Inc. Gertz v. Robert Welch

Laws governing defamation evolved from English common law and remained basically constant until the 1960s. Traditionally, plaintiffs in defamation suits needed only to prove that defendants had published defamatory statements about them. In most cases, unless defendants could establish that the statements were true, they were then subjected to strict liability. Strict liability, also known as liability without fault, applies to a defendant regardless of negligence. Thus a defendant who handles dangerous substances such as poisonous snakes--or words--is liable for any accidents that may occur, no matter how much care is exercised. The burden of proof was on defendants, as encouragement for them to check facts thoroughly before publication.

Damages were typically awarded without proof of actual loss. The loss in question was usually loss of reputation, and loss of reputation was difficult to establish in court. The actual (or compensatory) damages were often monetary sums arrived at with little reference to actual monetary loss. Punitive damages could then be awarded with proof of actual malice (knowingly or recklessly publishing falsehoods).