Palin and Public Figures: Is it Time to Reconsider New York Times v. Sullivan and the Actual Malice Standard?

Below is my column in USA Today on the Palin defamation trial. The case, if appealed, could raise a serious challenge to the application of the “actual malice” standard to public figures. Ironically, last night, Hillary Clinton made reference to this standard in suggesting that she might be able to sue Fox News for its coverage of the Durham investigation. It is considered a sacrilege to even raise the possibility of reexamining the legacy of New York Times v. Sullivan but there are legitimate long-standing questions about the extension of the actual malice standard from public officials to public figures. It is a tough question with good arguments on both sides, but it is a debate that is long overdue.

Here is the column:

For those of us who teach torts, we are living in the golden age of defamation. Since President Donald Trump took office, a long litany of fascinating libel and slander cases have been filed against or threatened by an array of politicians and celebrities, from Duchess Meghan to MyPillow CEO Mike Lindell to former Rep. Devin Nunes, R-Calif.

Most recently, after numerous efforts to dismiss the case, The New York Times found itself in court defending an editorial that bizarrely appeared to blame former Alaska Gov. Sarah Palin for the 2011 shooting of then-Rep. Gabrielle Giffords, D-Ariz.

The judge stated his intention Monday to dismiss the case regardless of the jury’s verdict. After criticizing The Times for its false attack on Palin, Judge Jed Rakoff said he’s “not at all happy to make this decision” but had no choice because of the “very high standard” set by the Supreme Court in such cases involving public figures.

Rakoff might, however, have just created the ideal case for the Supreme Court to change that standard on appeal.

The editorial, “America’s Lethal Politics,” came after the shooting of GOP Rep. Steve Scalise, R-La., and other members of Congress by James Hodgkinson, 66, apparently a supporter of Sen. Bernie Sanders, I-Vt. The 2017 attack did not match the narrative in the news media of right-wing violence, and The Times rushed to put out an editorial deflecting from the association.

It said Palin’s political action committee posted a graphic that put Giffords’ district in crosshairs before she was shot. The editorial stated, “The link to political incitement was clear.” It was false, but the claim was used to spin the shooting of Republican members: “Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask of the right.”

The Times later issued a correction and the jury was given the case before the judge ultimately decided he would dismiss regardless of what they concluded – a rather curious approach. Many believe that The Times defamed Palin. Yet, even if The Times falsely portrayed Palin’s map, that does not mean Palin can prevail.

The problem is that Palin is a “public figure” and – under controlling Supreme Court precedent of New York Times v. Sullivan and later cases – must shoulder a higher burden of proof. In other words, The Times can defame her and still prevail.

Protecting journalistic inquiry

The Palin case comes at a time when the seminal defamation case, Times v. Sullivan, is under attack not just from Trump but also from a couple of Supreme Court justices.

Six decades ago, Justice William Brennan wrote arguably his most eloquent and profound decision, in which the court unanimously declared that the First Amendment required a higher standard of proof for defamation than simple negligence for public officials.

News outfits were being targeted at the time by anti-segregation figures in lawsuits to deter them from covering the civil rights marches. The court correctly saw civil liability as creating a chilling effect on the free press either by draining the publications of funds or inducing a type of self-censorship. Imposing a high standard for proof of defamation, Brennan sought to give the free press “breathing space” to carry out its key function in our system.

The court believed that public officials have ample means to rebut false statements, but that it’s essential for democracy for voters and reporters to be able to challenge government officials. To achieve that breathing space, the court required that public officials had to prove “actual malice,” where the defendant had actual knowledge of the falsity of a statement or showed reckless disregard of whether it was true or false.

Putting the press on the defensive

Recently, two justices indicated that they might be open to the idea of revisiting New York Times v. Sullivan. Justice Clarence Thomas has been a long critic of the standard as unsupported in either the text or the history of the Constitution. Thomas and Justice Neil Gorsuch objected last year to the denial of certiorari in Berisha v. Lawson, in which author Guy Lawson published a book detailing the “true story” of three Miami youngsters who allegedly became international arms dealers.

