definition for “malice”
using “concepts such as ‘bad faith’”); Monitor, 401 U.S. at 272 (“[U]nder the trial judge’s instructions [the jury] was
. . . free to return a money verdict if it found that the publication was false and had not been made ‘in good faith,’ for
a ‘justifiable purpose,’ and with a ‘belief founded on reasonable grounds of the truth of the matter published.’”).
16
Old Dominion, 418 U.S. at 282; Greenbelt, 398 U.S. at 9-10; Beckley, 389 U.S. at 82; Henry, 380 U.S. at
357-58. See also Dun, 472 U.S. at 755 (noting that “[t]he instructions . . . permitted the jury to award presumed and
punitive damages on a lesser showing than” actual malice); Monitor, 401 U.S. at 277.
17
Cantrell, 419 U.S. at 252 (Actual malice “is quite different from the common-law standard of ‘malice’
generally required under state tort law to support an award of punitive damages. . . . [C]ommon-law malice—
frequently expressed in terms of either personal ill will toward the plaintiff or reckless or wanton disregard of the
plaintiff’s rights—would focus on the defendant’s attitude toward the plaintiff’s privacy, not toward the truth or
falsity of the material published.”); Rosenbloom, 403 U.S. at 52 n.18 (“[I]ll will toward the plaintiff, or bad motives,
are not elements of the New York Times standard.”). See also Masson v. New Yorker Magazine, Inc., 501 U.S. 496,
510 (1991) (“Actual malice under the New York Times standard should not be confused with the concept of malice
as an evil intent or a motive arising from spite or ill will.”).

4
not.”18 The Court explained why the First Amendment required this standard and not a standard

based on common-law malice:

[T]he great principles of the Constitution which secure freedom of expression . . .

preclude attaching adverse consequences to any except the knowing or reckless
falsehood. Debate on public issues will not be uninhibited if the speaker must run the
risk that it will be proved in court that he spoke out of hatred; even if he did speak out of
hatred, utterances honestly believed contribute to the free interchange of ideas and the
ascertainment of truth.19

Still, the Court seemed to grow quickly tired of defending the “actual malice” language

that it had employed in New York Times and that was now confusing the lower courts. For

instance, Justice Stewart dissented in Herbert v. Lando,20 expressing his dissatisfaction with the

Court’s use of the term “actual malice”:

Although I joined the Court's opinion in New York Times, I have come greatly to regret
the use in that opinion of the phrase “actual malice.” For the fact of the matter is that
“malice” as used in the New York Times opinion simply does not mean malice as that
word is commonly understood. In common understanding, malice means ill will or
hostility . . . . As part of the constitutional standard enunciated in the New York Times
case, however, “actual malice” has nothing to do with hostility or ill will . . . .21

More notably, Justice Brennan, who had authored New York Times, seemed to back away

from the “actual malice” language. Three years after New York Times, Justice Brennan wrote

the majority opinion in Time, Inc. v. Hill,22 where the Court applied the actual malice

standard in a case involving false light invasion of privacy.23 Justice Brennan used the words

“actual malice” only once—when he was discussing New York Times.24 For the remainder of

18
Old Dominion, 418 U.S. at 281 (quoting and reaffirming the standard as it was enunciated in New York
Times); Greenbelt, 398 U.S. at 8, 10 (same); Beckley, 389 U.S. at 82-83 (same); Rosenblatt, 383 U.S. at 84 (same);
Henry, 380 U.S. at 357 (same); Garrison, 379 U.S. at 74 (same).
19
Garrison, 379 U.S. at 73.
20
441 U.S. 153 (1979).
21
Id. at 199 (Stewart, J., dissenting) (footnote omitted).
22
385 U.S. 374 (1967).
23
Id. at 390.
24
See id. at 387.

5
the opinion, Justice Brennan used the phrase “knowing or reckless falsity.”25 In another

opinion, Justice Brennan suggested that judges, when writing jury instructions, should

employ the phrase “knowing or reckless falsity,” rather than “actual malice.”26

Such admonitions did not completely solve the problems posed by actual malice. In

1989, twenty-five years after New York Times, the lower courts were still struggling with the

concept. That year, the Supreme Court decided Harte-Hanks Communications, Inc. v.

Connaughton.27 This opinion provides the Court’s most definitive statements on the

relationship between actual malice and common-law malice.

In Harte-Hanks, the defendant was the publisher of a newspaper, The Journal News.

The defendant supported the reelection of a certain incumbent municipal judge, who was

running against a challenger, the plaintiff. A week before the election, the defendant

published a story describing how the plaintiff had bribed grand jurors in a grand jury

investigation into a former member of the incumbent’s campaign. The plaintiff sued for

libel.28

Because the plaintiff was a public figure, he had to prove actual malice in order to

recover. The judge provided the jury with correct jury instructions on actual malice, and the

jury found that the plaintiff had proven actual malice.29 The Sixth Circuit affirmed.30

Before the Supreme Court, the defendant argued that the Sixth Circuit had misapplied

the actual malice standard.31 Among other things, the Sixth Circuit had declared that, in

25
See id. at 388, 390, 394. See also Cantrell v. Forest City Publ’g Co., 419 U.S. 245, 251 n.4 (1974)
(noting that, in Time, Inc., the Court did not employ the term “actual malice,” but instead “repeated the actual
standard of knowing or reckless falsehood at every relevant point”).
26
Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 52 n.18 (1974) (plurality), abrogated by Gertz v. Robert
Welch, Inc., 418 U.S. 323 (1974).
27
491 U.S. 657 (1989).
28
Id. at 660.
29
Id. at 661.
30
Id. at 662.

