Actual malice standard at risk in Second Circuit

Jan 1, 2023

The National Newspaper Association joined more than a dozen media groups in December to urge the U.S. Court of Appeals for the Second Circuit not to throw out the actual malice standard set out by the U.S. Supreme Court in 1964 for public officials, later extended to public figures.

The court is reviewing an assertion by former Alaska governor Sarah Palin that the actual malice test is no longer good law. Palin is suing the New York Times for an editorial tying her political rhetoric to a rise in violence in America. The brief is written by well-known First Amendment attorney Ted Boutrous of the law firm Gibson Dunn and Crutcher and organized by Reporters Committee for Freedom of the Press.

The NNA also joined a Reporters Committee amicus brief for the Montana Supreme Court, which is reviewing reporters’ rights in that state to rely upon public records of judicial proceedings without carrying out independent investigations of their veracity.

The fair reporting privilege principle is an issue in a defamation suit by Michael Goguin against the New York Post. Goguin is a billionaire alleged by the newspaper to have kept spreadsheets of his many sexual partners. The brief author is Betsy Griffing at Axilon Law of Montana.