Sarah Palin Case May Indicate Cracks in NYT v. Sullivan Actual Malice Test

By Amy Gajda, a former journalist and the Jeffrey D. Forchelli Professor of Law at Brooklyn Law School. Among other publications, she is the author of Seek and Hide: The Tangled History of the Right to Privacy (Viking 2022), a book named by The New York Times as one of the year’s 100 Most Notable. She came to Brooklyn after teaching for more than a decade at Tulane University Law School in New Orleans, and, before that, she held a joint appointment on the journalism and law faculties at the University of Illinois. While there, she won seven Associated Press awards for her legal commentary.

There are several lines from New York Times v. Sullivan that capture the imagination of those who care deeply about a free press.  “[E]rroneous statement is inevitable in free debate,” one reads, quoting an earlier case in part, and “must be protected if the freedoms of expression are to have the breathing space that they need to survive.” Under Sullivan and its progeny, famous people need to prove actual malice — that the publisher acted with knowing falsity or with reckless disregard as to the falsity of the defamatory publication — in order to win a defamation lawsuit.

Given that language from 1964 and the many pro-press court decisions that it has supported, it may seem odd that George Stephanopoulos and ABC recently settled a defamation claim brought against them by Donald Trump, agreeing to pay $15 million toward Trump’s presidential library and to apologize for saying that Trump had been “found liable for rape by a jury.” Stephanopoulos’s statement was wrong; while a jury found Trump liable for battery (here, an offensive, sexual touch) in the civil case brought by E. Jean Carroll, that’s different in a legal sense from a criminal conviction on a charge of sexual assault brought by prosecutors.  

One might expect that this particular mistake — a legal nuance, some courts have found, given the similarity between an offensive sexual touch through battery and sexual assault or rape — and one involving this particular political figure might well be precisely the sort of erroneous speech that the Supreme Court suggested was inevitable and protected under Sullivan so that freedom of expression can survive. Put another way, how can “debate on public issues be uninhibited, robust, and wide-open,” to quote another line from Sullivan, if journalists must tiptoe around the civil-criminal distinction between liability and conviction for an act by a politician that seems markedly similar? 

I’m new to writing for First Amendment Watch but I’m a former journalist who began working in news in the 1980s and I’m now a law professor who’s been studying media law since the early 2000s.  Even with that background and those interests, and putting aside whatever political or corporate interests might be at play for ABC, I’m not totally shocked that ABC settled. That’s because, in short, the law has shifted a bit since the golden Sullivan days in a way that I suspect has modern media defense lawyers worried. 

Here’s a bit of background on that shift: In the mid-1990s, thirty years after Sullivan, Judge Abner Mikva, the well-respected former Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, warned the media quite literally to “Watch out!” because he sensed “a backlash coming in First Amendment doctrine.” Mikva explained in a law review article that some of his fellow judges had come to believe that “the Supreme Court ha[d] gone too far in protecting the media from defamation actions resulting from instances of irresponsible journalism.” 

In other words, just 30 years after William Brennan wrote the New York Times v. Sullivan opinion, some on the bench were already thinking that he had gone too far.

Today, 60 years after Sullivan, we’re seeing the backlash that Judge Mikva warned about in some court decisions and in some political discourse and, ultimately, I think that’s at least in some part why ABC agreed to settle.

My best evidence of that modern backlash is the protracted legal battle over a defamation claim brought by Sarah Palin against The New York Times, one that sprang from a 2017 Times editorial that suggested that a Palin campaign publication had incited the man who’d shot Congresswoman Gabby Giffords several years before. The error seemed an honest mistake by the Times; the very next day, the newspaper published a correction that admitted the lack of a link between the Palin publication and the shooting.  And, as many expected, a federal district court judge, Jed Rakoff, dismissed Sarah Palin’s defamation case a few months later, finding that she could not prove actual malice. The Constitution protects the exercise of “free,” “robust,” and “rowdy” political journalism, Judge Rakoff wrote.

But two years later, the U.S. Court of Appeals for the Second Circuit decided to reinstate Palin’s claim. “At a minimum,” those appellate judges explained, Palin’s allegations “give rise to a plausible inference that [New York Times editor James Bennet] was recklessly disregarding the truth” when he edited the piece and was “personally biased against Palin,” both of which would support a finding of actual malice. 