6
finding actual malice, the jury could have considered the evidence that the defendant was

prejudiced against the plaintiff and was biased in favor of the incumbent.32 In response, the

Supreme Court stressed that “the actual malice standard is not satisfied merely through a

showing of ill will or ‘malice’ in the ordinary sense of the term.”33 In a footnote, the Court

used stronger language: “The phrase ‘actual malice’ is unfortunately confusing in that it has

nothing to do with bad motive or ill will.”34 Echoing Justice Brennan’s earlier admonition,

the Court suggested that, in order to ensure the correct application of actual malice, trial

judges should instruct juries “’in plain English.’”35

The Court further noted that “[c]ertain statements in the Court of Appeals’ opinion,

when read in isolation, appear to indicate that the [Sixth Circuit] . . . inferred actual malice

from the newspaper’s [bad] motive in publishing . . .”36 Yet, the Supreme Court found no

error in this regard, because “when the opinion [was] read as a whole, it [was] clear that . . .

the evidence of motive [was] merely supportive of the court’s conclusion that the record”

demonstrated that the defendant had published with reckless disregard for whether its

publication was true or false.37 The Court stated that the lower courts should “not . . . place

too much reliance” on factors such as bad motive, but “it cannot be said that [such] evidence

. . . never bears any relation to the actual malice inquiry.”38

31
Id. at 663-64.
32
Id. at 665 n.6.
33
Id. at 666.
34
Id. at 666 n.7.
35
Id. (quoting Tavoulareas v. Piro, 817 F.2d 762, 807 (D.C. Cir. 1987) (en banc) (R.B. Ginsburg, J.,
concurring)).
36
Id. at 667.
37
Id. at 667-68.
38
Id. at 668.

7
 In the wake of Harte-Hanks, the Court decided Masson v. New Yorker Magazine,

Inc.39 Although the Court again recognized that the term “actual malice” was “confus[ing]”

and “unfortunate,” the Court insisted that it would continue to use the term.40 The Court

suggested, as it had before, that the lower courts court mitigate the problems posed by this

term if they gave jury instructions that referred not to “actual malice,” but “to publication of

a statement with knowledge of falsity or reckless disregard as to truth or falsity.”41

B. The Lower Federal Courts, State Courts, and Scholars React to the Supreme Court
Jurisprudence

In reaction to Supreme Court jurisprudence, the lower federal courts and the state

courts have staked out a variety of positions on the issue of how actual malice relates to

common-law malice. This Part first examines court opinions that have found no relationship

between actual malice and common-law malice—such that the latter cannot ever be evidence

of the former. This Part then examines opinions recognizing that common-law malice can be

admissible as evidence on the issue of actual malice. In these opinions, the courts determine

admissibility by considering the rules of evidence and, sometimes, court-created

presumptions. Finally, this Part examines how lower federal courts, state courts, and

scholars have sometimes substituted alternative terms in place of “actual malice.”

1. The Minority View: Common-Law Malice and Actual Malice Are Necessarily Always
Unrelated

Some lower federal courts and state courts have interpreted the Supreme Court’s

jurisprudence to mean that common-law malice and actual malice are necessarily always

39
501 U.S. 496 (1991).
40
Id. at 511 (“We have used the term actual malice as a shorthand to describe the First Amendment
protections for speech injurious to reputation, and we continue to do so here.”).
41
Id.

8
unrelated—such that the former cannot be evidence of the latter.42 Courts have stated this

rule in different ways. For instance, some courts have declared that, where the issue is actual

malice, evidence of dislike, bias, bad faith, or ill will is, per se, irrelevant or immaterial.43

Other courts have stated that “evidence of personal hostility, animosity and ill will does not

constitute evidence of ‘actual malice.’”44 Finally, the Eleventh Circuit Court of Appeals has

averred that “[i]ll-will, improper motive or personal animosity plays no role in determining

whether a defendant acted with ‘actual malice.’”45

None of these opinions provides much reasoning behind the adoption of the rule.

Most do little more than cite one or two of the Supreme Court cases described above.46

Thus, these courts seem to find that Supreme Court jurisprudence imposes a per se rule

against the admission of evidence of common-law malice on the issue of actual malice.

42
See Lackland H. Bloom, Jr., Proof of Fault in Media Defamation Litigation, 38 VAND. L. REV. 247, 261
(1985) (stating that “a few courts have posited that the defendant’s ill will is completely irrelevant to the issue of”
actual malice).
43
See, e.g., Vazquez Rivera v. El Dia, Inc., 641 F. Supp. 668, 672 (D.P.R. 1986) (stating, as a general rule,
that ill will is irrelevant to actual malice); Shutt v. Harte-Hanks, 7 Media L. Rep. 2559, 2562 (E.D. Mich. 1981) (“It
is irrelevant that [the editor of a written publication] and plaintiff may have disliked one another, since actual malice
has nothing to do with ill-will.”); Diesen v. Hessburg, 455 N.W. 2d 446, 453 (Minn. 1990) (declaring that “any ill
will [the defendant] may have had toward [the plaintiff] is irrelevant to the actual malice inquiry”); Lancaster v.
Daily Banner-News Publ’g Co., Inc., 622 S.W.2d 671, 675 (Ark. 1981) (“[I]ll will is irrelevant when the
constitutional standards are applied to such a publication. It is immaterial that the writer is biased against the
official, has ill will towards him, or intended to inflict harm upon him.”).
44
Phifer v. City of Rocky Mount, No. 5:08-CV-00292-FL, 2010 WL 3834565, at *11 (E.D.N.C. Aug. 12,
2010) (after citing this formulation of the rule, the court summarily disregarded any evidence of common-law
malice).
45
Dunn v. Air Line Pilots Ass’n, 193 F.3d 1185, 1198 n.17 (11th Cir. 1999).
46
See id. (citing Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991); Rosenbloom v.
Metromedia, Inc., 403 U.S. 29, 52 n.18 (1971) (plurality) (plurality), abrogated by Gertz v. Robert Welch, Inc., 418
U.S. 323 (1974)); Vazquez Rivera, 641 F. Supp. at 672 (citing St. Amant v. Thompson, 390 U.S. 727, 731 (1968));
Diesen, 455 N.W. 2d at 453 (citing Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 666 n.7 (1989));
Lancaster, 622 S.W.2d at 675 (citing Garrison v. La., 379 U.S. 64 (1964); Rosenblatt v. Baer, 383 U.S. 75 (1966)).
See also Shutt, 7 Media L. Rep. at 2562 (generally relying on New York Times Co. v. Sullivan, 376 U.S. 254
(1964)).

