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October 11, 2023 BEST OF ABA SECTIONS

How Best to Explain “Actual Malice” to Juries? For Starters, Don’t Use Those Words

Steve Zansberg

In the past few years, one major trend appeared on the landscape of American libel law: A handful of high-profile public figure/public official libel cases went to jury verdict, and in one of those cases, the parties vigorously disputed how the jury should be instructed about actual malice. This article offers recommendations for practitioners and judges to properly instruct juries in future public figure/public official libel trials where the actual malice requirement applies.

Palin Case Brings the Propriety of Jury Instructions to the Fore

In 2017, former Alaska Governor Sarah Palin sued the New York Times over an editorial that suggested her campaign communications had incited Jared Lee Loughner to go on his 2011 shooting rampage in Phoenix, Arizona. While the jury was deliberating, Judge Jed S. Rakoff granted the Times’s Rule 50 motion for judgment as a matter of law, finding that Palin had not presented clear and convincing evidence that the Times’s Editorial Page editor James Bennet harbored serious doubts as to the truth of the editorial (but Rakoff did not notify the jury, directly, of his ruling) (Palin v. N.Y. Times Co., 588 F. Supp. 3d 375 (S.D.N.Y. 2022)). The next day, the jury returned its verdict that echoed Judge Rakoff’s ruling, concluding that the Times was not liable for having defamed Palin.

In the course of the trial, Palin and the Times sparred over different ways to define constitutional malice, and that battle illuminates a central question for all public figure libel cases: how to instruct the jury. Each side submitted a proposed instruction. Palin’s proposed instruction listed nine factors for the jury to consider. Palin’s lawyers asked the judge to instruct jurors that, in deciding whether Times’s opinion editor James Bennet was guilty of reckless falsity, they may consider his “motive and intent” in writing the opinion column critical of Palin, as well as his purported “bias or ill will” toward her because his brother is Sen. Michael Bennet (D-Colorado). Those facts, in combination with the words “actual malice” themselves, could, theoretically, persuade a jury to rule in Palin’s favor. Ultimately, Judge Rakoff delivered an instruction that did not incorporate Palin’s laundry list of factors the jury could consider to find actual malice. And Judge Rakoff sua sponte added some illustrations of what is not actual malice, undoubtedly helpful to the Times’s position. Lastly, it is noteworthy that the instruction he delivered to the jury mentions the term “actual malice” eight times.

How Best to Instruct Juries Regarding Actual Malice

Palin v. New York Times highlights the need for clear and understandable instructions in future actual malice cases. Without question, the primary challenge is to clarify how “constitutional malice” differs from ordinary, common law malice, which is generally understood to mean an act motivated by “spite, ill will, or hatred.” The difficulty is further complicated by the fact that the defendant’s dislike for, and desire to harm, the plaintiff, while itself insufficient to establish actual malice, are among the facts a jury may consider to determine whether constitutional “actual malice” has been proven. The key is for the judge to emphasize the central teaching of Garrison v. Louisiana and its progeny: The First Amendment forbids public figures from recovering damages for defamation premised on “a finding of malice based on an intent merely to inflict harm, rather than an intent to inflict harm through falsehood” (Garrison v. Louisiana, 379 U.S. 64, 73 (1964)). Accordingly, the instructions on fault must clearly and unmistakably focus the jury’s attention on the defendant’s actual subjective belief regarding the truth of what was published at the time of publication. So, how best to explain this all to those not trained in the law? One way judges can avoid the confusion between constitutional “actual malice” and ordinary common law “malice” is steadfastly to avoid mentioning the word “malice” in front of the jury.

Justices Warn Against the Risk of Juror Confusion in Actual Malice Cases

Between 1983 and 1989, there were a series of high-profile, public figure/public official libel cases tried to juries in federal courts in New York and the District of Columbia. Of those, Harte-Hanks Communications v. Connaughton, 491 U.S. 657 (1989), was the only one to be reviewed by the U.S. Supreme Court. Connaughton makes clear that while a defendant’s ill will, spite, or desire to harm the plaintiff is not alone sufficient to establish constitutional malice, evidence of such animus can be relevant in the mosaic of circumstantial evidence by which a plaintiff can establish constitutional malice. And there’s the rub: Common law “malice” can be relevant to the issue of “constitutional actual malice,” even if the former is not independently sufficient to establish the latter. And, in Connaughton, the Supreme Court recognized that “[t]he phrase ‘actual malice’ is unfortunately confusing in that it has nothing to do with bad motive or ill will” (id. at 666 n.7). Accordingly, the Connaughton Court urged trial judges to instruct juries “in plain English.”

Several years later, the Justices acknowledged that “the term [actual malice] can confuse as well as enlighten,” and they instructed trial judges that “[i]n place of the term actual malice, it is better practice that jury instructions refer to publication of a statement with knowledge of falsity or reckless disregard as to truth or falsity” (Masson v. New Yorker Magazine, Inc., 401 U.S. 496, 511 (1991)).

Pattern Jury Instruction Drafters Respond Accordingly

Colorado’s pattern civil jury instruction for cases in which actual malice is required states that the plaintiff must prove, by clear and convincing evidence, that the defendant either “knew the statement(s) was/were false or published with reckless disregard for the truth.” A second instruction that must be delivered in all such cases defines “reckless disregard of the truth” as “when, at the time of publication, the person publishing [the statement(s)] believes that the [statement(s)] is/are probably false or has serious doubts as to (its) (their) truth.” Both the first elements instruction and the second one defining “reckless disregard of the truth” serve to focus the jury’s attention on the crucial aspect of the defendant’s attitude toward the truth or falsity of the published statement(s). Most importantly, no mention is made of malice.

Michigan’s pattern civil jury instructions on defamation similarly avoid any mention of “actual malice” or “malice.” The jury instructions committee’s comment explains that this was a deliberate decision: “Although this instruction does not use the words ‘actual malice,’ it does incorporate the definition of that term. Use of th[at] term in jury instructions has been criticized.”

Other states whose pattern jury instructions refrain from mentioning “actual malice” in favor of “knowing or reckless falsity” include Arizona, California, Virginia, and even the state of New York, where the Palin case was tried.


This article is an abridged and edited version of one that originally appeared on page 6 of Communications Lawyer, Summer 2023 (38:3).

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Steve Zansberg

Law Office of Steven D. Zansberg, L.L.C.

Steve Zansberg is the founder of the Law Office of Steven D. Zansberg, L.L.C., in Denver, Colorado. He is a past chair of the ABA Forum on Communications Law.