malice standard in Washington

2025The United States Supreme Court created the malice standard for public officials, in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), to avoid this interference with free speech.

2007Amant v. Thompson, 390 U.S. 727, 732 , 88 S.Ct. 1323 , 20 L.Ed.2d 262 (1968) ("[n]either lies nor false communications serve the ends of the First Amendment"); Linn v. United Plant Guard Workers of Am., Local 114, 383 U.S. 53, 63 , 86 S.Ct. 657 , 15 L.Ed.2d 582 (1966) ("the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth"). ¶ 43 The actual malice standard thus accommodates both the "national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," New York Times, 376 U.S. at 270 , 84 S.Ct. 710 , an

2007Just as no greater standard than the actual malice standard is required when assessing whether false statements are unprotected by the First Amendment, no lesser standard may be used, either. "[N]either the defense of truth nor the standard of ordinary care would prevent self-censorship and the subversion *841 of First Amendment policies." Snortland, 306 N.W.2d at 623 .

2007Just as no greater standard than the actual malice standard is required when assessing whether false statements are unprotected by the First Amendment, no lesser standard may be used, either. “[N] either the defense of truth nor the standard of ordinary care would prevent self-censorship and the subversion of First Amendment policies.” Snortland, 306 N.W.2d at 623 .

1996Thompson relies on Herron v. KING Broadcasting Co., 112 Wash.2d 762 , 776 P.2d 98 (1989), where this court, reversing summary judgment in favor of a defamation defendant in a case governed by the actual malice standard, cited Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56 , 106 S.Ct. 2505, 2513-14 , 91 L.Ed.2d 202 (1986) for the proposition that "[a]ll the elements of defamation must be shown with convincing clarity." Herron, 112 Wash.2d at 768 , 776 P.2d 98 .

1996Thompson relies on Herron v. KING Broadcasting Co., 112 Wash.2d 762 , 776 P.2d 98 (1989), where this court, reversing summary judgment in favor of a defamation defendant in a case governed by the actual malice standard, cited Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56 , 106 S.Ct. 2505, 2513-14 , 91 L.Ed.2d 202 (1986) for the proposition that "[a]ll the elements of defamation must be shown with convincing clarity." Herron, 112 Wash.2d at 768 , 776 P.2d 98 .

2007Garrison, 379 U.S. at 74 (emphasis added) (some alterations in original). ¶52 The actual malice standard for determining when speech is constitutionally protected has also been applied in a case involving a wrongful dismissal action brought by a public school teacher alleging he was unconstitutionally dismissed for making false statements in discussing issues of public concern, Pickering v. Board of Education, 391 U.S. 563 , 88 S. Ct. 1731 , 20 L.

2007Garrison, 379 U.S. at 74 (emphasis added) (some alterations in original). ¶52 The actual malice standard for determining when speech is constitutionally protected has also been applied in a case involving a wrongful dismissal action brought by a public school teacher alleging he was unconstitutionally dismissed for making false statements in discussing issues of public concern, Pickering v. Board of Education, 391 U.S. 563 , 88 S. Ct. 1731 , 20 L.

2015Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 44-45 , 91 S. Ct. 1811 , 29 L.

1996Ed. 2d 296 (1971), a plurality of the Court held that the actual malice standard should focus on "all discussion and communication involving matters of public or general concern,” Rosenbloom, 403 U.S. at 44 , rather than on the status of the person defamed: If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not "voluntarily” choose to become involved.

2008Computers, Inc. v. Cowles Publishing Co., 114 Wash.App. 371 , 57 P.3d 1178 (2002), and applied an actual malice standard of fault.

2008App. 371 , 57 P.3d 1178 (2002), and applied an actual malice standard of fault.

2025Herron v. KING Broadcasting Company, 112 Wn.2d 762, 775, 776 P.2d 98 (1989), holding modified by Richmond v. Thompson, 130 Wn.2d 368, 922 P.2d 1343 (1996).

2005RAP 13.7(b). [7] Compare Mark, 96 Wash.2d at 487 , 635 P.2d 1081 (requiring a private plaintiff facing defense motion for summary judgment to show a prima facie case of defamation by evidence of convincing clarity), with Richmond v. Thompson, 130 Wash.2d 368, 385-86 , 922 P.2d 1343 (1996) (stating that only a public plaintiff must prove actual malice by clear and convincing evidence). [8] After submission of the briefs to the Court of Appeals, which did not have oral argument, but before issuance of its opinion in this case, the same Court of Appeals issued Alpine Industries, 114 Wash.App. at

2025Herron v. KING Broadcasting Company, 112 Wn.2d 762, 775, 776 P.2d 98 (1989), holding modified by Richmond v. Thompson, 130 Wn.2d 368, 922 P.2d 1343 (1996).