9
2. The Majority View: Common-Law Malice Can Sometimes Be Admissible on the Issue of
Actual Malice

Most lower federal courts and state courts recognize that common-law malice can be

admissible evidence on the issue of actual malice, but they hold that evidence of common-

law malice, standing alone, is insufficient to prove actual malice.47 Instead, evidence of

common-law malice must be combined with some other evidence.48

Some courts have explained how this interpretation is defensible in light of Supreme

Court jurisprudence. While Supreme Court jurisprudence makes clear that common-law

“malice and actual malice are not the same, . . . this does not preclude a relationship between

them.”49 Likewise, ill will may “not [be] an element of the legal definition of actual malice,”

but this fact does not mean ill will is irrelevant to actual malice.50 Furthermore, some lower

courts suggest that the Supreme Court, in deciding Harte-Hanks, recognized that evidence of

common-law malice could be relevant to determining actual malice. The Court held that

evidence of the defendant’s bad motive for publishing, particularly in the form of negative

bias, could be admissible on the issue of actual malice.51 However, the lower courts also

47
See 1 SMOLLA, supra note 4, § 3:47 (“Courts permit evidence of ill will, hatred, or spite to be introduced
for whatever weight it deserves on the actual malice question, with the caveat that ill will, hatred, or spite standing
alone can never establish knowing or reckless disregard for the truth.”); HOPKINS, supra note 2, at 151 (“Courts have
uniformly ruled that common law malice alone is insufficient to establish actual malice. . . . Courts have also
recognized, however, that ill will is relevant to a determination of” actual malice.).
48
See, e.g., Tavoulareas v. Piro, 817 F.2d 762, 795 (D.C. Cir. 1987) (en banc) (averring that “evidence of
ill will or bad motives will support a finding of actual malice only when combined with other, more substantial
evidence of a defendant’s bad faith”).
49
DiLorenzo v. New York News, 81 A.D. 2d 844, 847 (N.Y. App. Div. 1981).
50
Cochran v. Indianapolis Newspapers, Inc., 372 N.E. 2d 1211, 1221 (Ind. Ct. App. 1978).
51
Church of Scientology Intern. v. Time Warner, Inc., 903 F. Supp. 637, 641 (S.D.N.Y. 1995) (citing
Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 682 (1989)), aff’d sub nom. Church of Scientology
Intern. v. Behar, 238 F.3d 168 (2d Cir. 2001); Currier v. Western Newspapers, Inc., 855 P.2d 1351, 1355 (Ariz.
1993) (citing Harte-Hanks, 491 U.S. at 667-68).

10
note that in Harte-Hanks the Supreme Court held that evidence of ill will is insufficient

standing alone to prove actual malice.52

If evidence of common-law malice is at least sometimes admissible to prove actual

malice, the courts must logically consider evidence law in order to determine whether to

admit particular evidence of common-law malice.53 The U.S. Court of Appeals for the D.C.

Circuit made this point explicit in an oft-cited opinion, Tavoulareas v. Piro.54 In

Tavoulareas, the president of Mobil corporation joined with his son to sue The Washington

Post and one of its reporters for libel, after the newspaper published an article alleging that

Mobil’s president “set up” his son “as a partner in a shipping firm whose business included a

multi-million dollar management services contract with Mobil.”55 The trial court found that

Mobil’s president was a limited purpose public figure and that he could, thus, only recover if

he could prove actual malice.56 To prove actual malice, the plaintiffs proffered evidence

showing that the newspaper reporter who reported this particular story bore ill will against

the plaintiffs.57 The jury found actual malice and returned a partial verdict for the plaintiffs,

but the trial judge granted judgment notwithstanding the verdict for the defendants.58 The

plaintiffs appealed.59

52
See, e.g., Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 183 (2d Cir. 2000). The Celle court stated
that “[s]tanding alone . . . evidence of ill will is not sufficient to establish actual malice.” For this proposition, the
Court quoted this line from Harte-Hanks: “[T]he actual malice standard is not satisfied merely through a showing of
ill will or ‘malice’ in the ordinary sense of the term.” Id. (quoting Harte-Hanks, 491 U.S. at 666). See also Chicago
Dist. Council of Carpenters Pension Fund v. Reinke Insulation Co., 464 F.3d 651, 656 (7th Cir. 2006) (citing Harte-
Hanks for the proposition that evidence of ill will is “circumstantial evidence, insufficient without something more
concrete, to show actual malice”).
53
See Bloom, supra note 42, at 262-264 (looking to issues such as relevancy, probative value, and undue
prejudice in determining whether evidence of common-law malice should be admitted).
54
817 F.2d 762 (D.C. Cir. 1987) (en banc).
55
Id. at 766.
56
Id. at 775.
57
Id. at 795.
58
Id. at 771, 790.
59
Id. at 771.

11
 On appeal, the D.C. Circuit addressed the propriety of using evidence of common-law

malice to prove actual malice. The court declared that whether to admit such evidence must

be decided on “a case-by-case basis.”60 The court cited Federal Rule of Evidence 403,61 and

averred that courts must determine whether “the probative value of ill-will evidence in

establishing ‘intent to inflict harm through falsehood’ [is substantially outweighed by] the

risk that admitting such evidence will chill honestly believed speech.”62 The court further

explained that the risk here “is that the jury will mistakenly hold the defendant liable for his

attitude toward the plaintiff rather than his attitude toward the veracity of his statements

concerning the plaintiff.”63

Applying the rules of evidence, the court found that the evidence of common-law

malice was simply “lacking in probative value.”64 The court examined several statements

that the reporter had made. He had declared, inter alia, that the newspaper article was a

“case against” Mobil’s president.65 He also had expressed satisfaction at the opportunity to

“knock off” one of the seven largest oil companies.66 The court admitted that the statements

suggested the reporter had adopted an adversarial stance towards Mobil’s president, but such

a stance did not support a finding of actual malice, where the facts generally showed that the

reporter “conducted a detailed investigation and wrote a story that is substantially true.”67

60
Id. at 795.
61
Id. at 795 n.45. Federal Rule of Evidence 403 states that “[a]lthough relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury . . . .”
62
Tavoulareas, 817 F.2d at 795.
63
Id. at 795 n.45.
64
Id. at 795.
65
Id.
66
Id.
67
Id. at 796.