After the case went back for trial in 2022, and after a jury decided in favor of the newspaper, a procedural issue involving early push notifications to jurors put the matter before the Second Circuit again and, in 2024, the judges again decided in Sarah Palin’s favor. “We conclude,” they wrote in ordering a new trial, that the trial judge made “credibility determinations, weigh[ed] evidence, and ignor[ed] facts or inferences that a reasonable juror could plausibly have found to support Palin’s case” and her claim of actual malice. 

Today, the dispute is once again back at the trial court, scheduled for a second trial sometime in spring 2025.

Of course the easiest rulings for the appellate court would have been to uphold the trial court’s pre-trial and post-trial decisions, finding, as had so many courts before, that there was no proof of actual malice on the part of the journalists. But the appellate court didn’t do that. Instead, twice it found and twice it wrote about the realistic possibility of such proof, highlighting specific instances at various points that it found could help support a finding of actual malice:   

1. Bennet’s history of editing and reading pieces that contradicted what was published in 2017 could help give “rise to the inference that he actually did know” about the inaccuracies and published the inaccuracies anyway, the appellate court wrote. The trial court had previously found such evidence proof only of simple research failure.
2. James Bennet’s relationship with his brother Michael, a Democratic U.S. Senator from Colorado who had faced threats of gun violence, could help prove actual malice too, the appeals court decided. The familial relationship “arguably show[s],” the court wrote, “that [the editor Bennet] had a personal connection . . . that animated his hostility to pro-gun positions.” It “gave Bennet a reason to personally dislike Palin.” In contrast, the trial court had refused to accept political opposition as proof of actual malice, suggesting that such a finding would quickly nullify Sullivan’s First Amendment protections.  
3. A hyperlink within the editorial to an earlier article that contradicted the editorial’s incitement language could help prove the recklessness necessary for actual malice too, the appeals court found, despite the trial court’s reasoning that the hyperlink supported only a simple mistake by Bennet. 
4. And the appellate court wrote that a reasonable jury could find it “plausible” that the Times’s quick correction had been issued only after editors calculated “that standing by the editorial was not worth the cost of public backlash,” deciding that such evidence could help support actual malice. “Bennet could have published the editorial knowing–or recklessly disregarding–the falsity of the claim, and then decided later that the false allegation was not worth defending,” the appeals court wrote, and the correction itself, as well an an attempted apology, could have sprung not from a desire to make things right but from “public relations purposes” or the fear of a defamation lawsuit. Waiting until the next morning to engage with a colleague’s concerns about the piece could support an inference of actual malice too, the court wrote in its second opinion, and “be viewed as an attempt to wait out the controversy.” The trial court had previously ruled that the only plausible explanation for the correction was proof of a simple mistake.

Those appellate criticisms of journalism and that pro-plaintiff outcome sound very much like a reprimand for “irresponsible” journalism and the backlash against First Amendment doctrine that Judge Mikva had warned about. After all, Sullivan itself contemplated similar plaintiff arguments, including that the Times had contradictory information in its archives, but the Justices back then found such facts inadequate evidence of actual malice. 

The seeming eagerness of the Second Circuit, historically a media-friendly court, to find actual malice within the facts of Palin v. New York Times could be an anomaly, of course. But I suspect it’s not.  It seems relevant that the judges made mention of Sullivan mainly to assert that the Times was not protected under Sullivan’s constitutional protections for “breathing space for freedom of expression” and that Sarah Palin’s proof, to them, overcame the actual malice “hurdle” enough to put the question to a jury and “at a minimum” showed reckless disregard for the truth. 

“Nothing in this opinion should . . . be construed to cast doubt on the First Amendment’s crucial constitutional protections,” the Palin appeals court wrote in its first decision in the case. But in holding what it held, not once but twice, it established precedent and opened the door just wide enough to embolden other famous plaintiffs. ABC could well have been worried about what might come from a defamation claim brought by even Donald Trump.  

The sunlight from that open door has clearly reached that particular plaintiff, already long known for filing defamation claims when many lawyers would have advised against them. Surely someday the trial courts in those cases will use powerfully press-protective language about erroneous statements and breathing space from Sullivan and other Supreme Court jurisprudence to knock such seemingly frivolous complaints down quickly. Surely.

But it’s been more than sixty years since Justice Brennan wrote those words in New York Times v. Sullivan and the terrible truth is that some cracks are showing. 

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