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February 15, 2022updated 07 Nov 2023 5:56am

Why a lack of ‘actual malice’ scuppered Sarah Palin’s New York Times libel suit

By Bron Maher

A federal judge has indicated that he will dismiss a defamation suit brought by former Alaska governor Sarah Palin against The New York Times.

However, he will only do so after a jury has finished deliberating on the matter. [Update: Within hours of this article being published, the jury found in favour of the NYT over Palin.]

The unusual decision arises from judge Jed S Rakoff’s belief that, whatever the jury rules, Palin will appeal the result.

If such an appeal goes ahead, the resulting case may scrutinise a major legal precedent protecting US publishers from defamation claims.

Ex-vice presidential candidate Palin’s suit relates to a 2017 NYT editorial concerning violence against US politicians .

The article falsely claimed that when Democrat congresswoman Gabby Giffords was shot in 2011 “the link to political incitement was clear. Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.”

But as explained in a correction published the next day, no link was ever established between political rhetoric and the shooting – and the Palin map put the Democrat districts, not the Democrats themselves, under crosshairs.

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Palin filed her defamation claim in 2017. Compared to the UK, which MPs have recently accused of having a legal system that helps people with “nefarious intentions”, the US has more stringent standards for a public figure to meet if they want to prove they have been defamed.

Specifically, they must show that not only were they the subject of a false claim, but that the claim was made with “actual malice”.

The difficulty of proving malicious intent was central to Monday’s legal drama, and will likely continue to be should Palin appeal the eventual verdict.

Why ‘actual malice’?

The precedent originated in a 1964 Supreme Court case also involving the Times.

In that case, “New York Times Co. v. Sullivan”, the Times appealed an earlier ruling by an Alabama court that found an error-ridden advert the paper carried had been libellous.

At that point in US history, Encyclopaedia Britannica says, “advantage in libel cases fell to the plaintiffs” – in particular in Alabama, where the legal right to freedom of expression extended only to opinions demonstrably based in fact.

The full-page advert carried by Times in March 1960 called on readers to donate to the civil rights movement, citing in part the brutalising of black Alabama State College students in Montgomery at a protest following the state’s first known sit-in.

However, the advert contained both trivial errors – for example a claim that protestors had sung “My Country, ‘Tis of Thee’” instead of “The Star-Spangled Banner” – and what were tantamount to fabrications. The ad named as sponsors of its campaign at least four ministers who, though probably supportive, had not in fact been consulted prior to publication.

Montgomery police commissioner L.B. Sullivan sued the Times for libel, although he was not identified by name in the ad. Because the opinions expressed in the advert were underpinned in part by factual errors, the Alabama court ruled it met the state’s threshold for libel.

The Supreme Court disagreed, however, saying that if a critic of a public official were required to prove the truth of all their assertions, “would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so”.

The Court ruled unanimously that the First Amendment protected publishers as long as a false claim about a public figure was not made with “actual malice”, which it defined as “knowledge that it was false or with reckless disregard of whether it was false or not”.

Three justices wanted to go further still, and protect even speech that was knowingly false.

The New York Times Co. v. Sullivan precedent has expanded in the decades since so that public figures in general, rather than just public officials, must demonstrate malice behind defamatory falsehoods in order to win their cases.

Successful defamation suits against major US news publishers are, consequently, rare. US general William C. Westmoreland in 1985 dropped a $120m lawsuit against CBS over a documentary alleging he had massaged estimates of North Vietnamese troop numbers ahead of the Tet offensive. The Los Angeles Times reported at the time that Westmoreland had received advice that he could not satisfy the “actual malice” standard.

The same year, Israeli general Ariel Sharon lost his bid to sue Time magazine over an article that suggested he had been responsible for the massacres of Palestinian civilians in refugee camps at Sabra and Shatila. He was unable to convince the jury that Time had sought to damage his reputation.

Back in the present day, voting technology company Smartmatic is suing conservative outlets Fox News, One America News Network and Newsmax over allegations the publishers spread false claims that the company conspired to rig the 2020 presidential election. The cases are yet to conclude.

Although the New York Times-Sullivan standard is high, it is not impossibly so: in one notable case that ended last month, rapper Cardi B successfully proved malicious intent in a defamation case against a blogger who had claimed the musician was a sex worker.

Why does the judge want to dismiss the Palin case?

Judge Rakoff said on Monday that “the law sets a very high standard for actual malice, and in this case the court finds that that standard has not been met”.

Typically a judge would dismiss a case either before or after the jury began deliberations. According to the Washington Post, Judge Rakoff made his unusual decision because “he wanted future courts to have both his decision and the jury’s to consider”.

David A. Logan, a law professor at Roger Williams University, told the Post that “By doing it this way, it is somewhat efficient… another jury does not need to be impanelled” if Judge Rakoff’s dismissal is reversed by an appeals court.

This has happened once already. Judge Rakoff dismissed Palin’s suit shortly after it was originally filed in 2017 because he believed her legal team could not demonstrate malice, but the case was returned to him by an appeals court.

Should the case ultimately make it to the Supreme Court, the protection afforded to publishers by the New York Times-Sullivan precedent may be questioned.

The Washington Post noted two conservative Supreme Court justices, Clarence Thomas and Neil M. Gorsuch, “have signalled an openness to reassessing” the precedent, which the newspaper said “set a high bar for prominent people pursuing libel claims”.

Picture: Michael M. Santiago/Getty Images

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