Actual Malice, A Lineage

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2	Year	Case Name	Case No.	Civ/Cr	Jurisdiction	Branch	Belief in Truth/Duty to Speak	Quotes/Notes
3	1786	Weatherston v. Hawkins	1 Term R. 110	Civ	England	Privilege		Not an actual malice case, but an early case solidifying a privilege that will later become relevant: "an action will not lie by a servant against his former master for words spoken by him in giving a character of the servant." Weatherston later became the basis on which counsel in Lewis v. Few argued for privilege.
4	1797	Knobell v. Fuller	Peak's Ev. App. xciii	Civ	England	Mitigation	Defendant argued, and the court accepted, evidence in mitigation of damages "to prove that though the plaintiff was not prosecuted for the offence [alleged in the defamation] . . . there was nevertheless strong grounds of suspicion against him"	Earliest evidence of a plaintiff offering a lack of knowledge of falsity, or, conversely, a belief in the truth in a defamation case.
5	1803	Kennedy v. Gregory	1 Binney 83	Civ	Pa.	Mitigation	"And under these circumstances, I think it was competent to the defendant to shew by Newport, that he had said so to him, to take off all presumption that the charge was a fabrication of his own, merely in mitigation of damages."
6	1804	Harwood v. Astley	1 Bos & Pul. (N.R.) 46	Civ	England	Privilege	Defendant argued, unsuccessfully, "The person who offers himself as a carididate invites the publication of all his faults. It is for the benefit of the public that his character should be discussed arid made known. Being a candidate for a popular election, he waves all right to an action for defamation, founded upon matters spoken of hini in that character."
7	1806	Williams v. Mayer	1 Binney 90	Civ	Pa.	Mitigation	"the defendants who were sued for slander in charging the plaintiffs with felony, might on general principles give evidence of circumstances which had induced a suspicion of felony."
8	1807	Larned v. Buffington	3 Mass. 546	Civ	Mass.	Mitigation	"When, through the fault of the plaintiff, the defendant, as well at the time of speaking the words, as when he pleaded his justification, had good cause to believe they were true, it appears reasonable that the jury should take into consideration this misconduct of the plaintiff to mitigate the damages."	Mass. later rejects doctrine, as does Mich.
9	1808	Morris v. Duane	1 Binney 90	Civ	Pa.	Mitigation	"Can it be, that like damages should be given against two defendants, one of whom received his information from such sources as were entitled to a certain degree of credit, while the other devised it by his own wicked imagintion? I think it cannot. Such evidence certainly goes to the degree of malice, and must weigh with the jury according to the circumstances which attend it."
10	1809	Lewis v. Few	5 Johns 1	Civ	N.Y.	Privilege	Defense counsel asserted, "Where words are spoken, or a letter written, bonafide, by a master, concerning the character of a servant, though the specific acts or crimes are charged, and which turn out to be false, yet no action lies. The words must be proved to be malicious, as well as false.*	Defendant's counsel relied on Weatherston, supra; Divided court.
11	1809	Leicester v. Walter	2 Camp. 253	Civ	England	Mitigation	Defendant sought to offer, in mitigation of damages, proof that "before and at the time of the publication of the libel there was a general suspicion of the Plaintiff's character and habits, that it was generally rumoured that such a charge had been brought against him."	Inquiry here appears to be more consistent with the modern day doctrine of libel proof plaintiffs, than, necessarily, the actual malice rule.
12	1813	_____ v. Moor	1 M & S 284	Civ	England	Mitigation	Sought to offer evidence that others had "heard reports in the neighbourhood that the plaintiff had been guilty of similar practices"	Upon being presented with the intention to give the evidence, the plaintiff nonsuited. Case makes the distinction between offering probable cause evidence to mitigate damages versus offering it to demonstrate the truth of the matter--which must be specially pleaded.
13	1816	Cheatwood v. Mayo	19 Va. 16	Civ	Va.	Mitigation	No opinion, affirming exclusion of mitigation evidence.	Shows that counsel in America were well aware of Knobell; includes (in this version) note about the uncertainty of the law of malice as of 1850.
14	1818	Buford v. McLuny	1 Nott. & McC. 268	Civ	S.C.	Mitigation	"I apprehend there can be no doubt. A person may prove, in mitigation of damages, such facts and circumstances as show a ground of suspicion, not amounting to actual proof of plaintiff's guilt."
15	1818	Mayrant v. Richardson	1 Nott & McC. 347	Civ	S.C.	Non-actionable	"when one becomes a candidate for public honors, he makes profert of himself for public investigation. All his pretentions become proper subjects of enquiry and discussion. He makes himself a species of public property, into the qualities of which every one has a right to enquire, and of the fitness of which, every one has a right to judge and give his opinions. The ordeal of public scrutiny, is many times, a disagreeable and painful operation. But it is the result of that freedom of speech, which is the necessary attribute of every free government, and is expressly guaranteed to the people of this country by the Constitution."
