How to prove actual malice

Jared J. Roberts

In defamation cases involving public figures, one phrase looms larger than any other: actual malice. It’s the legal standard that often decides whether a plaintiff can win a libel case. Under the rule set by New York Times Co. v. Sullivan (1964), a public figure has to show that the defendant made a false statement knowing it was false or with reckless disregard for the truth. In other words, the question isn’t just was it wrong? — it’s did they know or seriously doubt it was wrong?

While this is a high bar, over the years, courts have identified several ways to meet it, mostly by piecing together evidence that shows what the defendant knew—and when they knew it.

1. Showing They Knew It Was False

The easiest way to prove actual malice is evidence showing the defendant published something they knew wasn’t true. This can come from emails, text messages, and internal notes. For example, if an editor writes, “I don’t think this is accurate, but let’s run it anyway,” that is actual malice in its purest form.

Even if the defendant doesn’t admit it outright, you can still show knowledge of falsity through their actions—like continuing to repeat a claim after a source retracted it or ignoring clear contradictory evidence.

2. Proving Reckless Disregard for the Truth

Because most defendants don’t confess to lying, many cases hinge on the second half of the definition: reckless disregard for the truth. This means the publisher had serious doubts about what they were saying but went ahead anyway. For example, relying on a questionable source without checking the facts, or ignoring documents that clearly undercut the story, can point to recklessness.

Courts often look for “red flags”—signs that would make any reasonable person pause before publishing. When those red flags are ignored, the plaintiff’s case gets stronger.

3. Evidence of Willful Blindness

Sometimes the problem isn’t that the defendant knew the truth, but that they didn’t want to know. This is often called purposeful avoidance of the truth. If a journalist or publisher avoids fact-checking because they suspect what they’ll find will contradict their story, that counts as actual malice too. The law doesn’t let defendants escape liability by sticking their heads in the sand. This often turns on factors of whether the news story was “hot,” and whether there were any known issues with the source, to illustrate whether the defendant simply avoided the truth.

4. Other circumstantial evidence

While other evidence is generally insufficient on its own, the combination of many factors can amount to actual malice.  For example, a complete disregard for professional standards can be strong supporting evidence. If a news outlet skips fact-checking steps, bypasses editors, or fails to reach out to the subject for comment, those lapses can add up. Expert witnesses sometimes testify about what a competent journalist would have done—and how far the defendant fell short.

Furthermore, ill will, bias, and motive can provide circumstantial evidence. If a defendant clearly had a vendetta, or had expressed a desire to “take down” the plaintiff, that hostility can add weight to other evidence. When motive, recklessness, and bad faith intersect, the argument for actual malice becomes much more persuasive.

In conclusion, actual malice is a tough standard but not impossible. When plaintiffs can show a combination of willful ignorance, reckless choices, and disregard for the truth, they can meet that bar.