In the case of former vice presidential nominee and “Masked Singer” contestant Sarah Palin against The New York Times, Palin is a double loser — at least for now. A unanimous nine-person jury ruled against her Tuesday, a day after the federal judge presiding over the case said that because Palin’s team didn’t present sufficient evidence, he was dismissing the case, no matter how the jury ruled. Palin is likely to appeal, but her inability to persuade the judge or the jury gives her a slim chance of success.
Palin is likely to appeal, but her inability to persuade the judge or the jury gives her a slim chance of success.
The former Alaska governor sued the Times, accusing it of defamation based on a 2017 editorial that erroneously linked a political advertisement put out by Palin’s political action committee with a 2011 Arizona mass shooting that grievously injured then-Rep. Gabby Giffords and killed six people, including a child. Previously, Palin’s PAC had published an advertisement in which certain congressional districts, including Giffords’ district, were pictured under crosshairs. No one has ever established a connection between the political ad and the shooting, and the facts indicate that had Palin’s PAC not run the ad, that decision would not have prevented the subsequent tragedy. The Times quickly corrected the statement.
Palin, like other public figures who sue for defamation, had to establish that the Times made a false statement of fact about her, which caused her harm and was made with actual malice. Both the judge and the jury correctly concluded that Palin failed to meet this admittedly high burden.
The actual malice standard is a difficult threshold for defamation plaintiffs to clear, and that is a good thing. It requires showing that the defendant — here, the Times — knew about or recklessly disregarded the falsity of a statement. This standard protects news outlets and others in their ability to provide members of the public with information. While the Times has the resources and time to defend against defamation suits, the same is not true of many other media outlets and individuals. If defamation suits were easier for public figures to win, then it is easy to see how they would use the threat of such suits to bully, harass or cajole smaller outlets into burying unfavorable stories.
The argument here isn’t that false statements about public officials are OK. The argument is that we’d have a bigger problem if our defamation laws were less protective of the news media. Defamation laws balance the need to protect people from false statements and to protect the news media as it seeks to inform the public. News outlets will make mistakes, and some of those mistakes will cause real harm. But when it comes to public figures, who have often voluntarily placed themselves in the public eye and who have the ability to get their (corrected) message out, the balance should weigh in favor of protecting the news media.
Because of the actual malice standard, Palin lost her defamation battle against the Times. But because some conservatives, some of whom are on the United States Supreme Court, want the law changed, she may eventually win the war.
What happened over the last two days in Palin’s trial is a bit unusual. After presiding over the trial and hearing all of the evidence, U.S. District Judge Jed Rakoff in Manhattan, New York, concluded that Palin should lose and he would dismiss the suit. But here is the atypical part: Knowing the likelihood that there would be appeals, he allowed the jury to reach a verdict anyway. If the jury had found in favor of Palin, he would have set that verdict aside, and if the Court of Appeals ruled he was wrong, the jury’s verdict could stand without need for retrial. But since both Rakoff and a unanimous jury found that Palin could not demonstrate that the Times acted with actual malice, Palin faces a much tougher battle on appeal. After the jury’s verdict was announced, Rakoff commented, “You decided the facts, I decided the law; it turns out they were both in agreement, in this case.” We know there are at least two justices eager to whittle away at the protections afforded to the news media. So far, so good. Palin loses a case she should have lost. Because both the judge and the jury concluded that she should lose, her chances at the Court of Appeals aren’t good. But wait, what is that over there? It’s a fly in the ointment. Palin’s case could be used as a vehicle to rewrite defamation law in a way that erodes protection for individuals and groups, including the news media. If her case makes it to the Supreme Court, we know there are at least two, and likely more, justices who are eager to whittle away at the protections afforded to the news media by the actual malice standard. That would be bad. News outlets should not have to operate under constant fear of defamation suits. Of course, the news media should always endeavor to engage in error-free reporting. But reporters, like everybody else, make mistakes. And the benefits of them being able to inform us without the looming threat of a defamation suit far outweigh the harms imposed by the actual malice standard.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
