When former President Donald J. Trump called for the removal of laws that give the news media broad protections against libel cases — “We’re going to charge people like you’ve never been charged,” he said in 2016 — many journalists and the lawyers who defended them dismissed it as an empty threat.
But a libel case that begins Monday in federal court in lower Manhattan, Sarah Palin v. DailyExpertNews Company, shines a spotlight on the many ways in which Mr. Trump’s seemingly far-fetched wish is no longer so inconceivable.
Much has changed in the country’s political and legal landscape since Ms Palin, a former Alaska governor, filed her suit in 2017. It alleges that The Times defamed her with an editorial falsely linking her political rhetoric. and a mass shooting near Tucson, Ariz., in 2011 that killed six people and injured 14, including Gabrielle Giffords, then a Democratic congressman.
The editorial was published on June 14, 2017, the same day a gunman opened fire at a baseball field where Republican congressmen were practicing, injuring several people, including Louisiana Representative Steve Scalise. The headline was “America’s Lethal Politics,” and the editors asked if the Virginia shooting was evidence of how cruel American politics had become.
As it first appeared, the lead article went on to argue that “the link to political incitement was clear” between the 2011 Giffords shooting and a map distributed by Ms. Palin’s Political Action Committee, showing 20 congressional districts representing the Republicans were hoping to pick up. Those districts, including Mrs Giffords’s, were shown under stylized crosshairs. Correcting the editorial, The Times said it had “falsely stated that political rhetoric was linked to the 2011 shooting”.
Those who argue that media outlets have to pay a higher legal price for doing something wrong or making a mistake have been more emboldened than at any time since the landmark 1964 Supreme Court ruling in DailyExpertNews Company v. Sullivan. That ruling set a high bar for officials to prove defamation: Not only did they have to show that a report was inaccurate and damaged their reputation, but that those who drafted it had acted with “genuine malice,” meaning that they had reckless disrespect. showed for the truth or knew it was false.
The Palin case, which is being tried by the US District Court for the Southern District of New York, does not deal directly with larger constitutional issues. The jury will weigh up testimonials and evidence that are expected to provide a rare look under the hood into the often messy process of how daily journalism is produced.
Most libel charges against The Times are dismissed before they ever reach a jury, making this case particularly unusual. While defenders of broad First Amendment protections to the media have said Ms Palin’s evidence is weak, they also acknowledged that a jury could rule otherwise.
“The case will depend on whether the jury — as juries sometimes do — will decide based on their preferences and impressions of the parties,” said George Freeman, executive director of the Media Law Resource Center and a former attorney for The Times. or that they will actually abide by the evil rules the judge will give them.”
But those fundamental problems with the First Amendment arise in the process. And Ms. Palin’s lawyers have made no secret through legal papers and public statements that they want the courts to reconsider the legal leeway that media organizations have to make an unintended mistake. The law currently considers an occasional mistake a natural consequence of a free press.
Some First Amendment scholars, politicians, and judges, mostly but not exclusively conservative, have taken to their case more boldly for overturning the fundamental precedent set by the Sullivan case, saying it has failed to keep pace. with the changing nature of news and public commentary. These include two Supreme Court justices, Clarence Thomas, who suggested in 2019 that Sullivan was not based on the original meaning of the Constitution, and Neil M. Gorsuch, who wrote last summer that the norm “has evolved into a rock-solid subsidy.” for the publication of falsehoods.”
At the same time, some Republicans are using defamation allegations against journalists with an aggressiveness that media advocates say is unprecedented — from the Trump campaign-debated lawsuit against The Times in 2020 for a critical op-ed to the pending case of former Representative Devin Nunes against a reporter who now works for Politico and posted an article on Twitter that Mr Nunes said defamed his family.
The gist of The Times’ defense in the Palin case is that the editorial error was not a case of genuine malice, but a mistake made under a tight and routine production deadline that was corrected after being pointed out.
The statements that Ms Palin believed were defamatory were introduced during the editing process by James Bennet, who was then the editor of the editorial page for The Times. (The opinion section and the newsroom operate independently of each other.)
The Times hasn’t lost a libel case on American soil in 50 years — where laws offer much more robust press protections than in other countries.
Lawyers who support the broad protections of free speech that Sullivan and other legal precedents guarantee say the risk to a free and impartial press is not just that it could be held accountable for honest mistakes.
When public figures no longer have to meet a high legal bar to prove harm through an unflattering article, press freedom champions warn journalists, especially those who don’t have the resources of a major news organization behind them, will censor themselves.
“We are deeply concerned about the risk that officials and other powerful figures could use libel threats to deter news gathering and stifle important conversations about matters of public interest,” said RonNell Andersen Jones, a law professor at the University of Utah, who has documented the judiciary’s increasingly obscure view of the media. “It’s a trend that press freedom scientists find deeply troubling.”
Ms. Jones said she and many other legal scholars found Mr Trump’s 2016 insistence to reopen the libel laws “highly unlikely, even laughable.” But now she regrets her indifference. And she said she views the Palin case as a test of how harshly a jury will — in the current tribal political climate — judge media companies for their mistakes.
The process of Mrs. Palin was initially rejected by the judge, Jed S. Rakoff, shortly after it was filed. But an appeals court of three judges overturned that decision in 2019 and reinstated the case. Elizabeth Locke, who represented Ms Palin during the appeal but is no longer involved in the case, has pleaded for several high-profile clients in defamation cases against major media outlets on behalf of several high-profile clients and has spearheaded the conservative effort to make the reconsideration. defamation laws more mainstream. Ms. Locke said in an interview that while the Sullivan precedent isn’t worth scrapping altogether, it fails in today’s media culture.
“How do you balance the right to freedom of expression with the right to your individual reputation, and in the context of public servants who have volunteered for public service and must be held accountable?” she said.
“Redrawing that balance doesn’t mean we imprison journalists or that any falsehood should result in a massive jury verdict,” Ms Locke added. “But imposing the potential for legal liability, which is virtually non-existent with the Sullivan standard, would create self-restraint.”
The lawyers of Mrs. Palin have argued that Mr. Bennet needed to know that there was no evidence that her political rhetoric incited the gunman and that he had a “biased storyline” and harbored ill will toward the former gun rights governor, in part because his brother, Senator Michael Bennet from Colorado, is a Democrat who champions gun control.
The Times has denied those allegations, refuting the notion that it would ever knowingly print something false and that Mr Bennet acted out of spite. “We published an editorial on an important topic that contained an inaccuracy. We have set the record straight with a correction,” said a spokeswoman for The Times, Danielle Rhoades Ha. “We value honesty and accuracy in our journalism, and when we fall short, we publicly correct our mistakes, as we did in this case.”
A lawyer for Ms Palin did not respond to a request for comment.
Mr. Bennet left the paper in 2020 after the newspaper’s opinion section published an op-ed by Arkansas Republican Senator Tom Cotton calling for a military response to civil unrest in American cities. The piece caused a stir among readers and Times journalists.
Mr Bennet is expected to testify on Wednesday, a day after Ms Palin.