Defamation, Libel Tourism and the SPEECH Act of 2010: The First Amendment Colliding with the Common Law
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Defamation, Libel Tourism and the SPEECH Act of 2010: The First ...

Chapter 1:  Defamation Laws on a Collision Course: The Evolution and Convergence of American and English Law
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New York Times did not act with reckless disregard of the truth, even though its own files contained facts showing some aspects of the publication to be false:

[T]here is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times’ own files. The mere presence of the stories in the files does not, of course, establish that the Times ‘knew’ the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times’ organization having responsibility for the publication of the advertisement. With respect to the failure of those persons to make the check, the record shows that they relied upon their knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement…. We think that the evidence against the Times supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice.29

Although the Supreme Court did not directly address the matter, it is generally recognised that in addition to requiring proof of actual malice, the Supreme Court also eliminated the common law presumption that defamatory statements are false and imposed a requirement that the claimant prove falsity.30 While actual malice must be proved by clear and convincing evidence, the Supreme Court did not address this and left undecided whether falsity could be established by mere preponderance or whether it also required clear and convincing evidence.31 Indeed, the Supreme Court has refused to address this issue in subsequent cases and has denied review for cases raising this concern.32 However, this could very well be a distinction without a practical difference from the viewpoint of a jury.33

In Curtis Publishing Co. v. Butts and Associated Press v. Walker,34 the Supreme Court expanded the actual malice standard to include defamation claims brought on by public figures in addition to public officials (collectively referred to as “public persons”). The concept of a public figure was described as applying to individuals who command