12
 A second case, Celle v. Filipino Reporter Enterprises Inc.,68 illustrates how evidence of

common-law malice can sometimes be more probative on the issue of actual malice.69 Here, a

radio commentator, Lino Celle, competed for the same media audience, Filipino Americans in

New York City, as a newspaper editor-in-chief, Libertito Pelayo. These two men disliked each

other because in 1995 and 1996 Celle had written newspaper articles concerning a criminal

conviction of Pelayo’s daughter.70 Pelayo believed that “one of these articles made a ‘legal error

in the term of the criminal conviction,’ erroneously alleging that his daughter had been convicted

of theft instead of the lesser crime of possession of stolen property.”71

The present case arose when, in April 1997, Pelayo’s newspaper published three articles

about Celle.72 In one of these articles, the newspaper exaggerated civil proceedings that were

being brought against Celle. The article stated, among other things, that Celle had been found

negligent in the proceedings, even though this was not true.73 Celle then sued the newspaper for

libel, and the court determined that Celle was a public figure who would have to prove actual

malice in order to recover.74 After Celle proved actual malice and won a favorable jury verdict,

Pelayo appealed.75

On appeal, the Second Circuit determined that a jury could reasonably find actual malice

based, in part, on evidence of common-law malice.76 In particular, Pelayo bore ill will toward

Celle, because Celle had once published a newspaper article that exaggerated legal proceedings

68
209 F.3d 163 (2d Cir. 2000).
69
See also Cochran v. Indianapolis Newspapers, Inc., 372 N.E. 2d 1211 (Ind. Ct. App. 1978) (finding that
evidence of common-law malice was probative on the issue of actual malice where there was further evidence that,
due to ill will, the defendants had previously attempted “to obtain false statements” about the plaintiff).
70
Celle, 209 F.3d at 172.
71
Id. at 186.
72
Id. at 172.
73
Id. at 185-86.
74
Id. at 173.
75
Id. at 175.
76
Id. at 186.

13
against Pelayo’s daughter. Thus, “considering the ill will, and the factual similarity between the

basis for that ill will and the publication of the challenged statement here—[one] could conclude

that Pelayo was [intentionally] imposing in-kind retribution on Celle by exaggerating the status

of the legal proceedings against him.”77

As Tavoulareas and Celle suggest, most courts will admit evidence of common-law

malice on the issue of actual malice as long as the plaintiff can adequately show how the

evidence is probative of actual malice. Other courts somewhat alter the requirements of proof by

applying what amounts to a presumption. For instance, some courts less rigorously analyze how

evidence of common-law malice is probative of actual malice, and they seem to simply presume

that the former naturally goes to prove the latter.78 But in Church of Scientology International v.

Time Warner, Inc.,79 the U.S. district court for the Southern District of New York created a

contrary presumption: common-law malice ordinarily evidences a lack of actual malice. In this

case, Time magazine had published an article critical of the Church of Scientology International

(CSI). CSI sued Time and the article’s author, Richard Behar, for libel.80 CSI admitted that it

was a public figure and that it would have to prove actual malice.81 In attempting to prove actual

malice, CSI alleged that Behar had “targeted [CSI] with a fixed view of it as a ‘destructive

cult.’”82 That is, he had intentionally “gather[ed] negative information from Scientology

77
Id.
78
See, e.g., Herron v. KING Broad. Co., 776 P.2d 98, 100, 107 (Wash. 1989) (where a television reporter
made a verbal threat showing ill will (“’I will get you . . . . Just watch the news.’”), the court concluded, with little to
no analysis, that “this evidence bolsters the inference that [the reporter] might have been reckless regarding the truth
of his statements”). See also DiLorenzo v. New York News, 81 A.D. 2d 844, 848 (N.Y. App. Div. 1981) (stating as
a general rule that “the jury can permissibly consider malice among the other more obvious circumstances
supporting the inference of actual malice” (emphasis added)); RESTATEMENT (SECOND) OF TORTS § 580A cmt. d
(1977) (“the presence of ill will or animus has [the] effect [of] assist[ing] in the drawing of an inference that the
publisher knew that his statement was false or acted in reckless disregard of its falsity”).
79
903 F. Supp. 637 (S.D.N.Y. 1995), aff’d sub nom. Church of Scientology Intern. v. Behar, 238 F.3d 168
(2d Cir. 2001).
80
Id. at 639.
81
Id. at 640.
82
Id. at 641.

14
adversaries and [had] propos[ed] anti-Church articles—while never changing any view about the

Church, never accepting anything a Scientologist said and uniformly ignoring anything positive

he learned about the Church.”83

In considering the defendants’ motion for summary judgment, the court found that CSI’s

allegations were counter-intuitive. The court explained that, when a person has a deep-seated

hatred of another, the person will honestly believe negative things about the other, even if those

things are exaggerated or false.84 Thus, the court applied what amounted to a presumption:

“malice in the sense of hatred or ill-will is often indicative of lack of . . . actual malice . . . , and

therefore would tend to undermine, not support,” CSI’s case.85 The court explained that CSI

could overcome this presumption if it could produce evidence not only of Behar’s negative bias

but also evidence of inadequate investigation.86 Taken in combination, such evidence would

suggest that, because of his bias, Behar knowingly or recklessly avoided the truth by performing

an inadequate investigation.87 Here, CSI had not shown that Behar performed an inadequate

investigation. Thus, the court fell back on its initial presumption: “[w]ithout a showing of

inadequate investigation, bias merely confirms the publisher’s firmly-held belief in the allegedly

defamatory statements.”88 In sum, if a court is willing to admit evidence of common-law malice

on the issue of actual malice, the court may apply a presumption that evidence of common-law

malice goes to prove actual malice or it may, instead, apply the opposite presumption.

