Public figures race to court with bogus grievances (and they know it)
/Sarah Palin: I think I’ll file a libel lawsuit against a news organization that’s so legally flimsy that both the judge and jury will decide against me.
Kyle Rittenhouse: Hold my beer.
It’s becoming fashionable for individuals on the far right of the political spectrum who believe they are the unfair targets of the news media to engage in defamation litigation that’s purely grandstanding and harassment.
the march 29, 1960 advertisement in the new york times that sparked a landmark libel lawsuit by a montgomery, alabama, government official.
Palin, a former Republican vice presidential nominee, unsuccessfully sued The New York Times over an editorial that wrongly stated that a campaign advertisement by her political action committee had prompted a man to kill multiple people at a political rally in Arizona six years earlier.
Then Rittenhouse, the acquitted killer of two people at a protest in Kenosha, Wisconsin in 2020, announced this week on various media forums that he plans to sue selected celebrities and news organizations for their negative coverage of him, including labeling him as a “murderer.” He’s launching “The Media Accountability Project” to raise money for his efforts. This is so heroic that I have tears in my eyes.
Donald Trump and former Republican congressman Devin Nunes are others on this list. Lawyers, as officers of the court, are supposed to prevent misuse of the court system, but the politically motivated ones won’t. This is despite knowing how remarkably difficult it is for a public official or public figure (such as a celebrity) to win a libel suit.
To do so, a public official or figure must prove that the accused publication acted with “actual malice.” That’s a really terrible name, because it implies personal animosity. A good plaintiff’s lawyer would certainly love to show personal animosity in court, but that’s not the definition. The standard of actual malice means the defendant published a false and damaging statement either knowing that it was false or showing “reckless disregard” for whether the statement was true or false. Making a mistake due to simple negligence is not actual malice.
This standard of proof arose from a court case that started in Alabama in 1960. A group of civil rights activists placed a full-page advocacy ad in The New York Times that contained minor factual errors. Southern politicians at the time liked to use litigation to try to impede the Northern press that was reporting on the civil rights movement, and Montgomery police commissioner L.B. Sullivan took exception to an inaccurate description of his officers’ actions toward protesting students at Alabama State University. He sued The Times.
Under existing law, Sullivan needed to prove only that the ad contained errors and that they damaged his reputation. A Montgomery County jury awarded Sullivan $500,000, a huge amount for that era, and the Alabama Supreme Court upheld the verdict. The U.S. Supreme heard the case on appeal, and in 1964 it created the actual malice standard for libel against public officials and reversed the verdict. So New York Times Co. v. Sullivan, one of the landmark cases of press protection, didn’t even involve a reporter writing a news story.
The reversal was unanimous. Two justices even argued that the actual malice standard offered too little protection.
More recent SCOTUS cases that came from Alabama – Shelby County v. Holder, McCutcheon v. FEC – have damaged the quality of democracy in this country. NYT vs. Sullivan enhanced it.
News outlets that fear legal liability arising from unintentional errors might shy away from tough reporting on powerful people who owe accountability to the public.
“Without it, there would be a chilling effect on speech from the media – a self-censorship that in the end would be far more harmful to the public at large than anything the media might say about a public figure or official,” said my department colleague, Dr. Dianne Bragg, who teaches media law.
At the same time, the ethical press doesn’t treat the actual malice standard as a license for sloppy journalism. And Bragg believes “any serious malfeasance on the part of the media can result in a successful case.”
Despite all the press freedom it has brought – probably because of it, actually – the Sullivan precedent may be in danger. Some conservative judges, including two on the U.S. Supreme Court, have publicly expressed interest in revisiting (translation: trashing) the 1964 ruling. Educated speculation is that Palin brought her lawsuit with the intent of giving a friendly high court a chance to lower the bar for media culpability.
If that happens, Bragg does not expect a neutral re-examination of legal foundations. She thinks some justices will be guided by their animosity toward the news media.
This is likely. It would be a natural move for conservatives in power who see the good work of the (usually) liberal press as a threat or, at least, a nuisance. It has to chafe them that an establishment institution like the U.S. Supreme Court gave the press such a formidable shield that allows it to thrive.
“Debate on public issues should be uninhibited, robust, and wide-open...”