Legal experts say Sarah Palin’s defamation case against the New York Times is not a good vehicle for testing the 1964 Supreme Court decision NYT v. Sullivan, which set the standard for libel and slander cases against public figures.
While Palin has yet to detail her plans after both U.S. District Judge Jed Rakoff and the jury said this week the Times did not defame the former governor, she signaled earlier this month she would consider appealing to the 2nd Circuit Court of Appeals — a long-shot strategy that could allow high court justices to consider taking up her case.
“My guess is that the Second Circuit is going to do very much what the district court and the jury here did, and that would be to uphold the lower court’s decision based on those tenants of the First Amendment that are elucidated in Times v. Sullivan,” Jared Carter, constitutional law expert and law professor at Vermont Law School, told the Washington Examiner on Thursday.
JURY FINDS NEW YORK TIMES ‘NOT LIABLE’ IN SARAH PALIN LAWSUIT
Palin alleged the Times defamed her and damaged her political career due to an erroneous claim in a 2017 editorial that incorrectly linked her to a shooting more than six years earlier. The Times corrected its editorial within hours of its initial publication and acknowledged the error was an honest mistake.
Before a unanimous jury’s Tuesday decision against Palin’s defamation allegations against the Times, Rakoff said Monday he would toss her case because her legal counsel failed to prove the publication acted with “actual malice” or reckless disregard in its editorial.
Some jurists later revealed that despite being sequestered during deliberations, they had received smartphone notifications revealing Rakoff’s decision to toss the case before they reached a verdict. However, they contended this did not influence their final decision.
The judge’s decision to throw out Palin’s case essentially provided a “double layer of insulation for his decision,” according to Zack Smith, a legal and judicial studies fellow at the Heritage Foundation. But because Rakoff’s decision was disseminated to some sequestered jurists, “it just makes the appellate process much more messy,” he told the Washington Examiner.
Since the 1964 decision in Sullivan, which made it difficult for public figures like Palin to prevail in defamation cases, the standards reinforced in the case have come under scrutiny from critics who argue the framework allows for too much leeway in error — especially in the digital era when anyone can publish articles compared to the media environment of the 1960s.
At least two judges on the Supreme Court, Republican-appointed Justices Clarence Thomas and Neil Gorsuch, have signaled a willingness to reconsider the standards set in the Sullivan case, according to dissenting opinions from 2021.
“The lack of historical support for this Court’s actual-malice requirement is reason enough to take a second look at the Court’s doctrine,” Thomas wrote in a dissent from denial of certiorari in Berisha v. Lawson. “Our reconsideration is all the more needed because of the doctrine’s real-world effects. Public figure or private, lies impose real harm.”
In Gorsuch’s dissenting opinion, he admitted he is “not even certain of all the questions we should be asking” in regards to Berisha but noted “momentous changes” to the media landscape allowed him to think “the Court would profit from returning its attention.”
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But Palin’s case, due to her lack of specified damages and failure to provide evidence of actual malice, is “not a good vehicle for testing NYT v. Sullivan,” said Kevin O’Brien, a New York-based trial lawyer and former U.S. attorney for the Justice Department.
“In her case, she sort of looks like she’s trying to capitalize on an error for publicity, whatever political purpose she has in mind,” O’Brien told the Washington Examiner. “And that’s not something that’s going to sit well with the Supreme Court.”
