New York Times Company v. Sullivan again, in light of the Palin lawsuit
Sarah Palin is suing the NY Times for defamation: This is the issue:
At the center of the 2008 GOP vice presidential nominee’s federal suit is a 2017 editorial that incorrectly linked Palin to the 2011 mass shooting in Arizona where six people were killed and more than a dozen were injured, including then-Congresswoman Gabby Giffords.
The editorial “falsely stated as a matter of fact to millions of people that Mrs. Palin incited Jared Loughner’s January 8, 2011, shooting rampage at a political event in Tucson, Arizona,” lawyers for the one-term Alaska governor wrote in the complaint…
For Palin to win, her lawyers can’t just prove the Times was wrong, which the paper has already said it was. She must show that the editors and writers at the paper acted with malice, ignoring the facts on purpose to sully her name. The Times has called it an “honest mistake” that happened in a rush on deadline.
But the Times had already published earlier articles indicating it already knew the assertions in their 2017 editorial were false, so unless they don’t know what’s in their own paper, they shouldn’t be able to plead ignorance successfully. And yet, under New York Times Company v. Sullivan, the case that established the “actual malice” standard, they may be able to do exactly that.
The Palin case reminds me of a post I wrote about a year ago about the “actual malice” standard for defamation lawsuits against the press, an almost impossibly high bar to a plaintiff succeeding in such lawsuits even with egregious defamation on the press’s part. And so the rest of this post is going to be a repeat of that earlier post.
When I first learned about Sullivan back in law school aeons ago, I remember being disturbed by the case. It’s not that I had a better solution. But it was easy to see the problem: how best to balance the need to have a free press with the need to protect people, even people in public life who are written about a great deal, from libel?
Sullivan‘s solution – to raise the bar for libel exceptionally high and to make actual malice (“meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true”) necessary for a defamation finding against the press when a public person is the one maligned – presents the dangers of lies going unchecked and running rampant. But muzzling the press unduly isn’t good either.
Back in 1964, when the case was decided, the situation was exceedingly different than it is today. Now we have a press that has no regard for truth, is almost wholly partisan and firmly on the left, and willing to do almost anything to help its side win.
As with so many other things, none other than Donald Trump recognized the problem, since he has been the target of it. Even back during his 2016 campaign he was critical of the ruling, for obvious reasons:
One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected,” Trump said.
I’m not sure how he thought he might do that, but at any rate it didn’t happen, and things have only gotten worse with the shameless and naked partisanship of the press plus the power of social media.
Even as early as 1985, one of the justices who voted for Sullivan expressed regret:
[I]n a 1985 case that helped refine how the Sullivan ruling applied in when a plaintiff was neither a public official nor a public figure, Justice Byron White expressed regret for the “actual malice” test that he had agreed with in Sullivan. “I have,” he wrote, “ … become convinced that the Court struck an improvident balance in the New York Times case between the public’s interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation.” Chief Justice Warren Burger, who joined the court four years after Sullivan was decided but presided over the several of the cases that refined the Sullivan standard, agreed with White in his own concurring opinion.
Justice White’s description of the competing interests as he saw them is quite interesting. He sees on one side “the public’s interest in being fully informed about public officials and public affairs” and the other side as “the competing interest of those who have been defamed in vindicating their reputation.” Public versus individual interest – I believe that’s the traditional view. But what of the public’s interest in being informed of the truth rather than falsehoods? Do we not all have an interest in that? However, who determines what’s true and what’s false? After all, the MSM and social media gatekeepers and the left (redundant, I know) keep saying it’s they who tell the truth and those on the right who lie.
Justice Clarence Thomas also critiqued Sullivan back in 2019, saying that it and subsequent allied rulings “were policy-driven decisions masquerading as constitutional law.”
And yesterday Judge Laurence Silberman, a Reagan-appointed judge on the DC Circuit Court, issued a scathing dissent in a defamation case that’s gotten some attention:
The New York Times and The Washington Post are “virtually Democratic Party broadsheets,” while the news section of the Wall Street Journal “leans in the same direction,” U.S. Circuit Judge Laurence Silberman said. He said the major television outlets and Silicon Valley giants were similarly biased.
“One-party control of the press and media is a threat to a viable democracy,” Silberman wrote. He exempted from his criticism of “Democratic ideological control” Fox News, The New York Post, and The Wall Street Journal’s editorial page. But he lamented that these outlets are “controlled by a single man and his son,” a reference to Rupert and Lachlan Murdoch, and questioned how long they could hold out.
