PostEverything + Perspective

Is the legal standard for libel outdated? Sarah Palin could help answer.

Her lawsuit against the New York Times will hinge on an earlier case. Some critics think it’s time for a new rule.

By Genevieve Lakier
Genevieve Lakier is a professor of law at the University of Chicago Law School and senior visiting research scholar at the Knight First Amendment Institute at Columbia University.
February 3, 2022 at 10:23 a.m. EST

In recent years, an increasing number of influential voices have argued that perhaps the most famous First Amendment case in history might be wrong. This week, a federal court in Manhattan will begin a trial that could ultimately determine whether they’re right. The answer to that question has been billed as a pivotal moment in press freedom in the United States. But it is worth spending a moment to consider whether two words from a 58-year-old case should bear so much weight.

In 1964, the Supreme Court held in New York Times v. Sullivan that government officials could only win defamation lawsuits if they could show that false statements about them had been made with “actual malice” — that is, by someone who knew that the statements were false, or who recklessly disregarded that possibility. The court later extended this rule to defamation suits brought by public figures more generally, and in the intervening decades, the “Sullivan rule” became emblematic of the United States’ famously speech-protective approach to the regulation of the press.

The trial set to begin Thursday between Sarah Palin and the New York Times (after a delay for Palin’s covid-19 diagnosis) will hinge on the Sullivan rule. Whether Palin can prove that the Times defamed her in 2017 when it editorialized that “the link … was clear” between Palin’s campaign rhetoric and a 2011 mass shooting will depend on interpretation of the rule. So will similar cases elsewhere: an appeal pending between Cardi B. and a celebrity vlogger who defamed her by spreading false rumors about her private life, and a lawsuit that Dominion Voting Systems has brought against Fox News after the cable news channel reported that the company’s voting machines worked incorrectly during the 2020 election. Because “actual malice” is hard to prove, these cases will be difficult, although not impossible, to win.

Defenders of the decision argue that this 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. ... 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. A prominent Democratic election lawyer sent Twitter aflutter last weekend with a (now-deleted) tweet that suggested Sullivan should be revisited, with many journalists rushing to the decision’s defense. Sullivan’s critics argue the actual malice standard might have made sense in 1964, when the primary players in the public sphere were large media organizations like the Times that had a vested interest in being perceived as reliable disseminators of news — but that it makes no sense today, when anyone can spread misinformation so long as they have the social media followers to do so.

{snip}

Gift Article
https://wapo.st/3LdkbX7

By Genevieve Lakier
Genevieve Lakier is a professor of law at the University of Chicago Law School and senior visiting research scholar at the Knight First Amendment Institute at Columbia University. Twitter https://twitter.com/glakier