83
Id.
84
See id.
85
Id.
86
Id. (citing Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 682 (1989)).
87
Id.
88
Id.

15
 3. Substituting Other Terms in Place of “Actual Malice”

In at least three opinions, the Supreme Court has suggested that the lower federal courts

and state courts should, when giving jury instructions on actual malice, give the instructions in

plain English that generally avoids use of the term “actual malice.”89 Following this directive,

the lower federal courts and state courts have often substituted other terms in place of “actual

malice,” not only when giving jury instructions, but whenever they discuss the concept of actual

malice.90 Scholars have done likewise.91

In most cases, courts and scholars have provided little to no analysis explaining why they

opted for one term over another. They have simply chosen a particular term and stated that, in

comparison to “actual malice,” their substitute term is “better,”92 “kinder to the [English]

language,”93 or simply less confusing.94 In contrast to these rather vapid comments, in

Westmoreland v. CBS Inc.95 the U.S. district court for the Southern District of New York

described some of the criteria that courts should consider when attempting to choose an

alternative to the term “actual malice.” In this opinion, the court compiled a list of possible

substitute terms, included the following: “the constitutional limitation,” “’state of mind,’

‘deliberate or reckless falsity,’ ‘abuse of privilege,’ and ‘impermissible basis.’”96 The court

explained that the reason for choosing a substitute term is prejudice, particularly in jury trials.97

89
See supra notes 26, 35, 41 and accompanying text.
90
See, e.g., Westmoreland v. CBS Inc., 596 F. Supp. 1170 (S.D.N.Y. 1984) (using “constitutional malice”);
Richmond Newspapers, Inc. v. Lipscomb, 362 S.E.2d 32 (Virginia 1987) (using “New York Times malice”); Martin
v. State Journal-Register, 612 N.E. 2d 1357 (Ill. Ct. App. 1993) (same).
91
See, e.g., Gerald R. Smith, Of Malice and Men: The Law of Defamation, 27 VAL. U. L. REV. 39 (1992)
(using “constitutional malice”); Halpern, supra note 11 (same); HOPKINS, supra note 2 (using “Times Rule Actual
Malice”).
92
Halpern, supra note 11, at 279.
93
Id.
94
Richmond Newspapers, 362 S.E.2d at 35; Martin, 612 N.E. 2d at 1363; Smith, supra note 91, at 40.
95
596 F. Supp. 1170 (S.D.N.Y. 1984). The Supreme Court has favorably cited this case. See Harte-Hanks
Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 666 n.7 (1989).
96
Westmoreland, 596 F. Supp. at 1172 n.1.
97
Id.

16
Use of the term “actual malice” could prejudice either the plaintiff or the defendant. The risk is

that the jury will equate the actual malice with common-law malice.98 Thus, if the plaintiff

provides significant evidence of common-law malice, the jury may be prejudiced against the

defendant. The jury may conclude, based on this evidence alone, that the defendant acted with

actual malice.99 Alternatively, if the plaintiff does not present evidence of common-law malice,

the jury may be prejudiced against the plaintiff. The jury may conclude that the plaintiff has not,

and cannot, prove actual malice.100 The court found that the goal was then to find a “neutral”

term.101 In light of this goal, “constitutional limitation” had much to recommend it: “The term is

certainly not descriptive of the ingredients of the element, but the problem with more descriptive

formulations is that they tend to favor one side or the other. This term enjoys the advantage of

neutrality.”102

III. DISCUSSION

This Part examines three issues raised in the preceding part: (1) Does Supreme Court

jurisprudence dictate that common-law malice can never be evidence of actual malice, or do the

precedents enunciate a more nuanced view? (2) How should the Federal Rules of Evidence103

restrain litigants from using evidence of common-law malice to prove actual malice? (3) What

solution or solutions could cure the recurring confusion in this area of the law?

98
Id.
99
Id.
100
Id.
101
See id.
102
Id.
103
This paper has attempted to analyze how both the federal and state courts have applied actual malice.
Yet, here, this paper examines evidentiary issues in light of the Federal Rules of Evidence, which only apply in
federal courts and not in state courts. Still, the rules discussed here are so basic that the state courts generally follow
them, though sometimes in somewhat altered form. See Teneille Brown & Emily Murphy, Through a Scanner
Darkly: Functional Neuroimaging as Evidence of a Criminal Defendant’s Past Mental States, 62 STAN. L. REV.
1119, 1155 (2010); (declaring that “[e]ven though states have different rules of evidence, each state has some
equivalent to Federal Rules of Evidence 401 and 403”); Jennifer M. Miller, To Argue is Human, To Exclude, Divine:
The Role of Motions in Limine and the Importance of Preserving the Record on Appeal, 32 AM. J. TRIAL ADVOC.
541, 544 (2009) (noting that “most state courts seem to follow the reasoning of Federal Rule of Evidence 403”).

17
A. Supreme Court Jurisprudence and the Relationship Between Common-Law Malice and Actual
Malice

The lower federal courts and the state courts have split over the issue of what the

Supreme Court precedents say about the relationship between common-law malice and actual

malice.104 A minority of courts have found that the Supreme Court’s jurisprudence dictates that

evidence of common-law malice is, per se, irrelevant to actual malice, while a majority of courts

have concluded that, under Supreme Court precedent, evidence of common-law malice may

sometimes be relevant to the issue of actual malice.105

For a variety of reasons, the majority position is seemingly correct. First, the courts that

follow the minority view provide little to no analysis of how they reached their position. They

cite Supreme Court opinions, but hardly discuss them.106 Thus, their position is not especially

compelling.

Second, the Supreme Court has made statements that seem to support the minority view,

but these statements do not actually do so. For instance, in Harte-Hanks, the Court declared that

actual malice “has nothing to do with bad motive or ill will.”107 This statement is definitional,

rather than evidentiary. In other words, the Supreme Court is declaring that the definition of

actual malice has nothing to do with common-law malice. The Court is not stating that litigants

can never use evidence of common-law malice to prove actual malice. When the Court has

made evidentiary statements, these too can be read to support the minority view. For instance,

the Court has declared that the actual malice standard “is not satisfied merely through a showing

104
See supra Part II.B.
105
Id.
106
See supra note 46 and accompanying text.
107
Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 666 n.7 (1989). See also Herbert v.
Lando, 441 U.S. 153, 199 (1979) (Stewart, J., dissenting) (similarly stating that actual malice “has nothing to do
with hostility or ill will”).

