If Sarah Palin Wins, Fox News Could Lose

Last summer, a Supreme Court justice wrote a stirring defense of truth and accountability in the public arena. His opinion harkened back to a time, decades ago, when news organizations employed “legions of investigative reporters, editors, and fact-checkers,” before the proliferation of “falsehoods by means and on a scale previously unimaginable.” Then Neil Gorsuch — one of three conservative justices appointed by the most dangerous liar in America — took dead aim at a landmark decision: New York Times v. Sullivan.

Important Supreme Court precedents fall into two categories. There are the ones that Americans know on a last-name basis — Brown, Roe, Miranda — and there are others that just sit there underfoot. Sullivan is in the latter group: a decision setting down principles that are so basic that most people walk right over them. The precedent sets an extremely high legal bar for plaintiffs to prove libel or defamation. It affords everyone — me, you, Rachel Maddow, the anonymous satirist who tweets as Devin Nunes’s Cow — the right to say what we want about public figures, even things that are cruel and mistaken, so long as our words are not motivated by a “reckless disregard” for the truth. If you write an angry Yelp review, or post a lurid bit of celebrity gossip, or make a Me Too accusation, you’re protected by Sullivan.

Gorsuch’s opinion, a dissent opposing the Court’s otherwise routine refusal to consider a libel lawsuit appeal, was seconded by Clarence Thomas. It was the sort of signal that the justices send out when they’re getting up to something, and it caused a shiver inside many media organizations. At a moment when the very concept of objective truth seems to be under strain, and the news industry is facing a rising number of libel and defamation claims, is it possible that the Court’s emboldened conservative majority might weaken a guarantee the press has long taken for granted? “The real answer is, I don’t know,” says Sandra Baron, a Yale lecturer and media lawyer. “And that’s already a scary answer.”

At the very least, Gorsuch and his colleagues have forced a reconsideration of the profession’s legal footing. Over the past two weeks, many members of the media — and particularly the subset of the media that writes about the media — have been paying rapt attention to the proceedings inside a Manhattan courtroom, where a jury today is hearing closing arguments in a defamation case pitting Sarah Palin against, once again, the Times. It is an old lawsuit, dating to a now-distant controversy, that was dismissed and left for dead. Then it was revived by an appeals court and reinvigorated by the political moment, offering a preview of a potential post-Sullivan future.

Trials tell stories, and the one that unfurled over the first few days of testimony in Judge Jed Rakoff’s courtroom was pretty straightforward. “There is no doubt that the Times made a grievous error,” the paper’s attorney, David Axelrod, conceded in his opening argument, while contending it was just a newsroom screwup. (He’s not the same David Axelrod who advised Barack Obama.) Under the Sullivan standard, claims against news organizations seldom make it to trial, and when they do, it’s usually because someone did something egregious. The Palin case isn’t like that. To the many journalists watching the gallery, the whole scenario, laid out in marked-up drafts and harried emails, was mortifyingly relatable.

The routineness of the case made it all the more alarming. If this is how the courts end up defining defamation, we’re all going to be cooked.

The debacle began with a mass shooting. On the morning of June 14, 2017, a man named James Hodgkinson opened fire on a group of Republican members of Congress, including House Majority Whip Steve Scalise and future Florida governor Ron DeSantis, as they and some of their staffers practiced for an upcoming baseball game. Four people, including Scalise, were wounded, and the gunman was killed by police. It was the sort of news event that James Bennet, the editor of the Times’ opinion section, thought the paper had to address in an editorial.

