The Supreme Court has consistently recognized a profound national commitment to a free press and the “principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Nevertheless, the freedom of the press is subject to certain restrictions, including, notably, defamation law. A recent federal defamation suit filed by Sarah Palin against The New York Times in June 2017, Palin v. New York Times Company, 264 F.Supp.3d 527 (S.D.N.Y. 2017), may modify the scope of the freedom of the press as applied to public figures.
The law of defamation has ancient roots in Roman law and continued to develop through the Middle Ages. Today, an individual can initiate a legal action against another for harming his or her reputation with false statements. An individual’s reputation matters—if it is wrongfully sullied by false claims broadcast to third parties, that damage can cause lasting harm and loss difficult to undue.
The landmark 1964 Supreme Court decision in New York Times Co. v. Sullivan established the groundwork for defamation of public officials. Under Sullivan, public figures plaintiffs, including politicians, cannot succeed in a libel action unless they prove the statement in question was made with “actual malice,” which the Court defined as “knowledge that [the statement] was false or with reckless disregard of whether [the statement] was false or not.” Sullivan, 376 U.S. at 280.
Justice Brennan, writing for a unanimous Court in favor of the New York Times, declared: “[W]e consider this case against the background of a profound national commitment to the principle 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 government and public officials.” This national commitment continues to endure today and is becoming increasingly salient in the current political and media climate. The press is notoriously under siege from President Donald Trump, who, among U.S. presidents, has a uniquely bitter and contentious relationship with the media. President Trump has repeatedly referred to the media as “the enemy of the people” and “fake news,” with specific epithets for particular outlets (e.g., “The Failing New York Times”). On March 30, 2017, President Trump even suggested changing libel laws, presumably to lower the bar for public figure plaintiffs to bring libel suits against media outlets that publish negative stories. The national commitment to uninhibited and robust free debate discussed by the Sullivan Court has always been salient in American political culture and now faces renewed challenges to its vigor and scope during the Trump administration.
Palin v. New York Times
In June 2017, former vice-presidential candidate, Sarah Palin, filed a defamation lawsuit in federal court against The New York Times, claiming the newspaper had published a statement about her in a recent editorial that it “knew to be false.” The editorial was published on June 14, 2017, the day a gunman opened fire at a Virginia baseball field where Republican legislators were practicing for an annual charity game. In a piece titled “America’s Lethal Politics,” the Times Editorial Board initially alleged there to be a link between an electoral map circulated by Sarah Palin’s political action committee, and political incitements and recent mass shootings. The New York Times soon issued a correction to clarify that there was no such link established and apologized to Palin and its readers. Palin’s lawsuit claimed this response “did not approach the degree of the retraction and apology necessary and warranted by The Times’s false assertion that Mrs. Palin incited murder.”
On August 29, 2017, the district court dismissed Palin’s lawsuit, citing several material deficiencies in Palin’s complaint. While the Times’ editorial contained statements which could be proven false (a necessary element for libel), the complaint failed to identify any individual at the Times who, as required by the Sullivan decision, allegedly acted with actual malice in publishing the statement at issue. The district court’s ruling echoes Justice Brennan’s language in Sullivan, and reaffirms the national commitment to the First Amendment’s freedom of press:
Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States. In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others. Responsible journals will promptly correct their errors; others will not. But if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity. Palin v. New York Times Co., 264 F.Supp.3d 527, 529 (S.D.N.Y. 2017).
Under Sullivan, the lack of plausible actual malice in Palin’s complaint should be fatal to her claim against The New York Times. However, a procedural error made by the district court may end up reviving the defamation suit: The district court judge conducted an evidentiary hearing in which the author of the editorial, James Bennet, was called to testify. Following the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), judges may dismiss a case where a pleading does not add up to a plausible claim, but they are not supposed to weigh evidence at the motion to dismiss phase of a lawsuit. The Second Circuit panel reviewing Palin’s lawsuit remarked that the district court’s decision to collect testimony from Bennet was “tremendously unusual.” In questioning, the Second Circuit indicated the problem was that the district court attempted to go inside Bennet’s head to come to a conclusion about his intention and knowledge of facts.
What are the implications if Palin’s case gets reversed and remanded on appeal by the Second Circuit? For one, public figure plaintiffs, such as celebrities and politicians, could more easily plead actual malice in their complaints. The path to the discovery phase of their suits would widen, and defendants like The New York Times and other media outlets and newspapers would face increased burdens and expenses of litigation.
Most importantly, media organizations face a potential threat to their exercise of free speech under the First Amendment. In 1962, before the Supreme Court agreed to hear Sullivan, but in the same controversy, the Alabama State Supreme Court upheld a libel judgment against The New York Times because of several small, relatively minor, and irrelevant factual issues in a published fundraising advertisement asking readers to support the civil rights movement in the South. The advertisement had included, among several others, the following factual errors: the number of times Dr. Martin Luther King had been arrested (four versus seven); the reason for the expulsion of Alabama State Students (protesting versus participating in a sit-in); and, the song which the protesting students had sung during their protests (the “Star Spangled Banner,” rather than “My Country, ‘Tis of Thee”). To the Alabama Supreme Court, these factual errors were sufficient to establish liability for libel committed against L.B. Sullivan—the newspaper had published facts which weren’t true, and Sullivan’s reputation was harmed. New York Times Co. v. Sullivan, 273 Ala. 656 (Ala. 1962), rev’d, 376 U.S. 254 (1964). If this stringent legal standard had not been overturned by the U.S. Supreme Court, minor mistakes that made it to print, even in the absence of actual malice, could be extremely costly to newspapers and broadcasters, subjecting them to libel lawsuits. If the Supreme Court had not added the “actual malice” requirement, newspapers would have to be exceptionally careful to not print a single error or face the pain and punishment of costly defamation lawsuits, facing liability due to any mistake or misprints which amount to false assertions of fact. Faced with the prospect of a drastically higher degree of exposure and an increased flow of expensive libel lawsuits, media outlets will inevitably self-censor, stifling their own First Amendment rights so vehemently defended by the Sullivan court. As stated by Justice Brennan in Sullivan itself:
A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable ‘self-censorship.’ Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964).
While the Second Circuit has not yet ruled on the outcome, the implications of Sarah Palin’s lawsuit are larger than they might first appear.
Alec Shapiro is a J.D. candidate, 2020, at NYU School of Law.