On the surface, a recent jury verdict in Sarah Palin’s lawsuit against the New York Times is good news for the 1st Amendment. But wait...
A federal jury found Feb. 15 that the Times did not defame her in 2017 when it published an editorial linking her infamous target map showing Congresswoman Gaby Giffords’ congressional district under the cross hairs of a gun to the actual 2011 shooting of the former Congresswoman.
To win the case, Palin had to prove that the Times acted with actual malice and knowingly or recklessly published false information about her. After publishing the editorial, the paper published a correction and an apology for the error. The swift verdict followed the trial judge’s declaration that he would dismiss the case because Palin failed to prove her reputation had been damaged by the June 2017 editorial.
The ‘actual malice’ standard was established in the 1964 landmark case of New York Times Co. v Sullivan. It is a near impossible burden for a public figure to clear. The false and/or reckless disregard of falsehood standard was established to prevent news sources (especially small ones) from being bullied into burying stories unfavorable to high net worth public officials.
Palin has promised an appeal. The fact that both the judge and the jury determined that she failed to meet her burden should make a successful appeal unlikely. So, we have a clear victory for the 1st Amendment, right?
Well, hold on . . . the political climate we find ourselves in these days causes me some concern. Conservatives enjoy a 6-3 majority on the United States Supreme Court, and at least two of those conservatives, Clarence Thomas and Neil Gorsuch, have voiced potential opposition to the actual malice standard in previous court opinions.
An erosion of 1st Amendment rights would be a terrible consequence of our current political divide. While reporters and the media should always strive to report the truth, everyone makes a mistake now and then. News sources should not be forced to operate under constant threats of litigation. This would have a chilling effect on the rights of a free press and the ability to inform the public.
Public figures voluntarily place themselves in the public eye and have the unique ability (vis a vis an ordinary citizen) to correct misconceptions or inaccurate reporting. In my opinion, this delicate balancing test should always err on the side of freedom of the press. What do you think?
Mark M. Bello is an attorney and award-winning author of the Zachary Blake Legal Thriller Series, ripped-from-the headlines, realistic fiction that speak truth to power and champion the rights of citizens in our justice system. These novels, dedicated to the social justice movement, are not only enjoyable, they educate, spark discussion and inspire readers to action. For more information, please visit www.markmbello.com. Mark also hosts the Justice Counts podcast with Not Fake News editor & publisher Bob Gatty, presenting bi-weekly interviews focused on social justice.