David Akst
Former Alaska Governor Sarah Palin sued the New York Times Company for defamation in 2017 over an editorial it published that year, “America’s Lethal Politics,” which suggested at one point that there was a “clear” and “direct” link between the 2011 shooting of Congresswoman Gabrielle Giffords (which killed six others) and an ad run by a political action committee run by Palin a few months before that. The ad showed a map of the US with stylized crosshairs overlaying 20 Democrat-controlled districts the PAC wanted to flip in the 2010 midterms, including Giffords’ district. Shortly after publishing the editorial, the Times issued corrections stating that no such link had been established.
SDNY Judge Jed Rakoff entered final judgement in that case on March 1, 2022, finding for the Times on a Rule 50 motion.[1] The outcome was somewhat procedurally complicated, though we need not delve too deep into why: Rakoff announced he’d decide on a Rule 50 motion when the jury, which ultimately agreed with him, was already deliberating. Members of the jury received push notifications from newspapers about Rakoff’s announcement while still deliberating. But the jury still returned a verdict, so the case saw both a jury verdict and a judgment decision as a matter of law though the two agreed. What matters is that the judge and jury alike agreed that Palin failed to prove actual malice on the part of the Times.
Procedure aside, the case is noteworthy for its treatment by the media and its place in a larger discussion of the actual malice standard, the heightened burden developed by New York Times v. Sullivan (1964) and expanded over time to cover all defamation plaintiffs deemed public figures. That case called for a showing of actual malice on the defendant’s part, meaning the defendant must have had knowledge of the falsity of their statement or have recklessly disregarded the potential falsity of the statement. While the First Amendment-based rule protects any speaker referring to a public figure, the decision has been widely viewed as a major boon for media companies, insulating them from a great deal of state-law defamation liability even when publishing ultimately-false statements about celebrities and politicians. As the mainstream media and modern conservative movement have become increasingly estranged, the standard has become more contentious.
Perhaps unsurprisingly, since their publishers have a horse in the race, headlines about the Palin case cast it as an existential attack on the media. A HuffPost headline after the verdict described the suit as, “Sarah Palin's Battle Against Press Freedom.”[2] The New York Times described her case in a headline as part of an “Effort to Weaken Press Protections.”[3] A Poynter headline warned that the suit “could be a groundbreaking journalism case.”[4] An NPR headline said, “Palin’s defamation case is part of a conservative strategy to take on the media.”[5] Palin herself has framed it as a fight for media accountability, while some have questioned whether an anonymous backer is bankrolling her effort.[6]
Depending on your position on Sullivan, these may not be unreasonable headlines. There were recent calls to reconsider the actual malice standard from Supreme Court Justices Thomas and Gorsuch in their dissents to the denial of certiorari for Berisha v. Lawson last summer; Thomas argues that the standard protects the publication of falsehoods and has no basis in the text of the First Amendment, and Gorsuch questioned the utility in the modern media landscape of a standard which effectively immunizes speakers from liability while discouraging proper fact-checking.[7] Thomas had expressed opposition to the standard in 2019, as well.[8]
Thomas and Gorsuch probably won’t get their chance with this case, though, because Rakoff decided it on the basis of New York State’s anti-SLAPP (strategic lawsuits against public participation) law. New York and 30 other states, as of last summer, have such laws on the books to allow defendants to quickly defeat meritless lawsuits based on First Amendment-protected activity, and to discourage such lawsuits from being brought.[9] While the protections within anti-SLAPP laws vary by state, New York and some other states have incorporated the actual malice standard into their statutes.[10] It’s unlikely that the Supreme Court could review the case and manage to overturn Sullivan while leaving the decision alone on state anti-SLAPP grounds (as it would likely need to, given the facts).
Still, a Supreme Court which rejects the actual malice standard would be bad for the press. Not every state has incorporated the actual malice standard into its defamation law, and a return to the negligence standard as a baseline for public figure defamation claims even in some states could make for significant liability for publishers. But it’s worth remembering that the Sullivan standard is unusual in a global sense, and plays a major role in making America uniquely speech-protective among its peer nations.[11]
What Gorsuch asks is whether such liability would be such a bad thing, and whether the standard makes sense when the technological and economic realities of publishing (and of being a public figure) are so far from what they were in 1964. And this is not a decidedly conservative position, despite the aforementioned headlines: similar points are made by University of San Diego Law Professor David McGowan in an excellent article in the Journal of Free Speech Law earlier this year, “A Bipartisan Case Against New York Times v. Sullivan”, and by University of Chicago Law Professor and Knight First Amendment Institute at Columbia University senior visiting research scholar Genevieve Lakier in a Washington Post piece.
In short, critics argue that the Sullivan standard may: make litigation more costly for both parties, disincentivize fact-checking, reduce public trust in media, prevent recovery by a great number of barely-but-sufficiently-public figures for the publication of obviously negligent and damaging falsehoods, be outdated in an era where everyone is a publisher on social media without the structural guardrails (like fact-checkers and delayed publication) inherent to media companies in the pre-digital era, and be more useful in protecting generally irresponsible or bad actors than good-faith journalists.
