Sarah Palin was supposed to be in court this week, and not because she’s been indicted for criminal incompetence and felonious egomania. The former Alaska governor is suing an organ of the hated mainstream media for libel, and federal courts have allowed her lawsuit to proceed.
The dispute arose when The New York Times published an editorial accusing her of encouraging violence against elected officials. Her political action committee had put out a map of 20 Democratic congressional districts, each overlaid with cross hairs. The editorial cited it in reference to the 2011 shooting of Rep. Gabrielle Giffords, D-Ariz., whose district was included, and said “the link to political incitement was clear.” Under criticism, the Times quickly retracted the charge.
That did not satisfy the 2008 Republican vice presidential nominee. Palin sued the newspaper for defamation. She did so even though current law makes it hard for public figures to win such cases.
They have to prove not only that a statement was damaging and false, but that it was published with “actual malice” — meaning “with knowledge that it was false or with reckless disregard of whether it was false or not.” The Times says an editor made a simple error, which it immediately corrected.
Whether the editorial was the product of indifference to the truth or ordinary human fallibility is a question the jury will have to decide. But its verdict could lead to a reconsideration of libel law by the Supreme Court, whose conservative supermajority may be open to the idea of bringing liberal newspapers to heel.
Justice Clarence Thomas has said he would reverse the court’s landmark 1964 New York Times Co. v. Sullivan verdict, which made it much harder for public officials to prevail in defamation cases. Neil Gorsuch has expressed doubts about whether the decision makes sense in the era of online social media, which “facilitates the spread of disinformation.”
It’s entirely reasonable for the court to reevaluate its previous rulings in light of real-world changes. The media environment of 1964 was dominated by newspapers and broadcast stations, which generally placed great value on accurate reporting and sober commentary. Today, however, the internet, Twitter and Facebook enable the dissemination of crackpot theories and outlandish lies by a limitless multitude of fanatics and grifters.
But the reasons for the rules set down in the 1964 case remain relevant. The decision came about because Montgomery, Alabama, police commissioner L.B. Sullivan wanted to punish the Times for an ad signed by Black pastors in support of civil rights, which contained minor factual errors. An Alabama jury awarded Sullivan $500,000 in damages, the equivalent of about $4.5 million today.
His lawsuit was part of a sinister pattern. The Montgomery Advertiser described libel actions as “a formidable legal bludgeon to swing at out-of-state newspapers whose reporters cover racial incidents in Alabama.” Journalists who had to worry about mistakes that could expose them to huge judgments, it was hoped, would choose not to report truthful information that might antagonize the subjects.
What made big news organizations anathema to segregationists were not so much their few inaccurate stories as their many accurate ones. That may also be the case with Palin, who has not forgotten the 2008 press scrutiny that exposed her embarrassing deficiencies.
The court said that without broad protection against libel suits, “would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so.”
The Sullivan decision is often seen as a boon to big corporate media. But reversing it would raise the threat of libel judgments against millions of opinionated people on social media and websites — most of whom lack the resources to fight court battles. Someone who posts a falsehood about a member of Congress on Facebook could be hauled into the dock and reduced to financial ruin.
But the biggest danger is to the American people, who benefit from diligent reporting and aggressive commentary about matters of public importance.
That’s the idea behind the First Amendment.
In an age of disinformation, a citizen’s effort to discern the truth may be harder than ever. But stifling debate for the benefit of elected officials is no way to help.
