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Lawsplainer: Sarah Palin's Defamation Claim Against The New York Times Can Go To Trial

But She Can't Overturn The Actual Malice Standard

Sarah Palin, the former governor and vice-presidential candidate who seems almost Solomonic in retrospect, has won an important victory in her defamation case against the New York Times and editor James Bennet. United States District Judge Jed Rakoff has rejected the defendants’ motion for summary judgment, permitting her claim to proceed to trial unless the parties settle. But Rakoff also rejected Palin’s demand that he dial back defamation law by a half-century.

The case arises from a sloppily written and edited New York Times editorial published in June 2017. The editorial originally suggested that insane gunman Jared Lee Loughner was motivated to shoot Representative Gabrielle Giffords by Palin’s PAC, which circulated a graphic showing her district (and others) emblazoned with cross-hairs to show they were targets for Republican victory. That suggestion was untrue; there was ample evidence contradicting it and no evidence supporting it. By this ruling, Judge Rakoff found that Palin has presented admissible evidence from which a jury could conceivably find that the defendants acted with actual malice, and therefore the case can go to trial.

There are many issues of interest here for both lawyers and non-lawyers, but I’ll focus this lawsplainer of just three: actual malice, summary judgment, and the rather ominous scope of Palin’s call to change the law.

First, actual malice. In the defamation context, “malice” doesn’t mean “ill will” or “spite.” Under more than a half-century of precedent, a public figure can’t prevail on a defamation claim unless they can establish that the defendant made a false statement of fact about them with actual malice. This is an excellent example of how words can have special and not-evident meanings in the legal context. In defamation law, “malice” does not mean “ill will” or “spite” or “hate.” It means knowledge that a claim was untrue, or reckless disregard about its truth or falsity. “Reckless disregard” has a special meaning too — it means not just foolishness or extreme negligence, but making a factual statement while deliberately disregarding evidence that it is false. This is, by design, an extremely high burden of proof, and makes it extremely difficult for a public figure to prevail on a defamation claim.

Here, Palin faced an even more complicated burden. The defendants argued that they did not intend to imply, by the column’s language, that the Palin PAC’s graphic motivated Loughner. They claim they were merely talking about a general air of menace created by such rhetoric. Palin therefore must prove not just that they knew the implication was false, but that they intended the implication. Judge Rakoff found that the language of the column, Bennet’s testimony, his revisions to earlier drafts, and the Times’ eventual corrections to the column were all evidence from which a jury could gather that the defendants intended the false implication that the PAC’s graphic motivated Loughner. Rakoff also found sufficient evidence that defendants were, at least, reckless about the truth. For instance, an earlier draft included a hyperlink to an ABC article that flatly stated there was no link between the graphic and Loughner’s actions.

Next, the context of summary judgment is notable, because most people tend to misunderstand what summary judgment means. A motion to dismiss (called a demurrer in some states) argues “judge, even if you take everything in the complaint is true, under the law plaintiff doesn’t have a case.” That happens at the start of a case, before discovery — before depositions, exchanges of documents, and so forth. By contrast, a motion for summary judgment typically happens after the parties have exchanged discovery and taken depositions. A motion for summary judgment argues “judge, even if you accept all of the other side’s evidence as true, even if you believe all their witnesses, under the law they have no case.” A judge ruling on a summary judgment motion doesn’t weigh evidence or decide credibility. If the party making the motion has a hundred angelic witnesses saying one thing and the opposing party has one convicted criminal saying the other, the opposing party wins if the disputed fact is relevant to the outcome. The party moving for summary judgment only wins if there is no evidence supporting a crucial point, and if the only evidentiary disputes relate to irrelevant issues.

That’s important because the media often describes summary judgment rulings misleadingly. A ruling like this one doesn’t mean that Sarah Palin has a strong case. It means that she has evidence which, if a jury believed it, would be legally sufficient to win — but a jury may not believe it. A jury may see the same evidence a completely different way. A plaintiff prevailing on a summary judgment motion is no guarantee of victory at trial at all — but it does strongly compel the parties to consider settlement, because of the extreme expense and risks of trial.

This analysis is more complicated in cases like this one, because Palin has the burden of proving actual malice by “clear and convincing evidence” — something more than the normal “preponderance of the evidence,” meaning 51%. So wait, you may ask. What’s the difference between saying “this evidence is enough for a jury to believes it proves something by preponderance of the evidence” and “this evidence is enough for a jury to believes it it proves something by clear and convincing evidence”? Doesn’t that necessarily involve the judge weighing the quality and credibility and weight of evidence and not just its legal sufficiency? Isn’t this entire “no weighing evidence” thing a sham, and doesn’t a judge — by speculating what a jury might or might not find sufficient — inherently weigh evidence? To which I say “ssshhhhhhhhhhh, sit back and appreciate the majesty of the law.”

The sleeper issue in the case, though, is Palin’s summary judgment motion, and how seriously Judge Rakoff treats it. The defendants filed a summary judgment motion saying “judge, even if you accept Palin’s evidence, it’s inadequate as a matter of law.” Palin’s motion, by contrast, says “judge, I should win because I don’t even have to prove actual malice because all of the courts have been wrong since 1964.” Palin asks Judge Rakoff to overturn New York Times Co. v. Sullivan, the crucial 1964 case establishing the actual malice rule. Palin invited Judge Rakoff to do this on two grounds: first, that it was always wrong, and second, that even if it’s not wrong-wrong it was decided before the internet and stuff and therefore should be limited to its own facts, which is a lawyer way of saying “wrong.”

That is, to put it mildly, a big ask. Until recently, it would also be an extremely fringe position on the edge of frivolousness. No more. Justice Thomas recently openly questioned whether Sullivan should be the law, suggesting that state law and state constitutions are sufficient to protect free speech in state-law defamation claims and the issue should not be governed by the First Amendment. The proposition is not necessarily driven by President Trump’s call to “open up” libel laws, but it rhymes with it. Not all commentators treat the concept with complete derision.

But the argument is chilling. Performative, harassing, political-base-pleasing lawsuits by people with functionally unlimited resources are a major threat to free speech in America. The civil justice system is broken, the vast majority of people can’t afford to defend themselves, and even institutional defendants can be crippled by bad-faith lawsuits. From Congressman Devin Nunes to the President of the United States to large corporations, wealthy public figures use defamation claims not just to punish and silence dissent, but to get free publicity and votes. The First Amendment allows defendants to prevail in theory but often not in practice. It’s disconcerting to see people like Sarah Palin — who has styled herself as a First Amendment champion (well, sort of) — to be pushing legal arguments that would make it much more dangerous to criticize rich, famous, powerful people.

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