![]() ![]() While the protections within anti-SLAPP laws vary by state, New York and some other states have incorporated the actual malice standard into their statutes. New York and 30 other states, as of last summer, have such laws on the books to allow defendants to quickly defeat meritless lawsuits based on First Amendment-protected activity, and to discourage such lawsuits from being brought. Thomas and Gorsuch probably won’t get their chance with this case, though, because Rakoff decided it on the basis of New York State’s anti-SLAPP (strategic lawsuits against public participation) law. Thomas had expressed opposition to the standard in 2019, as well. Lawson last summer Thomas argues that the standard protects the publication of falsehoods and has no basis in the text of the First Amendment, and Gorsuch questioned the utility in the modern media landscape of a standard which effectively immunizes speakers from liability while discouraging proper fact-checking. There were recent calls to reconsider the actual malice standard from Supreme Court Justices Thomas and Gorsuch in their dissents to the denial of certiorari for Berisha v. ĭepending on your position on Sullivan, these may not be unreasonable headlines. A HuffPost headline after the verdict described the suit as, “Sarah Palin's Battle Against Press Freedom.” The New York Times described her case in a headline as part of an “Effort to Weaken Press Protections.” A Poynter headline warned that the suit “could be a groundbreaking journalism case.” An NPR headline said, “Palin’s defamation case is part of a conservative strategy to take on the media.” Palin herself has framed it as a fight for media accountability, while some have questioned whether an anonymous backer is bankrolling her effort. Perhaps unsurprisingly, since their publishers have a horse in the race, headlines about the Palin case cast it as an existential attack on the media. As the mainstream media and modern conservative movement have become increasingly estranged, the standard has become more contentious. While the First Amendment-based rule protects any speaker referring to a public figure, the decision has been widely viewed as a major boon for media companies, insulating them from a great deal of state-law defamation liability even when publishing ultimately-false statements about celebrities and politicians. That case called for a showing of actual malice on the defendant’s part, meaning the defendant must have had knowledge of the falsity of their statement or have recklessly disregarded the potential falsity of the statement. Sullivan (1964) and expanded over time to cover all defamation plaintiffs deemed public figures. Procedure aside, the case is noteworthy for its treatment by the media and its place in a larger discussion of the actual malice standard, the heightened burden developed by New York Times v. What matters is that the judge and jury alike agreed that Palin failed to prove actual malice on the part of the Times. But the jury still returned a verdict, so the case saw both a jury verdict and a judgment decision as a matter of law though the two agreed. Members of the jury received push notifications from newspapers about Rakoff’s announcement while still deliberating. The outcome was somewhat procedurally complicated, though we need not delve too deep into why: Rakoff announced he’d decide on a Rule 50 motion when the jury, which ultimately agreed with him, was already deliberating. SDNY Judge Jed Rakoff entered final judgement in that case on March 1, 2022, finding for the Times on a Rule 50 motion. Shortly after publishing the editorial, the Times issued corrections stating that no such link had been established. The ad showed a map of the US with stylized crosshairs overlaying 20 Democrat-controlled districts the PAC wanted to flip in the 2010 midterms, including Giffords’ district. Former Alaska Governor Sarah Palin sued the New York Times Company for defamation in 2017 over an editorial it published that year, “America’s Lethal Politics,” which suggested at one point that there was a “clear” and “direct” link between the 2011 shooting of Congresswoman Gabrielle Giffords (which killed six others) and an ad run by a political action committee run by Palin a few months before that.
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