Sarah Palin vs. NY Times

[Ann 269]

I am trying to understand our current legal system.  Ms. Palin’s case was given to the Jury for deliberation, after which, the Judge dismissed her case for failure prove she was damaged while the Jury continued deliberations.  A Jury trial is decided by a verdict from the Jury, the Judge rules in a Bench Trial.   

[Chris 2,200]

I don't know enough about it to weigh in, other than from what I've heard, she had a good case against the Times. 

[TTL News 313]

Appeal in Sarah Palin’s libel loss could set up Supreme Court test of decades-old media freedom rule

Sarah Palin speaks to the media. Michael M. Santiago/Getty Images

Bill Kovarik, Radford University

To the numerous challenges facing the U.S. media in recent years, add a libel case against The New York Times – lost by Sarah Palin, but now seemingly headed to appeal and perhaps on to the highest court in the land.

On Feb. 15, 2022, a jury rejected Palin’s claim. As it happened, its verdict was more or less moot. The presiding judge had already said he would dismiss the case on the grounds that the former Alaska governor’s legal team had failed to reach the bar for proving she had been defamed.

A Times editor admitted a mistake in suggesting in a 2017 opinion piece that there was a link between Palin’s rhetoric and a mass shooting. But under the so-called Sullivan standard – a rule in place for nearly 60 years that makes it difficult for public figures to successfully sue for defamation – neither the jury nor the judge considered the error significant enough for Palin to win her case.

But in reaching his decision in the Palin case, the federal judge suggested that it was likely not to be the end of the matter – indeed, an appeal is expected.

And that has defenders of a free press worried. Legal scholars note that recent opinions by Supreme Court Justices Clarence Thomas and Neil Gorsuch favor overturning the Sullivan standard – a move that would take away a key protection for the press against libel suits by vindictive public officials.

As a media historian, I can see the Palin case providing a vehicle to return libel laws back to a time when it was much easier for public figures to sue the press.

What is ‘actual malice’?

Before 1964’s Sullivan standard, the libel landscape in the U.S. consisted of a patchwork of state laws that made it easy for political figures to selectively persecute newspapers and public speakers who espoused opposing or unpopular views.

For example in 1949, John Henry McCray, a Black editor from South Carolina, served two months on a chain gang after being charged with criminal libel for writing a story about a racially charged execution. White publications reporting the same story were not charged.

Similarly, in a 1955 libel case, Dr. Von Mizell, a Black surgeon and NAACP official, was ordered to pay a US$15,000 fine for writing in opposition to a Florida state legislator’s idea of abolishing public schools instead of integrating them.

Then came the Sullivan case. It centered around several tiny mistakes in a civil rights advertisement carried by The New York Times. L.B. Sullivan, a public official not even named in the advertisement, sued for defamation, and the case went from Alabama to the U.S. Supreme Court.

In setting the Sullivan standard in 1964, the Supreme Court said in effect that it ought to be difficult for any official at the federal or the state level to prove that a falsehood was libelous enough – and personally damaging enough – to surmount First Amendment protections.

The court said a public official could not win a libel lawsuit by citing minor mistakes, technical inaccuracies or even outright negligence. Instead, under the Sullivan standard, a public official had to prove that there was “actual malice,” which means that a critic knowingly published something false or was in reckless disregard of the truth.

The court insisted that “debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on public officials.”

‘No relation to the Constitution’

Originalists on the current Supreme Court – that is, those justices who believe that the Constitution should be interpreted as it was by those crafting the original document – seemingly disagree.

Justice Thomas, in a 2019 opinion, suggested the Sullivan ruling failed to take into account “the Constitution’s original meaning.” He followed this up in a 2021 opinion that stated the requirement on public figures to establish actual malice bears “no relation to the text, history, or structure of the Constitution.”

Some legal scholars have argued that originalism doesn’t cut much ice when it comes to First Amendment protections. After it passed in 1791, the First Amendment was open to so many state interpretations that there is no agreement on what the accepted interpretation of the day was.

Nonetheless, should Palin appeal against the latest ruling, it is likely that the case could reach a Supreme Court in which at least two justices seem primed to challenge the decades-old Sullivan rule.

Should their views prevail in the highest court of the land, it could chill the freedom of the press for conservative and liberal news organizations alike.

 

Bill Kovarik is Professor of Communication at Radford University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

[Ann 269]

Perhaps if the Sullivan Standard is overturned it will bring back genuine journalists (written and those on televised news broadcasts) who research and fact check before publishing their opinions as journalism.  Who, what, where, when and why.

Any falsehood should be challenged.   Today’s journalists are as equally capable of being vindictive as public figures.

[MsKreed 1,199]

Whenever someone supports censorship or restrictions on “hate speech” (whatever they personally choose to define it as) they like to remind adversaries that “the First Amendment has limits....it doesn’t give you the right to say whatever you want”

And the number one example that’s used is “Everyone knows you can’t shout ‘fire’ in a crowded theater”.

Once in a while I’m feeling argumentative enough to point out that “everyone” does not “know” this.....because it’s actually not a true statement.

Like defamation (libel/slander).....there is one thing universally accepted as an “absolute defense” in free speech: TRUTH

 

So...yeah, if it’s actually true that there’s a fire in the theater, you absolutely can shout “fire”. And...Duh....you really should.

If we want to delve further....a lot of people seem unaware that a “false statement” is often permitted as long as it wasn’t “knowingly false”.  If someone believes the statement is likely true, it’s not against the law to make the statement. So if you honestly believe that there's a fire because your cousin’s, girlfriend’s baby-daddy shared a post that the theater’s on fire..... maybe you can still get away with shouting “fire”.

 

And if the statement (like Times v Sullivan) involves a “public figure”, then a publisher isn’t obligated to (to use a contemporary term) “fact check” statements made by their sources.

 

In Sullivan, The Times was found not liable for publishing false information contained in a paid advertisement (open letter) submitted by an outside source.

The ruling hinged on the premise that “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions -- and to do so on pain of libel judgments virtually unlimited in amount -- leads to a comparable ‘self-censorship.’”

In other words, the Times shouldn’t be burdened with “proving” the content provided by the (open letter) submitters was 100% true....or they would no longer be able to publish any such content, and effectively suppress all criticism of politicians.

Quote

The court said a public official could not win a libel lawsuit by citing minor mistakes, technical inaccuracies or even outright negligence. Instead, under the Sullivan standard, a public official had to prove that there was “actual malice,” which means that a critic knowingly published something false or was in reckless disregard of the truth.

If a retailer or political candidate, etc submits a paid ad with false information (or a 'Your Turn' or letter to the editor) to the Star Gazette......then it is perfectly fair to hold the author/submitter liable – not the paper. 

However, Times v Sullivan sounds a little different than Palin’s case. And I have to wonder if Sullivan was ever intended to apply broadly to anything and everything.....even a publisher's own writings & content.....

In Palin’s case, it wasn’t some paid ad from someone outside source criticizing her with false statements. It was a Times Editor. Seems like, when it’s their content, then there it is indeed done “knowingly” and with “reckless disregard of the truth”.

Edited February 16, 2022 by MsKreed