The Quest to Overturn Actual Malice

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The Sarah Palin v. New York Times trial ended in many ways where it began: as a demonstration of just how little people outside the media, including often the lawyers and judges involved in major media law cases, understand how the media works. On Valentine’s Day, the day before the jury rendered its verdict absolving The Times of defaming Palin when it erroneously claimed that a mass shooter had been inspired by an ad her PAC had distributed, Judge Jed S. Rakoff had — without the jury present in the courtroom — told the parties he planned to dismiss Palin’s case as a matter of law for failing to meet the “actual malice” standard which is the bedrock of the First Amendment protections in the landmark 1964 Supreme Court decision New York Times v. Sullivan. “But I will only do so after the jury has returned its verdict,” Rakoff said from the bench at around 3:24 p.m., “and they, of course, will not know about my decision.”

Rakoff had issued the jury strict instructions not to follow news reports about the case. The first matter of business that Monday morning were concerns raised by The Times lawyers that James O’Keefe’s Project Veritas (which is suing The Times in a separate libel suit) had posted video depositions that had not been introduced into evidence on YouTube. Choosing to ignore them, Judge Rakoff noted that his law clerk had sent the jury a reminder on Saturday at 9:37 a.m. to not read, watch, or discuss anything involved in the case: “Please avoid any media coverage of the trial. If you see something on TV, please change the channel. If you see something online, please navigate away.” What those instructions did not account for was that in the era of audience development, news organizations have been fervently seeking out ways to make their content unavoidable. Minutes after Rakoff made his announcement in court, something his instructions did not anticipate happened: push notifications from all sorts of outlets blasted out the news that he had dismissed the case. The Times’s alert went out at 4:15 p.m.: “A judge said he planned to dismiss Sarah Palin’s libel lawsuit against The Times when jurors, who are still deliberating, finish their work.”

And sure enough, some of the jury, being made up of 12 adults living in New York City in the year 2022, received those alerts. On Wednesday, the day after they delivered their verdict, Rakoff issued an order revealing that “several jurors volunteered … that although they had been assiduously adhering to the Court’s instruction to avoid media coverage of the trial, they had involuntarily received ‘push notifications’ on their smartphones that contained the bottom-line of the ruling. The jurors repeatedly assured the court’s law clerk that these notifications had not affected them in any way or played any role whatever in their deliberations.”

This misapprehension of how news is distributed would have been a footnote in most trials. But in the nearly five years that Palin’s suit has dragged out, there’s been a lot of speculation that it might eventually reach a Supreme Court whose conservative members have expressed interest in overturning Times v. Sullivan. The feeling that the case was always headed for an appeal no matter how the trial ended both amped up the drama, since the freedom of the press is at stake, while also sort of rendering the whole affair anticlimactic as a going-through-the-motions dress rehearsal before the real show before higher courts. So, much of the post-verdict commentary has focused on whether Rakoff’s push-notification snafu had strengthened Palin’s appeal. Interestingly, one of the courtroom attendees, Charles Harder, the Peter Thiel-funded lawyer who put Gawker out of business on behalf of Hulk Hogan, was skeptical that the blunder would cause much trouble for The Times (or the First Amendment, for that matter). He told The Hollywood Reporter that while Palin could argue “the judge’s public announcement tainted the jury,” if she got an appeals court to agree, “her grand prize would be to come back and retry the case before Judge Rakoff and a new jury. Not the ideal scenario. It would not surprise me if Palin throws in the towel at this point.”

