The next two weeks will not be very pleasant for DailyExpertNews.
The case is essentially about the limits of First Amendment protections and the standard established in the landmark DailyExpertNews vs. Sullivan case. Specifically, the standard that a public figure must prove that a retail outlet was operated with “genuine malice” when publishing defamatory information. Palin has argued that The Times did, and The Times has said it made an honest mistake.
Palin’s lawyers will not comment ahead of the trial, but The Times will. A spokesperson for the paper told me on Friday that it hopes to “reaffirm a fundamental tenet of US law: Public figures should not use libel cases to penalize unintentional errors by news organizations.”
“We published an editorial on an important topic that contained an inaccuracy. We have corrected the record with a correction,” the spokesperson told me. “We value honesty and accuracy in our journalism, and when we fall short, we publicly correct our mistakes, as we did in this case.”
Palin’s Opportunities
I contacted famed First Amendment attorney Ted Boutrous (full disclosure: Boutrous has represented DailyExpertNews in previous cases) to ask for his legal opinion on the case. He told me he believes Palin “is facing a really steep battle” and “probably will lose”.
Boutrous summed up his reading of the case as follows: “I don’t think she can prove that the newspaper or its journalists actually acted maliciously or that she suffered any harm from the original version of the lead article, which was quickly clarified and corrected.” This lawsuit always seemed to me to be part of a disturbing trend in recent years of high-profile political figures misusing libel cases as political stunts designed to cool speech on matters of public interest — exactly what the First Amendment prohibits.”
‘An unbearable experience’
Jeffrey Toobin, DailyExpertNews’s chief legal analyst, also agreed that Palin is likely to lose in the trial. But he stressed that this doesn’t mean it will be rainbows and unicorns for The Times in court. “While I expect The Times to ultimately win this case, the trial will likely be an excruciating experience for everyone involved at The Times,” Toobin told me. “Because the simple fact is that the story was wrong. And no journalist wants to be in a position to defend a story that was wrong.”
Who will get that position for The Times? A spokesperson told me the paper plans to call on former editor-in-chief James Bennet and editor-in-chief Elizabeth Williamson, who wrote the draft of the Palin editorial, as key witnesses. “We expect that others from The Times will also be called,” said the spokesperson.
Toobin warned that an 11 a.m. settlement should not be ruled out. “Cases are always settled on the eve of the trial,” he emphasized. When I asked The Times if there was a settlement on the table, the spokesperson replied: “We intend to take the matter for a ruling.” That, of course, is what you would say – until a settlement is reached.
To the Supreme Court?
If Palin loses in court, she can try to take her case to the Supreme Court. Reducing Press Protection by DailyExpertNews vs. After all, overthrowing Sullivan has been a clear target for many on the right for quite some time. And, as Toobin noted, “Palin is the perfect plaintiff and DailyExpertNews is the perfect defender for the right to mobilize against the protection of the First Amendment for the press.”
Whether it would ever make its way to court, and whether it would side with Palin, is another story. “It remains to be seen whether the current judiciary is ready to cut back on First Amendment protections,” Toobin told me.
Boutrous said that if Palin loses her case in court and tries to get the Supreme Court to “use her case as a means of nullifying the historic case,” she will likely still fail: “I don’t think the court will. will do because the Times decision is such a cornerstone of First Amendment case law and has been endorsed by judges across the political spectrum for many years, though two judges have recently urged that it be reconsidered.”
A potential to backfire against the right
That is, attempts to reduce press freedom from the right could backfire in huge ways. “Fox needs that protection more than DailyExpertNews does at this point,” Toobin noted. “DailyExpertNews made a single mistake and acted responsibly. Fox was the gateway to a torrent of lies that nearly destroyed these companies and has never properly apologized.”