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What's at Stake in Sarah Palin's Lawsuit Against The New York Times?

By Steven Ellison, Esq. on February 03, 2022 2:18 PM

After a brief delay, Sarah Palin's libel lawsuit against The New York Times is set to go to trial in U.S. District Court in Manhattan on Feb. 3. It's rare for a libel case against a news organization to go to trial. Most cases are dismissed long beforehand because the standard of proof for public figures is so hard to meet.

The allegations are pretty straightforward. In 2017, The New York Times published an editorial about the U.S.'s "violent politics," mentioning Palin, the former Alaska governor and 2008 Republican candidate for vice president.

Specifically, the first edition of the editorial falsely implied that her rhetoric contributed to a shooting that left six people dead and 14 injured, including then-U.S. Rep. Gabrielle Giffords, D-Arizona. Although the Times corrected its error, Palin sued it for libel. She claims that the editorial damaged her reputation.

The 'Actual Malice' Standard

If you are a public figure, you cannot win a libel case just by showing that someone made a false statement about you. According to a line of Supreme Court decisions (starting with New York Times v. Sullivan in 1964), you have to show clearly and convincingly that the defendant actually knew a statement they were making was false or had serious doubts about its truth and published it anyway.

This is the "actual malice" standard. It essentially requires proving what someone's thoughts were. Unless they actually told someone else or wrote it down, it's really hard to get inside someone's head. So hard, in fact, that, according to the Times, no one has won a libel case against it in the U.S. in 50 years.

The Publishing Landscape of Today

But times have changed since 1964. Instead of there being a handful of generally responsible, well-funded news organizations with large research and editorial departments, anyone with a cellphone can post whatever they want to a nearly global audience on social media in a matter of seconds. And the actual malice standard in effect encourages them to publish "facts" without even trying to learn whether they are actually true.

Supreme Court Justices Have Questioned the Actual Malice Standard

Some of the justices on the Supreme Court have pointed out this unintended consequence of the actual malice standard.

When she was still a law professor, Associate Justice Elena Kagan observed that when the Supreme Court decided Sullivan, government officials were using southern courts to judicially bankrupt northern news organizations in an attempt to keep a lid on civil rights abuses. She suggested that the actual malice standard had been extended to immunize anyone who seriously hurt the reputation of virtually any public figure from a libel claim.

As recently as July 2021, Associate Justices Clarence Thomas and Neil Gorsuch both disagreed with the Court's decision not to review a case that a lower court dismissed under the actual malice standard. Justice Thomas wrote that the Constitution did not do away with libel law. Justice Gorsuch pointed out that the era of the old news desk was over, and that today the rule actually encouraged people not to investigate whether a story was true before putting it on the internet.

Supreme Court May Revisit Actual Malice

Now, the Supreme Court may take another look at the standard. In October 2021, a Christian ministry asked it to review a lower court's decision dismissing its libel case against the Southern Poverty Law Center (SPLC), which labeled the ministry a "hate group." The SPLC's response is due while Palin's trial will be going on.

The court may use this opportunity to limit the actual malice standard or get rid of it entirely. That would make it easier for public figures like Palin to recover against not just news organizations, but anyone who makes a false statement about them. The impact on social media, where fact-checking is often an afterthought, could be profound.

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