In the defamation case of former vice presidential nominee Sarah Palin against The New York Times, much more is on trial than the Gray Lady. Palin, a once rising political star whose last claim to fame was as a contestant on “The Masked Singer,” sued the Times for an editorial that the publication ran, and later partly retracted, which incorrectly claimed that there was a connection between advertisements run by her political action committee and a 2011 shooting. That shooting killed half a dozen people and wounded more, including then-Rep. Gabrielle Giffords, D-Ariz.
The huge difference between 1964 and 2022 when it comes to the continued viability of our defamation law standard is, of course, the internet.
The case could test not only whether The Times must pay Palin, but also how we will balance protection for people’s reputations versus protection for the media in an online, social media-dominated world.
In 2017, there was a shooting at a baseball field in Alexandria, Virginia, where Rep. Steve Scalise, R-La., was among those injured. The Times published an editorial on the same day that essentially suggested that there could be a connection between some political speech and gun violence. The editorial went further and erroneously claimed there was a connection between Palin’s political speech and the 2011 mass shooting in Arizona. At the time, Palin’s PAC had published a map showing a number of congressional districts, including Giffords’, in crosshairs, which Palin’s PAC was targeting as potentially winnable districts for Republicans.
The current standard for defamation cases involving public figures and members of the media comes to us from the Supreme Court’s famous 1964 decision in New York Times v. Sullivan. There the court held that public figures who bring defamation cases must show that the defendants, here The New York Times, published false statements of fact about them, that the false statements harmed their reputations and that the statements were made with actual malice. The actual malice standard requires that a plaintiff show that the defendant either knew the statement was false or acted with reckless disregard about its falsity. We can compare the actual malice standard to a negligence standard, which would ask only whether the reporter or the editor should have known about the falsity of the statement.
The actual malice standard is a high hurdle for plaintiffs to overcome. It is admittedly designed to protect the press against defamation suits from public individuals who could chill their speech. It’s not hard to imagine that under a standard that is more favorable to plaintiffs, some public officials would attempt to bully the press into silence by threatening to file defamation suits.
There’s a reason we want to be so protective of the press: Its job is to inform us. If reporters and editors self-censor because they fear the time and expense of defending themselves against defamation suits, the public loses, because we are deprived of information. And this information is often about public figures and those who seek to lead our country.
Defamation law asks us to strike a balance between two people or groups whom we want to protect. On one side of the balance, we have people whose reputations could be harmed by false stories. On the other side, we have members of the media whose job it is to keep the public educated and informed. This balance changes when we are talking about public figures, as opposed to private ones.
Conservative politicians and judges want to make it harder for the press to defend against these suits, which will inevitably lead to more of them.
Public figures typically voluntarily avail themselves of the public forum. Palin isn’t an art teacher in Alaska. She’s the former governor who ran on a national political ticket to be our country’s first female vice president. She knows the press is going to write about her, and, perhaps more important, she has access to the proverbial bully pulpit. If there is an error in reporting about her, she has access to the media and the ability to set the record straight. This doesn’t mean she wasn’t injured or that it doesn’t matter that something false was written about her; it means that when we need to weigh competing concerns, we are going to tip them in favor of the press.
Palin’s suit gives us an opportunity to ask whether the old standard still makes sense in our current world. And, depending on what happens in the case, it could offer other judges the opportunity to re-evaluate that standard. The huge difference between 1964 and 2022 when it comes to the continued viability of our defamation law standard is, of course, the internet. Information, misinformation and disinformation now bounce around our online universe with a speed unimaginable to the justices who wrote the Sullivan decision. The desire to change defamation law goes way beyond Palin. Conservative politicians and judges want to make it harder for the press to defend against these suits, which would inevitably lead to more of them. Supreme Court justices Clarence Thomas and Neil Gorsuch have both expressed interest in altering defamation law in ways that would be less favorable to the press. Our former President Donald Trump, of course, was a huge proponent of changing defamation laws to, some would say, hobble the free press. When it comes to the specifics of Palin’s suit, it looks like a weak one. She will have to prove that former Times editor James Bennett knew of or recklessly regarded the falsity of the statements made here. Again, those statements involve linking Palin’s political rhetoric and gun violence. Palin also claims that Bennett is biased against her and her politics. The Times has said the false statements were made as a result of a mistake that occurred under a short deadline and that it quickly corrected the mistake. But, again, the consequences of the specifics of Palin’s suit may not be nearly as important as a re-evaluation of defamation law. At a time when so many of our institutions are under assault, we must fight to protect a free press. Because that is the best way to protect ourselves. The plethora of information that is true, false and somewhere in between that flashes on our screens does not change that. In fact, quite the opposite. We will never be able to perfectly strike the balance between protecting people’s reputations and protecting a free press. But particularly when the press makes statements about public officials, we must allow it to report, inform and hold these officials to account. This is no time to threaten to chill the press.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