Palin’s arguments in her suit also relied on a faulty understanding of how journalism works. In her amended complaint (filed in 2019 after Rakoff’s first dismissal was overturned on appeal), her lawyers told a story about how “The Times has been transitioning from its celebrated past as a great American print newspaper to a subscription-first, mobile-first news provider that is increasingly dependent upon click-based digital advertisements to generate revenue.” In this telling, James Bennet, the opinion editor who inserted the erroneous line into an editorial, was playing his part in their anything-for-the-clicks strategy. “What Mr. Bennet knows and felt when he wrote and edited the Palin Article,” the complaint said, was “hostility toward Gov. Palin and her beliefs, and that using her name and attacks upon her inflames passions and drives viewership and Web clicks to media companies — even when those attacks are not true and spark controversy.” That mindset certainly does describe some digital publishers, but what emerged in the detailed testimony of the Times staffers involved with the Palin editorial was just how much they cared about being accurate and how mortified they were after they published an error.

So many people are worried that the Supreme Court is out to weaken protections for journalists in libel suits because one of its members, Justice Clarence Thomas, keeps issuing dissents saying that Times v. Sullivan should be overturned, particularly its “actual malice” standard. They worry that by making libel suits easier to prove, lawyers like Harder will use them to bankrupt media outlets that spark the ire of anyone with enough money to foot the legal fees. That’s not a theoretical concern: it’s the exact history of the Times v. Sullivan case. As Thomas himself noted in a 2019 concurrence in the court’s decision to not hear the defamation case brought by Kathrine Mae McKee against Bill Cosby, who she accused of raping her, that 1964 decision stemmed from an advertisement in The Times purchased by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. Pro-segregation political leaders throughout the South claimed that the ad defamed them — in general, not specifically because no individual politicians were named in the ad — by saying that Black people were being abused. Their not-so-secret aim was to intimidate national news outlets and get them to stop covering the civil rights struggle. As Justice Elena Kagan wrote in her 1991 review of Times reporter Anthony Lewis’s history of the case, Make No Law, “by the time the Supreme Court decided Sullivan in 1964, southern officials had brought nearly $300 million in libel actions against the press.”

Thomas’s call for overturning Sullivan (although, tellingly, he and other critics of the decision usually refer to it as New York Times) was primarily aimed at undoing the “actual malice” standard the decision established: for a public figure to win a defamation suit, it must prove that something was published “with knowledge that it was false or with reckless disregard of whether it was false or not.” As Thomas wrote, this rule, which turns on a journalist’s motivations and intentions and not the contents of what they publish, has been “almost impossible” for public officials to meet in libel suits.

It’s not surprising, then, that other judges who have joined Thomas’s effort to subject journalists to more libel suits from public officials have relied on a description of the media taken straight from a Tucker Carlson monologue rather than reality. Take Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit, who picked up on Thomas’s argument in a dissent he issued in a case last year brought by two Liberian oil officials who claimed they were libeled by a report by international NGO Global Witness claiming that Exxon was complicit in a corrupt oil deal. He wrote that “New York Times should be overturned” because its actual malice requirement is not constitutional. “Although the institutional press, it could be argued, needed the protection to cover the civil rights movement, that power is now abused.” Now, though, he wrote, “the press is so dangerous today because we are very close to one-party control of these institutions” and argued, “the bias against the Republican Party — not just controversial individuals—is rather shocking.”

However, his narrow view of the media landscape was limited to major newspapers and cable networks. In this view, he wrote the “lone holdout” in a media otherwise rigged against the GOP is Rupert Murdoch’s Fox News, New York Post, and The Wall Street Journal editorial page (though not its news section, which he said “leans in the same direction” as The Times and Washington Post) standing as the “few notable exceptions to Democratic Party ideological control.” The examples of media bias he cited are well-worn chestnuts in the conservative media: “Who can forget Candy Crowley’s debate moderation?” he asks in a footnote. If you forgot, he’s referring to a 2012 presidential debate between Mitt Romney and Barack Obama in which the CNN anchor angered conservatives by (correctly) fact-checking a claim that Romney had made about the attack on the U.S. consulate in Benghazi. This kind of media bias, Silberman warned, is “the first step taken by any potential authoritarian or dictatorial regime,” and approvingly cites Tim Groseclose’s 2011 book Left Turn: How Liberal Media Bias Distorts the American Mind, which claims media control is “aiding Democratic Party candidates by 8-10% in the typical election.” For a sense of that book’s political orientation, Groseclose writes that it’s wrong to say Fox News has a conservative bias: “Instead, maybe it is centrist, and possibly even left-leaning, while all the others are far left.”