Shortly after noon, Bennet — who would later be ousted after a series of uproars over his efforts to add some conservative balance to the opinion section — said he was interested in addressing “the rhetoric of demonization and whether it incites people to this kind of violence.” Elizabeth Williamson, an editorial board member, filed late in the day, around 4:45. Bennet conferred with another editor, who told him “she did not think it was a great draft,” he later testified. “Which happens.” With a deadline looming, Bennet just reworked it himself, punching up the language. “Was this attack evidence of how vicious American politics has become? Probably,” he wrote. The editorial went on to say that in the case of Gabrielle Giffords, the representative who was shot in 2011 by a man named Jared Lee Loughner, “the link to political incitement was clear,” referring to an earlier controversy—a map created by a Palin PAC had put stylized crosshairs over the districts of Giffords and other Democrats. Then Bennet segued to a point about civility: “Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency as they ask of the right.”

The editorial published that night, ending another hectic day. Bennet took a moment to write an email to one of his conservative columnists, Ross Douthat, to compliment him on a piece he had written. Douthat wrote right back. “I would be remiss if I didn’t express my bafflement at the editorial we just ran on today’s shootings and political violence,” he told Bennet. As far as he knew, he said, there was “no evidence that Jared Lee Loughner was incited by Sarah Palin or anyone else.”

It turned out that Douthat was right. Although there had been some initial speculation that Loughner had been inspired by Tea Party rhetoric, it had turned out he was a crazy conspiracy theorist with no clearly defined ideology or interest in Palin. Within hours, the Times had made a pair of corrections. Bennet wrote a post for the opinion section’s Twitter account, acknowledging that the editorial “got an important fact wrong.” In his most dramatic moment on the stand, Bennet — a rail-thin, intensely serious man, wearing a red, white, and blue–striped tie — acknowledged he was responsible for inserting the word “incitement” into the editorial. “This is my fault, right,” he said. “I wrote those sentences and I’m not trying to shift the blame to anyone else, for the record.”

Normally, when a journalist acknowledges an error, that’s the end of it. The Sullivan standard is specifically meant to insulate the press from liability for the sort of everyday, sloppy mistakes that even good journalists make sometimes.

The decision dates back to an era, the early 1960s, when libel and defamation lawsuits were more commonly used as a political weapon. An official in Alabama named L.B. Sullivan sued the Times over an advertisement published on the behalf of the Committee to Defend Martin Luther King, which had included several inaccuracies about the conduct of the Montgomery police. An Alabama jury awarded the plaintiff $500,000. It wasn’t a stand-alone case: At the time the Supreme Court considered the Times’ appeal, southern officials had brought libel claims against news organizations totaling around $300 million, the equivalent of around $3 billion in today’s dollars. Liability concerns were seriously impacting coverage of the civil rights movement. For a year, the Times had removed all its reporters from Alabama for legal reasons.

Fearing the stifling effect of such litigation, Justice William Brennan, writing for the majority, created a new standard: “actual malice.” Basically, the principle held that criticism of public figures would be protected so long as the speaker did not knowingly lie or treat the truth so irresponsibly that it cleared the high threshold of “reckless disregard.” Subsequent decisions would expand the scope of the decision, redefining a “public figure” to mean almost any entity considered newsworthy. Although it was inspired by the civil rights movement, the principle cut both ways politically. One of the first libel judgments to be overturned after Sullivan involved a state legislator who had been the target of McCarthyite accusations of communist sympathies.

The decision came to be the bedrock of America’s freewheeling media culture, but almost from the beginning, there have been doubts about its impact on the political culture — and not just on the right. In his opinion, Gorsuch mischievously quoted from a law review article written by Elena Kagan, soon to be the Court’s most senior liberal, before she was appointed to the bench. The 1993 article questioned whether Sullivan had paved the way for the “tabloidization” of the media. “At the most basic level, judicial declarations of unaccountability can go to the head,” Kagan wrote, fostering “a sense of entitlement and self-importance” within the press that “becomes semi-delusional, and journalists cease to ask the questions of themselves which they ask of other powerful actors in society.”

