One of the hardest issues in defamation cases lie on whether the defendant is at fault for publishing defamatory statements. The common law creates strict liability on the defendant, which means that the defendant is legally responsible for defamation just for publishing the false statement, although the defendant is unaware that the statement is false. The cases which involve an interpretation of the First Amendment which was later revised the common law rules, particularly in circumstances where the public officials, public figures, or matters of public concern are involved.

The Common Law Rules

Under the common law, when the plaintiff shows that the statement is defamatory, the court assumed that the statement is false. The rules need not require that the defendant know that the statement is untrue or defamatory in nature. The only requirement is that the defendant must have purposely or negligently published the information or the statement.

The Public Officials and Public Figures

In New York Times v. Sullivan lawsuit, the Supreme Court acknowledges that the strict liability rules in defamation lawsuits lead to undesirable results when the members of the press report on the activities of public officials. In the strict liability rules of common law, the public official does not have to show or prove that the reporter is aware that the statement about the official is untrue to recover from the reporter. This can have the effects of daunting members of the press from commenting on the activities of a public official.

In the rules established in Sullivan, the public official cannot recover from the person who publishes a communication regarding the conduct of the public official unless the defendant knows that the statement is untrue or acted in reckless disregard of the truth or falsity of the statement. This rule is called “actual malice,” even though the malice in this sense does not refer to ill-will. It means that the real malice standard means that the knowledge of the truth or falsity of the statement of the defendant. The public officials usually include the employees of the government who have the responsibility for the affairs of the government. For the First Amendment rule to apply to the public official, the communication should be related directly to his/her office. A public figure refers to somebody who gains a relevant level of popularity or notoriety in general or in the context of a specific issue or controversy. Although these figures have no official role in the government affairs, they usually hold influence over the decisions of the government or by the public. Some examples of public figures are many and celebrities, advocates who are involved in public debates, and prominent athletes.

Private Persons

This is a case where the communication is directed at an individual who not a public official or not a public figure. A good example is the Gertz v. Robert Welsh, Inc. case in 1974. The succeeding decisions have established various standards. The court in Gertz concluded that the actual malice standard that is used in New York Times v. Sullivan should not be applied to cases which involve a private individual. But the Court has also ruled that the common law strict liability regulation gives burden the publishers and broadcaster.

In the Restatement (Second) of Torts, the defendant who publishes an untrue and defamatory communication or statement regarding a private person is held responsible to the person only if the defendant acts with actual malice or acts negligently in failing to determine whether the statement is untrue or defamatory.