Sarah Palin’s New York Times lawsuit could spell disaster for the free press

On February 3, the former Governor of Alaska. Sarah Palin‘S defamatory suit against New York Times will go to trial in the United States Southern District Court for the Southern District of New York.

The problem is a July 2017 Times Editor, dispute that Governor of Palin Instigated on January 8, 2011, the fatal shooting of 13 people – including Democratic Representative Gabby Giffords of Arizona – by a mentally ill man named Jared Loughner. It cannot be argued that Time‘the editorial was wrong, Governor Palin played no role in Loughner’s motive to kill and torment innocent people, and this fact is popular before July 2017, when Times published its incorrect editorial.

Time claimed that he was not liable because the factual errors in the editorial were innocent mistakes. Much of this defense is based on a 1964 Supreme Court case called Times sues Sullivan. Furthermore, “factual malice” must be proven by “clear and convincing evidence” – the highest standard in civil cases (though less than the “beyond reasonable doubt” standard. required for criminal convictions).

Palin argues that both can prove that Time motivated by “factual malice” against her and she doesn’t need to prove “real malice” because Times sues Sullivan The precedent should no longer apply in the internet age, when everyone can claim to be a journalist.

That’s a huge deal for the future of press freedom.

Palin is seeking only $421,000 in actual damages, plus “special and punitive damage.” That number is a rounding error for Time, their parent company earns nearly 2 billion dollars in annual sales. Time would likely spend millions of dollars in legal fees defending this lawsuit, far beyond the damages claimed. So, to be fair, this is a case that is more about principles of law than money.

There is a chance that Palin will win under the current rules, but it will be difficult. Aim to find out Time liable for libel, the jury would have to conclude not only that the article published incorrect information (admittedly), but also (in the words of Times sues Sullivan) that there is clear and convincing evidence that “the statement is made with ‘factual malice’ – that is, with the knowledge that it is false or with a lack of discretion as to whether it is false or not.” Are not.”

As Palin’s attorney admitted in discuss sought to ask the Court to refuse to apply the “factual malice” criterion: “In practice, this requirement poses an insurmountable barrier in all but a few relatively severe cases.”

Palin argued that the jury could conclude that Time act with “genuine malice” because (1) it has an agenda to undermine her integrity; (2) the editor in charge of this section actually knew that Palin’s actions had nothing to do with Loughner’s murder attack because he had previously edited an article (when he worked at Atlantic) concludes that Loughner’s attack was not motivated at all by Palin; (3) Time‘the editorial said that Palin had placed a cross over an image of Representative Giffords, when in fact she had placed a cross on a map of the Gifford electoral district in Arizona; and (4) when Time retracted its editorial, initially retracting only some of the false claims (before retracting them all) and apologized to readers for printing inaccurate statements, but did not directly apologize to the Governor. Governor Palin.

Initially, U.S. District Judge Jed Rakoff deemed Palin’s theory of “true malice” too far-fetched, so he dismissed the whole case. However, the Second Circuit Court of Appeals negate Judge Rakoff and said that the case had enough grounds to request a trial.

It would be rare for a jury to hold that New York Times acted with “genuine malice” when it first retracted portions of the editorial within five hours of publication and retracted all factually inaccurate statements within two days.

Despite the best efforts of her and her attorney, Palin will not change the standard of “genuine malice” at this trial. Judge Rakoff was hold that he would instruct the jury that they must find “genuine malice” in order to reach a verdict in favor of the plaintiff. If Palin loses and then appeals to the Second Circuit Court of Appeals, then she again cannot refute the criterion of “genuine malice.” The Court of Appeal does not have the authority to ignore the Supreme Court’s precedent.

Palin’s legal team raised its challenge to the standard of “factual malice” to defend the matter to the Supreme Court, in case the former governor loses both on trial and on appeal. initially to the Second Court.

If the argument reaches the Supreme Court, Palin could (potentially) win. Judges Clarence Thomas and Neil Gorsuch write dissent in 2021 stated that they believe Times sues Sullivan should be remedied. As it would take years for a potential appeal to reach the Supreme Court, no one knows if there could possibly be three (or more) new judges who could join Judges Thomas and Gorsuch and get a majority on the court. The court rewrites the law or not.

If Times sues Sullivan defeated, it would change the legal landscape for journalism in the United States

The defamation law here will likely quickly resemble British law, where any factual inaccuracy in an article makes the publisher liable for damages — even when the publisher has no reason to know that the story is flawed. In the UK, threats of libel lawsuits often discourage newspapers from publishing significant allegations, lest they be forced to pay large damages.

Sarah Palin will have a court date, but she is unlikely to win the case under current law. Palin also would not be able to ask any court below the Supreme Court to pass the “factual malice” standard. Since we are many years away from the possibility of any Palin appeal to the Supreme Court, it is too early to say if she will be able to ask the Supreme Court to rewrite the law at that point. or not.

But there is a path that Palin could win by losing the current case, and in doing so she is setting the stage for a Supreme Court ruling that could redefine press freedom in the United States. America