Defamation requires malice only where

Defamation requires malice only where its a public person, like Berlusconi. Burden of proof for actual malice requires Clear and Convincing evidence. Rationale here is that the state's interest in remedial measures for defamation, must be balanced against 1st amendment right to political free speech

State of mind not a factor on private folks. Even inadvertant publication will suffice. Publication can be satisfied with an audience as small as one but not if the one person is the person you are defaming.

So: Hey, Jerk, you are ugly and your mom dresses you funny


Jerk has no cause of action in defamation but Jerk's mom does