Palin’s smear case is unlikely to end efforts to undermine press protections

Sarah Palin’s loss hers defamation lawsuit against The New York Times reaffirmed, by far, more than half a century of legal precedent that protects journalists when they make an unintentional – even negligent – mistake.

But her case could still accomplish another purpose that she and her lawyers say they have all done: to illuminate the daily production of journalism and advance courts. The court reconsiders why the law sets such a high bar for proving defamation cases against media outlets.

“I’m not content with beating The Times – and journalism in general – into the process,” said RonNell Andersen Jones, a professor at the University of Utah School of Law. Judges and juries have found independently that our strict constitutional protections do not permit easy punishment of the press.”

However, Ms. Andersen Jones added, “I can’t help but worry that the core principles have impacted here.”

Although The Times was successful in convincing the grand jury and federal judge that Ms. Palin failed to prove that Times journalists acted with “genuine malice” – that is, in a way that recklessly, disregarding the truth or publishing information believed to be false, the Supreme Court’s standard was established in 1964 for public figures to sue for defamation – her case does not have possibility is the last word on the matter.

Some Supreme Court Justices indicated that they would want to review the problem. But First Amendment scholars say no lawsuit at this point appears to be an ideal vehicle for that. However, there are a number of cases, including Ms. Palin’s case, if she appeals as expected, that would highlight the paradoxes inherent in US defamation law, attorneys said. sensitive to the law adjustment said.

Several legal experts point out that people who have been charged in court with spreading false statements about voter fraud – including Fox News, One America News Network and Rudolph W. Giuliani – is assuming it is protected speech.

Questions about what types of speech in the media should be protected from constitutional liability are particularly pressing when the spread of disinformation threatens to further destabilize the political system. deeply polarized nation.

“Society has changed a lot since 1964, when the Supreme Court decided the New York Times v. Sullivan,” said Rodney Smolla, dean of the Delaware School of Law at Widener University. of Widener University, referring to the case that established the current legal standard for proving defamation.

Mr. Smola, who is helping to represent the Dominion Voting System in its clothes against Fox News for promoting baseless stories claiming that voting machines passed votes in support of President Biden, said the underlying hold on the Sullivan case to protect free speeches of the public, even when errors sometimes occur, are correct. But he added that “the law has not kept pace” with a potentially highly misleading online dialogue.

What concerns most advocates of First Amendment broad-based protections is that the legal and political environment seems to have turned difficult for them.

A recent study tracking every reference to journalism in the Supreme Court’s comments found what the authors, Ms. Andersen Jones and Sonja R. West of the University of Georgia Law School, describe as a “remarkable trend” concerns” in language from the bench suggested existing judges would be more willing to downsize long-standing constitutional protections for journalists.

“As members of the press turn to the courts in legal battles, they will no longer find an institution that values ​​their role in our democracy,” the study concludes.

In a key finding, the study revealed that phrases like “freedom of the press” – once frequently acknowledged by judges – are now “removed from the general lexicon of the US Supreme Court”. “. At times, the study notes that the courts seem to have gone too far when describing the news media as a decaying institution.

And these opinions are not just limited to the opinions of the judges. In a speech to the Federalist Association, Justice Samuel A. Alito Criticized recently as “sinister” the media’s depiction of the court’s operation in delivering late-night, unsigned comments as a “shading frame”.

The problem is not necessarily one that only conservatives care about. Judge Elena Kagan, before joining the court, wrote an article expressing skepticism about the way in which the Sullivan standard has been extended by the courts since 1964.

These doubts are far from the views of Justice Hugo Black, who wrote in his concurrence in Sullivan that the press has “absolute immunity from criticism of the way public officials perform their duties.”

Where some First Amendment lawyers say the law needs to be reconsidered is in the definition of what constitutes a public figure – a standard that some have argued is ambiguous. and too far-reaching because it includes people with minimal public profiles.

Eg of a defendant who is not a high profile figure but is treated like one by the judge, many lawyers point to Kathrine Mae McKee, who has accused Bill Cosby of rape. Mr Cosby has denied the allegation and Ms. McKee sued him for defamation after one of his representatives wrote a widely publicized letter questioning her credibility. A judge threw the suit out.

Ms. McKee is a public figure, a court ruling. That motivated Justice Clarence Thomas wrote in 2019 that the court should reconsider the Sullivan case.

Attorney for conspiracy theorist Alex Jones say the same of parents who sued him, claiming that the murder of their child in the Sandy Hook massacre was fabricated.

David A. Logan, a professor at Roger Williams University Law School, pointed to this case as an example of a case where judges could be more sympathetic to libel claimants when they weren’t. public choice.

“If you’re a public figure, you basically lose these cases,” Mr. Logan said. And a case that can be appealed to the Supreme Court, he added, doesn’t necessarily restrict the definition of public figure so it no longer includes the likes of Ms. 2008 Republican vice presidential candidate. Rather, it may be one to protect less famous individuals.

“I think a case where there is a disparity in the definition of a public figure would be consequential, and possibly a case where the courts deal with a frontal assault on a public figure,” he said. The New York Times sued Sullivan,” he said. Palin’s smear case is unlikely to end efforts to undermine press protections

Fry Electronics Team

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