16	1820	Bailey v. Hyde	3 Conn. 463	Civ	Conn.	Mitigation	"It is equally indisputable, that evidence which falls short of a justification, may be competent to mitigate damages; and that the defendant, on the general issue, may prove, in mitigation of damages, such facts and circumstances as shew a ground of suspicion, not amounting to actual proof of the guilt of the plaintiff."
17	1821	Stowe v. Converse	4 Conn. 17	Civ	Conn.	Mitigation	"The rule is now well settled, that any facts and circumstances, arising from the misconduct of the plaintiff, though not amounting to the offence charged, which occasioned the speaking of the words, or afforded ground of suspicion of their truth, may be proved in mitigation of damages."
18	1822	Jones v. Stevens	11 Price 233	Civ	England	Mitigation	Rejecting rule in Leicester
19	1822	Treat v. Browning	4 Conn. 408	Civ	Conn.	Mitigation	"on the general issue, he may prove, in mitigation of damages, any acts of the plaintiff similar to the offence imputed, which shew a ground of suspicion, and tend to diminish the presumption of malice."
20	1824	Remington v. Congdon	2 Pick. 310	Civ	Mass.	Privilege		Probable cause to believe and a duty to disclose created a privilege.
21	1825	Henson v. Veatch	1 Blackf. 369	Civ	Ind.	Mitigation	Defendant sought to offer, in mitigation of damages, proof that "he had strong suspicions that the words were true"	Court rejected offer on unclear grounds.
22	1825	Bodwell v. Swan	3 Pick. 376	Civ	Mass.	Mitigation	"It appears to us that the rejection of evidence offered by the defendants, tending to prove that the words spoken and charges made were true, in order to show that the wife believed what she said to be true, was right."	Rejected principle, but nevertheless relied on by Burnham, infra.
23	1826	Nelson v. Evans	1 Dev. 9	Civ	N.C.	Mitigation
24	1827	Wilson v. Apple	3 Ohio 270	Civ	Ohio	Mitigation	"There is a difference between a justification and an excuse. The one goes to the right of recovery, the other to the amount to be recovered. For the purpose of showing malice, the plaintiff may prove the speaking of words."
25	1827	Root v. King	7 Cow. 613	Civ	N.Y.	Mitigation	"Had such evidence been offered under the general issue alone, with a view to show the court and jury that there was no malice in the defendants, because in reality they only repeated what every one else did, and that the plaintiff's conduct led them to believe was the truth, a very different question would have been presented."	Dicta
26	1828	Skinner v. Powers	1 Wend 451	Civ	N.Y.	Mitigation	"It cannot surely be necessary to go into an examination of authorities to shew, that the publication in a newspaper of rumors, is not justified by the fact that such rumors existed. It is proper in mitigation, and in that way the defendant had the benefit of it."
27	1831	Bradley v. Heath	12 Pick. 163	Civ.	Mass.	Privilege	"Where words imputing misconduct to another ... are spoken in good faith, to those who have an interest in the communication, and a right to know and act upon the facts stated, no presumption of malice arises. ... With this view it was competent to show that the manner of the plaintiff's voting at the time the words were uttered, was such as to excite suspicion and induce a belief, that the plaintiff put in more votes than one. It was in effect proof of probable cause, which is allowable when the occasion of speaking the words affords primâ facie evidence of an excuse for speaking them."	Defendant was an election official and statement was made in the context of that duty; nevertheless, court seems to offer two sepaate privileges.
28	1832	Gilman v. Lowell	8 Wend. 573	Civ	N.Y.	Mitigation	"the facts offered to be proved show that the defendant really believed that he had been deceived by the plaintiff"	Court ordered new trial to permit defendant to offer such evidence; provides discussion of other jurisdiction's treatment of evidence in mitigation.
29	1834	Warr v. Jolly	6 Car & P. 497	Civ	England	Privilege	"The words are privileged by the occasion, unless you are satisfied that they were not spoken bona fide, and that the defendant was actuated by malice; and it lies on the plaintiff to shew that the defendant was actuated by malicious motives."	Case involving appointment of a minister and allegation that at his prior appointment he had acted with intemperance.
30	1834	Vanderzee v. McGregor	12 Wend. 545	Civ	N.Y.	Privilege		Recognizing where a duty existed, "The question of malice is generally submitted to the jury, accompanied with proper instructions from the court; but where there is no evidence of malice, except the mere publication, and that is of a privileged character, if the jury should find a verdict for the plaintiff, it would be the duty of the court to grant a new trial."