It was a success and landed a movie deal. A central figure in the story was Shkelzen Berisha, the son of Albania’s former prime minister. He sued Lawson alleging defamation and claimed that he was not, as portrayed, an associate of the Albanian mafia and that Lawson used unreliable sources for his account.

Berisha is a public figure rather than a public official. As such, he fell under the same standard because the court previously found that celebrities should have to meet the same burden. It noted that celebrities are powerful in our celebrity-driven culture, have ample means at their disposal to protect themselves and chose their lives of notoriety.

The problem is that there is one missing element to imposing a higher burden on public figures like Berisha: furthering the democratic process. In teaching defamation, the actual malice standard rests convincingly on a democratic rationale that a free people and a free press must have breathing space to criticize the government and their leaders. It helps protect and perfect democracy.

Why punish private citizens?

For 30 years, I have struggled in class to offer the same compelling rationale for applying the standard to anyone who is considered a public figure. It takes very little to qualify as a public figure, or a “limited-purpose public figure.” However, why should private success alone expose someone like the Kardashians to a higher burden of proof for defamation? Writing about hot-dog-eating champion Michelle Lesco does not protect core democratic principles or even support core journalistic principles. To succeed, a Kardashian would still have to prove that a statement was false and unreasonable to print. Moreover, publications are protected in most states by retraction statutes limiting or blocking damages for corrected stories. Finally, opinion is already protected from defamation actions.

Clearly, the current standard still allows some public figures to maintain actions for defamation. Palin won an important pretrial challenge in her lawsuit against The Times in 2020.

There are difficult questions that warrant serious discussion not only on the court but also in society. For example, there may be a more credible basis for imposing a higher standard on public figures on subjects of great public interest. However, what constitutes a legitimate public matter, particularly when that matter is based on a false account?

Take Nicholas Sandmann, who was pulled into a vortex of coverage due to the false claim that he abused an elderly Native American activist in front of the Lincoln Memorial. Sandmann has secured settlements for the biased and false reporting of major media outlets. Defamation still protects opinion without the reliance on a higher constitutional standard for figures like Sandmann.

Clearly, the public figure standard is an obvious benefit to the media. However, without a compelling argument for a constitutional standard for public figures, it seems more like a judicially maintained subsidy or shield. The purpose of Times v. Sullivan was not to simply prop up the press. The Palin case and other cases could present a new opportunity for the court to review the doctrine.

When Justice Sonia Sotomayor recently denounced the “stench” of politics that followed the addition of her three newest colleagues to the court, she warned, “We won’t be able to survive if people believe that everything, including New York v. Sullivan, [is] all political.”

What we really need is an airing out – not of the constitutional standard but of its application to non-public officials.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Twitter: @JonathanTurley

58 thoughts on “Palin and Public Figures: Is it Time to Reconsider New York Times v. Sullivan and the Actual Malice Standard?”

  1. Suddenly, Last Saturday,

    Rightwing Echo Chamber Cranked False Narrative Regarding Durham Filing

    Because the Durham filing was made late on Friday, the narrative pushed by Trump allies went largely unchallenged over the weekend. Not until Monday did mainstream journalists begin to look into the filing, adding context and reporting.

    Durham’s 13-page document was ostensibly about a conflict-of-interest issue regarding Sussmann’s counsel Latham & Watkins. Durham in September charged Sussmann with lying to the FBI during a meeting in 2016. But as part of the document, Durham listed “factual background” that included a series of new, but uncharged allegations.

    Marcy Wheeler, a national security reporter, said she received a copy of the filing through PACER at 11:33 p.m.on Friday. Within an hour, an anonymous Twitter account called “Whispers of Dementia” tweeted about the filing but only focused on the conflict-of-interest issue. Early Saturday morning, the gaggle of Durham followers sprang into action and shaped the news coverage that followed.

