Malice toward malice

Posted: February 15, 2022 by chrisharper in Uncategorized

By Christopher Harper

The news media are scared to death of Sarah Palin and her lawsuit against The New York Times for libel.

Although the former Alaska governor won’t win the first round of the battle, the case is likely to make it to the U.S. Supreme Court, where the justices may overturn the almost-invincible protection the press have against public figures and officials.

The case centers on a 2017 editorial in The Times that basically accused Palin’s political action committee of encouraging someone to shoot Arizona congresswoman Gabrielle Giffords.

James Bennet, who wrote the editorial, has testified that he made a serious error. But his defense and that of The Times is that he did not act with malice or recklessly disregard the truth.

This standard comes from a 1964 decision, The New York Times v. Sullivan, which made it exceedingly difficult for a public official to win a libel case. The decision later was extended to public figures like sports and entertainment stars.

At the time, the ruling made sense since politicians were using libel laws to sue news organizations covering the Civil Rights movement. Without the malice protection, news organizations could be sued for any error, however small.

In recent years, however, news organizations have used the malice standard to fend off nearly all comers irrespective of the errors made in the commission of journalism.

In a New York courtroom, both sides have presented their arguments over the past two weeks in the Palin lawsuit, with media mavens sweating the outcome.

The Wall Street Journal referred to The Times and Bennet as using the “oops defense,” making it nearly impossible to win a libel case against media companies.

In a bizarre announcement yesterday, Judge Jed Rakoff, a Clinton appointee, decided that Palin and her attorneys had not convincingly reached the summit of proving that the news organization acted with malice.

But the jury was still sequestered, trying to reach a decision. If the jury decided for Palin, the judge would set the verdict aside.

Nevertheless, the judge made it clear that The Times had made a serious error in the editorial. “Ms. Palin was subjected to an ultimately unsupported and very serious allegation that Mr. Bennet chose to revisit seven years or so after the underlying events,” the judge said. “I think this is an example of very unfortunate editorializing on the part of the Times, but, having said that, that’s not the issue before this court.”

The case will likely wend its way toward a likely hearing at the U.S. Supreme Court.

There, the justices may well find in Palin’s favor.

Last summer, Justice Neil Gorsuch wrote a stirring defense of truth and accountability in the public arena. His opinion harkened back to a time many years ago when news organizations employed “legions of investigative reporters, editors, and fact-checkers,” before the proliferation of “falsehoods by means and on a scale previously unimaginable.”

Then Gorsuch aimed at the Times v. Sullivan standard that has blocked many plaintiffs from winning lawsuits even if the errors were as egregious as the one against Palin.

Justice Clarence Thomas joined the dissent, leading many to speculate that the court might want to take a new look at the malice standard.

Although I have defended freedom of the press for many years, news organizations have gotten away with too many misdeeds under the malice standard. It’s time for the U.S. Supreme Court to examine whether a 1964 decision is still relevant today.

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