How Sarah Palin May Save Defamation Law

           How easy should it be to sue a newspaper or other news outlet for defamation? Thanks to a 1964 Supreme Court decision and the proliferation of constitutionally-dubious “anti-SLAPP” laws, it’s virtually impossible for someone who accuses a media company of lying about him to get to trial, much less win a damage award. If your local paper decides to smear you, the truth is, there’s not much you can do about it.

Sarah Palin’s lawsuit against the New York Times poses the first threat in years to the American press’ ability to print whatever it wants. Opening statements in her trial began last week; the fact that a public figure is getting her day in court against a major newspaper is a news story in and of itself.

            The 1964 case New York Times v. Sullivan set a high standard for a public figure like Governor Palin, or even a “limited public figure” like an editorial cartoonist, to prevail in a libel or defamation claim. Publishing an untruth isn’t enough. Under Sullivan the printed lie must be demonstrably damaging to the victim’s reputation and must result from “actual malice.” Actual malice, the court ruled, means that the publisher either knew that the smear was false before they published it, or that they demonstrated “reckless disregard for the truth.” 

It is unusual for a publication to go so far as to knowingly print a falsehood with a view toward damaging someone’s reputation, as The Los Angeles Times did to me as a favor to the LAPD in 2015, which owned the newspaper at the time, was a political ally of the then-publisher, and wanted me destroyed in retaliation for criticizing police misconduct. As with most libel cases, Palin v. New York Times comes down to the second half of the definition of actual malice.

            On its face the Times’ actions against Sarah Palin seem to embody reckless disregard for the truth. In 2017 the paper published an editorial, “America’s Lethal Politics,” that pinned the blame for the shooting of a Congressman on a Palin political TV ad. “The link to political incitement was clear,” the paper claimed.

It was anything but.

As the Times put it in a correction posted several hours later, the Times editorial “incorrectly stated that a link existed between [Palin’s—though the paper didn’t mention her by name] political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs.”

            “In our view, this was an honest mistake,” Times lawyer David McCraw told the Washington Post in 2019. “It was not an exhibit of actual malice.” But James Bennet, the editorial page editor who wrote most of the editorial, ignored his own fact checker, who told him that the Times itself had already published an article debunking a link between Palin’s ad and the Gifford shooting. The Atlantic, where Bennet had previously served as an editor, had also debunked the Palin-Giffords meme. In a business where “if your mother says she loves you, check it out” is the 11^th Commandment, failing to check it out is, or ought to be, the very definition of reckless disregard for the truth.

            In recent years, however, most judges have been strongly biased against plaintiffs in defamation and libel cases and so have turned a blind eye to the reckless-disregard half of the “actual malice” definition under Sullivan. Newspapers and other media defendants have largely been able to get away with rhetorical murder using the “my bad” defense.

            Adding to the media’s ability to wield the First Amendment as a cudgel to destroy reputations are anti-SLAPP statutes. Thirty-one states, including many of the most populous, have anti-SLAPP laws whose main effect is to make it close to impossible to sue for defamation or libel. In order to get to trial, defamation plaintiffs have to convince a judge that they would be likely to convince a jury at trial—but they aren’t allowed to subpoena evidence or depose witnesses to build their case. Many lawsuits die there.

If a plaintiff fails, which they usually do because judges routinely ignore or don’t understand the convoluted language of anti-SLAPP statutes, not only do they not get their day in court, they have to pay bloated legal expenses to the deep-pocketed corporate media defendant who libeled them. That’s what happened to me in my five-year fight against the LA Times. Anti-SLAPP laws are a nightmare but they aren’t going anywhere because they are supported by both pro-corporate conservatives and misguided liberals.

            Among some recent victims of anti-SLAPP are fitness icon Richard Simmons, who was ordered to pay $130,000 to the National Enquirer after he sued the tabloid for brazenly lying that he was transitioning to become a woman, and Stormy Daniels, who was ordered to pay Donald Trump $293,000 after she sued him for calling her a liar. In these and many similar cases, the law turned reality on its head and re-victimized the aggrieved party. But even the ACLU won’t stand up for them because the group reflexively supports anti-SLAPP, the Constitution be damned.

            If a New York jury, which is likely to be overwhelmingly Democratic, overlooks its political distaste for Palin and rules against the Times, the case may head to a U.S. Supreme Court that seems more open to the possibility of scaling back Sullivan. “How do you balance free speech rights with the right to your individual reputation, and in the context of public officials who have volunteered for public service and do need to be held to account?” asks former Palin attorney Elizabeth Locke. “Redrawing that balance does not mean that we lock up journalists or that any falsehood should result in a huge jury verdict. But imposing the potential for legal liability, which is virtually nonexistent with the Sullivan standard in place, would create self-restraint.”

            No one wants to strip media companies of the First Amendment protections they need in order to do their work on a day-to-day basis. But it’s also time to stop screwing defamation plaintiffs with meritorious cases, not to mention protecting lazy journalists. An artful and legally correct remedy would be for the high court to declare Sullivan (and the anti-SLAPP laws that rely upon it) unconstitutional as applied rather than throw it out entirely. To restore sanity to defamation law and start to hold out-of-control media companies accountable, lower courts should be directed to establish two common-sense propositions.

            First, defamation claims should be allowed to proceed unless there isn’t the barest possibility of prevailing at trial, in which case they should be tossed during an early-stage motion for summary judgment to dismiss. That’s what anti-SLAPP case law says in states like California, where my case was litigated, but judges routinely hold defamation claims to a much higher, basically impossible, standard.

            Second, the Supreme Court should clarify that, while Sullivan indemnifies a defendant from being sued over an honest mistake that is quickly corrected, ignoring basic journalistic due diligence clearly constitutes reckless disregard for the truth.

            I never expected to write the following words but here goes: Good luck, Sarah Palin.

(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, co-hosts the weekly DMZ America podcast with conservative fellow cartoonist Scott Stantis. You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)