It's not surprising that a federal judge this week dismissed Sarah Palin's libel lawsuit against the New York Times. But it is somewhat concerning if you care about media accuracy and accountability.
Palin, a former Alaska governor and vice presidential candidate, filed a defamation lawsuit against the New York Times in June for falsely implying that her political advertisement incited an assassination attempt against a congresswoman in 2011. The federal judge who heard the case conceded that the New York Times published "a few factual inaccuracies somewhat pertaining to Mrs. Palin."
Put simply, the national newspaper – whose slogan is "The truth is more important now than ever" – lied.
They acknowledged their mistake, publishing a correction two days later. But, legally speaking, defamation involves much more than just publishing a lie.
"Negligence this may be; but defamation of a public figure it plainly is not," Judge Jed Rakoff wrote in his opinion. I and many experts predicted as much, because the present standard makes it extremely difficult for politicians to win such lawsuits.
A landmark 1964 Supreme Court case also involving the New York Times requires public officials such as Palin to prove actual malice, among other things, in order to recover damages. That means the newspaper knew what it said was false or acted with reckless disregard of the truth. Palin's attorneys "fail[ed] to make that showing," according to Rakoff, who heard the case in a U.S. District Court in New York City.
In theory, the leeway provided to journalists by the ruling in New York Times vs. Sullivan is prudent. Democracy depends on a free and vigorous press. If we broaden libel laws, the press may hesitate to publish news that's true, but for which there isn't sufficient evidence to defend against a lawsuit at trial.
But in practice, sometimes this freedom is abused by journalists who destroy the reputation of public officials in order to advance biased narratives. Perhaps that's why courts in Canada, England and Australia, all of which have strong traditions of press freedom, have not followed the lead of the U.S. Supreme Court when it comes to providing as much latitude for libel.
Defenders of our loose libel laws argue that public officials can fight back by using social media to correct the record and by getting their army of followers to shame the dishonest media outlet. But in this era of an increasingly-partisan press and social media echo chambers, I'm not so sure.
When I pointed out to a fellow academic who's an avid New York Times reader that the newspaper's Palin claims were fake news, he responded: "Even if it's untrue, it fits the GOP's narrative." Too many news consumers gobble down whatever the media tells them without bothering to fire a single neuron on their own. Which is why it's so crucial for society's gatekeepers of information to "Seek truth and report it" – the first and foremost principle of the Society of Professional Journalists' Code of Ethics.
The court missed an opportunity to remind the New York Times of that ethical obligation. In dismissing the lawsuit, Judge Rakoff cited constitutional protections for political journalism. But the First Amendment does not inoculate the press from the consequences of irresponsible journalism.
While the Sullivan precedent greatly impaired the lawsuit's chances of success, I thought the case might at least survive a motion to dismiss. And, perhaps, the ensuing trial would have made the newspaper's editors sweat it out and think twice next time before dragging a public official through the mud.
Instead, the New York Times can now rest assured they'll face virtually no legal consequences for bad reporting.
Mark Grabowski (@ProfGrabowski) is a contributor to the Washington Examiner's Beltway Confidential blog. He is a lawyer and a journalism professor at Adelphi University in Garden City, N.Y.
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