{"id":4925,"date":"2022-02-15T14:26:16","date_gmt":"2022-02-15T14:26:16","guid":{"rendered":"https:\/\/revolutionsincommunication.com\/law\/?p=4925"},"modified":"2022-02-24T12:53:03","modified_gmt":"2022-02-24T12:53:03","slug":"appeal-in-sarah-palins-libel-loss-could-set-up-supreme-court-test-of-decades-old-media-freedom-rule","status":"publish","type":"post","link":"https:\/\/revolutionsincommunication.com\/law\/2022\/02\/15\/appeal-in-sarah-palins-libel-loss-could-set-up-supreme-court-test-of-decades-old-media-freedom-rule\/","title":{"rendered":"Appeal in Sarah Palin\u2019s libel loss could set up test of Sullivan standard"},"content":{"rendered":"
\"\"<\/a>

Sarah Palin, 2012, by Gage Skidmore, CC \/ Wikipedia.<\/p><\/div>\n

By Bill Kovarik<\/strong>
\nPublished in The Conversation,<\/a> Feb. 15, 2022 under a <\/em>Creative Commons license for non-profit republication.\u00a0<\/em><\/p>\n

To the numerous challenges facing the U.S. media in recent years, add a libel case against The New York Times \u2013 lost by Sarah Palin, but now seemingly headed to appeal and perhaps on to the highest court in the land.<\/p>\n

On Feb. 15, 2022, a\u00a0jury rejected Palin\u2019s claim<\/a>. As it happened, its verdict was more or less moot. The presiding judge had\u00a0already said he would dismiss the case<\/a>\u00a0on the grounds that the former Alaska governor\u2019s legal team had failed to reach the bar for proving she had been defamed.<\/p>\n

A Times editor admitted a mistake in suggesting\u00a0in a 2017 opinion piece<\/a>\u00a0that there was a link between Palin\u2019s rhetoric and a mass shooting. But under the so-called\u00a0Sullivan standard<\/a>\u00a0\u2013 a rule in place for nearly 60 years that makes it difficult for public figures to successfully sue for defamation \u2013 neither the jury nor the judge considered the error significant enough for Palin to win her case.<\/p>\n

But in reaching his decision in the Palin case, the federal judge suggested that it was\u00a0likely not to be the end of the matter<\/a>\u00a0\u2013 indeed, an\u00a0appeal is expected<\/a>.<\/p>\n

And that has defenders of a free press worried. Legal scholars\u00a0note that recent opinions<\/a>\u00a0by Supreme Court Justices Clarence Thomas and Neil Gorsuch favor overturning the Sullivan standard \u2013 a move that would take away a key protection for the press against libel suits by vindictive public officials.<\/p>\n

As\u00a0a media historian<\/a>, I can see the Palin case providing a vehicle to return libel laws back to a time when it was much easier for public figures to sue the press.<\/p>\n

What is \u2018actual malice\u2019?<\/h2>\n

Before\u00a01964\u2019s Sullivan standard<\/a>, the libel landscape in the U.S. consisted of a patchwork of state laws that made it easy for political figures to selectively persecute newspapers and public speakers who espoused opposing or unpopular views.<\/p>\n

For example in 1949, John Henry McCray, a Black editor from South Carolina,\u00a0served two months on a chain gang<\/a>\u00a0after being charged with criminal libel for writing a story about a racially charged execution. White publications reporting the same story were not charged.<\/p>\n

Similarly, in\u00a0a 1955 libel case<\/a>, Dr. Von Mizell, a Black surgeon and NAACP official, was ordered to pay a US$15,000 fine for writing in opposition to a Florida state legislator\u2019s idea of abolishing public schools instead of integrating them.<\/p>\n

Then came\u00a0the Sullivan case<\/a>. It centered around several tiny mistakes in a civil rights advertisement carried by The New York Times. L.B. Sullivan, a public official not even named in the advertisement, sued for defamation, and the case went from Alabama to the U.S. Supreme Court.<\/p>\n

