Conventional opinion is that Sarah Palin must climb a steep hill in her fight with the New York Times. For a person of prominence to win a libel action against a big media company is so difficult that few are willing to try, and the nastiness of litigation discourages even the most intrepid, if they have any sense.
The concatenation of her unique public position and the bizarre facts of her case have served up a chance to strike a blow in the bitter contest between the Mainstream Media and the conservative movement by highlighting the extent to which the MSM has deliberately embraced a political and business strategy of fake news, and Palin is seizing it.
Current libel law doctrine might make it hard for her to win, but four additional factors make the case worth bringing.
Current libel law doctrine might make it hard for her to win, but four additional factors make the case worth bringing.
The Legal Standard
The fundamentals of libel law are the province of the individual states, but with an important qualification. In the classic case New York Times v. Sullivan (1964), the U.S. Supreme Court ruled that the First Amendment limits a state’s ability to hold a media outlet liable for libel. A defamed plaintiff who is a “public figure” must show by clear and convincing evidence that the statement was not only false but that the media outlet either knew of the falsity or was recklessly indifferent.
The court named this standard “actual malice,” which has confused discussion for over 50 years. The test has nothing do with “malice” in the conventional sense of “ill-will”—it would be better named “knowledge.” However, malice as ill-will is highly relevant to state laws, because ill-will can be used as an element of proof that a defendant was motivated to ignore warning signals, and as a basis for punitive damages. As a further complication, a daring defendant could assert its own ill-will as a defense—the plaintiff was so loathsome that the defendant was ready believe anything, and therefore did not consider the possibility that information was false.
The Supreme Court’s definition of “reckless indifference” also fits poorly with common sense, and is more stringent than most people would expect. In cases after Sullivan, the court elaborated that a failure to meet accepted professional standards for reporting is not automatically reckless indifference, nor is a failure to investigate. The defendant must have some subjective reason to doubt the truth of the allegation. (St. Amant v. Thompson (1968); Harte-Hanks v. Connaughton (1989).)
An old joke among news reporters is that something could be “too good to check,” meaning that a story was so entertaining that the reporter would be disappointed if he was unable to confirm it. Once upon a time, this was indeed a joke. The reporters laughed, but checked—usually.
Now, under the relentless pressures of the need for Internet clicks, he who checks not only risks losing the race, but might uncover reason to doubt the story, which is a bad thing indeed because it would trigger a need for more checking.
The media have adopted too-good-to-check as standard practice, relying on Sullivan and its progeny as their constitutional shield. The question that must be answered sooner or later is how solid this constitutional shield will be when the Supreme Court takes up a really egregious case. The decisions saying that failure to comply with common journalistic practices or failure to fully investigate were not “reckless indifference” did not really test the question. In each, defendants had acted with some degree of responsibility.
In the end, the “too-good-to-check” standard will fail, as an affront to common sense. As a thought experiment, consider the odds that a defendant could win in the Supreme Court by testifying: “I got a tip from a political enemy that the plaintiff was a crook and did not check it out because I was afraid I would find out she lied, and the Supreme Court says I had no duty to investigate as long as no one has told me she lied. Besides, the plaintiff is so loathsome that any accusation is inherently believable.”
Good luck with that line of defense. And sure enough, comb the fine print of the Supreme Court reports, and you find St. Amant (1979), in which the justices affirmed the broad rule that the defendant is immune unless it can be shown to have “entertained serious doubts,” but then morphed this into a more general concept of “good faith”:
The fundamentals of libel law are the province of the individual states, but with an important qualification. In the classic case New York Times v. Sullivan (1964), the U.S. Supreme Court ruled that the First Amendment limits a state’s ability to hold a media outlet liable for libel. A defamed plaintiff who is a “public figure” must show by clear and convincing evidence that the statement was not only false but that the media outlet either knew of the falsity or was recklessly indifferent.
The court named this standard “actual malice,” which has confused discussion for over 50 years. The test has nothing do with “malice” in the conventional sense of “ill-will”—it would be better named “knowledge.” However, malice as ill-will is highly relevant to state laws, because ill-will can be used as an element of proof that a defendant was motivated to ignore warning signals, and as a basis for punitive damages. As a further complication, a daring defendant could assert its own ill-will as a defense—the plaintiff was so loathsome that the defendant was ready believe anything, and therefore did not consider the possibility that information was false.
The Supreme Court’s definition of “reckless indifference” also fits poorly with common sense, and is more stringent than most people would expect. In cases after Sullivan, the court elaborated that a failure to meet accepted professional standards for reporting is not automatically reckless indifference, nor is a failure to investigate. The defendant must have some subjective reason to doubt the truth of the allegation. (St. Amant v. Thompson (1968); Harte-Hanks v. Connaughton (1989).)
An old joke among news reporters is that something could be “too good to check,” meaning that a story was so entertaining that the reporter would be disappointed if he was unable to confirm it. Once upon a time, this was indeed a joke. The reporters laughed, but checked—usually.
Now, under the relentless pressures of the need for Internet clicks, he who checks not only risks losing the race, but might uncover reason to doubt the story, which is a bad thing indeed because it would trigger a need for more checking.
The media have adopted too-good-to-check as standard practice, relying on Sullivan and its progeny as their constitutional shield. The question that must be answered sooner or later is how solid this constitutional shield will be when the Supreme Court takes up a really egregious case. The decisions saying that failure to comply with common journalistic practices or failure to fully investigate were not “reckless indifference” did not really test the question. In each, defendants had acted with some degree of responsibility.
In the end, the “too-good-to-check” standard will fail, as an affront to common sense. As a thought experiment, consider the odds that a defendant could win in the Supreme Court by testifying: “I got a tip from a political enemy that the plaintiff was a crook and did not check it out because I was afraid I would find out she lied, and the Supreme Court says I had no duty to investigate as long as no one has told me she lied. Besides, the plaintiff is so loathsome that any accusation is inherently believable.”
Good luck with that line of defense. And sure enough, comb the fine print of the Supreme Court reports, and you find St. Amant (1979), in which the justices affirmed the broad rule that the defendant is immune unless it can be shown to have “entertained serious doubts,” but then morphed this into a more general concept of “good faith”:
Meanwhile, for me, outside the castle walls with my pitchfork and tucker bag, waiting for me billy to boil, nothing could be sweeter than a quick, sharp win by the beleaguered Palin.
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