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

Although some state courts had difficulty distinguishing between actual malice and the traditional meaning of malice as spite, ill will, or desire to injure, there seemed to be some emerging or tenuous stability in American defamation law.⁴⁸ Then, the Supreme Court changed the focus of the New York Times standard. In the 1971 decision, Rosenbloom v. Metromedia, Inc., the constitutional actual malice requirement reached its broadest application because the Supreme Court altered the focus from the status of the plaintiff (public official or public figure) to the content of the publication.⁴⁹ The Court, by plurality decision, applied the constitutional malice standard to situations in which the speech related to a matter of public interest or controversy, regardless of the public or private status of the claimant.

The Rosenbloom case is of significant interest because the focus on the subject matter of speech being the qualifying factor for the New York Times privilege parallels the type of speech that is protected by English law under the Reynolds privilege, which was not enunciated until nearly thirty years later. The English courts have consistently maintained that content or subject matter of the speech, rather than the status of the claimant, should trigger application of the privilege. Unfortunately, interpretation of the Rosenbloom decision has been hampered because the Court’s decision was spread over five separate opinions and there was not one opinion that commanded a majority of the Court. If nothing else, Rosenbloom demonstrated that some of the justices were becoming somewhat uncomfortable with the real possibility that the New York Times privilege was about to swallow all of defamation law. In the Rosenbloom case, Justice William Brennan, who authored the opinion of the Court in the New York Times standard, moved away from the status of the claimant as the controlling issue and instead wrote, for a narrow plurality of the Court, that all discussion relating to matters of general or public interest fell within the New York Times actual malice standard: “If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or because in some sense the individual did not voluntarily choose to become involved”.⁵⁰ However, Justice Brennan wrote for a plurality of only three justices.