Pleading Actual Malice in Defamation Actions After Twiqbal: A Circuit Survey

Abstract

What does it take to satisfy the Twombly/Iqbal pleading standard when alleging actual malice in an action for defamation? The answer to this question, which has so far attracted little scholarly attention, not only has significant implications for public-figure defamation actions, but it also illustrates a larger problem with the Twiqbal pleading standard. The Twiqbal pleading standard requires a court to evaluate a motion to dismiss for failure to state a claim by, first, discarding conclusory allegations, and second, determining whether the remaining factual allegations state a claim that is “plausible on its face.” While Federal Rule of Civil Procedure 9(b) permits malice to be pleaded “generally,”all Circuit Courts of Appeals that have addressed the issue have applied the plausibility standard to allegations of malice under Rule 9(b). The result is a distortion of Rule 9(b) that gives virtual immunity to defendants who are sued for libel by public-figure plaintiffs and raises potential Erie issues when state pleading standards permit states of mind to be pleaded generally.