A.G. Harmon


Since the 1964 case of New York Times v. Sullivan, the standard for proving defamation has often proven insurmountable to public figure plaintiffs who claim their reputations have been hurt through libel or slander. But, the standard can prove equally insurmountable to “private figure” plaintiffs when a qualified, or “conditional,” privilege applies. Such privileges, intended to further the social policy of candor on certain proscribed occasions, can be claimed regarding otherwise questionable conversations as long as the dialogue is made: 1) in good faith; 2) about a subject in which the speaker has an interest or duty; 3) within a scope limited to that interest; 4) in a proper manner; and 5) between the proper parties. This iteration is common to nearly every state in the union. The trouble is that the concept of good faith is often either undefined by case law or left unclear. At times, it is described in terms of its inverse—lack of “bad faith.” At other times, the term good faith is coupled with lack of “malice,” a concept that is equally amorphous. The significance of this shifting definition is consequential, for the casual use of the term suggests incoherence within the doctrine of qualified privilege. If a privilege arises only upon a showing of “good faith,” then the establishment of that element does not square with one of the customary ways of overcoming that privilege—a showing of “actual malice.” The other elements—pursuit of a delineated interest; a statement limited in scope; made to the proper parties; and in the proper manner—would prove superfluous and irrelevant. Actual malice would have been disproven by the one factor that matters—“good faith.” And if good faith were defined to be “reasonable behavior” or the equivalent of “reasonableness” in some way, the standard becomes redundant, as all of the other elements would simply be inquiries into reasonable publication. To complicate matters, as the defense is an affirmative one, its standard articulation presents a peculiar state of affairs in which defendants are required to prove the existence of their own good faith, rather than requiring plaintiffs to prove its absence. Courts and critics have noticed this incoherence and many have called for the doctrine’s abrogation. In the attached comment, a historical investigation reveals the original meaning of the concept, and argues for a return to this first understanding, which will make the doctrine coherent once again. In addition, philosophical, social, and prudential arguments are put forward to show the value of the doctrine and to clarify its proper articulation.