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Palin Faces 'Uphill Battle' in Proving the Times Defamed Her

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zumaglobalten528709 | Robin Rayne/ZUMAPRESS/Newscom
(Robin Rayne/ZUMAPRESS/Newscom)

Defamation trial could have ramifications far beyond this specific case. Sarah Palin is suing The New York Times for alleged defamation. The case—which went to trial beginning yesterday—stems from a 2017 editorial published by the Times, in which the paper accused the former Alaska governor's rhetoric of being responsible for the 2011 shooting that injured former Rep. Gabrielle Giffords (D–Ariz.) and killed six others.

"There was no link established between Governor Palin and that shooting," Shane Vogt, Palin's attorney, said during opening arguments yesterday. "There was no link that demonstrated that Palin was responsible for the death of six people."

Published in the wake of a Virginia shooting that left Rep. Steve Scalise (R–La.) badly injured, the op-ed originally suggested that Palin had contributed to making Giffords a target back in 2011 because a Facebook post from her political action committee (PAC) showed Giffords under crosshairs. The next day, the Times added two corrections to the editorial, saying that the image had shown Giffords' district—not Giffords herself—under crosshairs and that there was no established link between Palin's PAC's post and the crimes carried out by shooter Jared Loughner.

Palin filed a defamation lawsuit against the Times and former editorial page director James Bennet, who added the Palin line to the article.

Will Palin succeed? Legal experts say that it's unlikely. Even Palin's lawyer, in his opening statement, admitted that they were "fighting an uphill battle."

Defamation requires several conditions to be met. To be found defamatory, a statement must be false but alleged as a fact, published or communicated to a third person, and damaging or harmful to the defamed party. A plaintiff must also show that the subject of a defamation suit is at fault, which requires a finding that they were at least negligent.

In addition, the Supreme Court has held—in the 1964 case New York Times Co. v. Sullivan—that when statements involve a public figure, they must have been made with "actual malice"—that is, "with knowledge that it was false or with reckless disregard of whether it was false or not." When it comes to determining that actual malice was present, "clear and convincing" evidence—not just a "preponderance of evidence"—must show this to be true.

Since Palin is a public figure, the actual malice standard must apply here.

Palin's team argues that Bennet and the Times intentionally published misinformation about her out of bias against her and/or Republicans more broadly.

"Those prompt corrections and an apology the Times posted on Twitter seem to undercut Palin's claims," notes Politico. "The Times's swift correction of its mistake strongly suggests there was no reckless disregard for the truth, just sloppy editing and poor judgment," agrees Washington Post columnist Margaret Sullivan.

The facts also undercut the idea that they were motivated by anti-GOP animosity, suggested Times attorney David Axelrod in court yesterday. The op-ed—which called the Scalise attack "evidence of how vicious American politics has become"—commended former President Donald Trump for his words after that shooting and noted that the shooter in this case was a supporter of Sen. Bernie Sanders (I–Vt.) "Bennet and the [editorial] board were especially conscious of not writing a one-sided piece.…The goal was to hold both political parties accountable," Axelrod said.

"The piece of journalism at the center of this dispute was a mess by any standard," commented Washington Post media critic Erik Wemple back in 2019. But was it malicious? That's a tougher call.

The bigger picture. A growing chorus has been insisting that the legal standard set forth in New York Times Co. v. Sullivan is outdated and needs to be updated.

This case reopens this thorny First Amendment question. As such, it could be "a pivotal moment in press freedom in the United States," writes University of Chicago Law School professor Genevieve Lakier.

"Defenders of the [Sullivan] decision argue that [the actual malice standard] is a good thing, because it prevents politicians and celebrities from using libel lawsuits to punish media organizations that publish critical stories about them. For many decades, this was the consensus view, and it probably still is," notes Lakier. "But over the past few years, a growing number of scholars, judges and politicians have argued that the Sullivan rule does more harm than good, by removing any incentive for journalists and other public speakers to be careful with the truth."

So, while the stakes in this case are "relatively low" for The New York Times, "the stakes for what it means for defamation law are huge," as Business Insider legal correspondent Jacob Shamsian put it.

But whether SCOTUS would actually take up the case is another matter. Here's UCLA law professor Eugene Volokh writing on the issue back in late 2020. "Palin's lawyers have argued that the 'actual malice' test should be overruled or at least sharply limited, and in principle the Supreme Court could agree with them, after the decision at trial and then an appeal to the Second Circuit," wrote Volokh. "In practice, it's very unlikely that the Court would grant review in this case, and I don't see much appetite on the Court for overruling New York Times v. Sullivan."

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Elizabeth Nolan Brown is a senior editor at Reason.