Here’s a sample of the actual wording of the dissent:
After observing my colleagues’ efforts to stretch the actual malice rule like a rubber band, I am prompted to urge the overruling of New York Times v. Sullivan. Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. See McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari). The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 380–88 (1974) (White, J., dissenting). As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth. New York Times should be overruled on these grounds alone. …
One can understand, if not approve, the Supreme Court’s policy-driven decision. There can be no doubt that the New York Times case has increased the power of the media. Although the institutional press, it could be argued, needed that protection to cover the civil rights movement, that power is now abused. In light of today’s very different challenges, I doubt the Court would invent the same rule.
As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon. Cf. New York Times, 376 U.S. at 305 (Goldberg, J., concurring) (reasoning that the press will publish the responses of public officials to reports or accusations). But see Suzanne Garment, The Culture of Mistrust in American Politics 74–75, 81–82 (1992) (noting that the press more often manufactures scandals involving political conservatives). The increased power of the press is so dangerous today because we are very close to one-party control of these institutions. Our court was once concerned about the institutional consolidation of the press leading to a “bland and homogenous” marketplace of ideas. See Hale v. FCC, 425 F.2d 556, 562 (D.C. Cir. 1970) (Tamm, J., concurring). It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat.
Much much more at the link. At the end of the article there, you can find links to a whole bunch of pieces reacting to Silberman, many of them – of course – from the leftist press.
I’m with Silberman, and have been from even before my political change. However, the problem of the proper standards remains – and of course, it’s not just the press that is biased to the left at this point. A great deal of the judiciary is as well. So I’m not sure the remedy lies in the judicial system at all.
In closing I’m going to include a quote offered this morning by commenter John Tyler, something William Shirer wrote as part of his reporting from Nazi Germany in the 30s:
I myself was to experience how easily one is taken in by a lying and censored press and radio in a totalitarian state. Though unlike most Germans I had daily access to foreign newspapers, especially those of London, Paris and Zurich, which arrived the day after publication, and though I listened regularly to the BBC and other foreign broadcasts, my job necessitated the spending of many hours a day in combing the German press, checking the German radio, conferring with Nazi officials and going to party meetings. It was surprising and sometimes consternating to find that notwithstanding the opportunities I had to learn the facts and despite one’s inherent distrust of what one learned from Nazi sources, a steady diet over the years of falsifications and distortions made a certain impression on one’s mind and often misled it. No one who has not lived for years in a totalitarian land can possibly conceive how difficult it is to escape the dread consequences of a regime’s calculated and incessant propaganda. Often in a German home or office or sometimes in casual conversation with a stranger in a restaurant, a beer hall, a café, I would meet with the most outlandish assertions from seemingly educated and intelligent persons. It was obvious that they were parroting some piece of nonsense they had heard on the radio or read in the newspapers. Sometimes one was tempted to say as much, but on such occasions one was met with such a stare of incredulity, such a shock of silence, as if one had blasphemed the Almighty, that one realized how useless it was even to try to make contact with a mind which had become warped and for whom the facts of life had become what Hitler and Goebbels, with their cynical disregard for the truth, said they were.
I remember the Ariel Sharon lawsuit. Times crowed over its “victory”: The jury found the Times had lied, they had knowingly lied, and that they had defamed him. But they were stuck on the malice thing. Times painted it as a huge victory for “freedom of the press.” And that they were vindicated.
They had no shame.
Sharon filled a libel suit in Israel. The Times settled.
Has ANYONE win a lawsuit in a US court over defamation against a paper?
A friend of mine is about to file a pro se appeal to the Supreme Court in his defamation case against the (vile) Southern Poverty Law Center [SPLC]. I think success in his appeal to the Supremes — granted, a looooong shot — would mean that his suit could actually go forward in front of a jury in the federal district court, Western District of Missouri.
The friend isn’t a lawyer, but he has a great deal of experience with legal writings, and I think his soon-to-be-filed document …
https://craignelsen.com/appendix/petition.php
… is an impressive piece of work. Also enraging.
In brief: Craig founded and ran ProjectUSA during 1998 – ~2007, putting up clever billboards around the country with basic information on what immigration (both legal and illegal ) is doing to the country. All factual material.
Of course he was slimed (“racist!,” “white supremacist!,” and all that …) by SPLC thugs Heidi Beirich and Mark Potok. And since the internet is forever, their sliming has ruined attempts he’s made, more than a decade later, to engage in other civically-oriented projects and even to make a living in scut-work jobs (e.g. dishwasher).
If interested in reading his 49-page (double-spaced) brief at the link above, focus on “Statement of the Case” (pp. 3 – 14) and “Online Libel Is Forever” (pp. 38 – 39).
Alternatively, you can read something more discursive, a 2019 interview with Craig (when his suit was in an earlier stage), here: https://www.lewrockwell.com/2019/11/linh-dinh/interviewing-craig-nelsen/
Paul Nachtman:
I assume the standard is lower to win a suit against the SPLC because it’s not the press.
