After the exercise is finished, be sure to tell the students of the holding in the Hustler case. Some of them may already be aware of the facts due to media coverage of the case. The First Amendment requires protection for some speech that is false to protect speech that is important. The Constitution prohibits a public figure from recovering damages for a defamatory falsehood relating to his official conduct unless he proves actual malice. Actual malice is knowledge of falsity or reckless disregard for whether a statement is true or false.
Private individuals are more vulnerable to injury and deserving of recovery than public figures.
Public figures generally invite closer public scrutiny by virtue of their notoriety. New York Times proof of malice standard is unnecessary for private individual defamation actions. Each state is left to define the appropriate standard of liability when dealing with private individuals, as long as some level of fault is required. Each state must determine whether the level of fault should be recklessness, gross negligence, or simple negligence. A private individual does not become a public figure simply because he becomes involved in a matter which attracts general concern, e.g., a person who engages in criminal conduct.