• by Tony Silber , Staff Writer, February 15, 2022

The presiding judge in the defamation case of Sarah Palin versus the New York Times on Monday afternoon unexpectedly said he plans to dismiss the case but would let the jury continue its work.

The judge, Jed S. Rakoff in the United States District Court for the Southern District of New York, said Palin's legal team had failed to produce adequate evidence that the Times acted with actual malice when in a 2017 editorial it erroneously linked her political rhetoric to a 2011 mass shooting in Arizona. 

That standard, proof of actual malice, was established in a landmark 1964 Supreme Court case, New York Times Co. v. Sullivan. "Actual malice" was defined as a media outlet publishing injurious defamatory information that it either knew was false or that it acted with a reckless disregard for the truth. The standard initially applied to public officials but was later expanded to include all “public figures.”

But Rakoff said he would let the jury continue its work, and that an appeal was likely. The case went to the jury on Friday afternoon. It’s the first libel case against the Times to get to trial in the U.S. in nearly two decades. 

In recent years, calls have escalated -- largely from conservative or Republican legal experts and public officials -- for the actual malice standard to be revisited and for media outlets to pay a heavier price for their mistakes. The ultimate objective is to unwind the standard set in the Sullivan case, which they believe has not kept pace with the changing nature of news and public commentary.

Last year, for example, Supreme Court Justice Neil Gorsuch wrote that 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, and the 1964 standard, he said, has not kept pace. Instead, it's created an “effective immunity from liability” — a constitutional protection of lying in media, and “a subsidy for published falsehoods on a scale no one could have foreseen,” Gorsuch wrote. Such a state of affairs leaves far more people without redress than anyone could have predicted in 1964, he said.

Because Palin -- the 2008 Republican nominee for vice president, a conservative political celebrity, and once a reality-show personality -- is a public figure, her lawyers need to prove not only that the Times defamed her but that the paper was motivated by “actual malice.”

If Palin prevails in a subsequent appeal, the case will upend the long-standing protections afforded in the Sullivan case to journalists writing about prominent people.

And that, ultimately, raises fundamental questions about the extent of the First Amendment.

Gorsuch’s arguments (and those of fellow Supreme Court Justice Clarence Thomas) seem to have value at first blush. In an internet ecosystem filled with misinformation, disinformation, clickbait and fake news, isn’t the legal bar for truth and accuracy worthy of review?

Possibly. But in the end, actual malice is defined as publishing an injurious false report knowing it to be false or with a reckless disregard for the truth. Why would it make a difference whether such a report was published by the New York Times or by a shady conspiracy-theory website?

This case comes at a time when in Turkey, a prominent TV journalist, Sedef Kabas, was arrested at her home at 2:00 a.m. last month and charged with insulting the country’s president, Recep Tayyip Erdogan. She was detained and now faces as much as 11 years in jail. Her crime? She posted a proverb on Twitter that translates to: “When the ox comes to the palace, he does not become a king. But the palace becomes a barn.”

According to the Jerusalem Post, tens of thousands have been charged and convicted for the crime of insulting the president since Erdogan took office in 2014 after serving as prime minister for 11 years.

This is a debate that dates to the earliest days of the American republic. The 1798 Sedition Act made it illegal to “write, print, utter or publish any false, scandalous and malicious writing with intent to defame the government.” Federalist judges wasted no time enforcing the law. There were arrests, indictments, and convictions, including of a Vermont congressman who spent time in jail — all on weak charges such as insulting President John Adams for his appearance or his dour personality.

Overreach on that side of the First Amendment would seem to be the bigger threat to democracy.