Posted by Eugene Volokh:
AP Story Errs in Reporting "Actual Malice" Standard:
http://volokh.com/archives/archive_2008_12_14-2008_12_20.shtml#1229397957
From an [1]AP story:
The Supreme Court has rejected a plea by former Army scientist
Steven J. Hatfill to revive his libel lawsuit against The New York
Times over columns falsely implicating him in the deadly 2001
anthrax attacks.
The justices did not comment Monday in turning down Hatfill's
appeal of a unanimous ruling by the 4th U.S. Circuit Court of
Appeals, based in Richmond, Va. A three-judge panel affirmed a
lower court's dismissal of the libel claims on the grounds that
Hatfill is a public figure and failed to prove that columns written
by Nicholas Kristof were malicious....
No, actually the panel reasoned that Hatfill failed to prove that the
columns were published with what libel law calls "actual malice":
"that The Times had knowledge that the columns were false or published
them with reckless disregard of whether they were false." "Actual
malice" is thus a legal term of art that has little to do with what
English speakers actually call malice (in the sense of ill will).
So this is partly the fault of the lawyers. You'd hope that "malice"
in law would mean what "malice" means in English, but if it doesn't,
at least you'd hope that "actual malice" would actually mean that. No
such luck.
But mass-market journalists' job is to translate jargon into English,
and to know jargon when they see it. Unfortunately that didn't happen
here.
More broadly, keep an eye out for this sort of slip: When you hear
"malice" talked about in articles about libel lawsuits, it probably
means "knowledge the statement was false, or reckless disregard of
whether it was false." Except, unfortunately, when it doesn't, since
sometimes "malice" even in libel lawsuits does really mean "malice" in
the sense of "ill will." Arggh.
Thanks to [2]Bill Poser (Language Log) for the pointer.
References
1.
http://www.nytimes.com/aponline/2008/12/15/washington/AP-Scotus-Anthrax-Hatfill.html?_r=1
2. http://languagelog.ldc.upenn.edu/nll/
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