Palin suit may give Trump revenge on the press | Bill Cotterell

Editors and reporters shook their heads and chuckled condescendingly when Donald Trump said in 2016 that he would “open up” libel laws to make it easier for famous people to sue the media for saying things they don’t like.

For more than a half-century, the press has been protected by a Supreme Court edict known as the “Sullivan Doctrine.” That rule says public figures must prove that journalists knowingly distributed false information with “actual malice”— or that they showed a reckless disregard for the truth in making errors.

A retraction and correction can help, but media companies can’t get a suit quashed if they acted maliciously in spreading false information about a politician or officeholder.

Trump’s revenge may be brewing in a New York federal case involving Sarah Palin, and no one in newsrooms or editorial suites is laughing now.

Jury selection was delayed this week when the former Alaska governor, and 2008 vice-presidential nominee, tested positive for Covid. Her defamation suit against the New York Times is weak, under the Sullivan doctrine, but it gives conservative critics a chance to appeal to a U.S. Supreme Court that is far different from the justices who gave the media broad protection in the mid-1960s.

Justices Clarence Thomas and Neil Gorsuch have said they think the Sullivan precedent gets the media off the hook too easily. And there’s no disputing the Times messed up, as it acknowledged in a quick correction of the editorial that sparked Palin’s lawsuit.

Her political action committee put out advertisements in 2010 showing a map of the United States with rifle crosshairs on congressional districts of 20 House members who’d voted for Obamacare.

“We’ll aim for these races and many others,” the ad said. “This is just the first salvo in a fight to elect people across the nation who will bring common sense to Washington.”

Florida Reps. Allen Boyd and Suzanne Kosmas were among those targeted, and both were defeated that year.

Among Arizona members in the ad was Rep. Gabrielle Giffords, who was shot and severely wounded by a gunman who killed six people at a public event in Tucson. A few years later, when another assailant opened fire on Republican House members practicing for a baseball game, the Times cited Palin’s crosshairs piece in an editorial that said, “the link to political incitement was clear.”

Palin’s defamation suit was dismissed but reinstated on appeal, and trial is now underway.

“The case will come down to whether the jury, as juries sometimes do, will decide based on their likes and impressions of the parties, or whether they will actually follow the ‘actual malice’ rules the judge will give them,” George Freeman, director of the Media Law Resource Center, told the Times.

He’s a former lawyer for the newspaper.

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It’s said that bad cases make bad law, and the 9-0 Sullivan landmark was pretty much legislating from the bench. It started in 1960 when the Times ran a full-page ad seeking support of the civil rights movement, misstating the number of times Dr. Martin Luther King Jr. had been arrested in the South and misidentifying a song protestors sang in a Montgomery, Ala., demonstration.

The city’s police commissioner, L.B. Sullivan, was awarded $500,000 by an Alabama court. But even if some points in the advertisement were wrong, they didn’t defame Sullivan.

Obviously, the “Heart of Dixie” jury wanted to punish those liberal Yankees for coming down South and writing bad stuff, but the Supreme Court was just as vindictive in reversing the case. It decided that a freewheeling public debate of issues was more important than punishing a few picky little flaws.

That was the right result. But it should be a legislative decision, not a judicial one. Neither the Alabama Legislature nor Congress was likely to make such a rule in 1964, so the justices just did it.

Not only has the Supreme Court changed a lot in 58 years, so have the media. There was no Facebook or Twitter in the 1960s, no Joy Reid or Tucker Carlson on TV every night interviewing partisans — often extremists — to enliven debate on big issues of the day.

Assuming Palin loses at trial and appeals, perhaps the more conservative Supreme Court will take another look at the Sullivan precedent.

It would be bitter irony if Trump, who has said so many false and hurtful things with actual malice, gets revenge on the media by seeing his Supreme Court appointees knock down a pillar of press freedoms.

Bill Cotterell is a retired Tallahassee Democrat capitol reporter who writes a twice-weekly column. He can be reached at bcotterell@tallahassee.com

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This article originally appeared on Tallahassee Democrat: Palin suit may give Trump revenge on the press | Bill Cotterell