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
Civil Cases In News:
Judge Rules Trump Must Answer Lawsuits Regarding January 6th
A federal judge in Washington ruled on Friday that three civil lawsuits against Donald J. Trump related to the attack on the Capitol last January were able to move forward, saying that the former president was not shielded by the normal protections of immunity or the First Amendment.
The ruling by the judge, Amit P. Mehta, meant that the plaintiffs in the suits — several members of Congress and police officers who served at the Capitol during the attack — will likely be able to seek information from Mr. Trump about the specific role he played in fostering the chaos at the building on Jan. 6, 2021.
If ultimately found liable, Mr. Trump could also be on the hook for financial damages.
Edited From:
https://www.nytimes.com/2022/02/18/us/politics/civil-suits-trump-jan-6.html
Anonymous: You beat me to the punch. The ruling by Judge Mehta means Trump is going to have to sit down for a lot of depositions in the near future. Trump doesn’t like to testify under oath truthfully. In the other case in NY involving AG James’ subpoenas re financial fraud Trump, Ivanka and Don Jr. will also be required to be deposed. That’s not good news for the Trump clan. In a prior deposition Eric Trump took the 5th over 500 times. Will the other Trump’s follow suit? I suspect they will. Social media has mocked Trump for arguing in the past that only the mafia takes the 5th. “If you are innocent why are you taking the 5th Amendment…Only the mob takes the 5th”. These words may come back to haunt Trump.
Notice that Trump is having a hard time finding reputable law firms to represent him in litigation. In the hearing before Judge Ergonon counsel for the Trumps often interrupted the judge and addressed opposing counsel directly. Both a violation of court rules that an experience attorney would never engage in. In fact, the clerk of the court had to admonish Trump’s counsel several times about interrupting Judge Ergonon. Counsel for Trump also tried to raise extraneous issues: “Why isn’t Hillary Clinton being investigated?” It seems Trump is having to scrape the bottom of the legal barrel to get someone to represent him.
I expect Trump will appeal Judge Mehta’s ruling, so in these 3 cases, he’s not likely to be deposed anytime soon.
Agreed re: “It seems Trump is having to scrape the bottom of the legal barrel to get someone to represent him,” but the ruling may still be reversed on appeal. Time will tell.
Dennis quoting Trump:
“If you are innocent why are you taking the 5th Amendment…Only the mob takes the 5th”. These words may come back to haunt Trump.
Wishful thinking. The lying Trumpists have an answer to an accusation of hypocrisy, “That was them; this is us. When you are good, you can do no wrong.”
Trump doesn’t pay his legal bills, or many of his other bills for goods or services and has engaged in this pattern of conduct for decades, which is why he has gotten sued so many times. This is just one reason why he can’t get lawyers. That, plus the fact that the doesn’t listen to them, and then, when his case goes south, tries to blame them for losing. A recent example of this is the litigation over his financial statements. His lawyer argued in legal briefs that Trump didn’t know about how the valuations of his assets were arrived at. I think that’s why Mazars dumped him–they weren’t going to take the fall for his fraud, and, to my understanding, Mazars merely crunched the numbers they were given–they didn’t work on raw numbers or records. Shortly after his lawyers claimed he didn’t know about the valuations, Trump declared that his assets were really worth a lot more than the valuations due just to association with his name. Even the Judge remarked that it’s very unusual for a client to contradict facts set forth by their attorney. Trump also shot himself in the foot by essentially admitting that the numbers were inflated.
I agree that Trump is not only a cheat, an inveterate liar, but an eeediot as well. I only hope that Turley will devote as many articles as he has about Palin when analyzing the billion dollar defamation lawsuits brought by Smartmatic and Dominion election companies against his own Fox News. To date, he has seen fit to make a single incidental reference buried in an article about Project Veritas’ defamation lawsuit against the NYT! We all know that he has an actual conflict of interest since he worked for Fox during its alleged defamations; so it stands to reason that Turley may be unable to comment further.
Assuming arguendo that Fox producers did NOT consciously lie, the question obtains whether they were indifferent to the falsity of their broadcasts. Did the shows’ producers have good reason or any reason to believe that their election statements were suspect? Unlike the hosts on whose shows he from time to time appeared, Turley was far more circumspect in his pronouncements about voter fraud in the election. Despite the naysayers, he advocated in favor of presenting evidence of massive voter fraud, if any, in court, but he counseled that Republicans should embrace a “wait and see” attitude before jumping to the conclusion that the election was stolen or otherwise rigged.
It would seem then that Turley would be an obvious material witness since he did not embrace the Big Lie. He could testify whether he informed his Fox bosses that they were engaging in *advocacy journalism” in making unsubstantiated claims that he was unwilling to make himself for fear of defaming these companies. In the interest of full transparency, will Turley inform us if he has been deposed in these cases?
And now comes the NYT HEADLINE and sub-headline:
DURHAM DISTANCES HIMSELF FROM FUROR IN RIGHT-WING MEDIA OVER FILING
“The special counsel implicitly acknowledged that White House internet data he discussed, which conservative outlets have portrayed as proof of spying on the Trump White House, came from the Obama era.”
The article stated in part:
“John H. Durham, the Trump-era special counsel scrutinizing the investigation into Russia’s 2016 election interference, distanced himself on Thursday from false reports by right-wing news outlets that a motion he recently filed said Hillary Clinton’s campaign had paid to spy on Trump White House servers.”
“Citing a barrage of such reports on Fox News and elsewhere based on the prosecutor’s Feb. 11 filing, defense lawyers for a Democratic-linked cybersecurity lawyer, Michael Sussmann, have accused the special counsel of including unnecessary and misleading information in filings “plainly intended to politicize this case, inflame media coverage and taint the jury pool.”
“In a filing on Thursday, Mr. Durham defended himself, saying those accusations about his intentions were “simply not true.” He said he had “valid and straightforward reasons” for including the information in the Feb. 11 filing that set off the firestorm, while disavowing responsibility for how certain news outlets had interpreted and portrayed it.”
“If third parties or members of the media have overstated, understated or otherwise misinterpreted facts contained in the government’s motion, that does not in any way undermine the valid reasons for the government’s inclusion of this information,” he [Durham] wrote.”
——————
According to Durham, Turley’s Fox News is guilty of— wait for — *advocacy journalism.*
After Durham’s filing, Fox News has completely nixed this supposed scandal from its programming! The ONLY question is whether Turley will condemn his employer for deliberately overstating facts contained in the government’s motion.
I’m betting we will hear the sounds of silence from our esteemed professor. The word has gone out- shush!
Are we correct to suppose Durham’s findings were meant to expose the wrongdoing of high-placed officials and the bureaucracy so they could be appropriately prosecuted? In that case, I think we would have heard a lot earlier before the statute of limitations prevented prosecutions. We would also have seen Clinesmith face much stronger punishment. I have little faith in the Durham findings, not that there aren’t loads of stuff that should be released and are destructive to the left. Instead, I don’t think that is the intention. In the end I believe things will be minimized and history rewritten.