Palin Wins Appeal in Defamation Case Against New York Times – JONATHAN TURLEY

Palin was already at a huge disadvantage as a prominent Republican facing a New York grand jury. Rakoff added a series of flawed decisions to that. Even after he was previously overturned, Rakoff appeared intent on dismissing the case.

I have written about the case before as it raises concerns about the extension of New York Times vs. Sullivan from government officials to public figures.

As I wrote earlier, Judge William Brennan wrote perhaps his most eloquent and profound decision in New York Times vs. Sullivan.

News organizations at the time were being attacked by anti-segregationists to prevent them from covering the civil rights marches. The court rightly saw civil liability as a chilling effect on the free press, either by defunding publications or by creating a form of self-censorship. By imposing a high standard for proving libel, Brennan sought to give the free press “breathing room” to perform its most important function in our system.

The court held that government officials have ample means to refute false statements, but that it is essential to democracy that voters and reporters be able to challenge government officials. To create that breathing room, the court required that government officials prove “actual malice,” where the defendant had actual knowledge of the falsity of a statement or showed reckless disregard for whether it was true or false.

Two justices have indicated they would be open to the idea of ​​revisiting New York Times v. Sullivan . Justice Clarence Thomas has long been a critic of the standard, arguing it is not supported by the text or history of the Constitution. Thomas and Justice Neil Gorsuch last year objected to the denial of certiorari in Berisha v. Lawson , in which author Guy Lawson published a book detailing the “true story” of three Miami youths who allegedly became international arms dealers.

It was a success and earned him a film deal. A central figure in the story was Shkelzen Berisha, the son of the former prime minister of Albania. He sued Lawson for libel, claiming that he was not, as he was portrayed, an associate of the Albanian mafia and that Lawson used unreliable sources for his account.

Berisha is a public figure rather than a civil servant. The problem is that one element is missing to impose a higher burden on public figures like Berisha: to promote the democratic process. In teaching libel, the real standard of malice rests convincingly on a democratic reasoning that a free people and a free press must have breathing space to criticize the government and its leaders. It helps protect and perfect democracy.

For 30 years, I’ve struggled in the classroom to provide the same compelling rationale for applying the standard to anyone deemed a public figure. It takes very little to qualify as a public figure, or a “limited purpose public figure.” But why should private success alone subject someone like the Kardashians to a higher burden of proof for defamation? Writing about hot dog-eating champ Michelle Lesco doesn’t protect fundamental democratic principles or even support fundamental journalistic principles. To succeed, a Kardashian would still have to prove that a statement was false and unreasonable to publish. Moreover, in most states, publications are protected by retraction statutes that limit or bar damages for corrected stories. After all, speech is already protected from libel suits.

There are difficult questions that warrant serious discussion, not only in the courts but also in society. For example, there may be a more credible basis for holding public figures to a higher standard on issues of great public concern. But what is a legitimate public cause, especially when that cause is based on a false report?

Take Nicholas Sandmann, who was swept up in a maelstrom of news coverage for falsely claiming he assaulted an elderly Native American activist in front of the Lincoln Memorial. Sandmann secured settlements for the biased and false reporting of major media outlets. Defamation still protects speech without a higher constitutional standard for figures like Sandmann.

Clearly, the public figure standard is a clear advantage for the media. However, without a compelling argument for a constitutional standard for public figures, it looks more like a court-enforced subsidy or shield. The purpose of Times v. Sullivan was not simply to prop up the press. The Palin case and others could provide a new opportunity for the court to revisit the doctrine.

Palin, however, will now have to appear before Judge Rakoff and a jury in New York, which has proven to be a deadly combination. If her case ultimately reaches the Supreme Court, it could lead to a reconsideration of the extension of New York Times vs. Sullivan to public figures.