Palin v. New York Times District Judge Refuses to Overrule Supreme Court Precedent

"Binding precedent does not ... come with an expiration date."

|The Volokh Conspiracy |

As I noted below, Sarah Palin just won an important victory in her libel lawsuit against the New York Times; her case can go to trial on whether the Times acted with "actual malice," which is to say knowing that an allegation in its editorial was false or likely false. But Palin also argued that the "actual malice" test set forth by New York Times v. Sullivan and later cases shouldn't apply, and Judge Jed Rakoff said nay to that:

Plaintiff's motion for partial summary judgment presents a pure question of law: whether plaintiff is required to prove that the allegedly libelous statements at issue in this case were published with "actual malice." There is no dispute that plaintiff is a public figure and must therefore, under seemingly well-settled law, prove that the statements were published with actual malice. What plaintiff is really asking, then, is for this Court either to "overrule" New York Times v. Sullivan or else to distinguish that case on the facts and refuse to apply the actual malice rule here. To the extent those are, in fact, different requests, the Court declines them both.

While plaintiff acknowledges that the actual malice rule of New York Times and its progeny is well-established, she fundamentally misunderstands the doctrine of stare decisis that makes that rule binding on this Court. Plaintiff alludes to the "factors considered in deciding whether to overrule precedent" and notes in particular that "constitutional questions are less susceptible to stare decisis[,]" citing Janus v. American Fed'n of State, County, and Mun. Emps. Council 31, 138 S. Ct. 2444 (2018); Kimble v. Marvel Entm't, LLC, 576 U.S. 446, 456 (2015)). But those factors, and those cases, pertain to horizontal stare decisis, whereby a court determines whether its own prior precedent remain binding on that court. By contrast, what lies before this Court is vertical stare decisis, whereby a higher court ruling binds a lower court. "[V]ertical stare decisis is absolute, as it must be in a hierarchical system with 'one supreme Court.'" In other words, this Court has "a constitutional obligation" to follow the Supreme Court's precedent "unless and until it is overruled by [the Supreme Court]."

Perhaps recognizing that this Court is not free to disregard controlling precedent even if it were so inclined (which in this case it distinctly is not), plaintiff offers what she calls an alternative argument: that "the actual malice rule arose from distinguishable facts and should not be applied" here. More precisely, plaintiff's argument is that the actual malice rule, which was first articulated more than half a century ago in the days before the Internet and social media, has run its course and should no longer govern our contemporary media landscape.

Binding precedent does not, however, come with an expiration date. To the extent plaintiff believes the actual malice requirement ought to be abolished, she could make that argument to the appropriate court—the Supreme Court. Until then, public figures, like plaintiff, must establish actual malice before collecting damages for defamation. Plaintiff's motion for partial summary is therefore denied.

Quite correct.

NEXT: Sarah Palin's Libel Lawsuit Against the New York Times Can Go to Trial

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  1. IANAL and wonder why any lawyer would push such an idea, no matter how much his client wants to. It has always amused me that these rulings speak as if the lawyer was invisible: “To the extent plaintiff believes the actual malice requirement ought to be abolished, she could make that argument”

    While legal quibblings fascinate me, I don’t have anywhere near the nerve to be a lawyer.

    1. Not an attorney either, but my understanding is that the lawyer works for the client and if the client insists on making a frivolous argument, the attorney will do their best to present that argument after counseling the client of its likely failure.

      This will go on as long as the checks clear. It’s a business and “the customer is always right.”

      1. A lawyer is ethically prohibited from making a frivolous argument (as opposed to merely an unmeritorious one), regardless of the client’s wishes.

        1. Lawyers may and do argue in good faith, without any ethical violation, for existing precedent to be extended in a way that helps them and/or directly overruled. We make those arguments in trial and lower appellate courts knowing that those judges are bound by high-court precedent, in order to have preserved the right on further appeal to ask the high court to overrule itself.

          1. Sure, but ah….Clem was specifically talking about frivolous arguments.

            Also, is there actually some authority that you need to preserve an argument for overruling a case by making it in that can’t overrule it?

            1. You cannot raise on appeal any point or argument that you have not made in the courts below. Thousands and thousands of appellate decisions so state.

              1. That’s certainly not true, variety of reasons that you’re surely familiar with if you’re a lawyer,

                I would be fascinated to learn of any authority you’re familiar with (in any state or federal court) on this specific issue.

                1. @ Noscitur: An interesting discussion and application of the waiver on appeal doctrine in the context of a Fourth Amendment exclusionary rule/suppression caseUnited States v. Joseph, 730 F.3d 336 (3d Cir. 2013) (italics in original):

                  We hold that for parties to preserve an argument for appeal, they must have raised the same argument in the District Court—merely raising an issue that encompasses the appellate argument is not enough. Consequently, the degree of particularity required to preserve an argument is exacting.

