[1.] Sarah Palin’s defamation lawsuit against the New York Times is based on the theory that a jury could possibly determine that the Times people knew their allegations against Palin were false (or at least likely to be false). This is what is known as the “actual malice test” that is applied to defamation claims made by public figures like Palin in matters of public interest (although it actually does not require malice at all). It is also known as the New York Times versus Sullivan Test, after the 1964 case that announced the test for civil servants. later cases extended it to other public figures.
[2.] Palin’s attorneys have argued that the “real malice” test should be overridden or at least severely restricted, and in principle the Supreme Court could approve them after ruling on the trial and appealing to the Second Circuit. In practice, the court is very unlikely to grant a review on this case, and I don’t see much appetite for overriding the New York Times against Sullivan. (Judge Thomas seems interested, but I don’t think four other judges will join him.) But there has certainly been talk of considering a case for the court to see if the matter should be reconsidered .
[3.] Today’s decision by Judge Jed Rakoff (SDNY) makes it even less likely that Palin v New York Times would be a means for the court to set aside its precedent of defamation.
Earlier this year, New York passed a long-debated revision of its “anti-SLAPP statute” – essentially protection for defendants in defamation cases (and a few other similar cases). Part of this revision provides that defamation plaintiffs suing freedom of speech for speech “in connection with a matter of public interest” can only claim damages if they can demonstrate “that a notice giving rise to the lawsuit has been made. ” with knowledge of its falsehood or with ruthless disregard as to whether it was wrong. “
In cases of public interest submitted by private individuals, this law is the first to impose “actual malice”, at least when it comes to compensation. (Before the new law went into effect, New York essentially applied some sort of standard for gross negligence to cases of private / public concern / damages.) In cases filed by officials or public figures, this revision merely codifies the “actual malice” standard.
In today’s ruling, Judge Rakoff noted that the anti-SLAPP revision was retrospective as it covered cases such as Palin’s that were pending at the time the revision took effect. And if the Second Circle finally approves him on appeal, the question of whether to override the New York Times against Sullivan becomes irrelevant to the Supreme Court.
The Supreme Court has almost never questioned the interpretations of constitutional law by the lower courts, so it would treat the rule of “actual malice” as an independent legal requirement of constitutional law. And if so, then the question of whether the New York Times standard against Sullivan should be maintained as a federal requirement would be up for discussion (for that matter).
[4.] Judge Rakoff’s decision could be very important to many pending New York libel cases (including those dealing with another part of the anti-SLAPP law that amends various rules for public figures as well). As a federal district court case, it’s not a binding precedent in either a federal or federal court, but it is likely to be quite influential (and will be more influential and binding in a federal court if the Second Circuit confirms it in that regard) . But in the case of Palin itself it only has the indirect effect that I have described.
[Thanks to Gage Skidmore / Wikipedia for the photo of Palin that I’m using as a featured image for social media versions of this post.]