Lee Also:
I think the standard for winning is lower for a private citizen. That’s why Nick Sandmann got all those settlements.
Strikes me that the defense in a Sullivan case would require discovery. In other words….this is everything we did and it was true. Or it was false but we had no reasonable way of knowing that and we made a good-faith [not on the back page in one short paragraph] to inform our readers of the actual truth.
Short of that would be evidence of malice, if I were on a jury.
The corruption is too wide and too deep for legal reform.
“Sometimes one was tempted to say as much, but on such occasions one was met with such a stare of incredulity, such a shock of silence, as if one had blasphemed the Almighty, that one realized how useless it was even to try to make contact with a mind which had become warped and for whom the facts of life had become what Hitler and Goebbels, with their cynical disregard for the truth, [the media and academia] said they were.”
Apply the above to conversations with today’s typical liberals.
Then reflect upon the fact that it took a monumentally destructive war to return to reality those formerly divorced from reality minds.
GB. Exactly.
The Times’ defense: “She [Palin] must show that the editors and writers at the paper acted with malice, ignoring the facts on purpose to sully her name. The Times has called it an ‘honest mistake’ that happened in a rush on deadline.”
The law: “Sullivan‘s solution – to raise the bar for libel exceptionally high and to make actual malice (“meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true”) necessary for a defamation finding against the press when a public person is the one maligned . . . .”
Seems to me that the NYT should lose based on its own admission. Rushing to pubish an article stating purported facts that are “too juicy to check” is an admission that the NYT recklessly disregarded whether or not the purported facts were true.
Rushing to get an article in a newspaper or on a web page is NOT a valid excuse for anything more serious than minor errors. Defamation (i.e., the act of communicating false statements about a person that injure the reputation of that person) is not a minor error.
Rushing to get a firetruck to a fire is an excuse for sideswiping parked automobiles, and perhaps even for accidentally injuring (or killing) a person. That is, such tragic events could be deemed unavoidable collateral damage in order to avoid a much greater tragedy (i.e., the loss of many lives in a fire).
Rushing to get an advertisement in to a newspaper to meet its deadline might be an excuse for not double-checking the accuracy of the advertised store’s business hours.
As neo noted, the public has no interest in being misinformed at the expense of defaming someone.
Heck, when I must file with a court a response to an ex parte motion, I’m given less than 24 hours to do so, and portions of that period of time just might have been pre-booked for other work or events (not to mention sleep). If my response includes a misdescription of a precedential case, or if it relies on a case that has been overruled, most judges would hand me my head — and worse if I said, “but, Judge, I was rushed.”
I’ve never understood why the defendant knowing what they said/wrote is not true and doing it anyhow is not by itself proof of malice.
Dwaz
I think the defense is they didn’t know. Complaint is they should have known, information was readily available, they deliberately looked the other way.
Then if discovery finds them actually discussing spiking the the contrary information…that might be malice, unless the defense is that was idle chatter.
I’d take the view that, even if it were shown to be an innocent error, information the contrary not available, retracting it in a four-line paragraph among the tire ads shows malice.
@Dwaz, yes it would be nice if the offense or defense was whether the statement was true or false.
Neo made an oblique reference to the facts of the case when she mentioned defending the civil rights movement. I’ve never looked at them before though I’ve heard about the ruling. The case involved an advertisement/editorial published thought not written by the NYT in support of Dr. Martin Luther King that made several minor inaccurate statements about his experience with the Montgomery AL police. The police chief (Sullivan) sued for defamation based on those inaccuracies and won in the local courts but on appeal to the USSC eventually lost. Given that background, it becomes clearer that the decision was quite obviously shaped to ignore the minor misstatements, such as the exact number of times Dr. King was arrested, in an otherwise truthful piece that was largely opinion. This appears to be why the NYT is relying on the ‘rush to publish’ defense wrt Palin.
I agree with commenter Dwaz, above. Seems like publishing knowing falsehoods is prima facie evidence of malice.
It’s helpful, in understanding the tradeoffs, to look at defamation law in other countries. Of course, they don’t value free speech nearly as much as we used to in the USA.
This is the most interesting curveball — the same people who want to preserve the right of the NY Times to defame also want to preserve the right of social media to censor. Which leads us to the Alex Berenson lawsuit where Twitter defamed him when they banned him from the platform claiming he reported false information.
Twitter will argue that its free speech rights enable it to both restrict Berenson’s speech AND defame him.
Geoffrey Britain on January 27, 2022 at 7:14 pm said:
Apply the above to conversations with today’s typical liberals.
