Unless the court finds on the basis of pretrial affidavits, depositions or other documentary evidence, that the plaintiff can prove actual malice in the Times sense, it should grant summary judgment for the defendant. "

Specifically, the court must make a threshold determination, prior to trial, whether there has been a showing of actual malice.

Showing that defendant knew that the plaintiff was not one of group called before grand jury held to preclude a finding of absence of malice as a matter of law, on motion for summary judgment.

Some courts had held that summary judgment should be freely granted in defamation cases so as to avoid chilling speech because of the mere fear of protracted litigation.

The first provides that the trial judge on the basis of pretrial affidavits, depositions or other documentary evidence will draw reasonable influences and weigh credibility to deter-mine whether the evidence is sufficient to allow a jury to find actual malice with convincing clarity.

While the Sullivan line of cases makes recovery in defamation more difficult, plaintiffs have not been entirely thwarted in their efforts.

—stage of the trial is denied, the actual malice issue, along with the other issues, is then submitted to the jury under the Times instruction without any indication from the court or counsel that the court has decided that the evidence shows actual malice with `convincing clarity.'This two-step procedure in which both the trial judge and the jury must find actual malice before …

Rosenbloom decision, see text accompanying note 38 infra, applied the New York Times standard to private individuals defamed in matters of public interest

[CITATION] DONITA PIPER, ET AL. v. CURTIS MIZE No. M2002-00626-COA-R3-CV COURT OF …

[BOOK] Sack on defamation

[CITATION] Memphis State University Law Review