The Volokh Conspiracy

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Free Speech

Latest Decision in Sarah Palin v. N.Y. Times: N.Y.'s New Anti-SLAPP Law Is Retroactive

If this decision stands, then the Supreme Court wouldn't have a chance to reconsider the N.Y. Times v. Sullivan "actual malice" requirement in this case (not that it was likely to in any event).


[1.] Sarah Palin's libel lawsuit against the New York Times is proceeding, on the theory that a jury could potentially find that the Times people knew their allegations about Palin were false (or at least were likely false). This is the so-called "actual malice" test, which is applied to libel claims brought by public figures such as Palin on matters of public concern (though it doesn't actually require malice at all). It's also called the New York Times v. Sullivan test, after the 1964 case that announced the test as to public officials; later cases extended it to other public figures.

[2.] 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. 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. (Justice Thomas seems interested in that, but I don't think four other Justices will join him.) But there certainly has been talk about trying to tee up a case for the Court to consider whether to revisit the matter.

[3.] Today's decision by Judge Jed Rakoff (S.D.N.Y.) makes it even less likely that Palin v. New York Times would be a vehicle for the Court to overrule its libel precedents.

Earlier this year, New York enacted a long-discussed revision to its "anti-SLAPP statute"—essentially a protection for defendants in libel cases (and some other similar cases). Part of that revision provides that, as a matter of New York state law, libel plaintiffs suing over speech "in connection with an issue of public interest" may only recover damages if they prove "that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false."

For public-concern cases brought by private figures, this statute imposes the "actual malice" for the first time, at least when it comes to compensatory damages. (Before the new statute was enacted, New York essentially applied a sort of gross negligence standard to private-figure/public-concern/compensatory-damages cases.) But for cases brought by public officials or public figures, this revision just codifies the "actual malice" standard.

In today's decision, Judge Rakoff held that the anti-SLAPP revision was retroactive, in that it covered cases such as Palin's, which were pending when the revision was enacted. And if the Second Circuit eventually agrees with him on appeal, then the question whether to overrule New York Times v. Sullivan would become irrelevant to the Supreme Court.

The Supreme Court almost never second-guesses lower courts' interpretations of state law, so it would treat the "actual malice" rule as an independent state law statutory requirement. And if that's so, then the question whether the New York Times v. Sullivan standard should be preserved as a federal requirement would become (for this case) moot.

[4.] Judge Rakoff's decision may end up being very important for many pending New York libel cases (including ones dealing with a different part of the anti-SLAPP statute, which changes various rules as to public figure cases as well). As a federal district court case, it isn't binding precedent, either in state or federal court, but it's likely to be quite influential (and will be even more influential in state court, and binding in federal court, if the Second Circuit affirms on this score). But in the Palin case itself, it has only the indirect effect that I described.

[Thanks to Gage Skidmore / Wikipedia for the photo of Palin that I'm using as a featured image for social media versions of this post.]