2005RAP 13.7(b). [7] Compare Mark, 96 Wash.2d at 487 , 635 P.2d 1081 (requiring a private plaintiff facing defense motion for summary judgment to show a prima facie case of defamation by evidence of convincing clarity), with Richmond v. Thompson, 130 Wash.2d 368, 385-86 , 922 P.2d 1343 (1996) (stating that only a public plaintiff must prove actual malice by clear and convincing evidence). [8] After submission of the briefs to the Court of Appeals, which did not have oral argument, but before issuance of its opinion in this case, the same Court of Appeals issued Alpine Industries, 114 Wash.App. at

2015It characterized public figures as “command [ing] sufficient continuing public interest and . . . sufficient access to the means of counterargument to be able ‘to expose through discussion the falsehood and fallacies’ of defamatory statements,” either based on the public figure’s “position alone” or by “purposeful activity amounting to a thrusting of [one’s] personality into the ‘vortex’ of an important public controversy.” Id. (quoting Whitney v. California, 274 U.S. 357, 377 , 47 S. Ct. 641 , 71 L.

1976STATUS OF PRESS TODAY The Times rule, even when amplified and extended to the *469 public person ( Curtis Publishing Co. v. Butts, 388 U.S. 130 , 18 L.Ed.2d 1094 , 87 S.Ct. 1975 (1967)) and public issue ( Rosenbloom v. Metromedia, Inc., 403 U.S. 29 , 29 L.Ed.2d 296 , 91 S.Ct. 1811 (1971)), diminished but did not eliminate self-censorship by the press or by the broadcaster.

2009In State v. Wai-Chui Tony Ng, 110 Wn.2d 32, 44-45 , 750 P.2d 632 (1988), this court declined to review an unpreserved claim that the trial court erred when it failed to define “theft” in its robbery instructions.

2009In State v. Wai-Chui Tony Ng, 110 Wn.2d 32, 44-45 , 750 P.2d 632 (1988), this court declined to review an unpreserved claim that the trial court erred when it failed to define “theft” in its robbery instructions.

2008Md. 1974) (holding a defamation statute unconstitutionally overbroad because it failed to immunize truthful speech or include an actual malice requirement); State v. Helfrich, 277 Mont. 452, 457 , 922 P.2d 1159 (1996) (holding Montana’s criminal libel statute facially overbroad because it “impermissibly require [d] the defendant to prove that the material, even if true, was communicated in good faith and for justifiable ends”). ¶30 Although decisions from other jurisdictions do not bind us, such decisions nevertheless provide well-reasoned guidance in determining whether Washington’s criminal

2008Md. 1974) (holding a defamation statute unconstitutionally overbroad because it failed to immunize truthful speech or include an actual malice requirement); State v. Helfrich, 277 Mont. 452, 457 , 922 P.2d 1159 (1996) (holding Montana’s criminal libel statute facially overbroad because it “impermissibly require [d] the defendant to prove that the material, even if true, was communicated in good faith and for justifiable ends”). ¶30 Although decisions from other jurisdictions do not bind us, such decisions nevertheless provide well-reasoned guidance in determining whether Washington’s criminal

2007Simmons v. Gardner, 46 Wash. 282, 286 , 89 P. 887 (1907) ("`It is for the best interests of society . . . that any citizen who has good reason to believe that the law has been violated shall have the right to cause the arrest of the offender.'") (quoting Ball v. Rawles, 93 Cal. 222, 228 , 28 P. 937 (1892)). [14] The federal exclusionary rule is a judicially-created prophylactic measure designed to deter police misconduct.

2007Simmons v. Gardner, 46 Wash. 282, 286 , 89 P. 887 (1907) (“ ‘It is for the best interests of society ... that any citizen who has good reason to believe that the law has been violated shall have the right to cause the arrest of the offender.’ ” (quoting Ball v. Rawles, 93 Cal. 222, 228 , 28 P. 937 (1892))).

2007As the Court said in Garrison, 379 U.S. at 75 , 85 S.Ct. 209 (quoting Chaplinsky, 315 U.S. at 572 , 62 S.Ct. 766 ), lies about public officials are clearly outweighed by "`the social interest in order and morality.'" It follows that lies about candidates during a campaign for public office are of the same nature.

