Sarah Palin just lost her defamation case against the New York Times but has hinted at her likely appellate strategy. She told reporters she was going to consider appealing any loss to the U.S. Supreme Court to ask it to reconsider another famous case against the Times—the bedrock New York Times v. Sullivan. Unfortunately for her, that strategy is likely destined for failure.
Decided in 1964, New York Times v. Sullivan adopted what’s commonly known today as the “actual malice” standard for defamation cases. The court held specifically that the First Amendment required that standard.
“Actual malice” makes it harder for public figure defamation plaintiffs like Palin to win. Such a public figure has to prove that a defendant like the Times said something false about her either knowing the statement was false or by recklessly disregarding the truth; and that the defendant intended it to be defamatory or recklessly disregarded its defamatory nature. The actual malice standard gives speakers room to criticize elected leaders and other public figures even if that criticism is harsh and may...
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