Who can be “damaged” by defamation? Public figures and the requirement of malice.

Defamation actions usually concern showing that a person made a false statement about another person that harms them in some fashion. But the First Amendment puts one very important limitation on that: because we value the marketplace of ideas we need public matters capable of being freely talked about without threat of retribution. And that means that, for “public figures,” they must also show a speaker made a statement with “actual malice.”

What is a “public figure” in defamation? In practice, that means that a person who freely enters public debate is no longer a private figure. A politician or a journalist would be obvious cases. But it does not necessarily include a person involved in privately initiated litigation, or speaking once or twice at a public meeting. For some topics, a person might be a “limited purpose public figure” and may have to show malice if the alleged defamation falls within that topic. Some factors a court looks to are:

(1) Did the plaintiff have access to channels of effective communication?

(2) Did the plaintiff voluntarily assume a role of special prominence in the public controversy?

(3) Was the plaintiff trying to influence the resolution or outcome of the controversy?

(4) Did the controversy exist prior to the publication of the defamatory statement?

(5) Had the plaintiff retained public-figure status at the time of the alleged defamation?

“Actual malice” is defined as knowledge of a statement being false or recklessly disregarding whether it was false or not. This is more than the statement being untrue—the plaintiff must show that the defendant knew it was untrue. A reasonable chance the statement could be true can be enough to disprove actual malice and immunize a defendant from being held accountable.

Moreover, actual malice must be proved by “clear and convincing evidence”, not by a preponderance of evidence like in most civil matters. Traditionally, Virginia courts have defined it as a “degree of proof which will produce … a firm belief or conviction as to the allegations …. It is intermediate, being more than a mere preponderance, but not to the extent of … beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.”

For this reason, a client who thinks their defamation dispute might concern a public matter in any fashion is well advised to speak to counsel before pursuing a claim. Defamation cases always turn on very particularized circumstances that only an attorney with experience will recognize ahead of time. If you or someone you know has been the victim of people making unfounded accusations, call the attorneys at Winslow & McCurry at 804-423-1382 or email us at info@wmmlegal.com. We have years of experience helping clients know when to pursue a defamation claim to help them recover their hard-fought reputation in the community.​