    Hans Mahncke, an Epoch Times reporter, tweeted: “Holy moly! New Durham filing. Rodney Joffe and his buddies at Georgia Tech monitored Trump’s Internet traffic *while* he was President of the United States.” His tweet included a screenshot from paragraph five of the filing that highlighted in red the phrase “Executive Office of the President of the United States.”

    At 10:25 a.m., the anonymous Techno Fog Twitter account, with nearly 350,000 followers, tweeted: “DNC/Perkins Coie, Rodney Joffe, et al. — ‘exploited a sensitive US govt arrangement’ to gather intel on the ‘Executive Office of the President of the U.S.’ They spied on Trump.” This tweet also had a screenshot of paragraph five. Before noon, this person had tweeted a substack analysis that emphasized, in bold type, “they essentially spied on President Trump.”

    The 10:25 a.m. tweet also raised the possibility that the Russian hack of the Democratic National Committee was actually a plot engineered by the Clinton campaign via Sussmann and Joffe. Never mind that the Russian hack has been extensively documented by a Senate bipartisan report and 12 Russians were indicted by special counsel Robert S. Mueller III for their roles. For some of the Durham obsessives, this theory is the Holy Grail.

    At 11:11 a.m., the House Judiciary GOP account tweeted over the Techno Fog tweet: “We knew they spied. But it was worse than we thought.” That tweet a few hours later received this response from former Director of National Intelligence John Ratcliffe: “And now you’re finding out why … ” He linked to an interview he gave in October saying he had provided 1,000 intelligence community documents to Durham that should support additional charges.

    Edited From:

    Continued Below

    1. Suddenly, Last Saturday,

      Rightwing Echo Chamber Cranked False Narrative Regarding Durham Filing

      Continued From Above

      Ratcliffe did not specifically say this spin was true, but he seemed to validate it, giving an important boost to the narrative. By 2:45 p.m. Red State, an influential conservative website, had posted an article, highlighting Techno Fog’s tweets, titled “John Durham Drops a ‘Shock and Awe’ Filing About Spying on Donald Trump.”

      Then former White House chief of staff Mark Meadows weighed in, also tweeting over Techno Fog’s 10:25 a.m. tweet: “They didn’t just spy on Donald Trump’s campaign. They spied on Donald Trump as sitting President of the United States. It was all even worse than we thought.”

      Finally former Trump official Kash Patel tweeted, “the Hillary Clinton campaign and her lawyers masterminded the most intricate and coordinated conspiracy against Trump when he was both a candidate and later President of the United States.” (Durham’s filing actually did not claim the Clinton campaign directed this.) Patel separately told Fox News “the lawyers worked to ‘infiltrate’ Trump Tower and White House servers.”

      Fox News then used Patel’s phrase and, in a headline, made it appear that it came from Durham’s filing: “Clinton campaign paid to ‘infiltrate’ Trump Tower, White House servers to link Trump to Russia, Durham finds.” Ric Grenell, the former acting director of national intelligence, then appeared on Newsmax at 5:25 p.m. and managed to echo both the “infiltrate” and “spy” narratives.

      “Durham’s filing makes it clear,” Grenell said, that people paid by the Clinton campaign were “infiltrating the White House, the executive office of the president. They were spying not only on the campaign of Donald Trump but Donald Trump as president.”

      Less than two hours later, Trump issued a hyperbolic statement on the filing, saying it “provides indisputable evidence that my campaign and presidency were spied on by operatives paid by the Hillary Clinton Campaign.” He said the “scandal” was far bigger than Watergate and “in a stronger period of time in our country, this crime would have been punishable by death.”

      Trump’s statement provided the perfect runway for days of outraged reactions by prominent Republicans, not to mention commentators, following the script originally provided by the mysterious Techno Fog Twitter account.

      Edited From:

  2. I’m not sure why my earlier attempts to post the following were blocked. Third time’s a charm?

    Turley says “Rakoff might, however, have just created the ideal case for the Supreme Court to change that standard on appeal.”

