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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of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.43

The court’s acknowledgement that falsehoods do not serve the ends of the First Amendment seems rather at odds with this nearly free pass for the reckless speaker. In an attempt to define the meaning of reckless disregard, the Supreme Court also said:

The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.44

St. Amant relied solely on an affidavit from someone with respect to whom no evidence of veracity was introduced at trial. The defendant did not conduct any fact checking prior to the filing of the lawsuit. Despite this rather shoddy or nonexistent investigative record, liability could not attach because St. Amant simply could not be shown to have harboured any doubts or suspicions.45 His ignorance, through his own lack of initiative, precluded a finding that he harboured a subjective doubt regarding the truth or falsity of the defamatory material. In this important respect, the St. Amant case raises the bar of the actual malice standard from the New York Times case to a level where a claimant would have little chance of prevailing without evidence that the publisher actually knew the statements were false.46 With strict application of the St. Amant subjective standard, a public person would have a very difficult undertaking to establish reckless disregard of the truth. In some states, that difficulty became a virtual complete obstacle to recovery.47