Former Alaska Governor and vice-presidential candidate Sarah Palin’s much-anticipated defamation trial against the New York Times was set to begin in federal court, but was rescheduled at the last minute after she tested positive for Covid-19 a day before jury selection was slated to begin. Defamation and First Amendment attorneys and legal scholars around the country have been keenly following the litigation as it could test key First Amendment protections for media. The trial has been rescheduled for February 3.
After learning of Palin’s positive COVID-19 test, the judge presiding over the case prepared ready to move forward with the trial, with Palin’s consent, and offered to allow her to testify via videoconference. Palin’s lawyers objected, however, and argued that she wanted to be present for jury selection and to provide her testimony live during trial.
The former governor sued the Times in 2017 over an editorial that incorrectly linked the 2011 mass shooting in Tucson, Arizona that left six people dead, including a federal judge, and gravely wounded others including Arizona Representative Gabby Giffords to a map showing certain electoral districts in crosshairs that was circulated by Palin’s political action committee. The Times later corrected the op-ed to remove any suggestion that Palin incited the shooting and apologized for the error. After Palin filed the case in federal court, the judge initially dismissed the case, but it was revived on appeal.
The case is noteworthy not only because of Palin’s notoriety but because the case deals with the limits of First Amendment protections and involves the same media defendant that brought us the landmark decision familiar to all First Amendment practitioners of New York Times vs. Sullivan. The New York Times case introduced the “actual malice” standard when public figures sue media defendants for defamation or libel. Its progeny has articulated robust protections to journalists and news outlets when a public figure accuses media defendants of defamation.
Under the actual malice standard, public figure plaintiffs must not only prove that their reputation was damaged. They must also prove that the media defendant who published the defamatory material knew of its falsity or acted with reckless disregard for the truth.
Palin’s case brings the actual malice standard sharply in focus and will be front and center in the trial. The case will seek to define the line between poor journalism and libelous journalism. Palin has argued that the Times knew its incitement claims were false at the time it published them. The Times has defended itself saying it made an honest error, which it sought to correct.
Palin’s legal team has indicated that it plans to argue that the paper and its former editorial page editor, James Bennet, who added the incitement language to the op-ed had it out for the former governor for years. They will argue that Bennet’s disdain for Palin dates back to before he even joined the Times and that this disdain drove him to disregard his colleagues’ advice and the Times’ own previous coverage about Palin and include the defamatory statements in the piece.
Legal scholars generally agree that Palin’s suit faces long odds at trial. Regardless of the outcome of the trial, it could set off a flurry of appeals that could ultimately land the case before the Supreme Court, where multiple justices have called for a reexamination of New York Times v. Sullivan standard. We will continue to monitor the case and report on further developments.
Lubin Austermuehle’s Cook County defamation and libel lawyers near Skokie and Wheaton have more than thirty years of experience helping businesses and individuals navigate the complexities of defamation and First Amendment law. Super Lawyers named Chicago and Oak Brook business trial attorney Peter Lubin a Super Lawyer in the Categories of Consumer Rights Litigation, Class Action, and Business Litigation and Chicago slander attorney Patrick Austermuehle a Rising Star. Our trial attorneys represent and defend consumers’ First Amendment and free speech rights to criticize businesses who are guilty of consumer fraud and false advertising. We also represent businesses that are the victims of fake rating sites that pretend to provide independent reviews while actually being set up by manufacturers to promote their products and bash competitors. You can call us on our locally at 630-333-0333 or contact us online here.