Today, at a federal courthouse in downtown Manhattan, in one of those Brutalist buildings made famous by Law & Order, Sarah Palin finally stepped into court to prove to a jury that The New York Times defamed her with an editorial that partially, and nevertheless incorrectly, blamed her for inciting a 2011 shooting that injured a member of Congress. The showdown, as the advance hype goes, may achieve a MAGA dream: Making it easier to sue over Fake News.
In the weeks leading up to this prize fight, I’ve heard from quite a few antsy media lawyers who note how rare it is to see a major news outlet face trial. They’ve also heard the buzz how this could be the one that overturns the “actual malice” standard set a half-century ago in Times v. Sullivan. And very quietly, quite a few of them are musing, “Who exactly is funding this lawsuit?”
On the facts, Palin’s case resides just short of frivolous—good enough to survive pre-trial motions, but not particularly strong for trial. In opening statements today, even Palin’s attorney, Shane Vogt, acknowledged that his client has an “uphill battle” ahead. Among insiders, it’s assumed that the former vice presidential candidate doesn’t need the money and would have trouble proving damages even if she can demonstrate that the Times recklessly ignored facts. And so they wonder if this matter is merely a vehicle to convince the conservative Supreme Court to change the law on what public figures must show in libel cases. Which billionaire, the thinking goes, could be pulling a Peter Thiel and secretly backing Palin to move the libel standard from actual malice (“knowledge of falsity” or “reckless disregard for the truth”) to mere negligence?
A Palin benefactor wouldn’t be surprising, but let’s get real: The chances of the Supreme Court using this case to change libel standards for public figures is infinitesimally small. Even if the high court eventually wants to address this topic, I strongly believe that even Clarence Thomas and Neil Gorsuch, the two justices who have called for a reconsideration of Sullivan, would vote to reject any review of Palin vs. Times.
After all, Palin’s burden of proof as a public figure is no longer just a product of First Amendment interpretation. Thanks to how the New York legislature recently amended its anti-SLAPP statute—those are the state laws that promote free speech and punish people for bringing cases based on discussions of important topics like public policies—the “actual malice” standard is now part of the state libel code. To use this case as the vehicle for changing standards would be the equivalent of the Supreme Court not only overturning Roe v. Wade but also deciding that no state can preserve abortion as an option. It would basically mean that states no longer have any power to dictate libel jurisprudence—which is pretty much what Thomas and Gorsuch have been arguing against in the first place.
On appeal, Palin’s lawyers could attempt a fancy two-step by claiming that when she filed the lawsuit, she did so on the belief that the Supreme Court would overturn Sullivan. But U.S. District Court Judge Jed Rakoff has already shredded that argument. Rakoff wrote, “There is no case law or principle of constitutional adjudication that would credit a litigant’s wishful reliance on the prospect that binding appellate precedent will one day be overturned.” In short, this case has become just too messy to serve as a change agent.
Which means that Palin’s best and only shot at victory is convincing jurors that James Bennet, then the Times editorial page editor and the author of the controversial 2017 piece, entitled “America’s Lethal Politics,” recklessly ignored the need to fact check the full piece. Indeed, the Times and Bennet did make the error of incorrectly stating that a link existed between an advertisement run by Palin’s Super PAC and Jared Lee Loughner’s motivation for opening fire in a supermarket parking lot. But the paper corrected the record within hours of publication by noting that no such link had been established. The actual malice standard was first adopted in Sullivan to give free expression, to use Justice William Brennan’s words, “breathing space… to survive” erroneous statements. As such, what Bennet knew and when he knew it will be the crucial points tested at trial.
Palin’s attorney will surely try to push a trial narrative that the media must be held accountable for errors, especially when reporters push an agenda. As Vogt said today, Bennet picked what he wanted to say first and “stuck to it” regardless of evidence to the contrary. Team Palin will also attempt to embarrass the Times by focusing on its inner operations, like who really holds the power to decide what gets featured in the paper and any political and financial pressures that factor. And, of course, there may be plenty of embarrassment. Bennet, once the odds-on favorite to replace Dean Baquet as executive editor of the Times, was forced to resign in June 2020 after the Opinion section published a controversial op-ed by U.S. Senator Tom Cotton titled, “Send in the Troops,” regarding the wave of racial protests flooding the country.
But will that really be enough? In the end, in the bluest of blue states (with the accompanying jury pool), Palin is suing over an anti-gun editorial that was corrected quickly, and the judge has opined there’s “considerable evidence” that Bennet “simply drew the innocent inference that a political circular showing crosshairs over a Congressperson’s district might well invite an increased climate of violence with respect to her.”
Palin better hope that her legal team—Vogt once helped Hulk Hogan take down Gawker five years ago—has a plan to overcome the paper’s own arguments. David Axelrod (no, not the former Obama strategist), representing the Times, told the jury today that the paper “didn’t intend to publish anything false” about Palin, made amends when it realized an error, and that the former Alaska governor has no credible evidence to show she was harmed.
If, during the trial, Judge Rakoff sees fit to stop the proceeding with a directed verdict, Palin could owe millions in legal costs to the Times. Under that same New York anti-SLAPP statute, winners are entitled to reimbursement for the costs of frivolous cases that interfere with First Amendment rights. The Times would have to make a post-trial motion to collect, and experts believe it’s a high hurdle to show this case was objectively unreasonable given how Rakoff rejected a summary judgment motion and sent it to trial in the first place. Nevertheless, there’s a strong possibility that Palin’s embarrassment makes First Amendment history anyhow—not for overturning Sullivan, but for being the very first verdict under New York’s brand-new law aimed at protecting free speech from litigious bullies.