Vanderbilt Law Review

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At common law, defamation was a strict liability tort. A defendant could be held liable for publishing a false and defamatory statement absent any evidence that the defendant suspected the statement's falsity or even its defamatory potential, and despite the fact that the defendant used reasonable care in attempting to ascertain the truth. The plaintiff only had to prove fault by the publisher when the plaintiff was attempting to overcome a qualified privilege or establish the liability of a secondary publisher such as a news vendor.' Since the United States Supreme Court's decision in New York Times v. Sullivan, however, proof of fault has become a central element in many defamation cases. In the landmark Sullivan case, the Court held that the first amendment requires a plaintiff who is a public official to establish by clear and convincing evidence that the defendant published the defamatory statement with "actual malice." The Sullivan Court defined actual malice as knowledge of the falsity of the statement or reckless dis-regard for its truth.

In St. Amant v. Thompson' the Court indicated that the focus of the actual malice standard was subjective in nature and that, in order to establish "reckless disregard for the truth," the plaintiff must show that the defendant published the defamatory statement in spite of serious doubts as to its truth. The focus on the defendant's fault became even more pronounced in 1967 when the Court extended the actual malice standard from public officials to public figures in Curtis Publishing Co. v. Butts. Finally in 1974, in Gertz v. Robert Welch, Inc.,s the Court held that a state may not permit a plaintiff who is neither a public official nor a public figure to recover in a defamation action against the press absent proof that the defendant was at fault." Although Gertz did not explicitly indicate, lower courts and commentators have assumed that, at the very least, the fault requirement pertains to the defendant's failure to discover the falsity of the statement, although it may extend to the failure to appreciate the defamatory nature of the statement as well. Likewise, Gertz did not specify the degree of fault that must be shown although most states have assumed that, at a minimum, a state must require the plaintiff to prove that the defendant was negligent. Since Gertz proof of fault has become a significant issue in virtually any defamation case against the press once a prima facie case is otherwise established.

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