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?