Palin v. NYT – It’s time to revisit malice standard

By: Editorial Board. Tipp Insights

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American jurisprudence is the envy of the Free World, but a federal jury’s decision this week to throw out a libel suit brought against the New York Times raises serious questions about reckless press behavior. The newspaper, in reporting the case’s dismissal as an independent observer, proudly boasted: “The Times has not lost a libel case in an American courtroom in at least 50 years.”

We will refrain from making legal arguments about the judge’s “directed verdict” when he dismissed the case a day before the jury had completed deliberations. But, as journalists ourselves, we watched the case unfold with considerable interest and came away worried.

It is the Times’ boast that worries us. A few libel suits awarded against media organizations over the last 50 years would have improved product quality. The threat of lawsuits is capitalism’s check and balance on free enterprise. After all, the media cherishes its status as the freest of free enterprises. For all the arguments about purity in journalism, the corporate media still has to balance its books and answer to shareholders.

Delivering his verdict from the bench, the judge said: “The law sets a very high standard for actual malice, and in this case, the court finds that standard has not been met.” He was referring, of course, to the landmark 1964 decision, New York Times Company v. Sullivan, in a suit that included libel charges against African-American defendants. The United States Supreme Court unanimously ruled then for the Times, which had published an ad with “factual inaccuracies,” although the Times was not editorially involved in the ad’s content. This week’s case was different. The Times wrote every word of the editorial that triggered the Palin suit.

Providing the press with virtually limitless power – and not inhibiting its ability to publish ads by third parties – was entirely appropriate in 1964. Having just recovered from President JFK’s assassination, the country was eager to retire forever the Jim Crow laws that plagued us for 90 years. Even then, powerful forces wished to stifle racial healing and kill the passing of the 1964 Civil Rights Act. A unanimous decision by an all-white-male bench of the High Court helped the country adopt the landmark law in July, just four months after the Sullivan verdict.

In Sullivanthe Court held that when a statement concerns a public figure, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity.

Sullivan helped grant the overbroad freedom that the press enjoys today. Our judicial system relies on the principle of Stare decisis, which, in Latin, means “to stand by things decided.” Future cases are decided based on prior cases, and when a case is decided unanimously, as Sullivan was, it isn’t easy to deviate from precedent. It was little wonder that in Curtis Publishing Co. v. Butts and AP v. Walker (1967), decided 5-4; and Hustler v. Falwell (1988), decided 9-0, the Supreme Court affirmed the press’s carte-blanche authority to publish practically anything it wanted about anyone without being held accountable.

Protected from legal scrutiny regardless of the damage it causes, the press enjoys liberties that no other industry does. Imagine what would happen if automobile or drug manufacturers were exempt from product liability lawsuits just because their products do public good. We would have an America that would be much less safe.

CNN is a case in point. Realizing its folly when its preferred candidate, Hillary Clinton, would not win in 2016, it went on a four-year non-stop negative coverage of the 45th president, including promoting blatant lies (Russia hoax, Justice Kavanaugh) giving others cover to pursue their own conspiracy theories. The Washington Post published an incredible headline the day President Trump was inaugurated, “The campaign to impeach President Trump has begun.”

In Sullivan, Justice Brennan said that unless the press engaged in “actual malice,” it should not be held accountable. If the behavior of CNN and the Post for four years was not actual malice, we do not know what is. While CNN is facing the grimmest future since its founding, with dismal ratings, relying on the marketplace alone to punish CNN is inadequate. CNN’s lies went unchecked because of Sullivan and helped sow the seeds of today’s divisions in America. The latest TIPP Unity Index confirms that the country has never been so divided, and this is under a president who promised to heal. In this month’s TIPP Poll, 79 percent of Americans blame the media for the country’s polarization.

Every other freedom granted in the Bill of Rights – religion, assembly, gun ownership, due process, state power – has regularly undergone reviews, revisions, and restrictions, to meet the times. But press freedoms remain sacrosanct.

The Palin side is bound to appeal. We hope that the appeals court finds for the plaintiff so that the case will end up in the Supreme Court. It is time the Supreme Court reconsidered the actual malice standard in Sullivan. Otherwise, an already out-of-control media landscape on both the Left and the Right will become further emboldened.


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