18
of ill will or ‘malice’ in the ordinary sense of the term.”108 Still, this statement means only that

evidence of common-law malice is not sufficient, standing alone, to prove actual malice. This

statement does not mean that evidence of common-law malice is always irrelevant to the issue of

actual malice.

Third, in Harte-Hank, the Supreme Court seemed to expressly reject the minority view

and to expressly adopt the majority view. In that opinion, the Court examined how the Sixth

Circuit, in finding actual malice, had relied upon evidence that the defendant was “biased” and

“prejudiced” against the plaintiff; the defendant had a bad motive in publishing the newspaper

story.109 The Supreme Court noted that, while actual malice must not be confused with “bad

motive or ill will” (i.e. common-law malice),110 the Sixth Circuit had committed no error in

relying partially upon evidence of bad motive.111 The Court drew a distinction between two

situations: (1) impermissibly finding actual malice based on bad motive alone; and (2)

permissibly finding actual malice based on bad motive in addition to other evidence.112 The

Sixth Circuit opinion involved the second situation. The Court concluded with words that seem

to explicitly reject the minority view: “it cannot be said that evidence concerning [bad] motive . .

. never bears any relation to the actual malice inquiry.”113

B. Evidentiary Restraints on Using Evidence of Common-Law Malice

Supreme Court jurisprudence is not the only source of restraints on using evidence of

common-law malice to prove actual malice. Restraints are also imposed by the rules of

evidence, particularly the rules on relevancy embodied in Federal Rules of Evidence 401, 402,

108
Harte-Hanks, 491 U.S. at 666.
109
Id. at 665 n.6.
110
Id. at 666 n.7.
111
Id. at 668.
112
See id. at 667-68.
113
Id. at 668.

19
and 403.114 The following sub-part supposes a scenario wherein a plaintiff is trying to admit

evidence of a defendant’s common-law malice in order to prove the defendant’s actual malice.

Conceivably, a defendant could also try to admit evidence of his or her own common-law

malice. Indeed, in some courts a defendant could use this evidence to refute actual malice.115

But defendants have rarely, if ever, sought to admit such evidence. Thus, this sub-part adopts the

far more common scenario where a plaintiff is seeking to admit the evidence. In this sub-part,

this paper concludes that the rules of evidence should usually prevent a plaintiff from presenting

evidence of common-law malice on the issue of actual malice.

When a plaintiff seeks to admit evidence of common-law malice to prove actual malice,

the plaintiff first encounters the barrier imposed by Federal Rules of Evidence 402 and 401.

Rule 402 provides that, subject to certain exceptions, “[a]ll relevant evidence is admissible,” and

“[e]vidence which is not relevant is not admissible.”116 Rule 401 defines “relevant evidence” as

“evidence having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.”117 Courts have found that Rule 401 imposes a “very low threshold.”118

In most courts, a plaintiff could probably succeed in having evidence of common-law

malice admitted merely by arguing that the evidence shows why the defendant might be

motivated to recklessly disregard the truth (i.e. to act with actual malice). Still, a court should

not presume that evidence of common-law malice is always relevant to the issue of actual

114
See supra note 103.
115
See supra notes 79-88 and accompanying text.
116
FED. R. EVID. 402.
117
FED. R. EVID. 401.
118
U.S. v. Crockett, 586 F. Supp. 2d 877, 884 (E.D. Mich. 2008); Rambus Inc. v. Samsung Elecs. Co., Ltd.,
No. C-05-02298 RMW, 2008 WL 2944892, at *1 (N.D. Cal. July 16, 2008) (discussing “Federal Rule of Evidence
401’s exceedingly low threshold for relevance”).

20
malice. If a plaintiff seeks to admit such evidence, the plaintiff should have to show how

particularly that evidence makes the fact of actual malice more probable.

Federal Rule of Evidence 403 erects a more significant barrier. This rule states that

“[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .”119

Probative value means that evidence “tends to prove an issue.”120

In most cases, evidence of common-law malice will have a low probative value in

proving actual malice.121 Most cases are probably not like Celle, where evidence of common-

law malice had an especially high probative value. In that case, the plaintiff was able to establish

a rather tight nexus between the evidence of common-law malice and the issue of actual malice.

But that case rested on truly exceptional facts: the plaintiff had once published exaggerated

statements about the defendant’s daughter and, thus, when the defendant published exaggerated

statements about the plaintiff, this second publication appeared to be intentional in-kind

retribution.122 Most cases probably do not have facts similar to these. Most cases are probably

like Tavoulareas, where the plaintiff could not establish a tight nexus between the evidence of

common-law malice and the issue of actual malice, and the court concluded that the evidence of

common-law malice was “lacking in probative value.”123

Still, as discussed above, some courts seem to presume that evidence of common-law

malice has probative value in either proving or disproving actual malice.124 Courts should not

employ such presumptions. These courts adopt a presumption ostensibly because they find that

119
FED. R. EVID. 403.
120
BLACK’S LAW DICTIONARY 1203 (6th ed. 1990).
121
See Bloom, supra note 42, at 262 (arguing that evidence of common-law malice “frequently will be of
no probative value whatsoever”).
122
See supra note 77 and accompanying text.
123
Tavoulareas v. Piro, 817 F.2d 762, 795 (D.C. Cir. 1987) (en banc).
124
See supra notes 78-88 and accompanying text.

21
common-law malice naturally evidences either actual malice or a lack of actual malice. This

reasoning is specious. Evidence of common-law malice has an indeterminate probative value.

