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Photo provided courtesy of Unsplash.com<\/em><\/p>\n By David McPeak, Staff Writer<\/p>\n \u00a0<\/strong><\/p>\n Will \u201cfake news\u201d eventually force the Supreme Court to revisit defamation law? The President thinks so\u2014and Justice Thomas has recently reiterated his distaste for the current provisions under N.Y. Times Co. v. Sullivan<\/em>. [1] <\/sup> Former Alaska Governor and 2008 Republican vice presidential candidate Sarah Palin also thinks so, as evidenced by her credible defamation claim against The New York Times. [2] <\/sup><\/em><\/p>\n However unlikely this proposition is, the news media seems to be on thin ice. Several recent high-profile libel cases, including Palin\u2019s, point to glaring deficiencies in the media\u2019s good faith efforts to accurately report facts. This begs the question as to whether the media is currently a good steward of its immense privilege under the First Amendment.<\/p>\n Palin alleges that The Time<\/em>s \u00a0falsely reported that she incited Jared Loughner\u2019s 2011 shooting rampage which \u00a0severely wounded Congresswoman Gabrielle Giffords, and killed six others. [3] <\/sup> The allegation was made subsequent to the 2017 shooting of Republican Congressman Steve Scalise by a Bernie Sanders supporter. [4] <\/sup> In the editorial titled \u201cAmerica\u2019s Lethal Politics,\u201d The Times <\/em>alleged inter alia<\/em> that in 2011, Palin\u2019s Political Action Committee (\u201cSarahPAC\u201d) endorsed political violence by circulating a map \u201ctargeting\u201d Democratic Congress members for their votes that passed the Affordable Care Act. [5] <\/sup> The editorial references \u201ccrosshairs\u201d superimposed over each district, and falsely stated SarahPAC \u201ctargeted\u201d individuals. [6] <\/sup> Palin also faults The Times<\/em> for its subsequent correction which failed to mention her by name.<\/p>\n The media enjoys almost complete immunity from libel litigation when it comes to public figures. [7] <\/sup> This is because such figures invite public comment while also enjoying media access to counter false reporting. [8] <\/sup> More importantly, society has a genuine constitutional interest in the free discussion of their conduct. [9] <\/sup> To ensure the press has sufficient \u201cbreathing space\u201d and to prevent \u201cself-censorship,\u201d the Supreme Court held in New York Times v. Sullivan<\/em>, that such figures may only recover damages for defamatory falsehoods by clear and convincing proof of \u201cactual malice,\u201d rather than proof of falsity alone. [10] <\/sup> This rigorous fault standard requires that the defendant knew his statements were false, or acted in reckless disregard to the truth. [11] <\/sup> Put differently, plaintiffs have to prove fault based on the defendants state of mind, or conduct. [12] <\/sup><\/p>\n Palin contends that the author had a \u201cpre-determined argument he wanted to make in the editorial,\u201d leading to the publishing of a statement \u201che either knew was false, or at least acted recklessly to whether it was false.\u201d [13] <\/sup> Her theory is supported in the pleadings where the author James Bennet previously held editorial positions at The Atlantic <\/em>and The New York Times,<\/em> which both published numerous articles acknowledging Palin\u2019s map had nothing to do with the Gifford\u2019s shooting. [14] <\/sup><\/p>\n The claim further argues Bennet had special reason to know the truth as his brother, United States Senator Michael Bennet from Colorado, received threats of gun violence at his Denver office two days prior to the Giffords shooting by a \u201cschizophrenic constituent demanding assistance with government benefits.\u201d [15] <\/sup> Palin claims this incident moved both brothers to advocate for gun control, and that her 2016 endorsement of Senator Bennet\u2019s opponent, while Giffords endorsed Senator Bennet, further exhibits actual malice on Bennet\u2019s part. [16] <\/sup><\/p>\n The Second Circuit was unmoved\u2014at least at the pleadings stage\u2014by The<\/em> Times\u2019<\/em> argument proposing Bennet simply made an \u201cunintended mistake\u201d occasioned by a \u201cresearch failure.\u201d [17] <\/sup> Reversing dismissal as improper, the court held \u201cat a minimum,\u201d Palin plausibly pleaded Bennet had recklessly disregarded the truth by publishing the editorial without reviewing contrary articles he had published in The Atlantic <\/em>as its editor. The court found further plausible inference in Palin\u2019s allegations that \u201cBennet had reason to be personally biased against Palin and pro-gun positions in general.\u201d [18] <\/sup><\/p>\n The ability to have constructive dialogue when only 13% of U.S. adults trust the media \u201ca fair amount\u201d is unlikely. [19] <\/sup> The media\u2019s self-inflicted credibility deficiencies are not wholly the result of alleged defamation, but Palin\u2019s claim provides a rare opportunity to examine the veracity of statements made by news organizations under the sober reasoning of a Circuit Court opinion. The dismal amount of trust in the media suggests that public interest has tilted back towards more accountability, and that the media may have stretched beyond the \u201cbreathing space\u201d accorded under N.Y. Times Co. v. Sullivan.<\/em><\/p>\n <\/p>\n [1]<\/a> Marcia Coyle, As SCOTUS Declines Cosby Defamation Case, Justice Thomas Urges Court to Revisit Landmark Ruling<\/em>, Law.com (February 19, 2019 at 11:02 AM), https:\/\/www.law.com\/therecorder\/2019\/02\/19\/justice-thomas-urges-court-to-revisit-landmark-defamation-ruling-403-30040\/<\/a>.<\/p>\n [2]<\/a> Pl.\u2019s Compl. at \u00b6 1, Jun. 27, 2017, No. 1:17-cv-04853.<\/p>\n [3]<\/a> Pl.\u2019s Compl. at \u00b6 1, Jun. 27, 2017, No. 1:17-cv-04853.<\/p>\n [4]<\/a> Id.<\/em> at \u00b6 2.<\/p>\n [5]<\/a> Palin v. N.Y. Times Co., 940 F.3d 804, at 808 (2d Cir. 2019).<\/p>\n [6]<\/a> Id.<\/em><\/p>\n [7]<\/a> N.Y. Times Co. v. Sullivan<\/em>, 376 U.S. 254, 279 (1964)<\/p>\n [8]<\/a> Curtis Pub. Co. v. Butts<\/em>, 388 U.S. 130, 155 (1967)<\/p>\n [9]<\/a> Id.<\/em><\/p>\n [10]<\/a> N.Y. Times Co. v. Sullivan<\/em>, 376 U.S. 254, 271-72 (1964)<\/p>\n [11]<\/a> Id. <\/em>at 280.<\/p>\n [12]<\/a> Palin v. N.Y. Times Co.<\/em>, 940 F.3d 804, 810 (2d Cir. 2019)<\/p>\n [13]<\/a> Id. <\/em>at 813.<\/p>\n [14]<\/a> Id. <\/em><\/p>\n [15]<\/a> Pl.\u2019s Am.Compl. at \u00b6 4, Ex. 4, Aug 21 2017, 1:17-cv-04853-JSR.<\/p>\n [16]<\/a> Palin<\/em>, 940 F.3d at 814 (2d Cir. 2019).<\/p>\n [17]<\/a> Id. <\/em>at 817.<\/p>\n