Analysis-Sarah Palin defamation case a long shot for U.S. Supreme Court
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[February 16, 2022]
By Jan Wolfe
WASHINGTON (Reuters) - Sarah Palin faces a
narrow path ahead if she wants to use her defamation case against the
New York Times as a vehicle to challenge broad U.S. legal protections
for news organizations, media lawyers said.
After losing a jury trial on Tuesday, the prominent Republican is likely
to appeal and ultimately to ask the Supreme Court to revisit a landmark
ruling called New York Times v. Sullivan, experts said.
Palin said this month that she would consider such a challenge, but has
yet to disclose her planned strategy.
The 1964 decision, which made it difficult for public figures like Palin
to win defamation cases, has come under increasing scrutiny in recent
years and looks more vulnerable to reversal than at any time in the
past.
U.S. protections against defamation challenges are generally stronger
than they are in other countries, and some critics have said this
framework provides too much license for error, especially in the
internet age. Defenders of the standard say it has been essential to
safeguarding a free press.
But even if the high court is interested in reconsidering the Sullivan
case — which is far from clear — Palin's lawsuit may not present the
ideal opportunity for doing so, in part because both a judge and jury
have now forcefully ruled against her, media law experts said.
"This case is not the right vehicle for the Supreme Court to revisit
Sullivan," said Gautam Hans, a law professor at Vanderbilt University.
"I think this is just a really uphill road for the Palin side."
![](http://archives.lincolndailynews.com/2022/Feb/16/images/ads/current/graue_sda_042021.png)
Because the Times acknowledged errors in the editorial about Palin, her
case has always hinged on whether the newspaper acted with "actual
malice," the legal standard set forth in the Sullivan case for
defamation lawsuits brought by public figures. It requires proof by
"clear and convincing evidence" that a publisher either knowingly
disseminated false information or showed a reckless disregard for the
truth.
A nine-person federal jury in Manhattan unanimously concluded on Tuesday
that the New York Times did not defame Palin, a former vice presidential
candidate, in a 2017 editorial that incorrectly linked her rhetoric to a
mass shooting years earlier. U.S. District Judge Jed Rakoff announced on
Monday, outside the presence of the jury, that he would rule for the
Times regardless of what the jury decided.
"The fact that the judge and jury found no actual malice may be a
cautionary light for her (Palin's) lawyers about whether to take this
case further," said David Logan, a Roger Williams University law
professor. "Now the odds look a bit bleaker."
NEXT STEPS
The next stop for the case would be the 2nd U.S. Circuit Court of
Appeals. But appeals courts are reluctant to second-guess determinations
reached by jurors, since they are the ones who hear testimony firsthand
and make credibility judgments, said Ryan Cummings, a media lawyer at
Hodgson Russ.
If Palin does appeal and the intermediate court rules against her, Palin
could then seek review by the high court.
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![](../images/021622pics/news_d5.jpg)
Sarah Palin, 2008 Republican vice presidential candidate and former
Alaska governor, speaks with media as she exits the court during her
defamation lawsuit against the New York Times, at the United States
Courthouse in the Manhattan borough of New York City, U.S., February
15, 2022. REUTERS/Eduardo Munoz/File Photo
![](http://archives.lincolndailynews.com/2015/May/02/images/ads/current/guzzardo_lda022609.png) Two Supreme Court justices,
conservatives Clarence Thomas and Neil Gorsuch, made clear in an
unrelated case last year they want to revisit the media-friendly
standard. Four justices are needed to hear a case, and only a
majority of the nine-member court can make new law.
In their dissenting opinions, Thomas and Gorsuch said the "actual
malice" standard appears outdated and, in the internet age, allows
falsehoods to spread rapidly with little accountability.
"Not only has the doctrine evolved into a subsidy for published
falsehoods on a scale no one could have foreseen, it has come to
leave far more people without redress than anyone could have
predicted," Gorsuch wrote.
It is unclear whether Justices Brett Kavanaugh and Amy Coney
Barrett, relative newcomers appointed by former President Donald
Trump, are eager to revisit the "actual malice" standard, said Hans,
the Vanderbilt law professor.
Defamation cases rarely make it to trial, so Kavanaugh and Barrett
did not weigh in on the Sullivan case when they were judges on lower
courts, Hans said.
Even if justices besides Thomas and Gorsuch are eager to revisit the
actual malice framework, the Palin case would also be an unlikely
candidate for review because it involves a New York state law, said
Benjamin Zipursky, a Fordham University law professor.
In 2020, New York's state legislature passed a law codifying the
actual malice standard. Rakoff ruled that law applied to her case.
That means Palin would need to show actual malice even if New York
Times v. Sullivan were overruled.
The Supreme Court does not generally take cases that rest on state
law or whose outcome would not be determined by the high court's
ruling, Zipursky said.
Hans said there is another case that could be used to challenge New
York Times v. Sullivan, involving a Florida megachurch that says a
nonprofit falsely labeled it a hate group. In November, the church,
Coral Ridge Ministries Media Inc., asked the Supreme Court to review
its case after an appeals court upheld a lower court's dismissal of
its lawsuit. Unlike New York, Florida does not have a statute that
independently makes "actual malice" the standard in that state.
![](http://archives.lincolndailynews.com/2022/Feb/16/images/ads/current/charrons_bch_2022.png)
"It could be that case is more appealing," Hans said.
(Reporting by Jan Wolfe in Washington; Additional reporting by
Jonathan Stempel, Jody Godoy and Helen Coster in New York; Editing
by Noeleen Walder, Amy Stevens and Howard Goller)
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