    But as law prof. Howard Wasserman has pointed out, “It turns out the use of NYT and actual malice as the standard is based in part on New York’s anti-SLAPP statute, which codifies actual malice (likely as a hedge against SCOTUS overruling) although in an amendment enacted after the op-ed was published. Judge Rakoff held, as a matter of New York law, that the law applied retroactively and the instructions to apply actual malice applied the statute and the First Amendment. Overruling New York Times as the constitutional standard would not change the standard under New York law, meaning the result would be the same. SCOTUS typically does not take cases that turn on state law.” (emphasis added)

    1. Not considering the the many legal details of this case, do you believe the NYT had no malice towards Sarah Palin?

      1. I agree with the judge and jury that Palin’s lawyers didn’t demonstrate actual malice on the NYT’s part.

        1. That was’t the question. Get rid of the legalities and what is required to win the case.

          Not considering the the many legal details of this case, do you believe the NYT had no malice towards Sarah Palin?

          1. No answer from ATS. Eventually, ATS runs out of smoke and disappears.

            All those superfluous facts ATS copies or links to are meaningless because he can’t put anything together. All he has is deception and lies.

        1. I am sure Palin does. However, she didn’t libel the NYT. ATS works his answers to fit into his ideology. That is why he has so many problems when he has is pushed to provide honest answers and opinions.

  3. Jonathan: In discussing Quintz Brown and your call to reconsider NY times v. Sullivan today you omitted the real exciting news yesterday. A Manhattan judge ordered Donald Trump, Ivanka and Don Jr. to give depositions in the NY AG’s investigation of Trump’s finances. Trump fought the subpoenas tooth and nail. In his decision Judge Ergoron demolished all of Trump’s arguments to quash the subpoenas. Trump’s attorneys even tried to argue the Trump’s are a “protected class”. Must be tough these days for Trump to find competent counsel. They were certainly not the brightest bulbs on the tree. In an angry response Trump said the decision “represents an unconstitutional attack on our country–and the people will not allow this travesty of justice…It is a continuation of the greatest Witch Hunt in history–and remember, I can’t get a fair hearing in New York because of the hatred of me by Judges and the judiciary”. How Trump expects the “people” to prevent the normal judicial process defies explanation. Maybe another insurrection? And we thought the Mueller investigation and the two impeachments were the “greatest Witch Hunt”. Although Trump will probably appeal he sees the handwriting on the wall.

    Eventually the Trump mafia clan will be forced to sit down for depositions. This should prove very interesting. I would like to be a fly on the wall. In the same investigation Eric Trump has already been deposed. He took the 5th Amendment over 500 times. Allen Weisselberg, Trump’s CFO. took the 5th hundreds of times. What do they have to hide? Plenty. Now I wouldn’t be surprised if Trump tried to best Eric. When it comes to the 5th he doesn’t want to to be outdone by his son. Trump, ever the narcissist. Now as one of the country’s leading conservative legal scholars what arguments would you raise to quash the subpoenas? So far you have been silent. Please enlighten us.

    1. I don’t know whether you live in New York. Many New Yorkers are really tired of Letitia James’ politically motivated cases. If you have read some of the pleadings, it is easy to see. One example is the case that she brought against the SEC a few years ago to oppose the implementation of Regulation BI.

  4. JT, you missed a key argument in favor of equal defamation deterrence protection for all citizens, famous or not: Sullivan discourages people of sound character and reputation from seeking positions exposing themselves to character-assassination. This may be hard to measure, but most Americans would agree that we’re suffering from Presidential candidates who are egotists — high achievers of more modest temperament just won’t expose themselves and their families to to unirestrained, deceptive smear campaigns.

    The quality of public leadership is a legitimate public interest, and must be balanced against 1st Amendment freedoms.

  5. Theodore Roosevelt may have had foresight into this issue, speaking in Washington in 1906 said:
    “The men with the muck-rakes are often indispensable to the well-being of society; but only if they know when to stop raking the muck.”

