Under the Supreme Court's interpretation of the Constitution malice is a requirement for defamation if the person defamed is a public figure. But there is no such requirement in federal law when the plaintiff is a private person. Most states do not require malice when the plaintiff is a private person, either. Missouri is among the majority of states that do not require a private person to prove malice. In Missouri, the standard is instead negligence. In Missouri the elements a plaintiff must prove for a defamation case are explained in a recent case as follows:
The elements of a claim for defamation are “1) publication, 2) of a defamatory statement, 3) that identifies the plaintiff, 4) that is false, 5) that is published with the requisite degree of fault, and 6) damages the plaintiff’s reputation.”
Lovelace v. Van Tine, 545 S.W.3d 381, 383 (Mo. Ct. App. 2018). As to the requisite degree of fault, while Missouri is among the majority of states that do not require malice for the defamation claim of a private person, malice is required if the plaintiff wants to win punitive damages. "The requisite degree of fault for a private figure, like Overcast, is negligence, but to recover punitive damages, Overcast must prove malice.” Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. 2000). Missouri does, however, require that the plaintiff prove actual damages in all cases, thus rejecting the older common law distinction between defamation per se and defamation per quod; the former did not require actual damages to succeed, where the latter did. "We hold that in defamation cases the old rules of per se and per quod do not apply and plaintiff need only to plead and prove the unified defamation elements set out in MAI 23.01(1) and 23.01(2). In short, plaintiffs need not concern themselves with whether the defamation was per se or per quod, nor with whether special damages exist, but must prove actual damages in all cases." Nazeri v. Missouri Valley Coll., 860 S.W.2d 303, 313 (Mo. 1993).
A majority of states still recognize defamation per se. But defamation per se only applies to a very particular set of statements.