2007As the Court said in Garrison, 379 U.S. at 75 (quoting Chaplinsky, 315 U.S. at 572 ), lies about public officials are clearly outweighed by “ ‘the social interest in order and morality.’ ” It follows that lies about candidates during a campaign for public office are of the same nature.

2007Garrison, 379 U.S. at 74 , 85 S.Ct. 209 (emphasis added) (alterations in original). ¶ 52 The actual malice standard for determining when speech is constitutionally protected has also been applied in a case involving a wrongful dismissal action brought by a public school teacher alleging he was unconstitutionally dismissed for making false statements in discussing issues of public concern, Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), and to a suit for invasion of privacy based on false statements where a matter of public concern was involved, Time, Inc.

2007Garrison, 379 U.S. at 74 , 85 S.Ct. 209 (emphasis added) (alterations in original). ¶ 52 The actual malice standard for determining when speech is constitutionally protected has also been applied in a case involving a wrongful dismissal action brought by a public school teacher alleging he was unconstitutionally dismissed for making false statements in discussing issues of public concern, Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), and to a suit for invasion of privacy based on false statements where a matter of public concern was involved, Time, Inc.

2007Simmons v. Gardner, 46 Wash. 282, 286 , 89 P. 887 (1907) ("`It is for the best interests of society . . . that any citizen who has good reason to believe that the law has been violated shall have the right to cause the arrest of the offender.'") (quoting Ball v. Rawles, 93 Cal. 222, 228 , 28 P. 937 (1892)). [14] The federal exclusionary rule is a judicially-created prophylactic measure designed to deter police misconduct.

2007Simmons v. Gardner, 46 Wash. 282, 286 , 89 P. 887 (1907) (“ ‘It is for the best interests of society ... that any citizen who has good reason to believe that the law has been violated shall have the right to cause the arrest of the offender.’ ” (quoting Ball v. Rawles, 93 Cal. 222, 228 , 28 P. 937 (1892))).

2007If the speech falls within the actual malice standard, it is unprotected speech. ¶ 48 For example, in Brown v. Hartlage, 456 U.S. 45 , 102 S. Ct. 1523 , 71 L.

2007If the speech falls within the actual malice standard, it is unprotected speech. ¶ 48 For example, in Brown v. Hartlage, 456 U.S. 45 , 102 S. Ct. 1523 , 71 L.

2007Id. at 1122 . “[W]ithout such a rule, speakers would be chilled in criticizing or otherwise commenting on matters of their own governance.” Id.

2007Id. at 1122 . “[W]ithout such a rule, speakers would be chilled in criticizing or otherwise commenting on matters of their own governance.” Id.

2005RAP 13.7(b). [7] Compare Mark, 96 Wash.2d at 487 , 635 P.2d 1081 (requiring a private plaintiff facing defense motion for summary judgment to show a prima facie case of defamation by evidence of convincing clarity), with Richmond v. Thompson, 130 Wash.2d 368, 385-86 , 922 P.2d 1343 (1996) (stating that only a public plaintiff must prove actual malice by clear and convincing evidence). [8] After submission of the briefs to the Court of Appeals, which did not have oral argument, but before issuance of its opinion in this case, the same Court of Appeals issued Alpine Industries, 114 Wash.App. at

2005RAP 13.7(b). [7] Compare Mark, 96 Wash.2d at 487 , 635 P.2d 1081 (requiring a private plaintiff facing defense motion for summary judgment to show a prima facie case of defamation by evidence of convincing clarity), with Richmond v. Thompson, 130 Wash.2d 368, 385-86 , 922 P.2d 1343 (1996) (stating that only a public plaintiff must prove actual malice by clear and convincing evidence). [8] After submission of the briefs to the Court of Appeals, which did not have oral argument, but before issuance of its opinion in this case, the same Court of Appeals issued Alpine Industries, 114 Wash.App. at

2002In a defamation action, “the proper standard for determining whether the defendant acted in good faith for purposes of RCW 4.24.510 is the actual malice standard.” Gilman v. MacDonald, 74 Wn.

2002In a defamation action, "the proper standard for determining whether the defendant acted in good faith for purposes of RCW 4.24.510 is the actual malice standard." Gilman v. MacDonald, 74 Wash.App. 733, 734 , 875 P.2d 697 (1994).