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53 La. L. Rev. (1993)


In New York Times Co. v. Sullivan, the United States Supreme Court extended First Amendment guarantees to defamation actions. Many greeted the Court's decision with joy. After the decision, many years elapsed during which "there were virtually no recoveries by public officials in libel actions."

The most important component of the New York Times decision was its "actual malice" standard. This standard provided that, in order to recover against a media defendant, a public official must demonstrate that the defendant acted with "malice." In other words, the official must show that the defendant knew that the defamatory statement was false or acted in reckless disregard for the truth. The Court adopted this standard because it felt that free and robust debate inevitably generates erroneous statements, and that some degree of error must be tolerated in order to provide "breathing space" for free expression.

But the New York Times decision may no longer be providing the breathing space that it once did. Recent studies suggest that libel litigation in the United States is increasing' and that defamation awards occur more frequently and in much larger amounts. Not only is libel litigation on the increase, but the cost of that litigation has become prohibitive. This is due, in part, to the fact that the actual malice standard encourages plaintiffs to seek extensive discovery of editorial decision-making processes.

Despite these dire assessments, it is possible to argue that the New York Times decision still provides adequate protection to libel defendants. Indeed, one might even argue that it provides too much protection. British defamation law is significantly more restrictive than U.S. law. British plaintiffs have been able to recover substantial judgments against newspapers and broadcasters. Nevertheless, the British press seems to be free and robust. England has plenty of newspapers, including tabloids and scandal sheets. Moreover, throughout Britain, there seems to be more concern about the need to control the press, in an effort to prevent "irresponsible journalism," than there is about the need for an actual malice standard.

The British situation raises questions about the need for an actual malice standard in the United States. This question is not purely academic. If the standard is not necessary, then a strong argument can be made for eliminating it. Every defamation case involves a conflict between the public interest in free speech, and the state interest in providing redress to those who have been defamed. If the actual malice standard is not essential to insure breathing space for free expression, then it should be abandoned.

In an effort to explore these conflicting views of the New York Times decision, this article compares how the British media functions under Britain's more restrictive defamation laws with how the U.S. media functions under the actual malice standard. It does so based on interviews with reporters, editors, defamation lawyers, and others involved in the media in an effort to understand how they decide which stories to publish, and to gain some understanding of how libel laws affect editorial decisionmaking.



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