Reply #57: Here information on that

[ProSense]

An article by John Dean:

Scalia revealed that he felt the landmark 1964 ruling in New York Times v. Sullivan was wrong. That decision held that when a plaintiff in a defamation lawsuit is a public figure, such as a government official, the plaintiff can only prevail if he or she can show the statement was made with "actual malice" - a problematic phrase.

The requirement of "actual malice" means that the person publishing the defamatory statement must have done so with one of two states of mind: Either he knew the statement was false, or he published it with reckless disregard to whether it was true or false.

Simple negligence, then, is not enough under New York Times v. Sullivan: "Reckless disregard" requires that there had to have been a compelling reason to prompt taking some care before making the statement.

In practice, the "actual malice" standard means that the plaintiff usually loses. It's virtually impossible to prove with clear and convincing evidence (as is also required when the standard applies) that the publisher of the false statement either knew it was false, or published it despite good reason to more fully investigate the matter, thus recklessly.

Snip...

The constitutional law of defamation is a disaster. It is nearly incomprehensible. It is unfair. It is unjust. And it is long overdue for a correction. Sadly, I could randomly select dozens upon dozens of cases to make the same point the Lohrenz case makes.

Scalia is correct: Everybody should be able to protect their reputations. But not until New York Times v. Sullivan -- which literally changed the law of the land overnight -- is reversed, will that ideal be a reality.

Hopefully, Justice Scalia was giving us a hint of coming changes at the Court, when defamation cases are heard. At a minimum, the Court ought to make clear that only true public figures are deemed public figures for defamation law - for current law only encourages the victimization of private persons. Better yet, the Court should chose a more realistic standard than "actual malice" - one under which even public figure plaintiffs who are lied about, can get justice.

http://writ.news.findlaw.com/dean/20051202.html