The Volokh Conspiracy

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Free Speech

Perhaps the S. Ct. Will Reconsider the "Actual Malice" Libel Test—but Not in Palin v. N.Y. Times


[UPDATE 3/11/2022: A new New York state intermediate appellate decision suggests the chance of the U.S. Supreme Court taking Palin is higher than I thought, though I think still very low; see here for details.]

Sarah Palin will doubtless appeal the verdict against her, and will almost certainly lose. Under existing libel law, she could only prevail if she could show so-called "actual malice," which basically means that the Times knew that the statement about her was false (knowing falsehood), or at least published it with a "high degree of awareness of … probable falsity" or "entertain[ing] serious doubts as to the truth of his publication" (reckless disregard of the risk of falsehood). Mere negligence or even gross negligence isn't enough. The jury has resolved against Palin this factual question about the Times editors' mental state, and the Second Circuit Court of Appeals is highly unlikely to overturn such a factual ruling.

In principle, of course, Palin could then petition the Supreme Court, asking it to exercise its discretion to review the case, and perhaps reconsider whether the "actual malice" test really should apply—the Supreme Court could reverse that precedent, even though the Court of Appeals can't. (Technically, the precedent isn't New York Times v. Sullivan, which required the actual malice test for public officials, but follow-on cases, such as Curtis Publishing v. Butts, which extended that to so-called "public figures.")

But it seems to me extremely unlikely that the Court would agree to hear Palin's case, because it arises under New York law—and a recent New York statute adopts the "actual malice" test as a matter of state law, whether or not it applies as a matter of First Amendment law.

Whether the Court overrules some of its First Amendment libel precedents thus wouldn't affect Palin's case, because one way or the other the jury had to be instructed under New York law. (In theory, Palin could have argued that Alaska law applies, since she's a resident of Alaska, even though the case is being litigated in New York; but the plaintiffs expressly declined to make such an argument.) That legal irrelevance of the First Amendment question is basically a dispositive reason for the Court not to exercise its discretion to hear this case.

There is one possible twist: The new New York statute was enacted after the case was filed, so one could argue that it shouldn't be applied in this case. But in late 2020, Judge Rakoff concluded that the statute should be so applied; I doubt that the Second Circuit would revisit that question, because that question is unnecessary to its decision (since the Second Circuit has to apply the "actual malice" test in any event under the First Amendment). And the chances of the Supreme Court agreeing to hear the Palin case when the first step would have to be interpreting a New York statute—and when an interpretation of the statute that affirms Judge Rakoff's would make the meaty First Amendment issue go away—strike me as very low.

Of course, many of the Justices might in any event be reluctant to reconsider important First Amendment precedents in a case that's so politically laden. (Some Justices might not care about that, but I expect some would.) But even apart from this, I just don't see the Palin case as procedurally suitable for that question.

I think it's possible that the Court will indeed reconsider some of those precedents in some case. Justices Thomas and Gorsuch have so suggested recently, and then-Professor Kagan had so suggested back in the early 1990s. A Justice has recently called for a response in one case calling for such reconsideration, Coral Ridge Ministries Media, Inc. v. Southern Poverty Law Center, though the Court has also passed up some opportunities to do this in recent years. But Palin v. New York Times, I predict, won't be the Court's vehicle to do this.