The Individual or the Free Press: Who Does the Actual Malice Standard Protect?
On February 14, 2022, U.S. District Judge Jed Rakoff dismissed former Alaskan governor Sarah Palin's defamation lawsuit against the New York Times. Palin and her legal team argue that a 2017 opinion editorial published in the Times accused her of inciting the 2011 mass shooting in Tucson, Arizona where, infamously, former representative Gabby Giffords was wounded. [1] James Bennet, the New York Times editorial page editor at the time of the Op Ed’s publication, described in the piece what he called a clear link between the shooting and Palin’s campaign ads, which depicted Giffords and other members of the Democratic Party under illustrations of a gun’s crosshairs. Palin's suit was dismissed, however, on the grounds that her legal team had not proved actual malice. Palin has since expressed the desire to take her case to the Supreme Court, an escalation that will surely invite a reconsideration of the actual malice standard and its precedent. In the wake of this renewed debate, however, it is crucial to remember the actual malice standard’s integral role as a function of free press protections. As such, the standard should be preserved in close to its original form.
In libel law, the actual malice standard requires plaintiffs to demonstrate either the defendant’s willful neglect of the truth or that the defendant acted with reckless disregard for factual inaccuracies. [2] Through email records and reference to the current language of the Op Ed, which was changed the day after publication and now asserts that “no connection to the shooting was ever established,” Bennet’s attorneys demonstrated that Bennet was neither negligent or reckless.
Bennet’s victory is part of a long standing legal tradition; the New York Times has not lost a libel case in over fifty years. It is fitting, then, that the Times was a petitioner in the 1964 appeal that set the precedent for the actual malice standard. [3] In 1960, the New York Times published an advertisement soliciting donations for Martin Luther King Jr., who was battling perjury charges. While not mentioned by name in the ad, a Montgomery Public Safety Commissioner, L.B. Sullivan, argued the ad’s minor factual inaccuracies harmed his image. The state court awarded Sullivan $500,000 in damages. The Times appealed, and the Supreme Court unanimously voted to reverse the verdict, establishing that the press cannot be charged for libel on the grounds of factual inaccuracies alone. The actual malice standard is also elevated by its deep concern with the plaintiff’s standing in the public eye. [4] Gertz v. Robert Welch, for instance, established in 1974 that public figures must prove a higher standard of actual malice than pedestrian citizens because public figures “invite attention and comment.”
Palin’s is not the only case to struggle against these high standards of actual malice set by the precedents of Gertz and Times and Co. Over the past couple years, Supreme Court Justice Clarence Thomas has made a pattern of dissenting from several defamation suit decisions that sided with the defendant. [5] In all cases, which came down to a matter of whether or not the plaintiff was a public figure, Justice Thomas argued against the Gertz precedent, reasoning that the voluntary risks public figures take should not deny them victim protections under the law. [6] By recently declining to hear Pace v. Baker White, which concerned defamation by the collection of police officers’s comments in an online database, the Supreme Court introduced wider concerns about the definition of “public figure” in the context of digital public spaces. These questions have led Justice Thomas, Justice Gorsuch, as well as a cohort of lobbyists in Washington to in recent years champion the overturning of the Sullivan precedent and the actual malice standard.
While the internet has no doubt changed the diffusion of information, the courts should not revise the actual malice standard. The actual malice standard is crucial for the maintenance of America’s First Amendment rights and for the preservation of its robust press. Justice Thomas has argued that the actual malice standard’s protection of free expression is no longer relevant when free expression takes place on social media. But while social media allows news to spread, it is not a news organization. [7] It is rather a highly interconnected “town square” where information passes from citizen to citizen, as per numerous verdicts including, in 2017, the decision in Packingham v. North Carolina. Just as there is a distinction between the free speech of American citizens and the free speech of journalists, so too should we distinguish between the realm of social media and the realm of the American press.
One needs to look no farther than England for an example of the strict libel laws and their dangerous implications for free press protections. [8] In 2014, for instance, Cambridge University Press, citing risk assessment, refused to publish a book on Putin by Karen Dwesha. More recently, supporters of Putin in British courts brought suit against the publishing company HarperCollins and journalist Catherine Belton, threatening her career and livelihood. It is easy, then, to imagine the damage to James Bennet’s credibility as a journalist that could have occurred in the absence of actual malice standard.
At the crux of Justice Thomas’s concern with the insurmountably high standards of actual malice is the standard’s ill-defined “public figure.” Rather than overturn the Sullivan precedent, which provides vital press protections as demonstrated by the dismissal of Palin’s defamation suit, courts should instead reconsider the definition (or lack thereof) of a public figure. A clearer definition of “public figure” could protect individuals who are defamed in online spaces where one’s influence is dubiously elevated to that of a public figure while simultaneously protecting the First Amendment rights of the press.
Sofia Matson is a freshman at Columbia. She is interested in civil rights, constitutional law, and, being an English major, the intersection of law and literature.
Edited by Genevieve Cabadas
Sources
The Editorial Board. “America's Lethal Politics.” The New York Times, The New York Times, 15 June 2017, https://www.nytimes.com/2017/06/14/opinion/steve-scalise-congress-shot-alexandria-virginia.html.
Folkenflik, David. “Judge to Dismiss Sarah Palin's Defamation Suit against 'New York Times'.” NPR, NPR, 14 Feb. 2022, https://www.npr.org/2022/02/14/1080610992/sarah-palin-new-york-times-defamation-suit.
“New York Times Company v. Sullivan." Oyez, www.oyez.org/cases/1963/39. Accessed 8 Mar. 2022.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 334-335, 342 (1974)
Shklezen Berish v. Guy Lawson, et al. 594 U.S. (2021) https://www.supremecourt.gov/opinions/20pdf/20-1063_new_gfbi.pdf?utm_campaign=10_31_2021&utm_medium=email&utm_source=tpfp_newsletter&utm_content=supreme_court_ruling
D. F. Pace v. Emily Baker-White, et al. U.S. 20-1308 (2021)https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21-394.html&utm_campaign=10_31_2021&utm_medium=email&utm_source=tpfp_newsletter&utm_content=supreme_court_petition
Packingham v. North Carolina. U.S. 15-1194 (2017). https://www.supremecourt.gov/opinions/16pdf/15-1194_08l1.pdf
Williams, John. “Putin's Power, and Cold Feet.” The New York Times, The New York Times, 26 Nov. 2014, https://www.nytimes.com/2014/11/30/books/review/putins-power-and-cold-feet.html.