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Defamation: belief that fired employees
won't prove actual malice
Cannon v. Peck (4th Cir
Custom Alerts™ subscribers on 06/09/2022
(libel or slander) is always difficult. It is more difficult when
the defendant is a public official because the plaintiff must
prove "actual malice." N.Y. Times Co. v. Sullivan, 376 U.S. 254
After four employees were fired from their jobs
with Village of Bald Head Island, Village employees published
their termination letters which accused them of violating certain
employee policy provisions, specifically dealing with harassment.
The trial court found that the statements contained in the
termination letters were false, and that the Village Manager
(clearly a public official) acted with actual malice in publishing
the letters since the true reason he fired them was because he
believed "they were jerks."
However, the 4th Circuit
reversed, holding that the employees failed to prove actual
To show that an alleged defamatory statement was
made with "actual malice," a plaintiff must prove by clear and
convincing evidence that the defendant made the statement "with
knowledge that it was false or with reckless disregard of whether
it was false or not."
The 4th Circuit disagreed with the
trial court's treatment of the difference between the stated
reason for the terminations and the Manager's subjective belief
that "they were jerks." In making its actual malice findings
against the Manager, the trial court appeared to give
near-dispositive weight to the discrepancy between the Manager's
testimony that he terminated the plaintiffs because they "were
jerks and disrespectful to the chain of command" and the
termination letter's allegations that the plaintiffs violated
certain Village policies.
The court pointed out that
although the discrepancy can be "one fact we may consider when
determining actual malice, … it alone cannot establish actual
malice by clear and convincing evidence. *** But, unlike the
district court, we do not believe this alone rises to the level of
clear and convincing evidence that [the Manager] knew the alleged
policy violations were false or entertained serious doubts about
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