“It’s a very hard question, and it’s not an illegitimate question at this point in time,” says Geoffrey Stone, a law professor at the University of Chicago and one of the country’s most foremost First Amendment scholars. After all, the same principle that protects James Bennet also emboldens Alex Jones. The Infowars host is now appealing a default judgment stemming from his refusal to turn over documents related to a defamation case over his conspiracy theories about the child victims of Sandy Hook. His case is one of a growing number of defamation claims involving falsehoods propagated by figures on the right, including many lawsuits against Fox News and other conservative news networks, brought by voting-machine companies and others caught up in the shitstorm over Donald Trump’s claims the 2020 election was stolen.

These cases have mostly been cheered on by liberals, who see them as a rare mechanism for enforcing some accountability against those who spread lies that might endanger democracy. “There’s little doubt that there’s more falsehood out there today and there was in 1964,” Stone says. “One might say that New York Times v. Sullivan was right in the moment and over time has done more harm than good.” But some lawyers who represent media organizations quietly worry that the 2020 election cases — which involve potentially crippling damage claims — might end up setting a chilling precedent for all news organizations, not just the conservative ones.

“It’s just the way life works sometimes,” Floyd Abrams, an eminent attorney who has defended media organizations for decades, told me last fall. “These right-wing organizations are clutching onto New York Times v. Sullivan and the protections it offers at the very moment that their ideological allies on the Supreme Court appear to be moving in the other direction.”

Just as defenders of the press may be rooting against their own long-term interests when they lust for retribution against Fox News, the conservatives who are pressing forward with the movement to “open up our libel laws,” as Trump put it on the campaign trail in 2016, may be headed in a direction they will come to regret. But they seem determined to knock the press out of its privileged constitutional position, to prove what they have long believed: that most news organizations are really just political actors. “The increased power of the press is so dangerous today because we are very close to one-party control of these institutions,” Laurence Silberman, a Washington D.C. appeals court judge who is influential within conservative legal circles, wrote in a much-discussed dissent last year. The judge wrote that the Times and the Washington Post are “virtually Democratic Party broadsheets” and said that most TV news is no better. Such opinions have encouraged conservatives to take on media organizations, and even to think they might win—if not at trial, then with a more sympathetic Supreme Court.

Few expect a jury verdict for Palin, maybe not even her attorneys. The Times is arguing that, while it made a mistake, it was quickly corrected, and Palin can’t say she was badly harmed, since she’s continued to live contently in Alaska while occasionally appearing on reality shows like The Masked Singer. At the very beginning of his opening argument, one of Palin’s attorneys acknowledged that her team was “keenly aware that we’re fighting an uphill battle,” a statement that seemed as much directed toward a future appeals court as the jury of twelve New Yorkers. Daniel Novack, a media lawyer who attended the first day of the trial out of curiosity, told me his sense was that Palin—and whoever is financing her legal team—might view her appeal as a useful test case. In order to overturn the standard in Sullivan, in theory, it would presumably be useful to find a case in which a public figure was harmed without truly malicious intent. Palin’s attorneys have made the case that Bennet started out with a preconceived notion that their client was a right-wing gun nut — a pretty soft argument, considering he was the opinion section editor, and many Americans believe that. “I think this is laying a foundation to argue it’s too hard to prove malice in these situations,” he said. “And if she’s harmed, why should the New York Times not cover the damages.”

Could it really happen? It takes the votes of four Supreme Court justices to grant an appeal a hearing. Besides Thomas and Gorsuch, Samuel Alito, who has expressed vehement hostility to the liberal media, might safely be counted as a yes. That leaves the other two Trump appointees, both of whom went through excruciating press scrutiny during contentious confirmation hearings. It’s not hard to imagine that Brett Kavanaugh, having experienced feverishly defamatory speculation over secret codes in his high school yearbook, might have a few things to say. (“What goes around comes around,” he remarked at his confirmation hearings.) But conservatives hoping for a correction from the Supreme Court might want to consider the law of unintended consequences.

“If you can start suing Fox News,” Stone says, “that’s not good for Clarence Thomas.”