• by Tony Silber , Staff Writer, January 25, 2022

After years of hearing President Donald Trump bitterly promise to “open up” U.S. libel laws, former vice presidential candidate Sarah Palin’s libel suit against TheNew York Times may end up producing that exact result.

The trial was scheduled to begin Monday at the U.S. District Court for the Southern District of New York in Manhattan, but the presiding judge, Jed Rakoff, announced Monday morning that Palin had tested positive for COVID-19. Later Monday the judge said the trial can start on February 3 if Palin has recovered. 

Palin is suing the Times over a 2017 editorial that incorrectly linked her political rhetoric to the 2011 shooting of Arizona U.S. Rep. Gabrielle Giffords. 

The case is a rare example of a libel suit that makes it to trial. Most are dismissed or settled. It will test a 58-year-old legal principle that establishes a high standard for public figures to prove defamation: The aggrieved official or public figure must prove “actual malice” on the part of the media outlet, meaning that it demonstrated a “reckless disregard” for the truth or knew the information was false.

That standard was established in a landmark 1964 Supreme Court ruling, New York Times Company v. Sullivan. The outcome established that for public officials — later broadened to include public figures — it wasn’t enough to show that an article was inaccurate and harmed their reputation. Malice had to be proven.

But in recent years, calls have escalated — largely from conservative or Republican legal experts and public officials — for media outlets to pay a heavier price for their mistakes. As the Times noted in a report on Sunday, these academics, judges and elected officials have “started to press their case more boldly for unwinding the bedrock precedent set by the Sullivan case, saying it has not kept pace with the changing nature of news and public commentary.”

Last year, for example, Supreme Court Justice Neil Gorsuch wrote the actual malice standard was crafted in a time when journalism was produced by large organizations that had access to skilled editors and fact checkers. Now, the media landscape is filled with commentary on social media and internet platforms used to spread misinformation. The 1964 standard, he wrote, has created an “effective immunity from liability.”

Still, Palin faces a high hurdle for proving defamation.

“In our view, this was an honest mistake,” Times deputy general counsel David McCraw told TheWashington Post in 2019. “It was not an exhibit of actual malice.”

Palin’s case was initially dismissed but an appellate court overturned that decision in 2019, setting the stage for Monday’s trial.