    I cannot remember who wrote this or if it is exact “The only qualities for real success in journalism is rat like cunning, a plausible manner, and a little ability…”

    “Congress shall make no law… abridging the freedom of speech…”, yet congress has passed laws against free speech under the guise of protection from defamation. Rewriting defamation standards is a very serious slippery slope when you consider those that could be rewriting them may come from WOKE. Will they write that you can’t say, this or that, he/she, or that you smell like a pig, or you have a Bear’s ass, or they could pervert their lies for truth. CAUTION! Woke has raised its ugly head for all to see, consider Big Tech’s restrictions of certain speech as a prime example.

  6. Jonathan: It is strange that as a big proponent of “free speech” you would join Clarence Thomas in wanting to overturn NY Times v. Sullivan. Thomas’s attack on Sullivan derives from his tortured “originalist” interpretation of the Constitution. As Justice Scalia remarked on Thomas’ originalism: “”Look, I’m an originalist and textualist, but I’m not a nut”. ( For a fuller discussion of Thomas’ views see: Matthew Schafer “The Attack on New York Times v. Sullivan”, 7/12/20). Thomas wants to give back libel law to the states to decide the free speech rights for news organizations and journalists–and we know what havoc states can do–See, e.g., Texas and Tennessee that have passed laws banning certain books and telling teachers what they can and cannot discuss in the classroom. And by the way, this subject you have ignored in discussing other “free speech” issues.

    If Thomas’s views prevailed it would be easier for the wealthy and powerful organizations with deep pockets to suppress unfavorable news coverage. Conservative legal scholar Bruce Fein has endorsed Thomas’ views. In the American Conservative (2/27/19) he said it was time to “end the First Amendment sanctuary for fake news”. Music to Donald Trump’s ears who unsuccessfully sued the Washington Post and NY Times to try to intimidate them from covering his corruption laced administration. Autocrats thrive on suppressing press freedom. Is this really what you want? I guess so and reflects your view that only conservatives are entitled to “free speech” protections. The free speech rights of teachers and the rights of a free press are not in your wheel house.

  7. i no longer bother reading the entirety of the drivel written by Turley since he went on the Fox payroll–just the summary, because Turley’s assignment is to carry out the missions of Fox, one of which is to attack mainstream media, and to reassure the Trump disciples that they should not trust any media other than pro-Trump media. Turley mightily attempts to sound reasonable, but he isn’t. Here’s an example (from the opening summary): “…there are legitimate long-standing questions about the extension of the actual malice standard from public officials to public figures. It is a tough question with good arguments on both sides, but it is a debate that is long overdue.”

    Turley, the “actual malice” standard set forth in the Sullivan decision was debated before, and has been debated ever since it was decided. Nothing has changed. There’s no “debate” that is “long overdue”. The same issues and stances pro and con exist now as they did then. All you are attempting to do is set the stage for the radicalized SCOTUS to gut Sullivan by arguing that somehow things have changed sufficiently since Sullivan to justify reversing the decision totally or in part, all of which lends credence to what many have said was the real reason for Palin’s lawsuit in the first place–a vehicle to get to the SCOTUS to get Sullivan reversed.

    Why not write about why the doctrine of stare decisis apparently no longer matters since the Federalist Society judges were shoved onto the SCOTUS by someone who cheated his way into power, and who never had the support of the majority of the American people? That’s the REAL issue, and it’s a serious one. Look at what’s on the line now: abortion rights, and probably, the Sullivan decision.

    1. Natacha you’re a fool. Professor Turley has been a purveyor of open and honest debate for as long as he’s been a teacher. Your hatred for “trump”, Fox”, and anything else that makes you uncomfortable has blinded you. Your hatred of one flapping wing has left you unaware of your religious zeal for the bloated authoritarian bird you worship.

      1. LOL that you think it’s possible for someone to have religious zeal but be unaware of their own zeal.

      2. I don’t hate Turley at all: I feel sorry for him because he has aligned himself with a media outlet that mostly peddles lies, disinformation and conspiracy theories. I don’t know why he ignores truly important legal and political stories and looks for virtually any reason to criticize the Biden family, the Clinton family, Democrats, and Democratic members of Congress, particularly women of color, plus his hypocritical attacks on mainstream media, all of which are part of his assignment from Fox. One really has to be blind to reality to ignore the lying and abuses put out by Fox. Plus, he’s also blind to Trump and the Big Lie, not to mention the damage these things have done to the American people. Turley’s credentials were purchased to lend credence to a purveyor of disinformation. I don’t know whether he needs the money or wants attention, but he has damaged his reputation, IMHO. I’ve lost respect for him, and, by extension, the university he works for.

