Moose Lady Versus The Media Isn't Over

Sarah Palin's libel case against the New York Times ran into twin buzzsaws of reality this week, with the judge dismissing the case for lack of merit, and the jury already in the deliberation stage returned a unanimous verdict of Palin's loss. But as TPM's Bill Kovarik explains, the case is far from over and almost certainly headed for the Roberts Court, where Justices Thomas and Gorsuch lie in wait to dismantle legal protections for media outlets.

As a media historian, I can see the Palin case providing a vehicle to return libel laws back to a time when it was much easier for public figures to sue the press.

Before 1964’s Sullivan standard, the libel landscape in the U.S. consisted of a patchwork of state laws that made it easy for political figures to selectively persecute newspapers and public speakers who espoused opposing or unpopular views.

For example in 1949, John Henry McCray, a Black editor from South Carolina, served two months on a chain gang after being charged with criminal libel for writing a story about a racially charged execution. White publications reporting the same story were not charged.

Similarly, in a 1955 libel case, Dr. Von Mizell, a Black surgeon and NAACP official, was ordered to pay a US$15,000 fine for writing in opposition to a Florida state legislator’s idea of abolishing public schools instead of integrating them.

Then came the Sullivan case. It centered around several tiny mistakes in a civil rights advertisement carried by The New York Times. L.B. Sullivan, a public official not even named in the advertisement, sued for defamation, and the case went from Alabama to the U.S. Supreme Court.

In setting the Sullivan standard in 1964, the Supreme Court said in effect that it ought to be difficult for any official at the federal or the state level to prove that a falsehood was libelous enough – and personally damaging enough – to surmount First Amendment protections.

The court said a public official could not win a libel lawsuit by citing minor mistakes, technical inaccuracies or even outright negligence. Instead, under the Sullivan standard, a public official had to prove that there was “actual malice,” which means that a critic knowingly published something false or was in reckless disregard of the truth.

The court insisted that “debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on public officials.”

Originalists on the current Supreme Court – that is, those justices who believe that the Constitution should be interpreted as it was by those crafting the original document – seemingly disagree.

Justice Thomas, in a 2019 opinion, suggested the Sullivan ruling failed to take into account “the Constitution’s original meaning.” He followed this up in a 2021 opinion that stated the requirement on public figures to establish actual malice bears “no relation to the text, history, or structure of the Constitution.”

Some legal scholars have argued that originalism doesn’t cut much ice when it comes to First Amendment protections. After it passed in 1791, the First Amendment was open to so many state interpretations that there is no agreement on what the accepted interpretation of the day was.

Nonetheless, should Palin appeal against the latest ruling, it is likely that the case could reach a Supreme Court in which at least two justices seem primed to challenge the decades-old Sullivan rule.

Given the Roberts Court track record on dismantling standing precedent in order to push the country into 1850 Federalist hell, don't be surprised if this come back to haunt an America that, by the time SCOTUS gets to destroying Sullivan, will have already lost Roe, the Civil Rights Act, the rest of the Voting Rights Act, affirmative action, and probably the law of gravity.

It'll take some time for this one to work its way up, but I'm sure SCOTUS will hear it in 2023 or 2024.