May 19, 2022

Sarah Palin v. New York Times Spotlights Push to Loosen Libel Law

Lawyers who support the broad free speech protections that Sullivan and other legal precedents guarantee say that the risk to a free and impartial press is not only that it could be held liable for honest mistakes.

If public figures are no longer required to meet a high legal bar for proving harm from an unflattering article, press freedom advocates warn, journalists, especially those without the resources of a large news organization behind them, will self-censor.

“We worry a lot about the risk that public officials and other powerful figures can use threats of defamation suits to deter news gathering and suppress important conversations on matters of public concern,” said RonNell Andersen Jones, a law professor at the University of Utah who has documented the judiciary’s increasingly dim view of the media. “It’s a trend that press freedom scholars find deeply troubling.”

Ms. Jones said she and many other legal scholars considered Mr. Trump’s insistence in 2016 that libel laws be reopened “deeply improbable, even laughable.” But now she regrets her indifference. And she said she is looking at the Palin case as a test of how harshly a jury — in today’s tribal political climate — will judge media companies for their mistakes.

Ms. Palin’s suit was initially dismissed by the judge, Jed S. Rakoff, soon after it was filed. But a three-judge appeals court panel overturned that decision in 2019 and reinstated the case. Elizabeth Locke, who represented Ms. Palin during the appeal but is no longer involved in the case, has argued on behalf of several high-profile clients in defamation suits against major media outlets and been at the forefront of the conservative effort to make the rethinking of libel laws more mainstream. Ms. Locke said in an interview that while the Sullivan precedent is not worth scrapping entirely, it fails in today’s media culture.

“How do you balance free speech rights with the right to your individual reputation, and in the context of public officials who have volunteered for public service and do need to be held to account?” she said.

“Redrawing that balance does not mean that we lock up journalists or that any falsehood should result in a huge jury verdict,” Ms. Locke added. “But imposing the potential for legal liability, which is virtually nonexistent with the Sullivan standard in place, would create self-restraint.”

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