Both McGowan and Lakier offer alternative approaches to limiting the liability publishers may face in defamation suits (including various damage-related rules) while incentivizing accurate and careful reporting and protecting individuals (even famous ones) from some damaging falsehoods. Of course, Sullivan does have its defenders beyond just headlines: the Media Law Resource Center (MLRC) just released whitepaper in favor of preserving the “essential precedent,” including responses to Thomas and Gorsuch and a preface and afterword, respectively, from legendary First Amendment litigators Floyd Abrams and Lee Levine. The fact that the paper is nearly 200 pages long certainly suggests that the MLRC views the issue as both complex and urgent.
Defenders of the Sullivan standard argue that it may: operate not as a complete immunity but like a minimal federal anti-SLAPP policy to discourage meritless or especially weak libel claims designed more to silence press speaking truth than to protect reputations from falsity, protect important speech central to democracy, encourage fact-checking and responsible reporting, and be necessary to protect a news media landscape still more concentrated and under more frequent (increasing, even) threat from libel claims than Gorsuch might suggest.
The Palin case will not dictate the future of the actual malice standard, and (as the media somewhat breathlessly suggests) challenges to it will probably continue. But it’s also not absolutely clear that the future of the actual malice standard needs to dictate the future of the American media landscape.
[1] Palin v. New York Times Company and James Bennet, Case 1:17-cv-04853-JSR, (S.D.N.Y., March 1, 2022) available at https://storage.courtlistener.com/recap/gov.uscourts.nysd.476650/gov.uscourts.nysd.476650.196.0.pdf.
[2] Sara Boboltz, Sarah Palin’s Battle Against Press Freedom Faces Rocky Road to Supreme Court, HuffPost (March 3, 2022), https://www.huffpost.com/entry/sarah-palin-actual-malice-supreme-court_n_621e37a8e4b0d1388f1ad015.
[3] Jeremy Peters, Effort to Weaken Press Protection Isn’t Likely to End with Palin Case, The New York Times (Feb. 16, 2022), https://www.nytimes.com/2022/02/16/business/sarah-palin-sullivan-libel-law.html.
[4] Tom Jones, Sarah Palin v. The New York Times could be a groundbreaking journalism case, Poynter (Jan. 24, 2022), https://www.poynter.org/commentary/2022/sarah-palin-v-the-new-york-times-could-be-a-groundbreaking-journalism-case/.
[5] David Folkenflik, Palin's defamation case is part of a conservative strategy to take on the media, NPR (Feb. 25, 2022), https://www.npr.org/2022/02/25/1083003350/palins-defamation-case-is-part-of-a-conservative-strategy-to-take-on-the-media.
[6] Caleb Pershan, The two big questions after the Sarah Palin New York Times trial, Columbia Journalism Review (Feb. 17, 2022), https://www.cjr.org/analysis/the-two-big-questions-after-the-sarah-palin-new-york-times-trial.php.
[7] Berisha v. Lawson, 141 S. Ct. 2424 (2021) (J. Thomas and J. Gorsuch, dissenting).
[8] Pete Williams, Justice Clarence Thomas criticizes landmark Supreme Court press freedom ruling, NBC News (Feb. 19, 2019), https://www.nbcnews.com/politics/supreme-court/justice-clarence-thomas-criticizes-supreme-court-landmark-press-freedom-ruling-n973176.
[9] Austin Vining and Sarah Matthews, Overview of Anti-SLAPP Laws, Reporters Committee for Freedom of the Press (Accessed Mar. 7, 2022), https://www.rcfp.org/introduction-anti-slapp-guide/.
[10] Anne M. Champion and Lee R. Crain, New York Times v. Sullivan Is Safe From Sarah Palin, Bloomberg Law (Feb. 25, 2022), https://www.bloomberglaw.com/bloomberglawnews/exp/eyJjdHh0IjoiSVBOVyIsImlkIjoiMDAwMDAxN2YtMDk4Ni1kODFjLWExN2YtMWQ4N2YzMDMwMDAxIiwic2lnIjoiZ3Z4c3JlWlRzRnY1WFVVcEhTSnRyQ1RxMTVnPSIsInRpbWUiOiIxNjQ1ODg0Mzg1IiwidXVpZCI6IjRxUi9MSmd2UVdhZVF6WEhzK1dsZXc9PUhuMzRSUVBaVkVrbXpzSG1FZ21sUGc9PSIsInYiOiIxIn0=?bwid=0000017f-0986-d81c-a17f-1d87f3030001&cti=LSCH&emc=bipnw_nl%3A10&et=NEWSLETTER&isAlert=false&item=read-text&qid=7252977®ion=digest&source=newsletter&uc=1320017973&udvType=Alert&usertype=External. Note that Rakoff decided that the 2020 amendment to New York’s anti-SLAPP law, which incorporated the actual malice standard, applied in the Palin case.
[11] See Floyd Abrams, The Soul of the First Amendment (2017), at 51-54.