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.  But how is this actual malice made out?  It is by showing that the defendant knew the statement which he made was false, or that his untrue statements were grossly in excess of what the occasion required.  Now is it not very evident that the law is looking to a wholly different matter from the defendant’s intent?  The fact that the defendant foresaw and foresaw with pleasure the damage to the plaintiff, is of no more importance in this case than it would be where the communication was privileged.  The question again is wholly a question of knowledge, or other external standard.  And what makes even knowledge important?  It is that the reason for which a man is allowed in the other instances to make false charges against his neighbors is wanting.  It is for the public interest that people should be free to give the best information they can under certain circumstances without fear, but there is no public benefit in having lies told at any time; and when a charge is known to be false, or is in excess of what is required by the occasion, it is not necessary to make that charge in order to speak freely, and [140] therefore it falls under the ordinary rule, that certain charges are made at the party’s peril in case they turn out to be false, whether evil consequences were intended or not.  The defendant is liable, not because his intent was evil, but because he made false charges without excuse.