A Writer's Guide to the First Amendment: The Actual Malice Trap

Last month I mentioned that public officials and public figures who sue the press for libel have to prove that the press acted with “actual malice.” That’s the legal term, but it’s a bit of a misnomer. That’s because the U.S. Supreme Court has defined actual malice as “knowledge that [the statement] was false or with reckless disregard for whether it was false or not.” (New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964))

Just as a reminder, I am using the term “press” to include any media that has the potential to reach a large audience. That includes your novel or your blog.

For legal purposes, malice is not synonymous with ill will. You can have the best intentions and even admire the person you write about. But if you know that what you write is false or have serious doubts about its truth, that’s enough for a jury to find that you acted with actual malice.

While we’re at it, let’s apply the actual malice test to that female drug-addict in your novel—the one who shares a lot of characteristics with your sister. But your sister doesn’t use drugs, and you know it. You just thought it made a more compelling story. Unfortunately, the fact that you know it isn’t true turns it into actual malice. And if people who know your sister recognize her, no disclaimer will help. So make sure you mix and match traits or change enough characteristics to disguise your model.

Let’s go back to the reckless disregard part of the test. What if you aren’t sure that your facts are true? Uncertainty isn’t enough to prove reckless disregard—it takes serious doubts. Or what if you thought your facts were correct but your investigation was careless or incomplete? It takes more than carelessness to show actual malice. On the other hand, inaction may be sufficient. If you purposefully avoid the best sources because they may prove you wrong, that could show actual malice. You cannot ignore your obligations by intentionally looking the other way.

So what should you do? Don’t make factual statements about someone in a non-fiction context unless you have reason to believe the statements are true.

And don’t write a novel about your sister.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is a Kirkus’ Indie Books of the Month Selection. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.