Actual Malice Proofs—Meant to Be Difficult, Not Impossible Part I

When a public figure brings a defamation lawsuit, he is required to prove that the defendant acted with actual malice, meaning he must present evidence that the defendant knew his statement to be false or that he had serious doubts as to the statement’s veracity.  The public figure’s burden is meant to be difficult; it is not, however, meant to be impossible.

If a recent ruling by the Judge Panel of the Appellate Division represents the state of the law, then the chances of a public figure succeeding in a defamation case are about nil.  In that case, Schneider v. Unger, (App. Div. Jan. 10, 2013), the Mayor of Long Branch sued his electoral opponents, who had accused him of taking bribes from Solomon Dwek.  The defendants argued they relied on Dwek’s testimony in Federal Court as the basis for their assertions.  It was a case in which Dwek was a government witness as the agent provocateur in a sting against officials from towns that did not include Long Branch.  Neither Schneider or his attorneys, thus, had the opportunity to cross-examine.

The mere existence of that under oath testimony, according to the Appellate Panel, was a sufficient basis to dismiss Mayor Schneider’s claims.

Yet, while the standard for considering whether actual malice exists, i.e., what the defendant knew or believed when he made the allegedly defamatory statement, is subjective, courts have created objective criteria for making that determination.  As the Supreme Court observed in Durando v. The Nutley Sun,  209 N.J. 235 (2012):

Although the actual malice standard is difficult to meet, a plaintiff will satisfy that standard – despite an editor’s professions of good faith – if he can show a story was “fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call.  St. Amant [v. Thompson, 390 U.S. 727] at 732.  Likewise, a publisher will not prevail when his allegations are so inherently improbable that only a reckless man would have put them in circulation or when “there are obvious reasons to doubt the veracity of an informant or the accuracy of his reports. (Emphasis added).

Solomon Dwek is someone who had lied to numerous investors while he pilfered their funds, had forged documents at will and whose skill at prevarication led the government to use him in misleading targeted officials.  If ever there were “obvious reasons to doubt the veracity of an informant or the accuracy of his reports,” it was presented in the Schneider case.

Yet the Appellate Division never considered Dwek’s well known history, incredibly relying on Dwek’s under oath allegations as the basis to affirm the Trial Court’s grant of summary judgment to the defendants.