  8. It is hard to imagine the courts could hold the New York Times to a higher defamation standard than it could hold Trump, or Palin or this blog.

    Palin was often fast and loose with the facts, Trump lies about people more than probably anyone else in public life outside Alex Jones. This blog repeatedly tries to invent things about Hillary Clinton or Hunter Biden; even John Durham is distancing himself from your latest smear about Hillary. Imagine if they could sue.

    The Times is far from the biggest offender here; it is just that Conservatives have the thinnest skin.

    1. Conservatives have the thinnest skin????? L O L LOL 😂 You have never seen one conservative online call for banning anybody. Or anything. Banning / Banishing / Censoring all 3 are the “Religious-Triad”, If you will.

      Conservatives on Triad is, God the Father, God the Son (Jesus Christ) & God the Holy Spirit.

      1. You are apparently unfamiliar with the Conservative movement to ban CRT. It is pretty much a central part of their platform at this point.

    2. (Update, To My Previous Comment.)

      Conservatives have the thinnest skin????? L O L LOL 😂 You have never seen one conservative online call for banning anybody. Or anything. Banning / Banishing / Censoring all 3 are the “Religious-Triad”. Of the left. Leftist. Progressives. Etc And right under the ultra thin “Epidermis” of each one of these is, a raging totalitarian.

      Conservatives Triad on the other hand is, God the Father, God the Son (Jesus Christ) & God the Holy Spirit.

  9. When will posters on social media get it through their thick skulls that China and Russia are NOT the moral or political equals of the United States? Once they understand this, then maybe they will stop posting their stupid comments about who can install what missiles where. If the “cleverness” of their points depends on a false premise, then they are not so clever after all.

    1. You should remove the word only. Then your statement becomes reasonably true, but then the statement, The Constitution protects your rights if you don’t have the money to pay a lawyer to defend them, would also be true.

      What was your point?

  10. Project Veritas has been libeled many times. They are willing to sue and have won many cases with substantial damages that have made the Left-wing news media think twice before suing. They have multiple suits against the NYT. They have what they call the Wall of Shame, where pictures of the retractions hang on their wall and explanations follow (each picture has one or more retractions).

  11. It seems that lying by the media should be actionable, even against politicians. The GWB national gaurd store comes to mind. known forgeries used to lie about a person running for office. The Sandman affair is well documented because it happened live. NBC has been caught numerous time editing video to change the representation 180 degrees. Setting a Ford pickup on fire, when, after repeated attempts to get it to explode in a crash simulation tests failed, to the editing of the George Zimmerman video to hide his head injures when entering the Hospital.
    And of course the Russia, Russia Russia, Russia, Russia, Russia Russia, Russia, Russia, Russia Russia, Russia, Russia, Russia Russia, Russia, Russia, Russia Russia, Russia, Russia, Russia Russia, Russia. lie. You can only claim you’re misled by your sources, until the facts come out, and you refuse to burn your source.

  12. Good article.

    Does anyone know if Rakoff correctly articulated the actual malice standard?

    He said that Palin failed to establish by clear and convincing evidence that Bennett thought his statement was false but proceeded nonetheless in reckless disregard of that high probability. I thought that all Sullivan required was either (1) knowing the statement was false or (2) making the statement with reckless disregard for its truth or falsity. Prong 2 would not require showing that Bennett thought the statement was false, but only that he made it with reckless disregard for whether it was true or false.

    1. The standard is “with knowledge that it was false or with reckless disregard of whether it was false or not.”

      As for what Rakoff said, you’d need to look at a quote. What did Rakoff actually say that you equate with “Palin failed to establish by clear and convincing evidence that Bennett thought his statement was false but proceeded nonetheless in reckless disregard of that high probability”?

