In determining whether a defendant may take advantage of the privilege, it has been held that malice may be inferred if the defendant does not have reasonable or probable cause to believe his statement to be true

"Since a libel is'a false and unprivileged publication'(section 45), it follows that the publication must be both false and unprivileged in order that it shall constitute an actionable libel."

This contention is based on plaintiff Fredrick Farr's position as a public officer as Chairman of the California 11th Congressional District of the Democratic party, so that his official conduct was of public concern

"Since the conduct of public officers in the administration of their offices is a matter in which every citizen of the community which they serve is interested, the publication in question, if otherwise privileged, must be considered as one made to persons interested, and on an occasion which would ordinarily afford reasonable grounds for supposing that it was made from …

The cases that contain language to the effect that the privilege conferred by subdivision 1 is an absolute one

At the time of the Sullivan case, state courts in some other states had recognized a qualified privilege for defamatory and false statements concerning the public conduct of public officials.

—not by this rule given a license to overdraw, exaggerate, or to color the facts in his communication. The manner of statement is material upon the question of malice, and if the facts believed to be true are exaggerated, overdrawn, or colored to the detriment of plaintiff, or are not stated fully and fairly with respect to the plaintiff, the court or jury may properly consider these …

The Supreme Court in New York Times cited ten cases that at least partially protected false and defamatory statements of fact in political debate.

—libelous cartoon implying inefficiency of chief of police; defendant may show reputation of plaintiff for efficiency

Mill, On Liberty (Oxford: Blackwell, 1947), at 15; see also Milton, Areopagitia, in Prose Works (Yale, 1959), Vol. II, at 561. 20