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.]

NEXT: Today in Supreme Court History: December 29, 1971

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  1. I’m no Palin fan, but it would be nice to see the media get held liable for the damage the cause when the knowingly report slanderous, damaging information. Sadly, I doubt this will stop the NYT and other rags from trying to use their pages to harm their enemies. Too bad they just cannot report the news, but that ship sailed a long time ago.

    1. they* – damn squirrels stealing my Ys.

      1. So you actually meant the even more childish “Firsty”.

    2. The comments at issue were in an editorial.

      1. “The comments at issue were in an editorial.”

        Does that matter? Factual claims are factual claims, whether they appear in an editorial or not.

        1. Does that matter? Factual claims are factual claims, whether they appear in an editorial or not.

          For the Times’s legal liability? Of course not. I was referring to the complaint that it is “Too bad they just cannot report the news”.

    3. “Sadly, I doubt this will stop the NYT and other rags from trying to use their pages to harm their enemies.”

      Unfortunately, I see the NYT and other rags hiding behind the claim that they are only repeating what someone else stated – even when they know the statement is false.

  2. Aw would be a shame to see the NYT get bitch slapped in court.

    1. Getting smacked around by your betters in the culture war has made you, and plenty of other clingers, cranky and disaffected.

      This is good.

      I am content.

      1. Why do so many leftists want the NYT to be able to publish bullshit with impunity?

        And have no doubt, what the NYT published was Q-Anon level bullshit.

  3. Someone needs to learn how to crop a photo.

    1. Yes, too damned high.

  4. 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).

    I know that 1. Federal courts are required to defer to binding precedent from state courts about that state’s law, and 2. State courts are never required to defer to a federal court’s interpretation of that state’s law (nor to the interpretation of federal law from a court below the Supreme Court ). I don’t know the answer in the following situation:

    If the Second Circuit issues a decision on this question, and the New York Court of Appeals later expressly states that that decision has construed New York law incorrectly, which line of authority are federal courts required to follow?

    Knowledgeable answers identifying a source for the information preferred.

    1. A while ago I saw a dude tweeting that the NY Court of Appeals decision would be binding, not the Second Circuit.

    2. The NY Court of Appeals. A federal court, even a Court of Appeals, only predicts what the state’s highest court would hold on that issue. If it turns out to be wrong, then it is wrong.

      1. How about a state intermediate state appellate court?

      2. Do you have a case to that effect? I do love me some federal courts…

      3. State law is the controlling rule of decision in this case as to both substantive and procedural rights of the parties. Erie R. Co. v. Tompkins, 304 U.S. 64; Federal Rules of Civil Procedure, Rules 69 (a), 81 (b), 28 U. S. C. following § 723 (c). HN1 It is the duty of the federal appellate courts, as well as the trial court, to ascertain and apply the state law where, as in this case, it controls decision. Meredith v. Winter Haven, [****9] 320 U.S. 228. And a judgment of a federal court ruled by state law and correctly applying that law as authoritatively declared by the state courts when the judgment was rendered, must be reversed on appellate review if in the meantime the state courts have disapproved of their former rulings and adopted different ones. “Until such time as a case is no longer sub judice, the duty rests upon federal courts to apply state law under the Rules of Decision statute in accordance with the then controlling decision of the highest state court.” Vandenbark v. Owens-Illinois Co., 311 U.S. 538, 543.

        Huddleston v. Dwyer, 322 U.S. 232, 64 S. Ct. 1015 (1944)

  5. How is a retroactive statute not an “ex post facto law”?

    ” No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”

    1. It is, but in Calder v Bull SCOTUS said ex-post facto laws had to be criminal.

      1. Academics seem to agree that the original meaning of the “ex post facto” clause applied to all laws, not merely criminal laws. See, e.g., J. Mikhail, James Wilson, Early American Land Companies, and the Original Meaning of Ex Post Facto Law, 17 Geo. J.L. & Pub. Pol’y 79 (2019).

  6. The thing that bothers me about _NY Times v Sullivan_ is the purported libel was the number of times that ML King had been arrested, and which songs protesters had sung — what I would consider harmless errors.

    Apparently King was arrested 29 times — at a certain point, is the exact number really relevant? Likewise is there really a difference between one song and another?

    That’s a “common sense” standard that made sense.

    But what we have now is an “anything goes” unless you can prove malice or reckless disregard — and I don’t think that’s the same thing.

    1. Where do you come up with this stuff? It is not very hard to find a copy of the case, and to see what the actual libel claims were:

      “Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of respondent’s claim of libel. They read as follows:

      Third paragraph:

      ‘In Montgomery, Alabama, after students sang `My Country, ‘Tis of Thee’ on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.’

      Sixth paragraph:

      ‘Again and again the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times—for `speeding,’ `loitering’ and similar `offenses.’ And now they have charged him with `perjury’—a felony under which they could imprison him for ten years. . . .”

  7. According to the revised statute, “‘[p]ublic interest’ shall be construed broadly, and shall mean any subject other than a purely private matter.” The definition is tautological and thus subject to challenge based on vagueness. And, there are significant equal protection concerns, particularly with respect to involuntary public figures.