31	1834	Toogood v. Spyring	1 C.M. & R. 180	Civ	England	Privilege	"the law considers such [defamatory] publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice."	Toogood marks the first case discovered where discussion about honest belief is treated in the context of privilege approvingly.
32	1837	Beehler v. Steever	2 Whart. 313	Civ	Pa.	Mitigation	"If a person truly believes, although mistaken in point of fact, that he has a good cause, and in a moment of irritation and passion makes a criminal charge against another, he is surely not as culpable as where the accusation is made without any reason, either actual or supposed."
33	1837	McNutt v. Young	35 Va. 542	Civ	Va.	Mitigation
34	1837	State v. Burnham	9 N.H. 34	Cr	N.H.	Privilege	"Matter in excuse, in a prosecution for a libel, is where the defendant, upon a lawful occasion, proceeded with good motives--upon probable grounds--upon reasons which were apparently good, but upon a supposition which turns out to be unfounded."	Court delineates justification from excuse where justification means truth, for a lawful purpose, and excuse means good motives, for lawful grounds, irrespective of truth.
35	1841	Woods v. Anderson	5 Blackf. 598	Civ	Ind.	Mitigation
36	1841	Sanders v. Johnson	6 Blackf. 50	Civ	Ind.	Mitigation		Consistent with Larned
37	1843	Petrie v. Rose	5 Watts & Serg. 364	Civ	Pa.	Mitigation	"In slander the defendant may, for the purpose of mitigating the damages, show that the cause and occasion of uttering the words were circumstances of suspicion known by him, or circulated or acknowledged by the plaintiff, and communicated to the defendant; for these tend directly to excuse or extenuate the conduct of the party, and affect the amount of damages."
38	1845	White v. Nicholls	44 U.S. 266	Civ	Sup. Ct.	Privilege	"That the description of cases recognised as privileged communications, must be understood as exceptions to this rule, and as being founded upon some apparently recognised obligation or motive, legal, moral, or social, which may fairly be presumed to have led to the publication, and therefore prima facie relieves it from that just implication from which the general rule of the law is deduced."
39	1847	Wetherbee v. Marsh	20 N.H. 561	Civ	N.H.	Mitigation	"We conclude, therefore, in the conflict of opinion which has undoubtedly existed on this question, that the better reason is with those who admit the evidence to go to the jury, to show that however unable the defendant has been to prove the truth of the words uttered, yet the calumny they contain is one under which the plaintiff so unquestionably lay before they were spoken, that less damage has resulted from them than if the reputation which they aspersed had been previously pure."
40	1847	Williams v. Miner	18 Conn. 464	Civ	Conn.	Mitigation	"And we think that the facts offered to be proved, by the deposition of Mrs. Dow, should have been admitted, to affect the question of damages in the case, although they had a tendency to prove the truth of the charge."	Departs from the idea that facts tending to show that the alleged defamation is true can also be pled under the general issue.
41	1849	Swan v. Tappan	59 Allen 104	Civ	Mass.	Privilege	"If the plaintiff can show that the publication was false in any material respect, and can also show special damage, done to himself, by means of it, that will make a primâ facie case for the plaintiff, and as standing thus malice would be presumed. But if the defendant can show that the publication was honestly made by him believing it to be true, and that there was a reasonable occasion or exigency in the conduct of his own affairs, in matters where his interest was concerned, which fairly warranted the publication, such proof would rebut the presumption of malice, and bring the publication within the class of privileged publications, and form a good defence to the action, unless the plaintiff can show express malice, or malice in fact, which will of course be a question for the jury."	Follows logic of Toogood, supra.
42	1854	Bush v. Prosser	11 N.Y. 347	Civ	N.Y.	Mitigation		Reversing prior New York holdings prohibiting the admission of evidence tending to prove the truth to disprove malice.
43	1855	Van Derveer v. Sutphin	5 Ohio St. 293	Civ	Ohio	Mitigation		Follows logic of Bush, supra.
44	1856	Reynolds v. Tucker	6 Ohio St. 516	Civ	Ohio	Mitigation	"For the purpose of mitigating damages it was competent for the defendant, under the general issue, to prove facts, connected with the speaking of the words, which were from the nature of them, calculated to induce the belief, on his part, that the plaintiff's was wife guilty of the impropriety imputed to her, provided such proof did not establish a justification. If an unmarried man and woman live alone in the same house, it may and very likely would raise an inference unfavorable to the latter's chastity."
45	1856	Gassett v. Gilbert	72 Mass. 94	Civ	Mass.	Privilege	"If they believed that the plaintiff, after her authority as such agent had ceased, was falsely representing herself as still authorized to collect subscriptions in behalf of the corporation, and was thereby wrongfully obtaining money from the public, they were justified in publishing a notice, couched in such language as was necessary and proper to put persons on their guard against her unauthorized representations, and to prevent her from receiving money under the false pretence that it was collected for the use and benefit of the corporation."	Follows logic of Toogood, supra.
