May 28, 2024
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An Absent Agreement of Absence of Malice

It’s been adjourned, but the issues involved in this trial are important—and fascinating.

It is typically almost impossible to win a libel trial against the media when you are a public personality. I doubt that even Sarah Palin would argue that she has not thrust herself into public recognition. Regardless of whether you consider Alaska to be remote, she has about 20 years of history as a political candidate and, subsequently, as a media personality. Generally, that would make her open game for criticism.

The First Amendment of the Constitution also provides an express lane for “press” coverage. By all reasonable interpretations, this includes all modern media. For practical purposes in this instance, the First Amendment states: “Congress shall make no law respecting … the freedom of the Press.”

For the past half-century, from the interpretation of the bedrock Supreme Court case of Sullivan v. The New York Times, the law of the land has restricted claims for defamation with respect to the media as not only requiring the subject to prove that the published material is false, but also that the media outlet intended to be malicious—basically that they, or in this case, The New York Times—intended harm. And that is where this case becomes interesting.

The defamation case involves a New York Times article in which the Times alleged that Palin encouraged that then-Arizona representative Gabby Giffords be shot, and encouraged conservatives to shoot her. The Times included a link Palin posted on social media which featured “bullets” of candidates to be targeted.

Subsequently, Giffords was shot and injured. The Times at the very least implied that Palin was responsible.

Palin, in response, stated that the posting was metaphorical and targeting candidates was a standard approach of both parties, nor did she ever state that she sought physical harm to Giffords. Palin added that there is no history of her seeking an attack on Giffords or anyone else; she demanded a retraction.

The Times gave Palin her retraction and stated in a correction that it was erroneous to insinuate that Palin ever intended to harm Giffords. Nevertheless, Palin maintained that just by the publication of the initial article her reputation was injured.

In almost all cases, a media retraction would end the viability of any legal claim, but something interesting happened on the way to the courthouse … by virtue of the legal standard, The New York Times could have responded that in answer to Palin’s complaint, that their publication was meant to be illustrative, but not a factual formulation. That would have protected them from the legal prong of intent to defame. The Times did not do that. Instead, they have already stated the information was “false.” They did not say it was an interpretive issue that would have likely ended the inquiry, but by conceding the falsity of the publication all the Times left for the inquiry was the malicious intent of the publication. That presents a problem for the Times—and for most present-day media. It also explains why the Times is spoiling for a fight.

The Times’ legal argument is that as a media outlet and under the First Amendment they should be free from scrutiny. In essence, the Times, rather than going for the first down after advancing significant yardage, is seeking the endzone on third and 10. As a result, they are heading to trial.

There are significant policy reasons why the Times chose this approach. First, the Times, like many media outlets today, has changed their mission from being an objective source of news to being a source for “truth.” The Times sees itself as the stalwart of reason. No longer “All the News That’s Fit to Print,” the Times coincides with The Washington Post slogan that “Democracy Dies in Darkness.” The Times, the Post and most media are not seeking to report, but rather to tell.

More importantly, the Times knows that the prong that leaving malicious intent open to jurors puts the publication at peril.

The Times has openly and repeatedly maligned conservative candidates, including but not limited to Palin. It’s not just metaphorical bullets, but boldfaced editorials that show the real target of the Gray Lady’s reporting.

There is one more aspect to the ruling that the Times and traditional media are seeking—and that goes back to a judicial meaning of the First Amendment.

The Times wants a clear judicial ruling that traditional media, unlike freelancers or bloggers, enjoy a First Amendment immunity from defamation, as “the press.” The Times wants a definition that the “press” is not anyone with a keyboard, but requires a professional component. Until now, courts have not been willing to give the Times or other professional media that currency.

However, in refusing to concede an artistic interpretation, the Times is willing to risk a trial. So far they have not been able to dismiss the damage they caused to Palin, damage the paper has in effect conceded.

So the trial will play out. No matter how the jury decides, it is unlikely to be the final word.

The traditional media in the 1960s, at the time that Sullivan was decided, was expected to be the gatekeeper of truth, and the traditional media expressed that that was their standard. Today, the definition of media is greatly expanded, just as the expression of media as a “truth-teller” has greatly retracted.

The relationship between reporter and reported needs to be revisited. Ultimately it will be up to a judicial review to decide. The freedom of the press is the beginning of the story, but the absence-of-malice test is exhausted. Even The New York Times, by going to trial but not taking advantage of the lifeline after admitting that their publication was false, is saying so.


Stephen R. Loeb heads the Law Office of Stephen R. Loeb, a civil practice in New Jersey and New York. He can be reached at [email protected]

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