The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.