                  1. And I don’t like your tone. This concludes our conversation.

                  2. I don’t think that quote is really on point. While a party usually cannot raise new arguments on appeal—which is what that cite appears to be discussing—there are, as I’m sure you’re aware, any number of circumstances where they can. And I have trouble thinking of a reason why it would make any sense to require a party to ask a court for relief that they know it has no power to grant.

                    I apologize if you were offended by my tone, and my comment wasn’t intended offensively. If you do know of any authority on the question, I would genuinely be fascinated read it. I have myself searched for some (admittedly, not particularly energetically) without result.

                    1. While a party usually cannot raise new arguments on appeal—which is what that cite appears to be discussing—there are, as I’m sure you’re aware, any number of circumstances where they can.

                      No, I’m not aware of any number, or any, such circumstances. How about you name one?

                    2. Well, since your quote was from a criminal case, you could look to Fed. R. Crim. P. 52(b):

                      Plain Error. A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.

                      Here is a recent seventh circuit opinion applying that rule to grant relief on an argument that was not raised in the trial court:


                      Accord Fed. R. Evid. 103(e) (“A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.”)

                      Other instances include situations where the appealing party did not have an opportunity to object, see Fed. R. Civ. P. 46 and Fed. R. Crim. P. 51(b), or arguments about the court’s lack of subject-matter jurisdiction, which we non-waivable and can thus be raised at any time.

                      Again, I’m not saying this situation is necessarily one of the exceptions (although I can’t think of any policy reason why it shouldn’t be). I’m just asking if you know of anything that answers or purports to answer the question one way or another.

                    3. NaS:

                      You definitely don’t want to rely on the plain error doctrine, which is extremely hard to win and basically forcloses arguments that precedents should be overturned. (If the precedents compel it, it isn’t plain error.)

                      The way to do it when you want to challenge a precedent is to say just enough to the trial court to not waive the argument.

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            2. Frivolous is many times in the eye of the beholder. I have had opposing counsel argue/deny the EXISTENCE of words like “seller” and “buyer” in a written agreement where the document attached to the pleadings and submitted at the hearing states John Smith “(hereinafter Lessor/ Seller)” and Sally Jones “(hereinafter Lessee/Buyer)” and the judge said so what? Feel free to argue the meaning of the words buyer or a seller but it is frivolous to deny the existence of a word repeated 15 times in a 20-page document. I have had neighborhood associations litigate the same issue three times and lose at Motion to Dismiss stage three times.

              1. Oh, I agree that the rule is more aspirational than anything else, and is unlikely to lead to consequences in any but the most egregious case.

      2. Well, within limits. My state bar just disciplined an attorney for accusing the other side, with zero evidence, of criminal conduct, and refused to withdraw the claim even after the other side showed there had been no criminal conduct. His defense was that his client wanted him to make the argument. Didn’t fly.

        1. @ Krychek_2: Yes, within limits, which is what I said to begin with. What you describe is a misrepresentation of facts, not law, and that’s slightly different. But regarding the law, see, for example, Fed. R. Civ. P. 11(b):

          By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:


          (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; ….

          See also the ethical rules regarding candor to the tribunal, e.g., Tex. Disc. R. Prof. Conduct 3.03:

          (a) A lawyer shall not knowingly:

          (1) make a false statement of material fact or law to a tribunal;


          (4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; …

          If Palin wants to preserve the chance to argue to the SCOTUS that it should overrule or modify NYT v. Sullivan, she has to start that process in the trial court by making the proper record, even if she has no hope of success unless and until she gets to the SCOTUS.

  2. Also not a lawyer… why the actual malice rule? If I knowingly or reasonable should have known that I was passing lies about someone that will hurt another’s reputation… that should be enough. It is like negligence in other settings. I don’t have to ram your car with malice… I just have to knowingly do it or behave in a way I should know would result in a ramming. Why do words change that? I don’t see how a negligence standard conflicts with the ideals of free speech. Open to new ideas on this one though.

    1. Actual malice is just legal jargon for being reckless. Which is above negligence but less than intentional or knowing.

      1. So it is different from how a normal person would use malice which would be to describe something as deliberately hurtful?

        1. Yes. Malice, as it pertains to defamation law, has nothing to do with malice, as intending to cause gratuitous harm.

          1. Which is dumb and should end, but is the way it is.

      2. Actual malice is a standard that can only be reached in the rarest of rare occasions. Al Sharpton actually crossed the line and was found to have had actual malice in a racial allegation a few decades ago but the standard is almost meaningless.