On its face, such evidence can go to both actual malice and to lack of actual malice. Such

evidence can support a finding of actual malice, because it shows motive: the defendant was

motivated by his or her ill will to act with actual malice.125 But this same evidence can also

support a finding of no actual malice. When a person passionately hates another, the person is

likely to honestly believe negative things about the other, even if those things are false or

exaggerated.126 Moreover, if a publisher has previously had bad relations with a person, then the

publisher may be more reluctant to publish something about the person that the publisher knows

is false, because the publisher may believe that the person is especially likely to sue. Thus,

evidence of common-law malice does not naturally prove or naturally disprove actual malice.

This evidence only proves what the parties can show it proves, and usually the parties are

incapable of showing that it proves much of anything.

For evidence of common-law malice, the probative value must be weighed against the

risk of “unfair prejudice, confusion of the issues, or misleading the jury . . . .”127 In this case,

these three categories are probably best treated together, because the risk of unfair prejudice

arises primarily from the jury’s confusion of the issues. The Supreme Court has admitted that

the term “actual malice” creates confusion between actual malice and common-law malice.128

Lower federal courts, state courts, and scholars have also commented, often in exasperation, at

125
See generally supra notes 36-38 and accompanying text.
126
See supra note 84 and accompanying text.
127
FED. R. EVID. 403.
128
Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 511 (1991) (“the term [actual malice] can
confuse”); Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 666 n.7 (1989) (“’actual malice’ is
unfortunately confusing”).

22
how confusing the term (and standard for) “actual malice” can be.129 Arguably a plaintiff

exacerbates the problem when he or she admits evidence of common-law malice. Then the jury

must not only conceptually separate actual malice from common-law malice, but must separate

the evidence into: (1) direct evidence of actual malice; and (2) evidence of common-law malice

that may or may not be circumstantial evidence of actual malice. The obvious risk is that the

jury will fail to properly separate the evidence and will find actual malice based largely or

entirely on evidence of common-law malice.130

Other risks are presented where, for instance, a media outlet chooses to attack the stances

or votes of a public official. Such political speech is at the core of First Amendment

protection,131 and it is at the core of a media outlet’s mission.132 In such a case, the public

official may sue the media outlet and may seek to prove that the media outlet wanted to harm the

official by using “its power and influence to have him removed from office or defeated at the

polls.”133 Here a jury may be unable to distinguish between two situations: (1) a media outlet’s

repeated, hard-hitting criticism of a public official whom it believes is unqualified or whom it

validly disagrees with; and (2) a media outlet’s “vendetta against an individual in utter disregard

of the facts.”134 The former situation is not necessarily a situation of actual malice while the

latter definitely is. Of course, unfair prejudice may also arise here if the jury decides to punish

the media outlet for attacking a political party or political stance that the jurors favor.

129
See, e.g., Martin v. State Journal-Register, 612 N.E. 2d 1357, 1363 (Ill. Ct. App. 1993) (stating that
“confusion still exists over the ‘actual malice’ standard, mostly because the Supreme Court unfortunately chose the
term ‘malice’ to describe the mental state a reporter must possess to lose his qualified privilege”); Halpern, supra
note 11, at 278 (declaring that “the phrase [actual malice] survives to create confusion”).
130
Westmoreland v. CBS Inc., 596 F. Supp. 1170, 1172 n.1 (S.D.N.Y. 1984).
131
See, e.g., Virginia v. Black, 538 U.S. 343, 365 (2003) (stating that “political speech [is] at the core of
what the First Amendment is designed to protect”).
132
Bloom, supra note 42, at 263 and n.70.
133
Id. at 263.
134
Id.

23
 In sum, evidence of common-law malice will usually create a grave risk of unfair

prejudice and confusion in a case involving actual malice. At the same time, the evidence will

have a low probative value on the issue of actual malice. These conclusions thus suggest that a

court should usually not admit evidence of common-law malice on the issue of actual malice.

Still, a couple considerations might suggest otherwise. First, Professor Lackland Bloom

has noted that, where a plaintiff must prove actual malice, the plaintiff must do so by clear and

convincing evidence.135 He concludes that, for the sake of fairness, “[g]iven the heavy burden of

the clear and convincing evidence standard, plaintiffs should be permitted to ‘pile on’ proof even

if portions of it are marginally probative.”136 Professor Bloom reaches this conclusion even

though he admits that evidence of common-law malice is usually unduly prejudicial and

confusing.137 But Professor Bloom cites no source reflecting that a court should alter the Rule

403 balancing test where the ultimate standard of proof is clear and convincing evidence, and

this author can find no source to support this argument. Thus, Professor Bloom’s assertion quite

simply seems wrong. Courts must instead rely upon the normal Rule 403 balancing test. They

should exclude evidence of common-law malice as long as the risk of unfair prejudice

substantially outweighs the probative value of such evidence.

Second, Rule 403 has an Advisory Committee’s Note providing that, when one employs

Rule 403, “consideration should be given to the probable effectiveness of a limiting instruction”

under Rule 105.138 When a judge issues a limiting instruction, the judge instructs the jury to use

evidence for one purpose, but not for another.139 Thus, a judge could instruct a jury to consider

evidence of common-law malice only as it bears on the issue of actual malice. Such an

135
Id. at 264.
136
Id.
137
Id.
138
FED. R. EVID. 403 (Advisory Committee’s Note).
139
See FED. R. EVID. 105.

24
instruction could serve to alleviate a modicum of confusion, but it would hardly solve the more

serious confusion that infects this area of the law. The jury could still struggle mightily to

conceptually separate common-law malice from actual malice and to separate evidence going

directly to actual malice from evidence of common-law malice circumstantially supporting

actual malice. Thus, in most cases, Rule 105 alone cannot save evidence of common-law malice.

Luckily, this rule is not the only solution available to alleviate unfair prejudice and confusion in

this area of the law.

C. Solutions

Under the actual malice standard, confusion is a persistently enduring problem. To cure

this problem, the Supreme Court has suggested a solution. The lower courts have attempted to

follow this solution and, in other ways, to alleviate confusion in this area of the law. Still, these

solutions are inadequate. Thus, this paper suggests a simple alternative solution.

