As the Times pretty much admitted at trial, this was a fact situation where it was sloppy and did not meet its usual high journalistic standards. Whether it was because the editor, James Bennet, was on deadline, miscalculated how people might read his words, or just plain inexplicably screwed up, the editor and, to a lesser degree, his staff were somewhere between negligent and sloppy. And Bennet, the Times’ main witness, is Yale educated and was often described as an intellectual, not characteristics that would endear him to most jurors.
In contrast, the victim, who said she couldn’t sleep at night because of the libel suggesting that she was responsible for attempted murder (although she was painfully unable to articulate any further damage), was a former national-office candidate. She is generally described as folksy or charismatic, adept at connecting with average Joes; and she had done little over the past few years other than being a mom and performing on TV—ideal training for the witness stand.
The “Actual Malice” Issue and the Wild Card of a Jury Trial
This setup seemed dangerously poised for a jury verdict for the plaintiff. Indeed, even with fewer one-sided facts and characters as here, Media Law Resource Center (MLRC) research shows that through the last 40 years, plaintiffs have won 60–67 percent of libel trials against media defendants. The niceties of actual malice law generally do not overcome the feelings and impressions of the jury—even if, as is not always the case, the jury understands actual malice. And that is not really the jury’s fault because actual malice has nothing to do with malice as laypeople commonly understand the word. And when a judge’s instruction then defines actual malice as involving “reckless disregard,” that adds to the confusion as recklessness seems synonymous with negligence. That is, of course, precisely the opposite of actual malice in libel terms.
On the other hand, the judge in this case did carefully lay out what actual malice really means, and he did it both at the beginning of the case as well as in his instructions at its end. And it was clear from the start of the litigation, as the early motion practice amply showed, that there was no evidence of legal actual malice in this case, let alone by clear and convincing evidence. There was not even a shred of evidence that the editor intentionally tried to railroad Palin or that he doubted anything that he wrote. The plaintiff’s attempts to prove actual malice were implausible: that the editor’s brother was a Democratic senator from Colorado and thus had an animus against Palin; that the Atlantic had written articles contrary to what was in the editorial, and that because Bennet had been its top editor, he was surely aware of that as he wrote; and, even more outlandishly, that this was a brazen attempt by the Times to sensationalize in order to get more subscribers and more clicks.
The sensationalism argument is simply laughable as Times writers are punctilious in trying to get all of their facts right and, as was demonstrated by numerous internal emails at the trial, get very upset if they make an error and work to correct it immediately. From personal experience, I can attest that they really don’t care about or consider the business side or the circulation ramifications. Anyhow, how are two sentences deep in an editorial, which itself is deep inside the paper, going to serve to grow circulation? It’s a preposterous plaintiff mantra.
So, the trial presented a stark dilemma. Would the jurors go with their gestalt feelings—that the Times screwed up, at least somewhat hurt the plaintiff, and deserved to pay for it? Or would they hew to the technical and nuanced definition of actual malice as directed by the jury instructions, and then inevitably decide that there simply was no subjective intent to falsify and therefore no actual malice?
Of course, we now know that the jury did what it was supposed to—that is, followed the instructions and, after lengthy deliberations, found for the Times. So, to the credit of the jurors, and to the wisdom of following Justice Brennan’s opinion in Sullivan, the idea was reinforced that we must sometimes live with unintentional errors for the more important value of robust, uninhibited, and wide-open speech on public issues. Although it would have been easy for the jury to go with its gut, it followed the law. Sullivan and the use of the actual malice standard passed the test.
Two Side Notes Relating to the Trial
Two side notes.
First, the lawyers for the Times could have tried to minimize their client’s error to convince the jury that it wasn’t that much of a screwup after all. That is a human instinct in the face of wrongdoing: “What we did wasn’t so bad!” To their credit, they underplayed that argument, and that’s fortunate as I believe that it would have alienated the jury. Rather, they fully admitted error and relied on the jury to follow the actual malice rule. That confidence in the jury was rewarded.
Second, and relatedly: It is extremely unfortunate that we haven’t heard from any juror. For all of the reasons set forth in this essay, it would be invaluable to get a sense of how the jurors analyzed the facts and the law, and how they came to their decision. But the judge strongly suggested to them that they need not talk to the press, and they apparently have heeded that advice. So, much that we lawyers could learn about how actual malice is interpreted has been lost because of their silence.
Reconsideration of Sullivan
So, the main significance of the trial is that the Sullivan standard held, that it was correctly and strictly followed by both the judge and the jury. But more discussion about the case focused on whether the trial court proceedings were just a prelude to get to SCOTUS reconsideration. This played into the speculation of who, if anyone, was financing the litigation for Palin because if there were a rich financier, his/her priority would likely have been a general revamping of libel law, not merely a recovery by Palin at trial.
Yet I believe that the chances of the Court accepting the Clarence Thomas / Neil Gorsuch invitation to take any case to reconsider and overturn Sullivan are slim.
First, the Court is poised this term to overturn the almost 50-year precedent of Roe v. Wade, a decision that will spur controversy and be attacked as trashing stare decisis for political ends. A Court already deeply troubled by the public perception that it is a politicized body, made worse by the fact that it upset the status quo in the abortion arena, is highly unlikely to want to upset another super precedent in an area—media law—in which it is not so interested and, indeed, has not taken a case in over 20 years.
Second, for all of the reasons set out in the awesome MLRC white paper to be released on March 9, 2022, there is no good reason to overturn Sullivan. The white paper amply demonstrates the weaknesses of Justice Thomas’s historical and legal analyses, and also shows that Justice Gorsuch’s comments about the changed media landscape since 1964 have, at bottom, no bearing on Sullivan. In fact, the data gathered by the MLRC provides evidence that the actual malice standard has not meaningfully affected either the filing or the success of libel cases in recent years.
Third, given the pressure from the public—and the justices themselves—that the Court ought to be a less politicized institution, it seems obvious that the last case they would want to wrestle with is one between a former Republican candidate for vice president and current right-wing supporter of conservative causes and candidates and a paragon of the liberal establishment. Thus, even if four votes could be garnered for reconsideration, of the many cases where cert is being sought to review and abandon Sullivan, this would appear to be the last one the Court would take.
Fourth, I would think that even if four votes were gettable, it would come in a public figure celebrity case, not one involving a former public official and candidate for national office. Because a public official case is one where the base rationale of Sullivan and Justice William Brennan’s opinion are most applicable, it would be surprising if, in the unlikely event that the Supreme Court accepted a challenge to upset Sullivan, it would be in the public official rather than the public figure arena. Indeed, a reading of Gorsuch’s critique shows clearly that he is mainly questioning the applicability of the actual malice standard in public figure cases.
Finally, due to the weirdest of circumstances, it would appear that even if the Court were to decide that the Constitution did not demand following the Sullivan standard, the result of the Palin case would not be altered. That is because under a very broadening amendment to New York’s anti-SLAPP statute, the state’s law now provides that for a plaintiff to prevail in a case involving a public issue, actual malice must be shown. So, under state law, the ultimate result would seem to be protected.
Of course, the Palin case already has taken some unorthodox twists and turns, so making these sorts of predictions is perilous. In any event, I am very heartened that the actual malice standard was correctly and rigidly applied at this trial, and not too worried that the Palin case will spell the end of 58 years of libel law under Sullivan.
George Freeman is cochair of the Civil Rights Litigation Committee and the executive director of the Media Law Resource Center in New York, New York.