Free-speech protection could be fundamentally changed by Sarah Palin’s libel suit by Peter Ramjug February 10, 2022 Share Mastodon Facebook LinkedIn Twitter Former Alaska governor Sarah Palin arrives at a federal courthouse in Manhattan for her libel suit against the New York Times. Photo by Spencer Platt/Getty Images Cardi B’s yearslong libel battle recently came to an end when a jury awarded the rap star $4 million in her suit against a celebrity gossip blogger. The case appears to be, at least anecdotally, emblematic of a rising number of famous people who feel that their reputations have taken a hit over something written about them. But none of those cases comes with the political heft of the one playing out this week in a Manhattan courtroom. On one side is former Alaska governor and Republican star Sarah Palin—a critic of the “lamestream media.” On the other is the oldest and one of the most widely read news organizations in the world, the 170-year-old New York Times. In a broader sense, the Palin case could be a watershed moment for a Supreme Court ruling that has provided free-speech protection for newsrooms across America for nearly 60 years, New York Times v. Sullivan. Left to right: Michael Meltsner, George J. and Kathleen Waters Matthews Distinguished University Professor of Law; Laurel Leff, journalism professor; and Dan Urman, a constitutional law professor and expert on the Supreme Court. Photos by Matthew Modoono/Northeastern University Northeastern legal and journalism experts say that, in a sense, Palin may have already won by taking on a news outlet that conservatives feel is biased against them. “Talk about a big target that gets the base fired up,” says Dan Urman, who teaches constitutional law. “Palin could lose the battle but still win the war.” The trial has generated buzz on a number of other fronts, including the fact that it almost didn’t happen, and that it involves a former senior Times editor whose brother, U.S. Senator Michael Bennet of Colorado, is a Democrat. “There are lots of things going on here that make it a little different than the average libel case,” says Northeastern professor Michael Meltsner, the George J. and Kathleen Waters Matthews Distinguished University Professor of Law. Palin sued the Times over a June 2017 editorial, “America’s Lethal Politics,” that suggested a 2011 shooting in Arizona that killed six people and wounded several others, including a member of Congress, Gabrielle Giffords, was linked to an ad from Palin’s political-action committee that superimposed crosshairs over Democratic House districts, including the one represented by Giffords. The piece was published the same day—June 14, 2017—that another gunman opened fire at a baseball field in Virginia where Republican lawmakers were practicing, injuring several people. The editorial asked whether the Virginia incident was indicative of how violent politics had become. Former editorial page editor James Bennet testified that, concerned about the paper’s looming deadline that day, he decided to rewrite the editorial himself rather than send it back to the original writer. In the rush, he inserted an inaccurate sentence—“the link to political incitement was clear”—that led to Palin’s suit. The editorial was later corrected after others in the Times newsroom pointed out the error. “We got an important fact wrong, incorrectly linking political incitement and the 2011 shooting of Giffords,” the Times tweeted after the story went live. “No link was ever established.” But that was cold comfort to Palin, who told the jury on Thursday: “It was devastating to read a false accusation that I had anything to do with murder. I felt powerless, that I was up against Goliath. The people were David. I was David.” While most defamation cases against news organizations never make it to a trial, either because they are either thrown out by a judge or quietly settled, Palin’s case is unusual in overcoming the odds and making it to trial after it was initially dismissed. “That is a statement about the strength of the case,” says Laurel Leff, a former Wall Street Journal and Miami Herald reporter who teaches journalism at Northeastern. The Times’ correction doesn’t necessarily let it off the hook for defamation, but it likely reduces the damages, she adds. Nor are courts likely to be swayed by the fact that the editorial was an opinion piece rather than a story, in light of a 1990 Supreme Court case—Milkovich v. Lorain Journal Co. “That [ruling] seemed to say that the context, whether it’s an opinion piece or a column, doesn’t matter,” says Leff. “The only thing that matters is if a statement implies or is based upon something false.” To win, Palin must offer clear and convincing evidence that the Times acted with actual malice, meaning it knew the editorial was false, or displayed reckless disregard for the truth. “It would be some evidence of the [editorial’s] crosshairs being unlinked,” Urman says as an example. Two right-leaning Supreme Court justices—Neil Gorsuch and Clarence Thomas—have questioned the actual malice standard and say it should be revisited. “The lack of historical support for this Court’s actual-malice requirement is reason enough to take a second look at the Court’s doctrine,” Thomas wrote in his dissent in a 2021 defamation case that the court declined to hear. Meltsner, the law professor, says it is difficult for juries to distinguish between error and constitutional error—that is, error and actual malice. “So in this case, Palin can very easily prove that the Times did wrong, and that’s a great start in any case, but is the wrong enough? And that requires a jury to make the kind of legal distinction maybe juries aren’t very good at making.” Palin is seeking unspecified damages. But Leff, the journalism professor, doubts that money is the point. “It’s more about the politics of it, the discrediting of the Times,” she says. “I’m not even sure that Palin would have been willing to settle.” For media inquiries, please contact firstname.lastname@example.org.