Palin libel case could be catalyst for major change in rules for US media

Readers may not have heard or thought about Sarah Palin in a while.

Palin is the former governor of Alaska who was plucked by John McCain from being a relative unknown – certainly from an international perspective – to be the Republican Party's first woman vice-presidential candidate when he ran against Barack Obama in 2008.

After the McCain/Palin ticket was defeated, she went on to become an author and reality TV personality, and a celebrity in right-wing political circles.

Last week she was back in the news after it was reported she had dined at a New York restaurant a few days after testing positive for Covid-19.

Trump, conspiracies and the curious case of Ray Epps

---

Liberals worry US supreme court moving in increasingly conservative direction

---

Biden under pressure as Covid test supplies dry up

---

First snow of winter causes havoc for travellers but brings out the best of the US

---

Palin has refused to take the Covid vaccine. Late last year she told an audience: “It’ll be over my dead body that I’ll have to get a shot.”

Palin, in the eyes of many internationally, would have been an unlikely vice-president.

You would probably also have received good odds that she could potentially be the catalyst for radical changes to the rules under which the media operates across the United States.

Palin is currently suing the New York Times. And there are concerns in some media circles that the case, in certain circumstances, could be a vehicle that permits the supreme court to overturn a landmark 1960s ruling that facilitated groundbreaking investigations by US news organisations.

Defamation laws in the United States are far less restrictive than in Ireland.

In 1964 a supreme court ruling, in the case of New York Times Co v. Sullivan, provided the media in the United States with significant protection in writing about public figures.

In essence such plaintiffs in defamation actions have to prove “actual malice” or “reckless disregard” for the truth – in other words, that the media organisation went ahead and published something in the knowledge it was false or where there was serious doubt as to whether it was true.

Palin's case centres on an editorial published in the New York Times in 2017 which, incorrectly, drew a link between her political rhetoric and a mass shooting in Arizona in 2011 that left six people dead and 14 wounded, including the Democratic congresswoman Gabrielle Giffords.

The editorial was published on June 14th, 2017, the same day that a gunman opened fire at a field in Virginia where Republican congressmen were playing baseball, injuring several people including Congressman Steve Scalise of Louisiana.

The editorial in its initial form highlighted a map circulated by Palin’s political action committee that showed 20 congressional districts that Republicans were hoping to pick up. Those districts, including the one held by Giffords, were displayed under stylised cross hairs.

The New York Times subsequently corrected the editorial and said it had “incorrectly stated that a link existed between political rhetoric and the 2011 shooting”.

Constitutional issues

The Palin case is being heard in the US district court in New York before a jury and it will not deal directly with the broader constitutional issues.

Essentially the New York Times is arguing that the error in the editorial was not due to malice but rather due to mistakes made under time and deadline pressure and that a correction was put in place soon afterwards.

However, some on the right have made no secret that they would like to see the existing media protections reassessed and it is not out of the question that the Palin case could ultimately make its way to the supreme court.

Donald Trump, as a presidential candidate in 2016, promised to change "the horrible libel laws".

“One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” he said.

Any case on defamation that makes it to the supreme court will find that its complexion is now very different than in 1964, with conservative justices now in the majority.

Two supreme court judges have already signalled their belief that the 1964 Sullivan judgement should be reconsidered in light of media developments in the intervening years.

In a dissenting judgement last year Justice Clarence Thomas said: "The proliferation of falsehoods is, and always has been, a serious matter. 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."

Justice Neil Gorsuch wrote: "What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets,has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable."