A jury on Tuesday rejected Sarah Palin’s libel claim in a lawsuit against The New York Times, but that’s unlikely to be the end of it. The former vice presidential nominee is almost certain to appeal, with an eye toward making this a test case before the U.S. Supreme Court. It could become the conservative court’s latest temptation to overturn important precedent that should be left alone.
Currently, public figures like Palin must show not merely that a statement was false and defamatory in order to prove libel, but also that it was made maliciously and with reckless disregard for the truth. The idea is that, when it comes to commentary regarding those at the center of society’s big cultural or political issues, the standard for libel must be higher than mere honest mistakes. Otherwise, it would have a chilling effect on open debate.
Palin is suing over a June 2017 New York Times editorial that falsely alleged that the gunman who killed six people and critically wounded then-U.S. Rep. Gabby Giffords in Arizona in 2011 was incited by an ad from Palin’s political action committee that showed crosshair targets on Democratic districts. In fact, there’s been no evidence that the political ad had anything to do with the gunman’s actions.
It was a sloppy assumption inserted by an editor trying to punch up an editorial on deadline. The newspaper quickly corrected the error. It may sound like the Times should be held liable anyway, since the statement was clearly false and defamatory. But under current law, public figures like Palin have to prove more than that. And for good reason.
The landmark 1964 Supreme Court ruling in New York Times v. Sullivan established that for public officials to win a libel action, it’s necessary to prove not merely that the statement was false and defamatory, but also to prove “actual malice” — that is, that the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”
That’s a much higher burden than the private citizen’s standard of merely proving falsity and defamation. Such a higher standard for public officials is necessary, wrote Justice William Brennan, because “debate on public issues should be uninhibited, robust, and wide-open” — and errors are “inevitable in free debate.” In essence, the standard is meant to ensure that journalists aren’t so afraid of making honest mistakes that they shy from addressing the important issues of the day.
At least two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have indicated they are open to revisiting that higher standard. That would be a terrible mistake in an age when public figures seem to feel increasingly free to spread blatant misinformation, making aggressive journalism more important than ever. Putting kid gloves on the free press is the last thing America needs right now.