By Avery Cartwright.
Sarah Palin, former governor of Alaska and 2008 vice presidential candidate, filed suit against The New York Times in federal court after the Times published a 2017 editorial that erroneously connected her to the January 2011 mass shooting near Tucson, Arizona. Although the jury dismissed the case in early February 2022, Palin indicated that she plans to seek a new trial because of procedural issues in the case. Her lawsuit could challenge long-standing precedent regarding freedom of the press.
The New York Times v. Sullivan Standard
In 1964, the U.S. Supreme Court decided New York Times v. Sullivan, a landmark case for freedom of speech in news reporting. In Sullivan, the Times was sued after it ran an advertisement criticizing the city of Montgomery’s police department. Although most of the advertisement was factually accurate, some statements were not, so police commissioner Sullivan sued the Times for defamation.
At the trial and appellate level in Alabama, the courts found for Sullivan because the advertisement had made false representations about Sullivan and the police department. The U.S. Supreme Court granted review and found, unanimously, in favor of the Times.
In its decision, the Supreme Court held that the First Amendment broadly protects a newspaper’s right to publish critical statements about public officials. As such, public officials face a high bar when they seek to hold the press liable in a defamation claim. Specifically, the Court held that a public official may not recover damages for a “defamatory falsehood relating to [their] official conduct” unless they could prove “that the statement was made with ‘actual malice.’” The Court further explained that “actual malice” requires that the publisher of the statements either (1) knows that the statements are false, or (2) acts with “reckless disregard” as to whether or not the statements are false.
The Sullivan decision has been celebrated by many for various reasons, from arguably saving the civil rights movement to transforming libel law from a state law matter to one governed and protected by the First Amendment. In subsequent cases, the Supreme Court extended this “actual-malice standard” beyond public officials, to “public figures” and “limited public figures” (those who place themselves at the forefront of public controversy).
Modern Treatment of the Sullivan Decision
The standard has faced criticism in recent years from several members of the current Supreme Court. When the Court denied review of a defamation case against Bill Cosby, Justice Thomas concurred, suggesting that the Court needs to revisit the precedent set in Sullivan. Justice Thomas called the Sullivan standard a “policy-driven approach to the Constitution” and instead proposed that the Court should “carefully examine the First and Fourteenth Amendments,” and not require an actual-malice standard if the Constitution does not require it.
Similarly, Justice Gorsuch dissented when the Court denied review of a defamation case involving a popular book and film, and expressed misgivings about the Sullivan standard. He pointed out that the nation’s media landscape has “shifted in ways few could have foreseen,” implying that while the actual-malice standard may have been necessary in 1964, it is arguably less necessary in today’s digital world.
Justice Kagan has also previously expressed some skepticism toward the Sullivan actual-malice standard in a law review article she wrote as a professor almost three decades ago.
With these Justices’ thoughts in mind, enter Sarah Palin’s defamation lawsuit.
Sarah Palin’s Lawsuit
Over four years ago, Sarah Palin filed suit against The New York Times for publishing an editorial that erroneously linked Palin’s political rhetoric to the mass shooting near Tucson, Arizona in 2011. Both the judge and the jurors at the trial level, following the actual-malice standard set out in Sullivan, found that Palin had failed to show actual malice. After all, under Sullivan, this was a fairly straightforward case: the Times corrected the mistake in less than a day, the author had been operating under an extreme time crunch and made an “honest mistake,” and Palin failed to show any real evidence of “animus” on the part of the Times or its reporter.
However, many commentators believe that Palin may have brought her lawsuit with a broader purpose: to challenge the Sullivan actual-malice standard at its core. Palin has already indicated that she plans to appeal the decision, and with the recent apprehension expressed by multiple Justices on the Supreme Court, Palin may have a chance to succeed.
Granting review to a case requires only four Justices’ votes in support. With three Justices already suspicious of the Sullivan decision, there certainly is a chance that, should Palin seek review from the Supreme Court, the Court would hear her case. It is difficult to predict the extent to which the Supreme Court could be willing to pull back on the broad First Amendment protections from Sullivan. However, even a modest reduction in the protections could pose a threat to news reporting as it is currently practiced.