Silberman only makes a glancing reference to the digital platforms that have displaced newspaper front pages and nightly newscasts as the places where most people get their news, dismissing a whole swath of online media as insignificant and censored. “Although upstart (mainly online) conservative networks have emerged in recent years, their visibility has been decidedly curtailed by Social Media, either direct bans or content-based censorship,” he wrote. Unsurprisingly, the 86-year-old jurist does not appear to have a Twitter account. But he is a long veteran of the conservative critique of East Coast liberal control of the media. As a Justice Department official in the Nixon administration, he briefly served as the Acting Attorney General during the Watergate crisis. He was named a federal judge by Ronald Reagan in 1985. In 1992, in a speech for the Federalist Society, he popularized the conservative idea of the “Greenhouse effect,” which held that Republican-appointed Supreme Court justices like Harry Blackmun, Sandra Day O’Connor, and  David Souter became more liberal on the bench because they wanted to please The New York Times’s longtime courts reporter, Linda Greenhouse. “It seems that the primary objective of The Times’s legal reporters is to put activist heat on recently appointed Supreme Court justices.” The most recently appointed justice when he gave that speech? Silberman’s friend, Clarence Thomas.

More recently, Thomas has changed his argument for ditching actual malice. Last July, he wrote in a dissent to the Supreme Court’s rejection of a case filed by Shkelzen Berisha, who claimed he was defamed in a book by Guy Lawson adapted into the movie War Dogs. This time, he rested his arguments not on the media’s bad behavior but the “proliferation of falsehoods” online, citing Pizzagate, the online harassment of a software engineer, and mistaken Twitter outrage over supposed anti-Semitic comments. “Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires.” This time, Trump appointee Justice Neil Gorsuch agreed but distinguished between these bad actors and responsible journalism. “It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy.… Combine this legal incentive with the business incentives fostered by our new media world and the deck seems stacked against those with traditional (and expensive) journalistic standards — and in favor of those who can disseminate the most sensational information as efficiently as possible without any particular concern for truth.” Gorsuch, though, doesn’t offer an alternative to actual malice. “I do not profess any sure answers. I am not even certain of all the questions we should be asking.”

Perhaps that’s because, as Gorsuch’s refreshingly up-to-date understanding of how the media works suggests, it’s not clear at all that the solution proffered by Thomas and Silberman would help conservatives very much. Sensational claims loosely grounded in fact have become one of the hallmarks of conservative media outlets with large audiences. And as Andrew Rice wrote for New York, if Palin’s arguments in her suit became the law of the land, firebrand Fox News hosts (to say nothing of podcasters like Alex Jones) would find themselves in legal jeopardy.

Indeed, in his closing arguments, Palin’s attorney Ken Turkel said the case wasn’t about the First Amendment, it was about truth. “We could disagree. But you can’t say false things,” he told the jury. “That’s where the line is drawn.” It brought to mind a moment in Palin’s testimony on February 10 when, in recounting her reaction to the 2017 editorial, she said, “I would be mortified and needing to respond again, to what the New York Times had lied about again.” The line immediately drew an objection from The Times lawyers since no other instance of defamation or error had been introduced in the case. Rakoff intervened to ask her to clarify her comment, “What did you mean by again?” And Palin doubled down, “They’d lied before.” “About this?” Rakoff asked, and Palin answered, “My view was The New York Times took a lot of liberties and wasn’t always truthful.” Soon the Times side asked for a sidebar with the judge, and after a break, they moved on. It was a passing remark in a case that may soon be forgotten. But if the Supreme Court endorsed Palin’s attorneys’ libel standards, her statements might be cause for action. After all, saying that the newspaper that claims to be “all the news that’s fit to print” is full of lies would be grounds for defamation.

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