Text messages lower the bar for proving malice in Fox News suit

By Layne Bruce

The first time I recall hearing the phrase “absence of malice” was from a film of that title released in 1981 starring Paul Newman and Sally Field.

Layne Bruce

Newman plays a liquor wholesaler falsely accused in the disappearance of a local union leader and whose life is wrecked when the news hits the papers. Field is the reporter who’s manipulated by a corrupt district attorney who wants to squeeze Newman for information about another case.

It’s a convoluted work of fiction, but it’s one of my favorite movies about journalism and what can go wrong when people motivated by careerism forget that their actions can have very real and dramatic consequences for many people around them.

After studying journalism in college, I came to understand “absence of malice” as a legal term that also represents an incredibly high burden of proof that must be met by litigants who claim they’ve been defamed by the press.

When a plaintiff sues a media outlet for defamation, they must prove that whatever inaccuracies the outlet reported were borne of actual malicious intent. In other words, the defendants in such cases must act intentionally and spread false information knowingly.

That must be provable.