Sarah Palin’s loss of her libel suit against the New York Times reaffirmed, for now, more than half a century of legal precedent that protects journalists when they make inadvertent, even sloppy, mistakes.
But her case may still have achieved another goal that she and her lawyers said they always had: to shed an unflattering light on the production process of daily journalism and to cause the courts to reconsider why the law sets the bar extremely high to prove libel cases against media.
“I’m not happy with the beating the Times – and the press in general – has had to take in this process,” said RonNell Andersen Jones, a professor at the University of Utah School of Law, adding that it was “reassuring that both judge and jury have independently seen that our strict constitutional protections do not allow the press to be easily punished.
Still, Ms Andersen Jones added: ‘I can’t help but worry that the fundamentals have been hit here.’
While the Times managed to convince a jury and a federal judge that Ms Palin failed to prove that Times reporters acted with “actual malice” – which means displaying a reckless disregard for the truth or publishing information known to be false, the standard the Supreme Court set in 1964 for public figures suing for defamation — his case is unlikely to be the final word on the matter.
Some Supreme Court justices have indicated that they would like to revisit the issue. But First Amendment scholars said no lawsuit at the present time seems like an ideal vehicle for that. There are several cases, however, that would highlight the inherent paradoxes of U.S. defamation law, lawyers in favor of adjusting the law have said.
While skepticism of Sullivan stems primarily, but not exclusively, from the political right, conservatives have also embraced the norm when faced with legal challenges. Some legal experts have pointed out that those who have been accused in court of spreading false claims about voter fraud – including Fox News, One America News Network and Rudolph W. Giuliani – argue that it was a protected speech.
Questions about what kind of media discourse should remain constitutionally immune from accountability are particularly pressing when the proliferation of fake news threatens to further destabilize the nation’s deeply polarized political system.
“Society has changed tremendously since 1964, when the Supreme Court decided New York Times v. Sullivan,” said Rodney Smolla, dean of Widener University’s Delaware School of Law, referring to the case that took hold. set the current legal standard for proving defamation.
Mr. Smolla, who helps represent Dominion Voting Systems in his lawsuit against Fox News for promoting unsubstantiated stories claiming voting machines changed votes to help President Biden, said the base of the Sullivan’s case was to preserve freedom of public speech, even if an occasional error was made, was valid. But he added that “the law hasn’t kept pace” with online dialogue that can be very misleading.
What worries supporters of the broad First Amendment protections most is a legal and political climate that seems to have soured for them.
A recent study who tracked every reference to the press in Supreme Court opinions found what the authors, Ms. Andersen Jones and Sonja R. West of the University of Georgia Law School, called “troubling trends” in language from the judiciary that suggests current judges will be more willing to scale back longstanding constitutional protections for journalists.
“When members of the press turn to the courts in their legal battles, they will no longer find an institution that consistently values their role in our democracy,” the study concludes.
In a key finding, the study found that phrases such as “freedom of the press” – once regularly recognized by judges – have now all but “dropped out of the collective vocabulary of the United States Supreme Court”. At times, the study notes, the court apparently went out of its way to portray the news media as an institution in decline.
And these opinions are not limited to the opinions of judges. In an address to the Federalist Society, Judge Samuel A. Alito recently criticized as “sinister” the media’s description of the court’s practice of rendering late, unsigned opinions as a “ghost file”.
The question is not necessarily one that concerns only the Conservatives. Judge Elena Kagan, before joining the court, wrote an article expressing her skepticism about how the Sullivan standard had been expanded by the courts since 1964.
These doubts are far from the feeling of Judge Hugo Black, who wrote in his concurring opinion in Sullivan that the press has “absolute immunity to criticize the manner in which public officials carry out their public duty”.
Where some First Amendment advocates think the law needs the most overhaul is in the definition of what constitutes a public figure — a standard that some say is vague and overbroad because it encompasses people who have a minimal public profile.
For an example of a defendant who was not a high profile figure but treated as such by a judge, many attorneys cite Kathrine Mae McKee, who accused Bill Cosby of rape. Mr Cosby denied the allegation and Ms McKee sued him for defamation after one of his representatives wrote a widely published letter questioning his credibility. A judge dismissed the lawsuit.
Ms McKee was a public figure, a court has ruled. This prompted Judge Clarence Thomas to write in 2019 that the court should reconsider the Sullivan case.
Lawyers for conspiracy theorist Alex Jones have said the same about parents who sued him for claiming the killing of their children in the Sandy Hook massacre was fabricated.
David A. Logan, a professor at Roger Williams University School of Law, cited the case as an example where judges could be more sympathetic to people who claim defamation when they did not choose to be in the public eye.
“If you’re a public figure, you basically lose those cases,” Logan said. And a case that could appeal to the Supreme Court, he added, is not necessarily a case that narrows the definition of public figure so that it no longer covers people like Ms Palin, the former governor. of Alaska and the Republican vice-presidential candidate in 2008. It could instead be about protecting lesser-known people.
“I think a case that shows an extension of the definition of a public figure would be consequential, and could be the case the court takes before a full-frontal attack on The New York Times against Sullivan,” he said. .
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