• by Ray Schultz , Columnist, August 28, 2024

Given that The New York Times has its name on the most defining libel decision of the last 60 years, the Times vs. Sullivan, it seems almost unseemly that the Times could be sued for defamation. 

But it was  by former Alaska governor Sarah Palin in 2017. And Palin has won a legal victory. 

Palin claimed she was libeled by a Times editorial that inferred she had incited the 2011 shooting of Gaby Giffords and several other people at a political event in Arizona. A Palin ad put several Democratic districts within an image of crosshairs, but there was no hint that Palin was calling for violence. The Times apologized, but Palin said the damage had been done. 

She lost. But on Wednesday, a federal appeals court overturned the 2022 verdict that absolved the Times in that case and ordered a new trial. 

This is not to suggest that the standard for proving libel, which is higher for public figures thanks to Times vs. Sullivan, is moot. The throwing out of the 2022 verdict was based on problematic rulings by the trial judge, Jed S. Rakoff, including alleged withholding of certain evidence, the Times writes in a story. 

Of course, the matter is fraught with politics. The appeals panel judges were all appointed by Republicans, the Times notes.  

Wednesday’s decision does not weigh in on the argument that the Sullivan precedent is obsolete. A “growing chorus” of conservative critics argue it is, the Times writes. But if it were done away with, it would be a drastic blow to the First Amendment. 

The Sullivan decision says that libel plaintiffs must prove “actual malice,” meaning reckless disregard of the facts, or knowing upfront that the information was false. There has to be room for hyperbole or even factual errors. 

So Palin and the Times will have another day in court. 

“This decision is disappointing,” says Times spokesperson Charlie Stadtlander. “We’re confident we will prevail in a retrial.”