In setting the Sullivan standard in 1964, the Supreme Court said in effect that it ought to be difficult for any official at the federal or the state level to prove that a falsehood was libelous enough \u2013 and personally damaging enough \u2013 to surmount First Amendment protections.<\/p>\n

The court said a public official could not win a libel lawsuit by citing minor mistakes, technical inaccuracies or even outright negligence. Instead, under the Sullivan standard, a public official had to prove that there was \u201cactual malice<\/a>,\u201d which means that a critic knowingly published something false or was in reckless disregard of the truth.<\/p>\n

The\u00a0court insisted<\/a>\u00a0that \u201cdebate 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.\u201d<\/p>\n

\u2018No relation to the Constitution\u2019<\/h2>\n

Originalists<\/a>\u00a0on the current Supreme Court \u2013 that is, those justices who believe that the Constitution should be interpreted as it was by those crafting the original document \u2013 seemingly disagree.<\/p>\n

Justice Thomas, in\u00a0a 2019 opinion<\/a>, suggested the Sullivan ruling failed to take into account \u201cthe Constitution\u2019s original meaning.\u201d He followed this up\u00a0in a 2021 opinion<\/a>\u00a0that stated the requirement on public figures to establish actual malice bears \u201cno relation to the text, history, or structure of the Constitution.\u201d<\/p>\n

Some legal scholars\u00a0have argued<\/a>\u00a0that originalism doesn\u2019t cut much ice when it comes to First Amendment protections. After it passed in 1791, the First Amendment was open to so many state interpretations that there is no agreement on what the accepted interpretation of the day was.<\/p>\n

Nonetheless, should Palin appeal against the latest ruling, it is likely that the case could reach a Supreme Court in which at least two justices seem primed to challenge the decades-old Sullivan rule.<\/p>\n

Should their views prevail in the highest court of the land, it could chill the freedom of the press for conservative and liberal news organizations alike.<\/p>\n

——<\/p>\n

Postscript:<\/h3>\n

The New York Times published the editorial \u201cAmerica\u2019s Lethal Politics\u201d June 15, 2017 p. A 24.<\/p>\n

The editorial was published the day after the \u201cCongressional baseball shooting\u201d took place in Alexandria.\u00a0\u00a0The overall idea of the editorial was that violent rhetoric often escalates into violent action. Online versions of the editorial no longer contain the mistake that was at the heart of the libel case, but the printed version still has the mistake.<\/p>\n

The editorial begins with a description of the \u201cCongressional baseball shooting\u201d and also notes one other instance of violence, the 2011 Tucson Az shooting of Congresswoman Gabby Giffords and killing of six other people. Next, the editorial said in the printed version: \u201cthe link to political incitement was clear.\u201d (That phrase is now removed from the corrected online version). In the next paragraph, the editorial said: \u201cBefore the shooting, Sarah Palin\u2019s political action committee circulated a map that showed the targeted electoral districts of Ms. Giffords and 19 other Democrats under stylized cross hairs.\u201d (The Times added this in the online version:) But in that case no connection to the shooting was ever established.<\/p>\n

So the phrase \u201cthe link to political incitement was clear\u201d was the allegedly defamatory comment. And the correction said “no connection was ever established.”<\/p>\n

Also see:<\/h3>\n

“Sarah Palin’s Crosshairs Ad Dominates Gifford Debate<\/a>,” ABC News, Jan 9, 2011.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Bill Kovarik Published in The Conversation, Feb. 15, 2022 under a Creative Commons license for non-profit republication.\u00a0 To the numerous challenges facing the U.S. media in recent years, add a libel case against The New York Times \u2013 lost … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[],"class_list":["post-4925","post","type-post","status-publish","format-standard","hentry","category-libel"],"_links":{"self":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/posts\/4925","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/comments?post=4925"}],"version-history":[{"count":5,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/posts\/4925\/revisions"}],"predecessor-version":[{"id":4932,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/posts\/4925\/revisions\/4932"}],"wp:attachment":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/media?parent=4925"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/categories?post=4925"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/tags?post=4925"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}