All this sounds as if at least actual intent to cause the damage
complained of, if not malevolence, were at the bottom of this
class of wrongs. Yet it is not so. For although the use of the
phrase "malice" points as usual to an original moral standard,
the rule that it is presumed upon proof of speaking certain words
is equivalent to saying that the overt conduct of speaking those
words may be actionable whether the consequence of damage to the
plaintiff was intended or not. And this fails in with the general
theory, because the manifest tendency of slanderous words is to
harm the person of whom they are spoken. Again, the real
substance of the defence is not that the damage [139] was not
intended, -- that would be no defence at all; but that, whether
it was intended or not,--that is, even if the defendant foresaw
it and foresaw it with pleasure,--the manifest facts and
circumstances under which he said it were such that the law
considered the damage to the plaintiff of less importance than
the benefit of free speaking.
It is more difficult to apply the same analysis to the last stage
of the process, but perhaps it is not impossible. It is said that
the plaintiff may meet a case of privilege thus made out on the
part of the defendant, by proving actual malice, that is, actual
intent to cause the damage complained of.
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