malice standard in Virginia

2025To begin, it is well-established that the actual malice standard is not satisfied merely “through a showing of ill will or ‘malice’ in the ordinary sense of the term,” or that the “defendant published the defamatory material . . . to increase its profits.” Harte-Hanks, 491 U.S. at 666 -67 (citing Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967) (per curiam)).

2025Although a media company’s ill will toward a public official is relevant, the actual malice standard, properly understood, protects freedom of expression specifically for those who harbor ill will towards those officials, publish defamatory - 15 - statements for profit, or “‘resort[] to exaggeration’” or even “‘vilification’” “‘[t]o persuade others to [their] own point.’” Sullivan, 376 U.S. at 271 ; Harte-Hanks, 491 U.S. at 667 .

2025Sullivan, 376 U.S. at 287 ; Harte-Hanks, 491 U.S. at 688 (stating that the actual malice “standard is a subjective one”).

2025Although a media company’s ill will toward a public official is relevant, the actual malice standard, properly understood, protects freedom of expression specifically for those who harbor ill will towards those officials, publish defamatory - 15 - statements for profit, or “‘resort[] to exaggeration’” or even “‘vilification’” “‘[t]o persuade others to [their] own point.’” Sullivan, 376 U.S. at 271 ; Harte-Hanks, 491 U.S. at 667 .

2024As a result, “courts are to determine who is a ‘public official’ in accordance with ‘the purposes of a national constitutional protection,’ and not by reference to state law standards.” Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 284 (1987) (quoting Rosenblatt v. Baer, 383 U.S. 75, 84 (1966)). 54 “[I]n the context of the actual malice inquiry, a duty to investigate the accuracy of one’s statements does not arise until the publisher of those statements has a high degree of subjective awareness of their probable falsity.” Jackson, 274 Va. at 230 .

1993Further, since the lesser standard of negligence is subsumed in the actual malice standard, Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 288 , 362 S.E.2d 32, 37 (1987), cert. denied, 486 U.S. 1023 (1988), the trial court’s erroneous instruction on the negligence standard does not affect our inquiry here.

2025To meet that demanding burden, Virginia law required his complaint to include more than “conclusions of law that are couched as facts.” Theologis, 76 Va. App. at 600; Hubbard v. Dresser, 271 Va. 117, 122 (2006).

2025Furthermore, “reckless disregard for the truth . . . requires more than a departure from reasonably prudent conduct.” Jordan v. Kollman, 269 Va. 569, 580 (2005) (alteration in original) (quoting Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989) (finding the defendant needs to have had a high degree of awareness of probable falsity)). “[I]n the context of the actual malice inquiry, a duty to investigate the accuracy of one’s statements does not arise until the publisher of those statements has a high degree of subjective awareness of their probable falsity.” Jackson, 274 Va. a

2024As a result, “courts are to determine who is a ‘public official’ in accordance with ‘the purposes of a national constitutional protection,’ and not by reference to state law standards.” Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 284 (1987) (quoting Rosenblatt v. Baer, 383 U.S. 75, 84 (1966)). 54 “[I]n the context of the actual malice inquiry, a duty to investigate the accuracy of one’s statements does not arise until the publisher of those statements has a high degree of subjective awareness of their probable falsity.” Jackson, 274 Va. at 230 .

2024Drexel also argues that using a malice standard would be consistent with Turner v. Commonwealth, 67 Va. App. 46, 57, 60-61 (2016).

2024In Turner, 67 Va. App. at 56, 64 , this Court considered the constitutionality of Code § 18.2-423.2, which prohibits displaying nooses to communicate threats.

2012Thus, appellant was entitled to the instruction on unlawful wounding as it relates to the shooting of Robert. 2 The Commonwealth argues that our decision in Marsh v. Commonwealth, 32 Va. App. 669 , 530 S.E.2d 425 (2000), precludes us from considering this issue on the merits because appellant failed to proffer a written instruction on unlawful wounding despite the record’s 2 It is noted that the malice inquiry associated with the death of Clifford and that first-degree murder conviction does not necessarily transfer to the inquiry regarding the appropriateness of an unlawful wounding instructi

2012Thus, appellant was entitled to the instruction on unlawful wounding as it relates to the shooting of Robert. 2 The Commonwealth argues that our decision in Marsh v. Commonwealth, 32 Va. App. 669 , 530 S.E.2d 425 (2000), precludes us from considering this issue on the merits because appellant failed to proffer a written instruction on unlawful wounding despite the record’s 2 It is noted that the malice inquiry associated with the death of Clifford and that first-degree murder conviction does not necessarily transfer to the inquiry regarding the appropriateness of an unlawful wounding instructi

2007See Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657 , 688, 109 S.Ct. 2678 , 105 L.Ed.2d 562 (1989) (citing Garrison v. Louisiana, 379 U.S. 64 , 74, 85 S.Ct. 209 , 13 L.Ed.2d 125 (1964)).

2007See Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657 , 688, 109 S.Ct. 2678 , 105 L.Ed.2d 562 (1989) (citing Garrison v. Louisiana, 379 U.S. 64 , 74, 85 S.Ct. 209 , 13 L.Ed.2d 125 (1964)).

1988In the case before us, we find that the trial court’s directive to the jury that it could ignore parts of the malice instruction vio *349 lated due process. 1 “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970).