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Sarah Palin Loses Defamation Lawsuit Against The New York Times

By Camila Laval, J.D. on February 18, 2022 10:10 AM

On February 15, a federal jury found in favor of The New York Times in a defamation case brought against it by former vice presidential candidate Sarah Palin. The lawsuit alleged that the publication and its former editorial page editor, James Bennet, defamed Palin when an opinion column incorrectly linked Palin to the 2011 Tucson mass shooting, in which Democratic Representative Gabrielle Giffords was wounded during a constituent meeting at a grocery store parking lot. The Times corrected the mistake the next day, and Bennet took the blame when testifying, adding that he meant no harm to Palin.

An Unusual Defamation Case

Palin's case against the Times is rare in a couple of ways.

First, Judge Jed Rakoff made an announcement that he would dismiss the case while the jury was still deliberating, which is quite uncommon. He added that he would allow the deliberations to continue, but would dismiss the case no matter the verdict. Deliberations lasted a little over two days.

Second, it is unusual for defamation cases filed by public figures to reach the trial stage. In New York Times v. Sullivan, decided in 1964, the Supreme Court established a heightened standard for public officials to prevail in defamation cases. According to Sullivan, public officials seeking to establish that they have been defamed by a statement must prove that the statement was made with "actual malice," which means that the defendant must have either known that the statement was false or "recklessly disregarded" the falsity of the statement. Absent actual malice, statements against public officials fall under the protection of the First Amendment.

The Sullivan standard has been expanded over time. Today, in addition to including public officials, it encompasses public figures outside government, persons who have achieved pervasive fame or notoriety, and "limited public figures" who willingly put themselves or are drawn into a particular public controversy.

The expansion of the burden of proof had the expected impact on defamation litigation, which affected lawsuits against publications. In the 1980s, there were an average of 27 defamation trials per year involving publications. By 2018, that number had dropped to three.

Read David A. Logan's analysis of the Sullivan standard and thousands more law review articles with a free trial of WestLaw Edge.

Revisiting Sullivan?

Palin is expected to appeal. If the Second Circuit sides with the Times and Palin petitions for Supreme Court review, she may find the sympathy of Justices Clarence Thomas and Neil Gorsuch.

Last year, in Berisha v. Lawson, Justices Thomas and Gorsuch opined on the shortcomings of the Sullivan standard when dissenting from the denial of certiorari to review an Eleventh Circuit defamation judgment for the defendant. In that case, the son of Albania's former prime minister filed a lawsuit against author Guy Lawson and the American publishing company Simon & Schuster. Berisha claimed that the defendants' book, Arms and the Dudes: How Three Stoners From Miami Beach Became the Most Unlikely Gunrunners in History, wrongly accused him of being involved in an arms-dealing scandal.

Justice Thomas, unsurprisingly, resorted to an originalist argument. He wrote that Sullivan's actual malice requirement had no support in the text, structure, or history of the Constitution.

Justice Gorsuch stated that the world in which Sullivan was decided is very different from today. He reflected that in 1964, only a few large companies engaged in mass publication, which required teams of reporters, editors, and fact-checkers; today, anyone can publish anything for the whole world to see, and there is less accountability for making false statements.

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