| Chapter 1: | Defamation Laws on a Collision Course: The Evolution and Convergence of American and English Law |
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was in violation of the Seventh Amendment right to trial by jury.21 While the evidentiary evaluation process employed in the case of the New York Times is quite unusual in American jurisprudence, the Supreme Court has expressly rejected the Seventh Amendment arguments on the basis that free speech is a special matter requiring higher safeguards.22 This subordination of the Seventh Amendment to the First Amendment accords with the Supreme Court precedent that the Seventh Amendment right to jury trial in federal courts is not such a fundamental aspect of due process that must be required in State courts. It has also been argued that this enhanced appellate review gives free speech the special weight to which it is entitled because it is a basic right in a free society.23
The court’s use of the term “actual malice” may be somewhat of a misnomer as the court was not referring to the common law concept of malice—that is, a feeling of spite, ill will, or a desire to injure—but rather was a standard of liability that required some level of scienter or knowledge on the part of the publisher.24 The court’s use of the word malice is therefore confusing because the word has the connotation of acting with intent to harm whereas the constitutional standard raises questions about the publisher’s subjective knowledge of falsity or reckless disregard for the falsity of the publication.25 To avoid confusing the two concepts of malice, some courts and commentators have found that the standard used in the case of the New York Times is better referred to as constitutional malice.26
The focus of most litigation is on the second part of the actual malice test: publication with reckless disregard of whether the statement was true or false. Indeed, American defamation litigation almost invariably involves the issue of whether the publisher acted with reckless disregard of truth, and not with actual knowledge of falsity.27 For a claimant to establish that the defendant subjectively acted in reckless disregard of the truth requires the claimant to meet a very difficult standard of proof. To add to this burden, under the standard used in the case of the New York Times, the claimant also must establish actual malice by clear and convincing evidence, which is defined as something exceeding preponderance.28 It is of note that the Supreme Court found that the