Defamation, Libel Tourism and the SPEECH Act of 2010: The First ...

Court summarised the constitutional inquiry as coming down to whether the state law of defamation “as applied to an action brought by a public official against critics of his official conduct, abridges the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments”.¹⁵ After discussing the historical interplay of defamation and the constitutional right to freedom of speech, Justice Brennan announced the rule of the court:

Within the universe of defamation law, this was a change of cataclysmic proportions. The judicial inquiry was no longer the truth of the publication but rather the publisher’s subjective belief in the truth of the writing. In other words, the question for the jury was no longer centred on the truth but the publisher’s knowledge and belief instead.¹⁷

After reaching this dramatic conclusion, the Court did not—as is its usual custom—simply remand the matter to the courts of Alabama for retrial but instead went ahead and decided that the claimant could not prevail as a matter of law.¹⁸ Based on this precedent, in subsequent cases, appellate courts have routinely engaged in extensive factual reviews, seemingly to weigh the evidence, to determine if a finding of actual malice could be sustained. On many occasions, the appellate courts concluded that claimant’s burden was not sustained and the matter was dismissed.¹⁹ In normal appellate review of a civil matter, appellate courts examine evidence merely to see if it could (rather than should) support a verdict. The typical level of appellate evidentiary evaluation is predicated on the Seventh Amendment that guarantees the right to trial by jury and which precludes judicial reexamination of the matters decided by the jury except as permitted by the common law.²⁰ It has been argued that the level of appellate evidentiary evaluation authorised in the case of the New York Times