    2. Protect Freedom of Speech and reduce the Abuse of Libel Laws to Silence People, Civil Defamation cases are generally judged with a High Standard. Also with Public Figures, seeing their lives are mostly open to the public to the point that it’s fairly easy to verify anything that is said about them and some of them are rich to the point they can continuously abuse SLAPP, Public Figures should have an even higher standard for Defamation Lawsuits

  3. It’s hard to believe a lawyer like Libby Locke would put forward such dumb arguments. What’s the back story here?

  4. Proposed explanation: I doubt the lawyer actually thinks that argument has headway. However, sometimes lawyers make these arguments to preserve them for upper courts with can modify precedent. So that could be what the lawyer is going for. Not going to win in the district court, but on appeal she could argue the appeals court can limit the reach of the precedent, which is reasonable, and if it gets to the supreme court, they can overrule it.

  5. The interesting question will be “actual malice.”

    The left went so far as to attempt to film a porno movie entitled “Nailin Palin” and what NYT v Sullivan never addressed was other involved parties as the NYT didn’t have allies saying vile things about Sullivan.

    Hence it’s a different set of facts, and where the NYT could prove absence of malice — they’d just screwed up on the number of times that MLK2 had been arrested. But that “innocent error” wouldn’t apply to the attacks on Sarah Palin…..

    1. I think there should be a different standard here — if your stated goal is to defame someone, you ought not be held to the content-neutral standard of merely screwing up a few facts. The presumption ought to be that you INTENDED to do that……

      A states an intent to murder B and then “accidentally” shoots B?
      Stranger things have happened, but what would the presumption be???

    2. The existence of a porno made by people of indeterminate politics is not relevant to NYT intent.

      As the law stands, stating you intend to defame would be relevant to intent under the current standard.

  6. Should be interesting. I wonder what the defense will be?

    Maybe they’ll claim that telling partisan lies is such a normal everyday practice at news organizations that it’s beneath conscious thought. So it can’t possibly be malice. That fits the pattern of their reporting and might be believable.

  7. A question I have never had answered satisfactorily:

    To what extent do waiver and forfeiture doctrines require a party that wants to have precedent overturned to make that argument to the lower court that is bound by the precedent? I have known some lawyers who were under the impression that they had to make the futile request to preserve the argument, but no one could point me to anything that actually said that, and I can’t think of much justification for such a rule.

  8. I would think that a jury could infer “actual malice” without needing to look at internal NYT memos (though those should be interesting) – if they’re a big-deal news organ and they repeat a story whose bogusness was exposed several years previously, does the jury have to look at internal memos to rule out the possibility of an honest mistake?

    1. Donald Trump, who was happy to repeat racist Birther bullshit years after it had been disproved, would probably not agree with your proposed standard, Eddy.

      1. Donald Trump almost certainly acted with actual malice. But I’m not sure that claiming that someone was born in Kenya counts as defamation.

        1. I imagine that saying someone holds an office for which he isn’t legally qualified could be seen as defamatory.

      2. “Donald Trump” etc.

        If he defamed anyone he should pay. He can afford it.

      3. There are serious problems with both Obama’s birth certificate and his draft registration. Maybe bureaucratic incompetence, maybe not…

  9. You know, there is another aspect to this I have wondered about. People of means are now much more willing to take on media organizations and haul them into court. How much does NYT have to spend on legal defense? I bet their lawyers are not defending them pro bono. It seems to me that NYT could be mortally wounded from a death by a thousand cuts. Even if the NYT prevails in court, their financial picture darkens with each judgment.

    At the very least, getting slammed with lawsuits will probably result in a behavioral change, meaning more caution and circumspection in their reporting. Is that really bad, per se?

    1. It’s a retainer scheme, I’d wager. Costs will not go up with additional litigation.

      1. Sarcastr0: That would surprise me; I have no direct knowledge of this, but my sense is that the billing is either hourly, or if (less likely) flat-rate, at a flat-rate on a per-case basis. If there’s a “retainer,” that would be a minimum, not a guaranteed flat rate for all cases that the firm would work on.

        Now I expect most newspapers do have libel insurance. But my guess is that costs will go up with additional litigation, even if they are the costs for future years’ policies. Plus insurance policies tend to have deductibles, have limits (whether on a per-case basis, total per-year basis, or both), and not end up paying for the full defense costs, if the insured wants a more expensive lawyer than the insurance company’s panel counsel. Am I mistaken on this?

  10. Perhaps recognizing that this Court is not free to disregard controlling precedent even if it were so inclined (which in this case it distinctly is not), plaintiff offers what she calls an alternative argument: that “the actual malice rule arose from distinguishable facts and should not be applied” here. More precisely, plaintiff’s argument is that the actual malice rule, which was first articulated more than half a century ago in the days before the Internet and social media, has run its course and should no longer govern our contemporary media landscape.

    Lathrop is her lawyer?

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