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The Malice-nator
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Not only do you find malice connected to defamation, but you find the concept of malice in many areas of the law with many names. There is actual malice, express malice, malice in fact, constructive malice, implied malice, malice in law, legal malice, special malice, particular malice, universal malice, preconceived malice, and, let’s not forget the ever popular malice aforethought found in homicide cases.
All versions of malice deal with an intent to injure without a good reason but hatred, ill-will, or even a really bad attitude are not necessary for “malice.”
You can find this hate-less malice all over Quinten Tarantino movies. There is a scene in Pulp Fiction where two hit men break off their on going commentary on life, sex and fast food in Paris so they can pull out guns and barge in on some guys having lunch. One of the hit men spouts off some Bible verses. Then, quite coolly, they kill every one in the room before continuing their engaging dialogue. There is no hatred in their malice; perhaps that is what makes it so frightening.
On the other hand, special or particular malice exist where there is a grudge, a vendetta or a taste for revenge. This malice is driven by hate and applies to a particular person. It is something like the stereotype of an ex-wife, who is a nice woman to everyone--except her husband’s new wife. Just the thought of the new wife will turn the ex into a fire breathing dragon.
Whether it is hate-less or not, malice can be express or implied. Express malice (also known as actual malice and malice in fact) is quite out in the open. The deliberate intention to commit the injury is pretty clear from the circumstances.
A more interesting type of malice is called constructive malice (a.k.a. implied malice, malice in law, and legal malice). It hides behind the curtain and is apparent only when you look at the results.
For example, take a look at an old, old movie called Little Foxes. In that movie, Bette Davis wants to dispose of her ill husband and gain control of his property. When he has an attack downstairs and needs his medicine--which is upstairs--Bette just sits there and watches him try to crawl up the steps. She continues to watch as he suffers another attack half way up the stairs, falls and collapses in a heap at the bottom of the stairs.
Malice aforethought is a phrase you’ll here in dramas. It has nothing to do with the “Oops, I really didn’t mean to shoot you, I was just trying to scare you” type of murder. This is all about the intent to kill, the plan to kill, the wanting to kill and then, the willful killing itself.
Malice is all over the law just as it is all over the movies. Malice in the movies, on TV or video games is about as common as pop up ads--except its has more of a PUNCH.
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