Where speech is directed at a person who is neither a public official nor a public figure, the case of Gertz v. Robert Welsh, Inc. (1974) and subsequent decisions have set forth different standards. The Court in Gertz determined that the actual malice standard established in New York Times v. Sullivan should not apply where speech concerns a private person. However, the Court also determined that the common law strict liability rules impermissibly burden publishers and broadcasters.

Under the Restatement (Second) of Torts, a defendant who publishes a false and defamatory communication about a private individual is liable to the individual only if the defendant acts with actual malice (applying the standard under New York Times v. Sullivan) or acts negligently in failing to ascertain whether a statement was false or defamatory.