{"id":28694,"date":"2022-02-15T01:22:00","date_gmt":"2022-02-15T01:22:00","guid":{"rendered":"https:\/\/www.lifeandnews.com\/articles\/?p=28694"},"modified":"2022-02-16T14:17:58","modified_gmt":"2022-02-16T14:17:58","slug":"appeal-in-sarah-palins-libel-loss-could-set-up-supreme-court-test-of-decades-old-media-freedom-rule","status":"publish","type":"post","link":"https:\/\/www.lifeandnews.com\/articles\/appeal-in-sarah-palins-libel-loss-could-set-up-supreme-court-test-of-decades-old-media-freedom-rule\/","title":{"rendered":"Appeal in Sarah Palin\u2019s libel loss could set up Supreme Court test of decades-old media freedom rule"},"content":{"rendered":"\n

Bill Kovarik<\/a>, Radford University<\/a><\/em><\/p>\n\n\n\n

To the numerous challenges facing the U.S. media in recent years, add a libel case against The New York Times \u2013 lost by Sarah Palin, but now seemingly headed to appeal and perhaps on to the highest court in the land.<\/p>\n\n\n\n

On Feb. 15, 2022, a jury rejected Palin\u2019s claim<\/a>. As it happened, its verdict was more or less moot. The presiding judge had already said he would dismiss the case<\/a> on the grounds that the former Alaska governor\u2019s legal team had failed to reach the bar for proving she had been defamed.<\/p>\n\n\n\n

A Times editor admitted a mistake in suggesting in a 2017 opinion piece<\/a> that there was a link between Palin\u2019s rhetoric and a mass shooting. But under the so-called Sullivan standard<\/a> \u2013 a rule in place for nearly 60 years that makes it difficult for public figures to successfully sue for defamation \u2013 neither the jury nor the judge considered the error significant enough for Palin to win her case.<\/p>\n\n\n\n

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<\/a> \u2013 indeed, an appeal is expected<\/a>.<\/p>\n\n\n\n

And that has defenders of a free press worried. Legal scholars note that recent opinions<\/a> by Supreme Court Justices Clarence Thomas and Neil Gorsuch favor overturning the Sullivan standard \u2013 a move that would take away a key protection for the press against libel suits by vindictive public officials.<\/p>\n\n\n\n

As a media historian<\/a>, 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.<\/p>\n\n\n\n

What is \u2018actual malice\u2019?<\/h2>\n\n\n\n

Before 1964\u2019s Sullivan standard<\/a>, 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.<\/p>\n\n\n\n

For example in 1949, John Henry McCray, a Black editor from South Carolina, served two months on a chain gang<\/a> after being charged with criminal libel for writing a story about a racially charged execution. White publications reporting the same story were not charged.<\/p>\n\n\n\n

Similarly, in a 1955 libel case<\/a>, 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\u2019s idea of abolishing public schools instead of integrating them.<\/p>\n\n\n\n

Then came the Sullivan case<\/a>. 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.<\/p>\n\n\n\n

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 \u2013 and personally damaging enough \u2013 to surmount First Amendment protections.<\/p>\n\n\n\n

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 \u201cactual malice<\/a>,\u201d which means that a critic knowingly published something false or was in reckless disregard of the truth.<\/p>\n\n\n\n

The court insisted<\/a> that \u201cdebate 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.\u201d<\/p>\n\n\n\n

\u2018No relation to the Constitution\u2019<\/h2>\n\n\n\n

Originalists<\/a> on the current Supreme Court \u2013 that is, those justices who believe that the Constitution should be interpreted as it was by those crafting the original document \u2013 seemingly disagree.<\/p>\n\n\n\n

Justice Thomas, in a 2019 opinion<\/a>, suggested the Sullivan ruling failed to take into account \u201cthe Constitution\u2019s original meaning.\u201d He followed this up in a 2021 opinion<\/a> that stated the requirement on public figures to establish actual malice bears \u201cno relation to the text, history, or structure of the Constitution.\u201d<\/p>\n\n\n\n

Some legal scholars have argued<\/a> that originalism doesn\u2019t 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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

[Understand key political developments, each week.<\/em> Subscribe to The Conversation\u2019s politics newsletter<\/a>.]<\/p>\n\n\n\n

Bill Kovarik<\/a>, Professor of Communication, Radford University<\/a><\/em><\/p>\n\n\n\n

This article is republished from The Conversation<\/a> under a Creative Commons license. Read the original article<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Bill Kovarik, Radford University To the numerous challenges facing the U.S. media in recent years, add a libel case against The New York Times \u2013 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\u2019s claim. As […]<\/p>\n","protected":false},"author":44,"featured_media":28695,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[46,4],"tags":[2810,5715,11343,2254,9614,11340,11341,11338,308,11344,11339,3332,11342,686,1666],"_links":{"self":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/28694"}],"collection":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/users\/44"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/comments?post=28694"}],"version-history":[{"count":1,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/28694\/revisions"}],"predecessor-version":[{"id":28696,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/28694\/revisions\/28696"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media\/28695"}],"wp:attachment":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media?parent=28694"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/categories?post=28694"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/tags?post=28694"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}