Sarah Palin lost her libel lawsuit against The New York Times this week in a matter watched closely by members of the news media, but perhaps lost amid all the other distractions. The Super Bowl, Olympics, and anti-mask protests commanded attention; the former Alaska governor and vice presidential candidate’s case not so much. It is important nonetheless and may be headed to the United States Supreme Court.
At the heart of Ms. Palin’s claim is whether an unintentional mistake on The Times’s editorial editor’s part was actionable. In a 2017 opinion piece, an editor inserted language linking Ms. Palin’s public statements to a mass shooting. Under a Supreme Court precedent of almost 60 years’ standing, First Amendment freedom of speech protections limit the ability of public officials to successfully sue for defamation. In a 1964 unanimous decision, in The New York Times v. Sullivan, the court said that there had to be “actual malice” and “with reckless disregard of whether it was false or not” for a public official to win, in this example, over minor mistakes in an advertisement. The Star won a related state court case in the early 2000s that followed from that when a former public employee claimed that an omission in a news account of his dismissal had libeled him.
Writing for the Supreme Court majority in Sullivan, Associate Justice William Brennan observed, “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.” That standard has guided lower courts and potential plaintiffs ever since. Now, however, at least two justices of the high court appear willing to reconsider — Clarence Thomas and Neil Gorsuch — though there is deep irony in figures from the right considering weakening news media protections for airing false statements.
Fox News, for example, is battling a $1.6 billion lawsuit from Dominion Voting, a maker of election systems, which was the subject of dozens of segments claiming that Dominion equipment was used to rig the 2020 election, was tied to the late Venezuelan President Hugo Chavez, or that it paid off government officials. There has been no evidence of widespread election fraud. Federal and state officials in the last months of the Trump administration who examined the false claims determined, “the election was the most secure in American history.” A subsequent Department of Homeland Security audit found no indication that election results were manipulated. But, as crazy as the Fox claims were, proving actual malice is a very high bar, even though Dominion may have lost business as a result. And there is yet another delicious twist: Ginni Thomas, who is married to Justice Thomas, is a leading “stop the steal” activist who says, without a shred of proof, that Joe Biden did not win the 2020 election.
It will be interesting to see if Ms. Palin appeals her loss and if the Supreme Court agrees to take it. If it does, free speech protections could suffer a significant blow for players across the media landscape, right, left, and center alike.
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This has been updated to correct Associate Justice William Brennan's role on the United States Supreme Court.