Your Olympic Drinking Game

What is Sarah Palin up to suing the New York Times for libel? Is she really trying to change the First Amendment and does she know what she is doing?

Palin v. The New York Times Company is now before a district court in New York, and no matter the verdict is almost certainly headed for the Supreme Court. It seeks to overturn precedent that gave America some of the world’s strictest libel laws, laws which, depending on which way the wind is blowing (i.e., if the media is red or blue and if the offended politician is red or blue) either allow for fake news, or protect the 1A rights of a free press. If other media you consume is still treating this all as just another kooky Nailin’ Palin story, you’re looking at the wrong sources.

The story begins on June 14, 2017, when a left-wing nut job shot at Republican politicians playing baseball in Virginia (wounding, among others, Louisiana’s Steve Scalise.) The NYT wrote “Was this attack evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old-girl, the link to political incitement was clear. Before the shooting, Sarah Palin’s political action committee circulated a map of targeted Democrats that put Ms. Giffords and 19 other Democrats under stylized cross hairs.”

The Times quickly issued multiple corrections, pointing out it had “incorrectly stated that a link existed between 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 [Palin’s] political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs.”

Palin filed a libel suit, initially quickly dismissed, stating the Times defamed her in claiming her PAC’s advertising incited people to violence, which the Times knew was not true. After five years of wrangling, Palin got the case reinstated and it is now ongoing in New York.

Under current law, three criteria have to be met. Palin has to show 1) what the Times wrote was false. This is not in contention, they issued corrections; 2) that what the Times wrote was defamatory, which caused Palin harm and 3) the Times knew what it published was false or that in publishing it showed a reckless disregard for the truth. Number 3 refers to the standard of “actual malice.”

The rules for libel cases between the media and public figures goes back to 1964’s Sullivan v. The New York Times Company, when the Court held the First Amendment protects media even when they publish false statements, as long as they did not act with “actual malice.”

What happened was civil rights leaders had run a full-page fund raising ad in the Times, describing in detail what they called “an unprecedented wave of terror” of police actions against peaceful demonstrators in Montgomery, Alabama. Not all the bad things they accused the cops of doing were true, and made the police look worse then they were. So L.B. Sullivan, in charge of the police response in Montgomery, sued the New York Times for libel, claiming they printed something they knew was false and harmed his reputation. An Alabama court agreed and the New York Times was ordered to pay $500,000 in damages.

The Times appealed to the Supreme Court and won. They argued if a newspaper had to check the accuracy of every criticism of every public official, a free press would be severely limited, and that the 1A required the margin of error to fall on the side of the media in the cases of public officials (things work differently if both parties are private citizens.) The Court responded by creating a new standard for libel of a public figure, “actual malice,” defined in short as having the knowledge that something was false but published anyway, or published with “reckless disregard” for truth. Sullivan is why the New York Times has not lost a libel case in America ever since.

As part of the decision, Justice William Brennan asserted America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Free and open debate about the conduct of public officials, the Court reasoned, was more important than occasional factual errors that might damage officials’ reputations.

In greater context, Sullivan freed northern journalists to aggressively cover racial issues in the south, shielded from libel suits. It represented a significant broadening of the 1A.

In the Palin case, to avoid disturbing the precedent, the Times is arguing their article did no harm to Sarah Palin. She continues to bop around the national political arena doing whatever it is she does. Palin’s side is leaning on the precedent directly, arguing the Times had no evidence her PAC incited anyone in the instant shooting case, and that the Times employee who wrote the original article thus exhibited “reckless disregard” for the truth. The case is in early days, but everyone already can map out what the arguments are going to have to be, based on the criteria in Sullivan.

A lot of journalistic slush has flowed downhill since Sullivan in 1964, and attitudes toward the media have changed. The media of 1964 set themselves the goal of objectivity, or at least the appearance thereof. In 2022 places like the NYT wear their partisanship as a badge of honor, and they overtly mock and hate on people like Sarah “Caribou Barbie” Palin. They spend years wallowing in stories with reckless disregard for the truth, whether that be fake WMDs in Iraq to kick off a war, or Russiagate to try to bring down a president. The glory days of the Pentagon Papers, or the meticulous reporting on Watergate, are long gone.

The Supreme Court which wrote Sullivan is also long gone. Completely separate from Palin’s lawsuit, last year Justice Neil Gorsuch added his voice to an earlier statement by Justice Clarence Thomas and questioned Sullivan.

Thomas, in a libel case dissent, specifically scolded the media over conspiracy theories and disinformation. He cited news reports on “the shooting at a pizza shop rumored to be the home of a Satanic child sex abuse ring involving Hillary Clinton” and a NYT article involving “online posts falsely labeling someone a thief, a fraudster and a pedophile.” Thomas wrote that “instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires.”

Siding with Thomas, Justice Gorsuch wrote media in 1964 was dominated by a handful of large operations that routinely “employed legions of investigative reporters, editors, and fact checkers… Network news has since lost most of its viewers. With their fall has come the rise of 24-hour cable news and online media platforms that monetize anything that garners clicks.”

Gorsuch is clear this requires a reassessment of Sullivan, and now has a conservative majority court seated around him perhaps ready to do so. In the background is Donald Trump, whose criticism of libel laws, focused on Bob Woodward’s books about his presidency, is well-known.

Sarah Palin’s case against the New York Times comes at this junction in history. It leaves many with a bad taste in their mouths, particularly those who support broader First Amendment rights. A ruling which lessens the standards in Sullivan and ultimately leaves Palin the winner (libel laws are technically state-level torts, but the Supreme Court defines their boundaries in line with the Constitution) would have a chilling affect on the media. Maybe not super-media like the Times, which has money for lawyers and always relishes a good 1A fight, but smaller outlets who cannot afford to defend themselves. Everyone remembers the demise of Gawker.

At the same time, if the Court rules against the Times and allows a new standard which encourages more public figures to sue, it will only be the media’s own fault. Given the freedom under Sullivan to have close calls always fall their way, too many in the MSM purposefully exploited that treasure, using the 1A as a dummy front to pass off as fact untrue garbage and shameful partisan propaganda.

It is unlikely in a post-Sullivan world Russiagate would have become a three year media event. In that instance, as the truth was exposed and falsehoods revealed about even minor players, their libel suits would have stopped the whole thing cold. As Justice Gorsuch wrote, the Sullivan standard Palin is contesting has offered an “ironclad subsidy for the publication of falsehoods” for media to disseminate sensational information with little regard for the truth. Maybe it is time to change that.

Peter Van Buren is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, Hooper’s War: A Novel of WWII Japan, and Ghosts of Tom Joad: A Story of the 99 Percent.

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Peter Van Buren

Author of Hooper’s War: A Novel of WWII Japan and WE MEANT WELL: How I Helped Lose the Battle for the Hearts + Minds of the Iraqi People