‘This is—and has always been—a case about media accountability’
By Carolyn Schurr Levin
You may be tired of reading about Sarah Palin and her potentially “groundbreaking” libel case against The New York Times. However, so much has happened since our 2019 analysis of her case that I thought it was time for an update. I will focus on how the recent 2022 court resolution of this 2017 libel lawsuit impacts what student journalists do, and how best for campus media advisers to advise them.
First, a bit of background. On June 14, 2017, The New York Times published an editorial entitled “America’s Lethal Politics,” which stated that there was a connection between a 2010 advertisement by Palin’s political action committee and the 2011 Arizona mass shooting of U.S. Rep. Gabby Giffords, D-Arizona, and others. The byline for the editorial was “By The Editorial Board.”
The New York Times changed the language of the editorial and published a correction two days later, on June 16, 2017, after readers noted there was no connection between the Palin advertisement and the Giffords shooting. The correction read, in full: “An editorial on Thursday about the shooting of Representative Steve Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Rep. Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs.” But, The New York Times did not apologize to Palin.
Palin sued The New York Times for libel. Her lawyers, Elizabeth Locke and Ken Turkel, were quoted as saying, “This is—and has always been—a case about media accountability.” On the other hand, The New York Times’ lawyers framed the case as “incredibly important because it’s about freedom of the press.”
So, what’s happened now?
Palin faced a high bar to prove her case because of the actual malice standard required for public officials to win libel cases. Palin, of course, as a former governor of Alaska and former vice presidential candidate, is a public official. The actual malice standard holds that public officials have to show that news outlets knowingly published false information or had acted with “reckless disregard” for the truth. That standard was established in the 1964 decision in another case involving The New York Times, New York Times v. Sullivan.
The jury trial, which began on Feb. 3, 2022 in federal court in Manhattan before U.S. District Judge Jed Rakoff, lasted two weeks. New York Times former opinion editor James Bennet testified that he had not intended to blame Ms. Palin for the 2011 shooting. Instead, he said, he was trying to make a point about the heated political environment.
Palin countered in her testimony that the New York Times was trying to “score political points” with the editorial, which she said left her feeling “powerless” and “mortified.” She also said the newspaper’s correction was insufficient — and did not include her name.
The jury agreed with The New York Times that there had not been actual malice, returning a unanimous verdict in favor of The New York Times on Feb. 15, 2022.
The New York Times celebrated the jury verdict. “It is a reaffirmation of a fundamental tenet of American law: public figures should not be permitted to use libel suits to punish or intimidate news organizations that make, acknowledge and swiftly correct unintentional errors,” a spokeswoman said in a statement.
But, in a strange twist, BEFORE the jury rendered its decision, Judge Rakoff issued a decision saying that no matter how the jury decided, he would dismiss the case because there had been no actual malice. Based on this unusual procedural situation, Palin made a motion to disqualify Judge Rakoff. Without waiting for a decision on her disqualification motion, on March 17 she also appealed the jury verdict, seeking a new trial with a new judge. The motion and the appeal are still pending. Many media lawyers believe that Palin’s case is heading for the U.S. Supreme Court (meaning that you will likely be reading a CMR Palin update #3 at some point).
In the meantime, the Palin jury verdict gives some guidance (and relief) for student journalists reporting on public figures on their campuses. Here is our takeaway:
- Correct your mistakes: You will make mistakes. The New York Times makes mistakes. But here is what The New York Times did well. They promptly corrected their error two days after the Palin editorial ran. This point cannot be overstated. Don’t be scared to admit your mistakes. Don’t ignore them. Acknowledge and promptly correct them. For all sorts of reasons, this is good practice. And, in the unlikely event that you are sued, it will be evidence that you had no actual malice, as the jury unanimously found in Palin’s case.
- Don’t lower your standards for public figures. The Palin jury got it right. Public figures, such as university presidents, and maybe even student leaders and prominent professors on college campuses, have a very high bar to win libel cases. They must prove that you knew what you published was false or that you published it with reckless disregard for the truth.
But, even with the leeway that the actual malice standard provides, student journalists should not focus on that margin of error. Rather, they should strive to get it right, whether writing about an unknown student on campus or the university provost.
Many, including current Supreme Court Justices Clarence Thomas and Neil Gorsuch, have opined that the actual malice standard on which the Palin jury based its verdict should be revisited, revised or even overruled. “The proliferation of falsehoods is, and always has been, a serious matter,” Justice Thomas has written. “Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires.” Justice Gorsuch has agreed. “What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets,” he wrote, “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.” And, Donald Trump also famously urged “opening up the libel laws.”
Thus there is reason to suspect that the long-established fault standard for public officials in libel cases may change. Attorney Thomas Kane, writing in the National Law Review, made the point that we shouldn’t “be surprised if someday Palin v. New York Times is taught right after New York Times v. Sullivan in Constitutional Law classes.” Professor Bill Kovarik agreed, writing in The Conversation, “I can see the Palin case providing a vehicle to return libel laws back to a time when it was much easier for public figures to sue the press.”
But, eminent media lawyers George Freeman and Lee Levine have argued for maintaining the buffer provided by the actual malice standard. “The last thing we need is a greater disincentive to report about corruption in and negligence by local officials and institutions because of the threat of financially devastating libel suits arising from honest errors,” they wrote in a March 8, 2022 editorial in The Washington Post. Libel cases aren’t going away. In fact, there is evidence that more are being brought than ever. The Media Law Resource Center reported on data from 12 major news media companies indicating the number of libel cases rose from 74 to 115 between 2016 to 2021, compared to the preceding six years.
We ended our 2019 legal analysis of Palin’s case with this observation: “The Palin v. New York Times lawsuit is far from over, two years later.” Now in 2022, we can update that ending with a new one. The Palin v. New York Times lawsuit is still far from over, five years later.
Where does this leave us? Despite all the high-level criticism of the actual malice libel standard for public officials and public figures, IT IS STILL THE LAW. The legal rules haven’t changed … yet. Perhaps more importantly, the ethical standards for thorough, fair and meticulous reporting certainly haven’t changed, and they won’t.
Carolyn Schurr Levin, a media and First Amendment attorney, is a partner at Miller Korzenik Sommers Rayman LLP in New York. She was the vice president and general counsel of Newsday, vice president and general counsel of Ziff Davis Media, and media law adviser for the School of Journalism at Stony Brook University. She teaches Media Ethics & Law at City University of New York’s Baruch College, and has also taught media ethics and law at Stony Brook University, Long Island University, and Pace University. From 2010-2019, she was the faculty adviser for the Pioneer, the student newspaper at Long Island University, during which time the Pioneer won 28 awards.