Sarah Palin Loses Defamation Case But Tweaks NY Times

Greg Markley


In the mid-1970s, American Express ran TV ads where someone faced the camera and asked “Do you know me?” Twelve years after U.S. Rep. William E. Miller ran on the losing Republican team for vice president, he was in the ad. It was obvious that many people did not know who the heck he was. Fame was certainly fleeting for William Miller.

A New York congressman for 14 years, Miller’s lack of enduring fame was made worse as U.S. Senator Barry Goldwater did not share much of the spotlight before they were trounced by the Johnson/Humphrey ticket of Democrats. He was the first Catholic nominated for veep by the Republicans.

Recently, the first Republican woman to run for vice president, Sarah Palin, lost a defamation lawsuit against The New York Times. It was a test of the landmark 1964 case, New York Times Co. v. Sullivan, which said that a public figure must show actual malice to win the case. Editors testified that putting Palin in a bad light was not their intent. Yet, they tarnished the newspaper’s image.

I thought about Miller and all the forgotten vice president candidates. Would Miller still be a public figure when the American Express ad was showing? Most people commenting on the ads didn’t know him. What is the shelf life for a high-level candidate? Are they forever protected from vicious acts against them by the press? Or will Sarah Palin, ex-governor of Alaska, be on a quiz show in 15 years with only a few viewers knowing who she is?

Palin brought the defamation suit in June 2017, for an editorial accusing her of “political incitement” before the shooting in 2011 of U.S. Rep. Gabrielle Giffords, a Democrat from Arizona. The editorial said that a link to an advertisement from Palin’s political action committee — which showed crosshairs against the congressional districts held by 20 Democrats, including Giffords.

The Times did make a correction noting that “no such link was established” between the advertisement and the shooting, and indicating that what was depicted in the crosshairs in the ads were “electoral districts, not individual Democratic lawmakers.” So Palin’s 2017 lawsuit was dismissed at federal district court level.

“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,” explained Judge Jed Rakoff. “Negligence this may be; but defamation of a public figure it plainly is not.” After reinstatement, the case was decided on Feb. 18, 2022, in favor of the newspaper.

According to “The First Amendment Encyclopedia”, in a 2009 article by Stephen Wermiel, the Sullivan case reversed a libel damages judgment against the New York Times. It said the first amendment guarantees of free speech may protect libelous words about a “public official” to advance intense debate about government issues and public affairs.

This landmark U.S. Supreme Court decision originated in Montgomery, Alabama. New York Times Co. v. Sullivan arose from errors in a full-page civil rights editorial advertisement (‘Heed Their Rising Voices’) lawsuit against the newspaper. The “Sullivan” mentioned was an elected city commissioner who filed the lawsuit.

Alabama law dictated that L.B. Sullivan only needed to prove there were mistakes and that they probably harmed his reputation. A jury awarded him $500,000 in damages, plenty of money then. The ad protested treatment of the Rev. Martin Luther King Jr. by state law enforcement. It featured names of prominent civil rights activists, including actors, ministers, musicians and other Americans. Not only are celebrities like Sarah Palin filing lawsuits, TV stations such as Fox News Channel are getting into courts, too. On Aug. 7, 2003, Fox wanted to stop comedian Al Franken from using Fox News’s trademark phrase “fair & balanced” in the title of his book, “Lies and the Lying Liars Who Tell Them: A Fair and Balanced look at the Right”.

Fox didn’t want to be associated with “liars and lying” so hurriedly filed a court challenge. U.S. District Court judge Denny Chin denied an injunction for using the “fair and balanced” phrase on the book’s title. Chin said the case was meritless, “both factually and legally.” Thus, the 1964 New York Times Co. v. Sullivan ruling remains intact.

 If someone makes a mean ad criticizing Sarah Palin, for example, “actual malice” must be evident. Palin has a new lawsuit; don’t expect a different result. At least she is engaged and visible in public affairs — she would not want to be a postscript like William E. Miller, that is William who?

Greg Markley first moved to Lee County in 1996. He has Masters’ in education and history. He taught politics as an adjunct in Georgia and Alabama. An award-winning writer in the Army and civilian life, he has contributed to the Observer for 13 years.      


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