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Palin’s New York Times Spat Tees Up Wider Press Freedom Face-Off

Feb. 14, 2022, 11:00 AM

Welcome back to Opening Argument, a column where I dive into disputes lower courts are wrestling with and unpack complicated litigation. On tap today, a look at how Sarah Palin’s defamation suit against The New York Times could limit press protections.

Win or lose Sarah Palin’s defamation case against The New York Times could be really damaging to the press.

That’s because her libel lawsuit creates an opening for the conservative heavy Supreme Court to revisit a landmark decision that has shielded journalists from getting sued if they make a mistake when writing about public officials and public figures. If the case is appealed by either side, Palin would have the chance to challenge the legal standard that’s protected the press for nearly 60 years.

Though legal scholars doubt there are five votes on the Supreme Court to wipe it entirely, there could be enough to pretty significantly scale it back.

In 1964 the Supreme Court said in New York Times Co. v. Sullivan that public officials could only win a defamation suit if they could show they were injured by a false statement that was published with “‘actual malice.’” That set a high bar that has kept many defamation suits from ever reaching a jury.

Because the Sullivan decision is seen as sacred and necessary to have robust public discourse about those who govern us, Samantha Barbas, a professor at the University at Buffalo School of Law, said it’s fairly unlikely the court will overturn it.

The subsequent cases that extended Sullivan’s actual malice standard to public figures, however, seem like fair game, she said.

Palin claims she suffered reputational damage after The New York Times published an editorial in 2017 suggesting she helped incite a mass shooting in 2011 that killed six people in Tucson, Ariz. At the outset of her case, she argued against having to prove actual malice. In court papers, her attorneys called it a judicially-imposed solution, created in a “bygone era before the Internet and social media took hold of American society.”

Supreme Court Justice Neil Gorsuch expressed similar concerns when he argued along with Justice Clarence Thomas in July that Sullivan should be revisited. The comments came in separate dissents after the court turned down a case asking it to re-evaluate the standard for public figures.

Just because the court rejected that particular case doesn’t mean the justices won’t take a different one with that same question in the future.

Rodney Smolla, dean and professor at the Delaware Law School of Widener University, said the court often likes to wait for a case that cleanly presents an issue. It could also take time, he said, to convince other justices to look at it.

If the court were to erase the actual malice standard even just for public figures, it could have a real chilling effect on how the media covers influential people like Mark Zuckerberg, the co-founder of Facebook.

“I would argue people like a Zuckerberg have so much power and so much impact on citizens around the world, in some respects more than their elected officials, that the standard should apply to people like him,” said Jane Kirtley, a professor at the University of Minnesota Law School.

However, Smolla doesn’t think it would change media coverage all that much if the Supreme Court were to wipe out the press protection when writing about public figures since a number of states have their own laws in place that extend the actual malice standard beyond government officials. While some would call that change a chilling effect, Smolla said others would say it’s creating a requirement that the press be more careful and make sure stories are sourced.

It is a widely different world now than it was when the Supreme Court created the actual malice standard and extended it in the 1960s and 1970s.

“The power of the Internet to destroy people’s reputation now is gigantic,” Smolla said. “Stories go viral and get repeated.”

That’s why someone else will likely push the Supreme Court to change Sullivan if Palin doesn’t get there first.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editor responsible for this story: Andrew Childers at achilders@bloomberglaw.com; Jo-el J. Meyer at jmeyer@bloombergindustry.com