Yves here. Even though the prospect of public figures being able to occasionally win a defamation suit may sound chilling, I am not sure the reversal of the “actual malice” standard would be as deadly to press freedom as it seems. The UK has an extremely low bar for defamation suits and still has a very feisty and often utterly scurrilous press. Look at the attacks on Theresa May when she was on her way down, Jeremy Corbyn and (deservedly and for some time) Boris Johnson.
Another defense in a defamation case is accuracy. One of the reasons to be hesitant to sue a journalist is that the plaintiff gives the defendant the opportunity to do discovery to prove that what they said was true. The last thing most people want is a journalist authorized by the court rooting through their files and deposing business partners, family, and hired hands on an already-sensitive topic.
By Bill Kovarik, Professor of Communication, Radford University. Originally published at The Conversation
To the numerous challenges facing the U.S. media in recent years, add a libel case against The New York Times – lost by Sarah Palin, but now seemingly headed to appeal and perhaps on to the highest court in the land.
On Feb. 15, 2022, a jury rejected Palin’s claim. As it happened, its verdict was more or less moot. The presiding judge had already said he would dismiss the case on the grounds that the former Alaska governor’s legal team had failed to reach the bar for proving she had been defamed.
A Times editor admitted a mistake in suggesting in a 2017 opinion piece that there was a link between Palin’s rhetoric and a mass shooting. But under the so-called Sullivan standard – a rule in place for nearly 60 years that makes it difficult for public figures to successfully sue for defamation – neither the jury nor the judge considered the error significant enough for Palin to win her case.
But in reaching his decision in the Palin case, the federal judge suggested that it was likely not to be the end of the matter – indeed, an appeal is expected.
And that has defenders of a free press worried. Legal scholars note that recent opinions by Supreme Court Justices Clarence Thomas and Neil Gorsuch favor overturning the Sullivan standard – a move that would take away a key protection for the press against libel suits by vindictive public officials.
As a media historian, I can see the Palin case providing a vehicle to return libel laws back to a time when it was much easier for public figures to sue the press.
What Is ‘Actual Malice’?
Before 1964’s Sullivan standard, the libel landscape in the U.S. consisted of a patchwork of state laws that made it easy for political figures to selectively persecute newspapers and public speakers who espoused opposing or unpopular views.
For example in 1949, John Henry McCray, a Black editor from South Carolina, served two months on a chain gang after being charged with criminal libel for writing a story about a racially charged execution. White publications reporting the same story were not charged.
Similarly, in a 1955 libel case, Dr. Von Mizell, a Black surgeon and NAACP official, was ordered to pay a US$15,000 fine for writing in opposition to a Florida state legislator’s idea of abolishing public schools instead of integrating them.
Then came the Sullivan case. It centered around several tiny mistakes in a civil rights advertisement carried by The New York Times. L.B. Sullivan, a public official not even named in the advertisement, sued for defamation, and the case went from Alabama to the U.S. Supreme Court.
In setting the Sullivan standard in 1964, the Supreme Court said in effect that it ought to be difficult for any official at the federal or the state level to prove that a falsehood was libelous enough – and personally damaging enough – to surmount First Amendment protections.
The court said a public official could not win a libel lawsuit by citing minor mistakes, technical inaccuracies or even outright negligence. Instead, under the Sullivan standard, a public official had to prove that there was “actual malice,” which means that a critic knowingly published something false or was in reckless disregard of the truth.
The court insisted that “debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on public officials.”
‘No Relation to the Constitution’
Originalists on the current Supreme Court – that is, those justices who believe that the Constitution should be interpreted as it was by those crafting the original document – seemingly disagree.
Justice Thomas, in a 2019 opinion, suggested the Sullivan ruling failed to take into account “the Constitution’s original meaning.” He followed this up in a 2021 opinion that stated the requirement on public figures to establish actual malice bears “no relation to the text, history, or structure of the Constitution.”
Some legal scholars have argued that originalism doesn’t cut much ice when it comes to First Amendment protections. After it passed in 1791, the First Amendment was open to so many state interpretations that there is no agreement on what the accepted interpretation of the day was.
Nonetheless, should Palin appeal against the latest ruling, it is likely that the case could reach a Supreme Court in which at least two justices seem primed to challenge the decades-old Sullivan rule.
Should their views prevail in the highest court of the land, it could chill the freedom of the press for conservative and liberal news organizations alike.
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Just on this point, the UK press is indeed scurrilous but the very strong libel laws in the UK (and Ireland) tends to push newspapers to reporting gossip on people they know are unlikely to sue, such as politicians and B-grade celebrities (the latter in particular usually welcome the attention). The libel laws are very effective at warning the press off any kind of reporting on the rich and powerful. Even quite benign articles on certain oligarchs require a tortuous process of legal checking so as not to give them any opportunities to sue. A typical Matt Taibbi article would be almost impossible in the UK, lawyers would certainly cut out 80% of his jokes.
Palin should quit while she’s ahead. She’s already proven her point and made the Times look even less reputable than it already is.
Too bad both sides can’t lose here…
It’s funny that the press is so transparently controlled by people with their own (some would say malicious) agendas. This could really backfire. If somebody starts a “malice” conversation it will never end. It will be virtually impossible to prove the definition of malice. Easier to prove subsequent harm because somebody lost their gravitas. But what sort of crime is the death of somebody’s gravitas? It’s really a South Park world. So a good question to raise is What kind of defamation constitutes harm? And should it be an internationally accepted definition with sanctions against it? So when our “news sources” accuse Russia of all sorts of infamy, is that libel? And is disinformation itself libel? What a mind-boggle. The very nature of holding courts, to conduct trials, is to “try” the evidence – to test the validity of the evidence. I can’t even imagine how to test “malice.” Harmful actions stemming from pure hatred maybe. Maybe causing a whole series of mishaps? A new category of crime? Criminal insinuation? and etc.
Something missing in this is how the Times editors in general, and James Bennet in particular, are a complete horror show.
They added the bit about Palin to an OP/ED condemning the attempted assassination of numerous members of Congress for “balance”.
This quote shows the dysfunction:
I’ve talked with editors at other publications, and to a man (they were all men) they said that an editor’s role is to request a change in an article, not to rewrite.
Ben Bova said that he had to fire editors at Analog and Omni who kept rewriting.
To me I have always been puzzled by the wide difference in standards between “malice” in the criminal sense, and “malice” in the Sullivan standard. For example, recklessly setting fire to a bush and walking away despite being a half a mile from any human is treated as a malice crime (Arson). In contrast, the press on a daily basis has a reckless disregard for the truth and who ends up being hurt (see Ukraine). Somewhere along the way, the Sullivan standard seems to have picked up too much of a direct intent requirement (was harm intended in this way and to that person)(compare with malice aforethought). Of course, in crime transferred intent and generalized intent to harm or even depraved heart recklessness will suffice for malice (again thinking arson as it is the key malice crime).