The New Neo

Sarah Palin is suing the NY Times for defamation: This is the issue:

At the center of the 2008 GOP vice presidential nominee’s federal suit is a 2017 editorial that incorrectly linked Palin to the 2011 mass shooting in Arizona where six people were killed and more than a dozen were injured, including then-Congresswoman Gabby Giffords.

The editorial “falsely stated as a matter of fact to millions of people that Mrs. Palin incited Jared Loughner’s January 8, 2011, shooting rampage at a political event in Tucson, Arizona,” lawyers for the one-term Alaska governor wrote in the complaint…

For Palin to win, her lawyers can’t just prove the Times was wrong, which the paper has already said it was. She must show that the editors and writers at the paper acted with malice, ignoring the facts on purpose to sully her name. The Times has called it an “honest mistake” that happened in a rush on deadline.

But the Times had already published earlier articles indicating it already knew the assertions in their 2017 editorial were false, so unless they don’t know what’s in their own paper, they shouldn’t be able to plead ignorance successfully. And yet, under New York Times Company v. Sullivan, the case that established the “actual malice” standard, they may be able to do exactly that.

The Palin case reminds me of a post I wrote about a year ago about the “actual malice” standard for defamation lawsuits against the press, an almost impossibly high bar to a plaintiff succeeding in such lawsuits even with egregious defamation on the press’s part. And so the rest of this post is going to be a repeat of that earlier post.

When I first learned about Sullivan back in law school aeons ago, I remember being disturbed by the case. It’s not that I had a better solution. But it was easy to see the problem: how best to balance the need to have a free press with the need to protect people, even people in public life who are written about a great deal, from libel?

Sullivan‘s solution – to raise the bar for libel exceptionally high and to make actual malice (“meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true”) necessary for a defamation finding against the press when a public person is the one maligned – presents the dangers of lies going unchecked and running rampant. But muzzling the press unduly isn’t good either.

Back in 1964, when the case was decided, the situation was exceedingly different than it is today. Now we have a press that has no regard for truth, is almost wholly partisan and firmly on the left, and willing to do almost anything to help its side win.

As with so many other things, none other than Donald Trump recognized the problem, since he has been the target of it. Even back during his 2016 campaign he was critical of the ruling, for obvious reasons:

One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected,” Trump said.

I’m not sure how he thought he might do that, but at any rate it didn’t happen, and things have only gotten worse with the shameless and naked partisanship of the press plus the power of social media.

Even as early as 1985, one of the justices who voted for Sullivan expressed regret:

[I]n a 1985 case that helped refine how the Sullivan ruling applied in when a plaintiff was neither a public official nor a public figure, Justice Byron White expressed regret for the “actual malice” test that he had agreed with in Sullivan. “I have,” he wrote, “ … become convinced that the Court struck an improvident balance in the New York Times case between the public’s interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation.” Chief Justice Warren Burger, who joined the court four years after Sullivan was decided but presided over the several of the cases that refined the Sullivan standard, agreed with White in his own concurring opinion.

Justice White’s description of the competing interests as he saw them is quite interesting. He sees on one side “the public’s interest in being fully informed about public officials and public affairs” and the other side as “the competing interest of those who have been defamed in vindicating their reputation.” Public versus individual interest – I believe that’s the traditional view. But what of the public’s interest in being informed of the truth rather than falsehoods? Do we not all have an interest in that? However, who determines what’s true and what’s false? After all, the MSM and social media gatekeepers and the left (redundant, I know) keep saying it’s they who tell the truth and those on the right who lie.

Justice Clarence Thomas also critiqued Sullivan back in 2019, saying that it and subsequent allied rulings “were policy-driven decisions masquerading as constitutional law.”

And yesterday Judge Laurence Silberman, a Reagan-appointed judge on the DC Circuit Court, issued a scathing dissent in a defamation case that’s gotten some attention:

The New York Times and The Washington Post are “virtually Democratic Party broadsheets,” while the news section of the Wall Street Journal “leans in the same direction,” U.S. Circuit Judge Laurence Silberman said. He said the major television outlets and Silicon Valley giants were similarly biased.

“One-party control of the press and media is a threat to a viable democracy,” Silberman wrote. He exempted from his criticism of “Democratic ideological control” Fox News, The New York Post, and The Wall Street Journal’s editorial page. But he lamented that these outlets are “controlled by a single man and his son,” a reference to Rupert and Lachlan Murdoch, and questioned how long they could hold out.

Here’s a sample of the actual wording of the dissent:

After observing my colleagues’ efforts to stretch the actual malice rule like a rubber band, I am prompted to urge the overruling of New York Times v. Sullivan. Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. See McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari). The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 380–88 (1974) (White, J., dissenting). As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth. New York Times should be overruled on these grounds alone. …

One can understand, if not approve, the Supreme Court’s policy-driven decision. There can be no doubt that the New York Times case has increased the power of the media. Although the institutional press, it could be argued, needed that protection to cover the civil rights movement, that power is now abused. In light of today’s very different challenges, I doubt the Court would invent the same rule.

As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon. Cf. New York Times, 376 U.S. at 305 (Goldberg, J., concurring) (reasoning that the press will publish the responses of public officials to reports or accusations). But see Suzanne Garment, The Culture of Mistrust in American Politics 74–75, 81–82 (1992) (noting that the press more often manufactures scandals involving political conservatives). The increased power of the press is so dangerous today because we are very close to one-party control of these institutions. Our court was once concerned about the institutional consolidation of the press leading to a “bland and homogenous” marketplace of ideas. See Hale v. FCC, 425 F.2d 556, 562 (D.C. Cir. 1970) (Tamm, J., concurring). It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat.

Much much more at the link. At the end of the article there, you can find links to a whole bunch of pieces reacting to Silberman, many of them – of course – from the leftist press.

I’m with Silberman, and have been from even before my political change. However, the problem of the proper standards remains – and of course, it’s not just the press that is biased to the left at this point. A great deal of the judiciary is as well. So I’m not sure the remedy lies in the judicial system at all.

In closing I’m going to include a quote offered this morning by commenter John Tyler, something William Shirer wrote as part of his reporting from Nazi Germany in the 30s:

I myself was to experience how easily one is taken in by a lying and censored press and radio in a totalitarian state. Though unlike most Germans I had daily access to foreign newspapers, especially those of London, Paris and Zurich, which arrived the day after publication, and though I listened regularly to the BBC and other foreign broadcasts, my job necessitated the spending of many hours a day in combing the German press, checking the German radio, conferring with Nazi officials and going to party meetings. It was surprising and sometimes consternating to find that notwithstanding the opportunities I had to learn the facts and despite one’s inherent distrust of what one learned from Nazi sources, a steady diet over the years of falsifications and distortions made a certain impression on one’s mind and often misled it. No one who has not lived for years in a totalitarian land can possibly conceive how difficult it is to escape the dread consequences of a regime’s calculated and incessant propaganda. Often in a German home or office or sometimes in casual conversation with a stranger in a restaurant, a beer hall, a café, I would meet with the most outlandish assertions from seemingly educated and intelligent persons. It was obvious that they were parroting some piece of nonsense they had heard on the radio or read in the newspapers. Sometimes one was tempted to say as much, but on such occasions one was met with such a stare of incredulity, such a shock of silence, as if one had blasphemed the Almighty, that one realized how useless it was even to try to make contact with a mind which had become warped and for whom the facts of life had become what Hitler and Goebbels, with their cynical disregard for the truth, said they were.