Written by attorneys · grounded in primary & secondary sources — see below
Damages awarded in a defamation action without proof of actual harm to reputation or of actual malice by the defendant. States may authorize such awards when the defamatory speech addresses a matter of purely private concern rather than a public controversy.
Sources & Authorities
How it applies
Common Examples
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Credit Report to Trade Subscribers
Metro Credit Bureau sent a confidential bulletin to five equipment vendors stating that Premier Manufacturing had defaulted on all accounts and entered receivership. The report was false. Premier sued for defamation under state law and requested presumed and punitive damages. Because the bulletin reached only a narrow commercial audience and concerned one firm's private financial condition, the court permitted the requested damages without requiring proof of actual malice.
Newspaper Article on Public Issue
Philadelphia Newspapers published a series of articles accusing a private businessman of links to organized crime in connection with a local real-estate scandal. The businessman sued and sought presumed and punitive damages. Because the articles addressed a matter of public concern, the court required the plaintiff to prove actual malice before those categories of damages could be awarded.
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Cases
Casebooks
Study Supplements
Philadelphia Newspapers, Inc. v. Hepps475 U.S. 767 (1986)
Public Figure Libel Suit
A prominent attorney sued a magazine that published an article accusing him of framing police officers. The attorney sought presumed and punitive damages. Because the plaintiff qualified as a public figure and the article addressed a matter of public concern, the court held that recovery of those damages required a showing of actual malice.
Gertz v. Robert Welch, Inc.418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974)
Common questions
Frequently Asked
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When may a plaintiff recover presumed and punitive damages without proving actual malice?+
Recovery without actual malice is permitted when the defamatory speech concerns a matter of purely private concern. In such cases the First Amendment does not impose the Gertz limitations, and state law controls the availability of those damages.
Supporting sources
Does the actual-malice requirement for presumed and punitive damages apply to every defamation plaintiff?+
No. The requirement applies only when the speech addresses a matter of public concern. When the speech is of purely private concern, states may authorize presumed and punitive damages on a lesser showing such as negligence.
Supporting sources
How does the public-concern determination affect the availability of presumed and punitive damages?+
Speech on a matter of public concern triggers the constitutional limits established in Gertz. Speech of purely private concern receives less First Amendment protection, allowing states greater latitude to permit presumed and punitive damages without actual malice.
Supporting sources
What showing is required for presumed and punitive damages when the plaintiff is a public figure?+
A public figure must prove actual malice to recover presumed or punitive damages even if the speech is on a matter of public concern. Actual malice means knowledge of falsity or reckless disregard for the truth.
Supporting sources
418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974)Torts
…I am willing to join, and do join, the Court's opinion and its judgment for two reasons: 1. By removing the specters of presumed and punitive damages in the absence of New York Times malice, the Court eliminates significant and powerful motives for self-censorship that otherwise are present in the traditional libel action. By so doing,…