Actual Malice & Responsible Communication

Justice Brennan, who gave the majority opinion for the New York Times v. Sullivan case, said that, “[Libel] must be measured by standards that satisfy the First Amendment… Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials…” In this particular case, Commissioner L.B. Sullivan sued the New York Times for libel for printing a full-page advertisement titled, “Heed Their Rising Voices,” which described actions against civil rights protesters. Some of the information printed was incorrect and inaccurate, and though Commissioner L.B. Sullivan was not specifically named, he claimed that the Montgomery police that were referred to in the advertisement was aimed at him. This is an excellent example of libel per quod, especially where the advertisement implied several statements by reusing the word, “they,” when “they” could be referring to anyone such as the police, or bombers, and so on. This case established actual malice, which is defined as being “with knowledge that [the statement] was false or with reckless disregard of whether it was false or not” (p. 89, Tedford & Herbeck). In other words, this standard requires that the plaintiff prove that the statement’s publisher knew that the statement was false, therefore putting a very high burden of proof standard on the plaintiff.

However, when thinking about the definition of actual malice, we must consider several factors that help us to be better communicators and examiners of such cases. If the one who made the defamatory statement was a professional journalist, for example, more protection would be granted, where as a less experienced journalist would not get as much protection. A second factor to consider would be the timeliness of the defamation, where protection for the speaker would be granted if it were on deadline. Thirdly, another question to be raised would be whether the original source of the defamation was believed to be reliable, in which there would be more protection given to the speaker once again.

In Canada, laws are known to be strict and more restrictive than laws of the United States as well as those in Britain, whose laws are also considered to be strict. In December of 2009, the Supreme Court of Canada released two decisions in libel suits against major newspapers that would increase protections for journalists, bloggers, and others. A defense libel for “responsible communication” was created, which the court defined as “careful reporting on matters of public interest.” In Grant v. Torstar Corp., the Court of Canada recognized a defense of responsible communication, which was designed to provide greater protection for communications on matters of public interest. The Court established several elements that the defense must be under, with two conditions that must be met in order for the defense to apply. The first element that one must prove is that the matter must be of public interest, and secondly, the defendant must show that they acted responsibly. To determine whether the defendant was responsible or not was based off another set of elements that considered: 1) the seriousness of the allegation, 2) the public importance of the matter, 3) the urgency of the matter, 4) the status and reliability of the source,) 4) whether the plaintiff’s side of the story was sought and accurately reported, 5) whether inclusion of the defamatory statement was justifiable, and 6) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth. In Grant v. Torstar, more protection was granted when dealing with the public interest. The peoples’ interest has a heavy weigh on the jury's determination of the outcome of the statement made, and where there is much public interest, the jury must then decide whether it qualifies for a responsible communication defense.

There seems to be a couple of clear distinctions when looking at the United States’ standards of libel protection versus those of Canada’s. In the United States, the plaintiff must prove fault, as determined in the court case of New York Times v. Sullivan. In Canada, the speaker is the one who must prove fault, which provides a distinction in determining the burden of proof and where it lies for the U.S. and for Canada. As mentioned earlier, more protection is granted within the United States because Canada’s courts must consider whether the defamatory statement is of public interest or not. In the U.S., public figures must know that they are to be judged more harshly. People who are known publicly in the United States and those who are in Canada each have different standards under libel protection. Canada will make no distinction on who the speaker is, whereas in America, certain people have more protection from defamation according to Gertz v. Welch.

The First Amendment clearly states that “Congress shall make no law abridging the freedom of speech or the freedom of press,” and this is a statement that I agree with. There is an importance set on each individual’s thoughts of what the meaning of truth is, and though the person who might have been “slandered” against might have taken offense, perhaps the person who said that statement believed it to be true, personally. I am in favor of promoting the rights of the individual, as U.S. courts would follow. Under actual malice, individual protection is much more protected than a Canadian court under the rules of responsible communication, which makes me lean towards siding with the United States’ view on libel. According to John Stuart Mill, in his essay, On Liberty, any opinion is bound to have truth and falsity in it, so we must challenge the statement. This concept is a much more expansive notion than that of John Milton's, who argued that people should be able to express their ideas and have them compete so that the truth might prevail in the end (p. 432, Tedford & Herbeck). I agree with these philosophers in that our search for truth is a good philosophical reason for free speech to be expressed as individuals. This ties in with the way that the United States views freedom of expression in relation to libel, in the sense that there is truth in all opinions which allows individuals to speak freely regardless of their public status. To an extent, Thomas I. Emerson’s expression-action theory also plays a role with libel laws in the United States. He argues that freedom of expression “includes the right to form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium one chooses…” (p. 438, Tedford & Herbeck). Thus, a person can make a statement in an advertisement or in a blog and that should be considered an individual right to be able to express opinions publicly. Though there may be the question of “where does one draw the line?,” Emerson still has a solid and important significance in developing a better understanding of the First Amendment, which ultimately reflects upon the subject of libel laws as well. I agree with Emerson’s stance on protecting free speech, because I believe that it is important to the individual. To express one’s opinion should be protected absolutely, but when it comes to a point of physical harm or a provocation of violence, I would say that only then should speech be restrained. Punishment should be considered in the case of libel or defamation if it has caused someone physical harm, but otherwise, speech should be expressed freely, regardless of who you are.