Malice

A wicked intention to do an injury. It is not confined to the intention of doing an injury to any particular person, but extends to an evil design, a corrupt and wicked notion against some one at the time of committing the crime; as, if A intended to poison B, conceals a quantity of poison in an apple and puts it in the way of B, and C, against whom he had no ill will, and who, on the contrary, was his friend, happened to eat it, and die, A will be guilty of murdering C with malice aforethought.

Malice is express or implied. It is express, when the party evinces an intention to commit the crime, as to kill a man; for example, modern duelling. It is implied, when an officer of justice is killed in the discharge of his duty, or when death occurs in the prosecution of some unlawful design.

It is a general rule that when a man commits an act, unaccompanied by any circumstance justifying its commission, the law presumes he has acted advisedly and with an intent to produce the consequences which have ensued.

Torts. The doing any act injurious to another without a just cause.

This term, as applied to torts, does not necessarily mean that which must proceed from a spiteful, malignant, or revengeful disposition, but a conduct injurious to another, though proceeding from an ill-regulated mind not sufficiently cautious before it occasions an injury to another.

Indeed in some cases it seems not to require any intention in order to make an act malicious. When a slander has been published, therefore, the pro-per question for the jury is, not whether the intention of the publication was to injure the plaintiff, but whether the tendency of the matter published, was so injurious.

Again, take the common case of an offensive trade, the melting of tallow for instance; such trade is not itself unlawful, but if carried on to the annoyance of the neighboring dwellings, it becomes unlawful with respect to them, and their inhabitants may maintain an action, and may charge the act of the defendant to be malicious.
   

This entry contains material from Bouvier's Legal Dictionary, a work published in the 1850's.

MALICE, ACTUAL - Publication of defamatory material "with knowledge that it was false or reckless disregard of whether it was false or not." The term originated in a landmark 1964 case in which the Supreme Court ruled that 'public officials' could not recover damages from defamatory material unless they established that it was published with actual malice. As opposed to "legal" or "common law malice", which connotes ill will, spite, etc.

Actual malice involves making a statement with "knowledge of falsity or reckless disregard as to truth or falsity." Masson, 501 U.S. at 511. See also Harte-Hanks Communications, Inc., 491 U.S. 657; Anderson v. Liberty Lobby, 477 U.S. 242, 244 (1986); New York Times, 376 U.S. at 279-280. A public figure must show by clear and convincing evidence that the defendant "in fact entertained serious doubts as to the truth of his [statements] or acted with a high degree of awareness of . . . probable falsity." Masson, 501 U.S. at 510 (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968); Garrison v. Louisiana, 379 U.S. 64, 74 (1964)) (internal quotations omitted).

The First Amendment requires a plaintiff who is a public figure to demonstrate actual malice by clear and convincing evidence. Masson v. New Yorker Magazine, Inc., 111 S. Ct. 2419, 2429 (1991). "The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law." Milkovich v. Lorain Journal Co., 497 U.S. 1, 17 (1990) (quoting Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685 (1989)).