Palin v. New York Times puts media libel laws under scrutiny

“The 360” shows you diverse perspectives on the day’s top stories and debates.

What’s happening

After years of false starts, appeals and COVID-related delays, the defamation case filed by former Alaska governor and vice presidential candidate Sarah Palin against the New York Times finally went to trial last week. The court battle was always going to garner a lot of attention because of who is involved, but legal experts say the case could also be a turning point for laws that protect the press when it covers high-profile figures.

The case centers around a 2017 Times editorial about the dangers of violent political rhetoric. The article included a claim that “incitement” from Palin’s political action committee was linked to a 2011 shooting that severely wounded former Rep. Gabrielle Giffords and left six others dead. But that claim was false, and the Times later issued a correction explaining that there is no evidence connecting Palin’s committee and the shooter.

No one disputes that the paper published an inaccurate accusation against Palin. But it’s not illegal for the media to make a simple mistake, which is what the Times said the error was. In order for the story to count as defamation, Palin and her lawyers will have to prove that the Times knew the claim was wrong ahead of time and published it anyway. That standard, known as “actual malice” was established in a 1964 Supreme Court case called New York Times Co. v. Sullivan. For almost 60 years that ruling has undergirded American journalism and made it hard — though not impossible — for public figures to successfully sue the media.

One of Palin’s lawyers conceded that they face an “uphill” battle in the case with how laws are currently written. Court filings reportedly suggest that if Palin’s team loses, they might appeal the decision in the hope that the Supreme Court weighs in again. Calls to roll back current press protections have gained steam among conservatives over the past few years. Former President Donald Trump said he wanted to “open up” libel laws before taking office. Two conservative Supreme Court justices — Clarence Thomas and Neil Gorsuch — have written recent dissents urging the court to reconsider what’s often called the Sullivan standard.

Why there’s debate

At the heart of the controversy is disagreement over how much room the media should have to make mistakes before they should be held legally accountable for publishing them.

Critics of the current standard say it creates far too much leeway in a digital era that has shortened publish times to seconds and stretched the definition of what a press outlet even is. Gorsuch wrote that the internet caused the 1964 Sullivan standard to evolve “into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”

Though Trump is perhaps the loudest critic of libel laws’ high standards, discontent is not exclusive to Republicans. Prominent Democratic lawyer Mark Elias argued on Twitter late last month that the Sullivan ruling was premised on the idea that the media was “pro-democracy,” a role he said the “the mainstream press seems increasingly disinterested in playing.” Even some members of the media argue that, while protecting the press is important, existing laws give too much of a legal advantage to bad actors.

Defenders of the Sullivan standard say broad press protections are critical for any country that expects its media to hold powerful people accountable. They argue that without that protection, innocent errors could put news organizations out of business. A press that’s afraid to make any mistakes at all, they say, will be too timid to serve the needs of the American people.

What’s next

Any efforts to use Palin’s case as a vehicle to compel the Supreme Court to reconsider the media laws will have to wait until after the current trial is completed. If her lawyers do pursue appeals, it’s an open question whether there are enough justices willing to take up the case, let alone overturn the Sullivan standard.


The laws work

Democracy relies on a press that has the freedom to boldly pursue the truth

“The media should obviously be held accountable for mistakes in their reporting. However, creating an environment in which news outlets are afraid to report on powerful people because they’re worried about being sued is obviously not a good thing for democracy.” — Arwa Mahdawi, The Guardian

The end of Sullivan would mean less accountability for the powerful

“Powerful institutions are held to account by a powerful press. Without Times v. Sullivan, news organizations are likely to shy away from investigative reporting for fear of losing libel cases because of carelessness or unavoidable mistakes.” — Dan Kennedy, WGBH

Conservatives should want existing laws to remain in place too

“Times v. Palin, it’s really two Americas. You have this mainstream institution vs. this kind of anti-media figure. This is why it’s going to be a doozy of a case. I’m sure it’s going to be heavily covered on Fox News, but there could be a backfire effect. … Outlets like Fox do rely on Times v. Sullivan.” — Brian Stelter, CNN

It’s unreasonable to expect the press to always be perfect

“Journalists, being human, inevitably make mistakes; those mistakes should be acknowledged and corrected but, at least when public figures are involved, not harshly punished.” — Margaret Sullivan, Washington Post

Individuals, not big media companies, have the most to lose if Sullivan is overturned

“The Sullivan decision is often seen as a boon to big corporate media. But reversing it would raise the threat of libel judgments against millions of people on social media and websites — most of whom lack the resources to fight court battles. Someone who posts a falsehood about a member of Congress on Facebook could be hauled into the dock and reduced to financial ruin.” — Steve Chapman, Pittsburgh Post-Gazette

The laws should be changed

It shouldn’t be so difficult to punish media outlets that betray their commitment to the facts

“As every recovering addict knows, the first step toward getting better is admitting that you have a problem. And the New York Times has a problem. The Times may not have any love for Sarah Palin, nor she for it, but the former governor is doing the newspaper a favor by giving it the opportunity to recommit itself to fundamental journalistic values, one of which is not making stuff up about people you hate simply because it is fun and profitable to hurt them.” — Kevin D. Williamson, National Review

Tougher media laws could help fix the crisis of public trust in the media

“The survival of a free press depends in part on the First Amendment. But in the long run it also requires support from a public that wants it to be free. A press that violates its privileges with impunity, born of legal protection from a dubious constitutional interpretation, is more vulnerable than righteous journalists think.” — Editorial, Wall Street Journal

It would make sense to have different laws for opinion and straight news stories

“Is the media ready to admit (if not in open court, then at least to themselves) that the wording in the Sullivan decision was never a great fit for editorials, columns, and other forms of opinion writing?” — Ruben Navarrette Jr., Daily Beast

It’s worth at least discussing whether media laws should be updated

“Palin’s suit gives us an opportunity to ask whether the old standard still makes sense in our current world. … The huge difference between 1964 and 2022 when it comes to the continued viability of our defamation law standard is, of course, the internet. Information, misinformation and disinformation now bounce around our online universe with a speed unimaginable to the justices who wrote the Sullivan decision.” — Jessica Levinson, NBC News

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