Times-Palin Ruling Good for Free Speech, Press

Aug 31, 2017

By Gene Policinski
Inside the First Amendment

So Sarah Palin does not get to move forward with a defamation lawsuit against The New York Times for linking material on a Palin political website to shooting incidents targeting politicians.

The link appeared in a Times editorial published June 14 after a shooting incident in Washington, D.C., where the shooter opened fire on an early-morning softball practice involving members of Congress and legislative aides.

It was plain, flat wrong to draw such a direct connection. Palin said so immediately, and the Times quickly published a correction. Two corrections, in fact, with the second more specifically repudiating any connection with Palin.

The dismissal of the lawsuit does not mean the Times "got away" with publishing fake news. Nor does it mean open season for journalists on controversial public officials and public figures.

It does mean that laws protecting the First Amendment were upheld and remain in force: Specifically, the law that says public officials must prove not just error but actual malice — knowing falsity or reckless disregard for truth — to successfully pursue a defamation lawsuit.

The decision has significant implications for political reporters and public figures, of course, but also for the rest of us who may occasionally share critical opinions about officeholders or public figures. We write under the same protection — and without it, I suspect far fewer would take pen or keyboard in hand.

Let's say this again (important to do in an era when many are questioning whether "real news" even exists): Nothing in the Sarah Palin ruling condones error. But the judge's decision does recognize that without protection for inadvertent error, political discussion — which the nation's founders saw as vital to a self-governing democracy — would grind to a halt for fear of instant legal action and ruinous financial penalty.

The decision Tuesday, made in the Southern District of New York, rests on a 1964 U.S. Supreme Court decision that, with some irony, also involved The New York Times. In Times v. Sullivan, a case involving a political ad, the Court said that a simple factual error is not enough for a public official to collect defamation damages, when weighed against the value to society of robust, energetic political debate.

The offending Times editorial published this June referenced a map that appeared on Palin's political action committee website, and wrongly implied that the material incited political violence. The Times correction stated that "no such link was established" between incitement and violence.

The stirring, 26-page opinion by U.S. District Judge Jed Rakoff is a textbook explanation of why political speech — even, at times, if it is erroneous — is and ought to be protected.

"Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States," Rakoff wrote. "In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others. Responsible journals will promptly correct their errors; others will not.

"But if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity" — which, in Rakoff's view, Palin did not have.

An old journalism bromide says that getting it right is more important than getting it first.

In Rakoff's decision, he noted, "What we have here is an editorial, written and rewritten rapidly in order to voice an opinion on an immediate event of importance, in which are included a few factual inaccuracies somewhat pertaining to Mrs. Palin that are very rapidly corrected... Negligence this may be; but defamation of a public figure it plainly is not."

The Times initially got it wrong. But the judge has it right, from the start.

Gene Policinski is chief operating officer of the Newseum Institute. He can be reached at gpolicinski@newseum.org, or follow him on Twitter at @genefac.