Because it’s a religion. Progressivism is a religion, and it’s incredibly difficult to sway someone from a religion in which they have been steeped for 8-hour days (in public school) and throughout the culture. If you don’t treat it as such, you’ll never grasp how to effect it.
“Malice” as defined in the dictionary is the intention or desire to do evil, or the intention to inflict harm or suffering. As a psychological state – alone and separate from overt demonstration – it may be difficult to prove.
But the federal criteria for judging whether this description should be applied to the publication of a falsehood, seems to me to be adequately described in the text of Sullivan if it is read closely and strictly.
Then, on that close reading, the remarks of several here that the defamation considered seems to be prima facie, and on admission of the defendants, is perfectly reasonable.
And the Sullivan test as noted by Neo, whether mere policy or not, does not seem irrational per se, nor an insuperable bar to recovery of damages.
My offhand guess, and it is no more, might be that somehow the definition involved in meeting the malice test, clearly described in Sullivan’s text, has in the minds of some, wandered off somewhat into an assessment concering the psychological state of the libeler “before the dash” so to speak; that dash being the punctuation after which the sufficient conditions for establishing malice were laid out.
Here is the text from a link supplied here.
Doesn’t seem too difficult. But then knowing some lawyers, and what has happened to the phrase “beyond a reasonable doubt” in portions of the public mind, maybe not so easy either.
The use of the term malice as the defamation standard for a public official or public figure has caused a lot of confusion for law students. Forget the dictionary definition. Dictionary has nothing to do with it. It’s a term of art.
In this legal situation, malice is just a word. Might as well use scienter or some other legal term of art. Or make up a nonsense word. How ’bout xamus? Would actually enhance understanding. In order to prevail, plaintiff must establish that defendant had xamus where xamus means actual knowledge of falsity or reckless disregard for the truth.
Dwaz; Deckie66:
The trick is to prove they are knowing falsehoods. In the Palin case, the Times is claiming ignorance of its own prior stories.Their defense is basically: we were stupid, not malicious.
It isn’t easy to prove in a court of law that they weren’t just stupid.
I know all about “Godwin’s Law” but it is chilling and disturbing to consider how close we are to the situation described by Shirer.
Paul, Geoffrey Britain, and GWB. Yez, I sad struck by Neo’s inclusion ov Shirer’s reflections on the morally corrosive effects of mass propaganda on political psychology. One starts reading this as allegory. But then concretes flesh out the fact that the anologue is disturbingly exact today.
Despite this horrifying reality, I’m in awe of neo’s prescient digging and topical timeliness. Perhaps this one is worth adding a minor closing paragraph and elevation to the legalinsurrection blog?
In this case, a stricter form of liability standard could probably be argued. If not in court, then prospectively. Although Thomas’ view that Sullivan was a dishonest construction of the lawin the first place, might make some say, “just chuck it” regardless.
But to take up my point, this instance is not a matter of a publisher accepting an advertisement, which had proveable and possibly defamatory falsehoods.
Nor, is it a case of a news reporter getting facts accidentally or plausibly jumbled or wrong to the detriment of a public figure’s reputation.
In this instance it appears to be an executive editorial decision by persons who might reasonably be held to a stricter standard for publishing libel on false fact grounds. This, on the basis that their acts if negligent rather than “malicious” in the personally manifested and then directed psychological sense, were still culpable as a result of their executive responsibilities. Or, rather the institution or corporate body the interests of which they represent and control, becomes strictly responsible for categorical and defamatory assertions promoted not as news, but as matters of fact and character estimation.
Someone well versed in current corporate law and liability might have informed views on developments in this strict liability matter with regard to individuals harmed by ostensible corporate negligence in recent decades; and, to what degree if any, Sullivan might be refashioned to include a strict liability provision under certain well specified and limited conditions.
Well, … Happy you are being intercepted days, again.
Neo, how about closing the block quote on your passage, for me.
Thanks
DNW:
Fixed – I think.
“we’re stupid, not crooked,” has been a long-time defense. I’d be interested in investigating the clean up to being stupid.
The usual minimal paragraph amongst the tire ads saying they could not confirm certain information and regret the error is so tiny compared to the offense–whatever it may have been–that in itself it demonstrates malice.
So if a paper makes BIG NEWS about congressman’s child molesting (presuming the congresscritter in question is a republican), and, by carrying on convinces a huge number of its readers that the guy really does molest children and then…oops, can’t confirm in a tiny piece maybe one in a thousand actually see….. After all, they have paper and they buy ink by the barrel. Their choice not to go big on the correction is as obvious an indication of malice as can be imagined.
AG Sulzberger is the man who promoted Nikole Hannah-Jones and her rubbish. He’s stupid and crooked.
Yes. Thank you.