The Supreme Court’s solution is that, in cases involving actual malice, courts should

carefully instruct juries in plain English that uses some substitute term in place of “actual

malice.”140 Theoretically, this solution should help to ensure that juries correctly understand and

apply actual malice, but the solution is fundamentally flawed. This solution disregards the fact

that judges also often misunderstand actual malice, as evidenced by the large number of cases in

which the Supreme Court has granted certiorari in order to correct a lower court’s erroneous jury

instructions on actual malice.141 The lower courts also continue to split on many issues relating

to actual malice.142 These courts cannot all be correct and, thus, some must misunderstand the

actual malice standard and how it is proved. If judges are confused by actual malice, then they

140
See supra notes 26, 35, 41 and accompanying text.
141
See supra Part II.A.
142
See supra Part II.B.

25
cannot effectively implement the Court’s solution of giving juries clear and accurate jury

instructions.

Still, the lower federal courts and state courts have attempted to follow the Supreme

Court’s solution. They have typically used a substitute term for “actual malice,” not only when

giving jury instructions, but whenever they discuss the concept of actual malice.143 These

measures present their own inadequacies. First, most courts substitute a term that retains the

word “malice,” which is the font of all the confusion.144 If the word “malice” is retained, then

judges and juries are likely to continue to be confused about the relationship between the

constitutional standard of malice and common-law malice. Second, most courts have adopted a

substitute term in an ad hoc manner.145 This approach leads to a lack of uniformity, even within

a particular state’s courts, and lack of uniformity can itself cause confusion.

To alleviate some of these problems, this paper proposes the following simple solution:

The Supreme Court should abandon the term “actual malice” and adopt another term in its place.

In essence, this solution would require overturning New York Times Co. v. Sullivan to the degree

that it adopted the term “actual malice.”146 The Supreme Court has provided a framework for

determining when a prior decision should be overturned: (1) has the prior ruling proven

unworkable; (2) if the prior ruling is overturned, will this cause serious damage to those in

society who have relied on the prior ruling; (3) have changes in the law since the prior ruling

made the prior ruling a “doctrinal anachronism;” and (4) have other developments undercut the

facts that were the basis for the prior ruling.147

143
See supra note 90 and accompanying text.
144
See supra notes 90, 91.
145
See supra Part II.B.3.
146
Cf. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007) (overturning Conley v. Gibson to the
degree that that opinion adopted the phrase “no set of facts”).
147
Planned Parenthood v. Casey, 505 U.S. 833, 854-60 (1992).

26
 These factors support abandonment of the term “actual malice.” First, the term “actual

malice” has been the epitome of unworkability. Judges and juries have consistently

misunderstood and misapplied this confusing term. Second, one can hardly imagine that anyone

in society has reasonably relied upon the term “actual malice” when deciding what conduct to

engage in. It is doubtful that anyone has ever decided whether or not to make potentially

defamatory statements based on the assumption that, if the target of the statements brought a

lawsuit, the case would involve the confusing term “actual malice.” Third, the law has not

necessarily developed so as to make the term “actual malice” a doctrinal anachronism. Instead,

arguably the term was a problem from the beginning. Developments in the law have not pushed

this term to the fringe; the term was an unwelcome outsider from its inception. Fourth, other

developments have not necessarily undercut the facts that were the basis for the prior ruling. The

prior ruling was based on few, if any, express facts. Perhaps, the prior ruling was based on an

implicit factual assumption: The Supreme Court could assign a foreign meaning to a well-known

word, and judges and juries would be able to understand this new term of art. The ensuing

confusion shows that this assumption was wrong.

In sum, the Court could justifiably abandon the term “actual malice.” This paper

suggests that, in place of “actual malice,” the Court should adopt the term “knowing or reckless

falsity.” Such a change would have a number of benefits. First, this term would accurately

describe what the constitutional standard actually is: “with knowledge that it was false or with

reckless disregard of whether it was false or not.”148 Second, this term is not facially or

necessarily prejudicial against one party or another.149 Instead, it is neutral.150 Third, the Court

148
See New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).
149
But see Westmoreland v. CBS Inc., 596 F. Supp. 1170, 1172 n.1 (S.D.N.Y. 1984) (stating that more
descriptive terms tend to be prejudicial).
150
See id. (suggesting that neutrality is the goal when choosing a term to replace “actual malice”).

27
has at times suggested use of this alternative term.151 It has simply never given its full

imprimatur to the term.152 Thus, adopting this term would be consistent with prior statements of

the Court. Fourth, the Court could reintroduce much needed uniformity to this area of the law by

settling on this one term instead of continuing to half-heartedly use the term “actual malice,”

while suggesting that lower federal courts and state courts should use some an alternative term

when giving jury instructions. Finally, and most importantly, using this term would eliminate

the word “malice” from the term for the constitutional standard. This change would greatly aid

judges and juries in conceptually separating common-law malice from the constitutional

standard. Thus, the Supreme Court could solve, or at least improve, many of the problems in this

area of the law if it simply made a minor terminological change.

IV. CONCLUSION

In New York Times Co. v. Sullivan, the Supreme Court adopted “actual malice” as a term

of art. No one questions the power of the Court to fashion new terms of art, but one must

question the wisdom of the Court in this case. Even the Justices themselves have since lamented

their choice of terms. This term “actual malice” has sparked nearly half a century of controversy

and confusion. Scarce judicial resources have repeatedly been devoted to clarifying what this

term means and how it relates to common-law malice. Solutions have been half-hearted and

inadequate.

This paper has attempted to bring clarity to this area of the law by explaining what the

Supreme Court precedents actually mean and explaining how the evidentiary rules limit litigants

who attempt to use evidence of common-law malice to prove actual malice. This paper has also

proposed a simple solution: The Supreme Court should abandon the term “actual malice” and

151
See supra notes 25-26 and accompanying text.
152
The Court has insisted that it will continue to use the term “actual malice” instead of fully adopting
“knowing or reckless falsity.” See supra note 40.

28
adopt, in its place, the term “knowing or reckless falsity.” As the Court stated in a different

context, “after puzzling the profession for 50 years, this famous [term] has earned its

retirement.”153

153
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007).

29