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At issue is a July 2017 Times editorial, which contended that Gov. Palin incited the January 8, 2011, shooting of 13 people—including Democratic Rep. Gabby Giffords of Arizona—by a mentally-ill man named Jared Loughner. It is undisputed that The Times’ editorial was wrong, Gov. Palin played no part in Loughner’s motivation to murder and maim innocent people, and this fact was well-known before July 2017, when the Times published its inaccurate editorial.
The Times contends that it is not liable because the factual errors in the editorial were innocent mistakes. This defense is based, in large part, on a 1964 Supreme Court case called Times v. Sullivan, which held that the press cannot be held liable for defamation when it publishes inaccurate information, unless the falsity was the product of “actual malice” against the plaintiff. Moreover, the “actual malice” must be proven by “clear and convincing evidence”—the highest standard in civil cases (although less than the “beyond a reasonable doubt” standard required for criminal conviction).
Palin argues that she can both prove that The Times was motivated by “actual malice” against her, and that she should not have to prove “actual malice” because the Times v. Sullivan precedent no longer should apply in the internet era, when everyone can claim to be a journalist.
That’s a very big deal for the future of press freedom.
Palin’s only seeking $421,000 in actual damages, plus “special and punitive damages.” That figure is a rounding error for The Times, whose parent company earns nearly $2 billion of annual revenue. The Times will likely spend millions of dollars in legal fees to defend this suit, far in excess of the damages claimed. So, it is fair to say that this is a case about principles of law, more than money.
There’s a chance Palin could win under the current law, but it would be very difficult. In order to find The Times liable for defamation, the jury would have to conclude not only that the paper published inaccurate information (which is conceded), but also (in the words of Times v. Sullivan) that there was clear and convincing evidence that “the statement was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
As Palin’s attorneys admitted in their arguments seeking to have the Court refuse to apply the “actual malice” standard: “In practice, this requirement poses an insurmountable barrier in all but a relative handful of egregious cases.”
Palin contends that a jury could conclude that The Times acted with “actual malice” because (1) it had an agenda to impugn her integrity; (2) the editor in charge of the piece actually knew that Palin’s actions had nothing to do with Loughner’s murderous attack because he had previously edited an article (when he worked at The Atlantic) which concluded that Loughner’s attack was entirely unmotivated by Palin; (3) The Times’ editorial stated that Palin had placed a crosshairs on an image of Rep. Giffords, when in fact she had placed a crosshairs on a map of Gifford’s Arizona congressional district; and (4) when The Times retracted its editorial, it initially retracted only some of the false statements (before eventually retracting all of them), and apologized to its readers for printing inaccurate statements, but did not directly apologize to Gov. Palin.
Initially, U.S. District Judge Jed Rakoff held that Palin’s theory of “actual malice” was so far-fetched that he dismissed the entire case. However, the Second Circuit Court of Appeals overruled Judge Rakoff and held that the case had enough plausibility to require a trial.
It would be extremely rare for a jury to hold that The New York Times acted with “actual malice” when it made its first retraction of parts of the editorial within five hours of its publication, and had retracted all of the factually inaccurate statements within two days.
Despite her and her lawyers’ best efforts, Palin will not get the “actual malice” standard changed at this trial. Judge Rakoff has already held that he will instruct the jury that they must find “actual malice” to rule in favor of the plaintiff. If Palin were to lose and then appeal to the Second Circuit Court of Appeals, she again could not get the “actual malice” standard overruled. The Court of Appeals does not have the authority to overrule a Supreme Court precedent.
Palin’s legal team has raised its challenge to the “actual malice” standard to preserve the issue for an argument to the Supreme Court, in the event the former governor were to lose both at trial and on the initial appeal to the Second Circuit.
If the argument were to reach the Supreme Court, Palin could (potentially) win. Justices Clarence Thomas and Neil Gorsuch wrote dissents in 2021 stating that they believe that Times v. Sullivan should be overruled. Since it would take years for a potential appeal to reach the Supreme Court, nobody knows whether there might be three (or more) new justices who could join with Justices Thomas and Gorsuch and form a majority on the Court that rewrites the law.
If Times v. Sullivan were to be overruled, it would change the legal landscape for journalism in the U.S.
Defamation law here, in all likelihood, would quickly resemble British law, where any factual inaccuracy in a news article makes the publisher liable for damages—even if the publisher had no reason to know that there were mistakes in the story. In the UK, threats of libel lawsuits often dissuade newspapers from publishing important allegations, for fear that they will be ordered to pay large damages.
Sarah Palin will have her day in court, but she’s unlikely to prevail under the current law. Palin is also not going to be able to get any court below the Supreme Court to overrule the “actual malice” standard. Since we are years away from any potential appeal by Palin reaching the Supreme Court, it is too soon to say whether she could get the Supreme Court to rewrite the law at that time.
But there’s a path where Palin could win by losing in the current lawsuit, and in doing so she’s setting the stage for a Supreme Court ruling that could redefine press freedom in the U.S.