  8. “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.”‘

    I assume that at Bennett’s deposition someone asked him, “at the time the editorial was published, did you believe that there was a clear link between the Giffords shooting and incitement by Sarah Palin? What was the link?”

    I wonder what the answer was.

  9. It seems that “actual malice” should become a rebuttable presumption.

  10. actual malice was a stupid idea in the first place and definitely requires a rewrite in this era.

  11. Anyone familiar with the current ratio of unplanned pregnancies to college degrees in Sarah Palin’s Jesus-loving family? What about arrests to gainful employment? Criminal convictions to successful marriages?

    Thank you.

    1. For a supposed Reverend you should know that in God’s plan there is no such thing as an unplanned pregnancy.

      1. Your god is a trifling, illusory thing. Ditch the superstition if you want to debate with adults, clinger.

        No sentient power would want the Palin children to reproduce.

        1. That is some sizable hate AK. Hope you like warm places…

  12. New York Times “actual malice” rule is horrible from any constitutional perspective. From an originalist standpoint, there is nothing in the framework to suggest the press enjoy elevated rights to publish libel when it comes to otherwise generally applicable laws. Same goes from a “living, breathing” document take on the constitution. The media today is not the same of the 1960’s. I won’t say that the 60’s were the golden age of journalism but at least most had some sort of ethical bone in their body. These days the media willfully publishes fake news, engages in immoral reporting, and unless “get Trump” is an ethical consideration general has none.

    There is no reason the press should enjoy any more freedom to libel than the guy down the street.

    1. THere is nothing about NY Times v. Sullivan that is limited to protection of the press. The guy down the street enjoys the same protection. The standard varies by who and what you are talking about (public figures and matters of public interest), not who does the talking or writing.

      1. Functionally it is different and you know that. The press are in the business of talking about public figures and the actual malice standard is tailored to their industry. The guy down the street might be covered as well, but he generally isn’t publishing widely read stuff about public figures.

        1. So what? Everyone has the same rights. That they choose to exercise them or not, or more or less, is their business.

          I have never owned a gun and don’t plan to. I still have the same Second Amendment rights as the guy who owns twenty.

          I am a religious person, but an atheist has as much Free Exercise rights as I do.

          That’s the way it is in a free society. You have rights, but you choose when and where to exercise them.

          1. The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread

      2. Bored Lawyer: There is nothing about NY Times v. Sullivan that is limited to protection of the press. The guy down the street enjoys the same protection.

        Largely agree, but with a few caveats.

        1. As a matter of original interpretation, there can be no reasonable case except that the press referred to in the Constitution was the institutional press. Attempts to say otherwise—such as by EV on this blog, with his “physical printing press,” interpretation—are strained to the point of being historically nonsensical. I will not go into the historical record on that now—the evidence is too extensive, and I have laid much of it out in previous comments.

        2. No. 1 above does not mean the framers intended to stint private citizens’ access to the press. You are correct that to the extent anyone at all wished to access and use the institutional press, the constitutional right protected that use alike with that of a newspaper publisher. That too was clearly intended by the framers.

        3. But note, there have always been things an institutional press is capable of doing which a private individual, almost by definition, cannot do—such as certain kinds of collaboration during news gathering. Collaboration among news gatherers can expose them to legal liabilities which lone publishers of “opinion” (the almost universally-used term among the founders, by the way, for the protected right of an individual) do not suffer. A private publisher of opinion, even an opinion published by access to the institutional press, would have been less vulnerable, for instance, to charges of conspiracy, sedition, and probably some other offenses, than would actual members of the institutional press.

        That meant then, and means now, that the press freedom guaranteed in the Constitution would be incomplete if it did not extend to an institutional press some legal privileges that private parties do not as a practical matter need or make use of. And at times, it means—especially now—that courts must extend to the institutional press some considerations the courts cannot as a practical matter extend alike to everyone.

        For instance, due process would be too heavily burdened if every private publisher on the internet were privileged to withhold testimony on the basis of confidentiality. But the institutional right to press freedom would likewise be too heavily burdened if courts enforced universally—and with draconian firmness—every access to confidentiality relied upon by the institutional press.

        So there is a conflict of rights there—due process in tension with press freedom. And it is an especially meaningful conflict. A great deal of the most important reporting about government depends on promises of confidentiality the institutional press can extend to government sources. Almost none of the important reporting about government depends on promises of confidentiality private individuals extend to anyone.

        That is not happenstance. It is baked into the dynamics of reporting, involving both the willingness of confidential sources to deal with institutions, and their tendency to shun dealing with individuals. The best investigative reporters in the business, with the best contacts in government, discover that if they lose access to an institutional press to publish their stories, their sources dry up.

        The courts have power to abolish that practice of promised confidentiality, but often forebear to use it too harshly in the case of the institutional press. They do so less often in the cases of others. It is the only way to serve, and correctly balance, the competing and sometimes incompatible rights to due process on the one hand, and press freedom on the other.

        I could explain that at greater length, but let it rest here for now: justly administered, press freedom extends to everyone, but gets used according to differing capacities among private individuals and purposeful institutions. The courts must sometimes take those differences into account, lest they decide cases in ways which risk abolishing either due process or press freedom. That is the way it has to be.

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