Sarah Palin probably won't win her defamation lawsuit against the New York Times in a court of law. But she's already won where it might matter to her more: the court of public opinion.
The former Alaska governor and vice presidential candidate filed a defamation lawsuit against the New York Times on Tuesday for falsely implying that her advertisement incited an assassination attempt against a congresswoman in 2011.
The complaint lays out a solid defamation claim that makes the nation's self-proclaimed newspaper of "truth" look incompetent and biased. Palin is being represented by a legal dream team — the same attorneys who last year successfully sued Gawker Media into bankruptcy.
But the Gawker case involved invasion of privacy for publishing Hulk Hogan's sex tape online. Palin's case alleges libel by a media outlet against a public figure, which is extremely difficult to win — especially when the defendant is the New York Times.
As a result of the landmark 1964 case New York Times v. Sullivan, public officials like Palin must prove actual malice in order to recover damages. It's an almost insurmountable burden of proof: showing the paper knew what it said was false or acted with reckless disregard of the truth.
That's assuming Palin can first prove the basic elements of libel: publication of a false statement of fact that seriously harmed her reputation.
The New York Times might argue that its statement was an opinion — not a statement of fact — which would shield it from libel. After all, the statement was published in an editorial and not in a news story. Lawyers are extremely good at arguing just about anything, and it may not be hard for a good lawyer to convince a jury that the editorial is open to interpretation.
Even if the statement isn't deemed an opinion, Palin could have difficulty proving her reputation was seriously damaged by it. When Fox News dropped her as a pundit in 2015, Palin had a low favorability rating, even among Republicans, according to FiveThirtyEight. It's hard to imagine that New York Times readers, who lean left, held Palin in high regard before reading the controversial June 14 editorial.
In fact, The New York Times' misstatement has arguably made the public more sympathetic to her. Conservatives cheered Palin's lawsuit on social media. Even liberal media outlets have lambasted the New YorkTimes over the error.
Palin's chances are further hurt by her odd venue choice: Southern District of New York. The federal court, which serves the New York City region, is loaded with liberal judges and juries who are likely to be more sympathetic to the hometown newspaper. Then again, Palin's home state may not have been a better option as Alaska falls under the jurisdiction of the notoriously liberal Ninth Circuit Court of Appeals.
Palin could score an upset. The Hogan verdict surprised some legal experts. Public opinion of the press is at an all-time low. Columbia Journalism Review speculated there's "evidence that the growing unpopularity of media may translate into less-sympathetic jury pools." Rolling Stone recently lost a high-profile libel lawsuit and was forced to pay millions.
Win or lose, though, it seems Palin has already gained a lot from the case.
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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