46	1868	Palmer v. City of Concord	48 N.H. 211	Civ	N.H.	Privilege	"In this country every citizen has the right to call the attention of his fellow citizens to the mal-administration of public affairs or the misconduct of public servants, if his real motive in so doing is to bring about a reform of abuses, or to defeat the re-election or re-appointment of an incompetent officer. If information given in good faith to a private individual of the misconduct of his servant is ““privileged,” equally so must be a communication to the voters of a nation concerning the misconduct of those whom they are taxed to support and whose continuance in any service virtually depends on the national voice. To be effectual, the latter communication must be made in such form as to reach the public. If the end which Palmer had in view, the controlling, moving purpose of the publication, was to inform the public of the manner in which the war was conducted, for the purpose of inducing citizens to use their influence with government to repress abuses, or to vote for members of Congress and other elective officers who would check such abuses, reform the army, stop the war, or conduct it in a more humane manner, his end or motive was justifiable. If the end to be attained is “to give useful information to the community, or to those who have a right and ought to know, in order that they may act upon such information, the occasion is lawful;” If such were Palmer's motives he is not guilty of libel if the facts he alleged were true, or if he had probable cause to believe, and did believe, that they were true. But if he had no justifiable motive, inasmuch as the natural and inevitable tendency of the publication is to injure and degrade, he is guilty of libel even though the facts alleged in the articles were true."
47	1873	Carpenter v. Bailey	53 N.H. 590	Civ	N.H.	Privilege
48	1877	Mott v. Dawson	46 Iowa 533	Civ	Iowa	Privilege	It appears from the evidence that the alleged slanderous words in all the other counts of the petition were spoken shortly before the general election in October, 1873. The plaintiff was a candidate at said election for member of the board of supervisors of said county. As we understand the evidence, the charge was made against the plaintiff by the defendant to persons who were electors, and whose suffrages were sought by the candidacy of the plaintiff.
49	1879	Shurtleff v. Stevens	51 Vt. 501	Civ	Vt.	Privilege	If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.
50	1881	Marks v. Baker	28 Minn. 162	Civ	Minn.	Privilege
51	1881	Atkinson v. Detroit Free Press	46 Mich. 341	Civ	Mich.	Privilege
52	1882	Crane v. Waters	10 F. 619	Civ	D. Mass.	Privilege
53	1882	Miner v. Post & Tribune Co.	49 Mich. 358	Civ	Mich.	Privilege
54	1884	State v. Balch	31 Kan. 465	Crim	Kan.	Privilege	If the supposed libelous article was circulated only among the voters of Chase county, and only for the purpose of giving what the defendants believed to be truthful information, and only for the purpose of enabling such voters to cast their ballots more intelligently, and the whole thing was done in good faith, we think the article was privileged and the defendants should have been acquitted, although the principal matters contained in the article were untrue in fact, and derogatory
55	1885	Kent v. Bongartz	15 R.I. 72	Civ	R.I.	Privilege
56	1885	Express Printing Co. v. Copeland	64 Tex. 354	Civ	Tex.	Privilege	Whatever pertains to the qualification of the candidate for the office sought is a legitimate subject for discussion and comment, provided that such discussion and comment is not extended beyond the prescribed limits. That is, all statements and comments in this respect must be confined to the truth, or what in good faith and upon probable cause is believed to be true . . . . In our form of government the supreme power is in the people; they create offices and select the officers. Then, in the exercise of this high and important power of selecting their agents to administer for them the affairs of government, are the people to be denied the right of discussion and comment respecting the qualification or want of qualification of those who, by consenting to become candidates, challenge the support of the people on the ground of their peculiar fitness for the office sought?
57	1886	Briggs v. Garrett	111 Pa. 404	Civ	Pa.	Privilege	The difference between an honest mistake made in the pursuit of a proper object, and a willful falsehood coined for the purpose of deception, is so palpable that we may well be excused from dwelling upon it at length. It is mistakes, not lies, that are protected under the doctrine of privilege. A communication, to be privileged, must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause. When so made, in good faith, the law does not imply malice from the communication itself
58	1893	Byrd v. Hudson	113 N.C. 203	Civ	N.C.	Privilege
59	1897	McNally v. Burleigh	91 Me. 22	Civ	Me.	Privilege	To be privileged, the words must have been published without actual malice, in an honest belief of their truth, and with that belief based upon reasonable or probable cause, after a reasonably careful inquiry.
60	1900	Boucher v. Clark Publishing Co.	14 S.D. 72	Civ.	S.D.	Privilege
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