      For example, I found a quote from him saying “The law here sets a very high standard for ‘actual malice,’ and to this case, the court finds that that standard has not been met.” But I haven’t found the quote you seem to be referring to.

      1. Politico in a February 14 article quoted Rakoff saying what I wrote about his articulation of the standard. It was a direct quote of Rakoff. Perhaps it was a misquote but that’s what Politico quoted.

        1. Politico quoted him as saying “I don’t think a reasonable juror could conclude that Mr. Bennet either knew the statements were false or that he thought the statements were false and he recklessly disregarded that high probability.”

          So he is distinguishing between knowledge (“knew” — in the first half) and belief that isn’t knowledge (“thought” — in the second half).

          Subsequent to my 10:40am response, I learned and attempted to point out the role of NY defamation law in this case, quoting what Howard Wasserman said about this on another law blog. But my comment didn’t post for some reason. Eventually I tried again and omitted the link to the blog I was quoting from, and that comment posted at 4pm.

          See — “Exhibit B is correspondence between the Court and counsel for the parties regarding case law germane to Defendants’ Rule 50 motion for judgment as a matter of law” — where the defendants noted relevant NY caselaw: “Sweeney v. Prisoners’ Legal Servs., 84 N.Y.2d 786, 793 (1995) (“To satisfy the reckless disregard standard, plaintiff had to establish that defendants in fact ‘entertained serious doubts as to the truth of the publication’ or that they actually had a ‘high degree of awareness of its probable falsity,’” and “defendants’ failure to investigate cannot amount to ‘purposeful avoidance’ unless it evidences an intent to avoid the truth. Absent some direct evidence that defendants in this case were aware that Mays’ complaint was probably false, they cannot be found to have harbored an intent to avoid the truth.”)

          I think that clarifies what has to be shown for Prong 2 in NY.

    2. I believe that your articulation of the NYT v Sullivan standard is accurate. See Sack on Defamation, Section 1.3.1 (Actual Malice Defined). Good catch, Daniel! I’m hoping for an appeal. If appealed, this case will be one to watch. I would love to hear oral arguments. I have always been fascinated by the evolving law of defamation.

  13. Actual malice:
    1. Smoking tobacco.
    2. Refusing to wear a mask.

    It’s not just suicide. It’s spreading bad health and death.

    Guns are quicker. Shoot yourself now.

    1. Can’t give up what you don’t have. Media and Politicians? Same thing If they are stuck in a party feeding the garbage of the day to the garbage eaters. No difference between an Ocasio and a plate of Ocasios.

  14. With the sleazy Journalists Ethics of today….the Sullivan protections need to be done away with altogether.

    It would force the Media to check its sources for veracity before they go to printing a story or risk losing civil actions in court and having to pay out their nose… happened in the Sandman Cases.

  15. Maybe Sullivan needs to be revisited given the rise of advocacy journalism. There is no longer any pretext of objectivity in the NYT, WaPo, or multiple other outlets.Limiting the scope of Sullivan might make the publishers more circumspect before printing clearly libelous articles.

    Interesting that Gannet allowed this to be published

    1. Whig98, if a redefinition of Sullivan is even considered because of “advocacy journalism” Fox News would have to seriously reconsider its current business model if they don’t want to be on the receiving end of constant defamation suits. It won’t just apply to the NYT, it will apply to every media organization. Even Turley would be vulnerable to defamation suits if the “actual malice” standard is lowered. Hunter Biden could sue Turley for defamation for implying without evidence that he is committing crimes. Obviously Hunter is a public figure, would Turley accept the notion of being sued under a redefined Sullivan standard?

      1. Svelaz, you might want to reread the column as it relates to “opinion,” and then read Gerz v Robert Welch (1974) and its progeny, especially Milkovich (1990). Just a thought.

  16. It’s time to reconsider the New York Times but not reconsider Sullivan. Print itShay is the motto of that newspaper.

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