Plausibility, the Press, and Sarah Palin

When it comes to filing lawsuits, it used to be that lawyers could write a complaint saying little more than “he done me wrong” and worry about the details later. “Sure,” the lawyer could tell the client. “We’ll throw something at the wall and see what sticks.”

No more. A few years ago the Supreme Court issued two decisions, one called “Twombly” and the other “Iqbal,” that impose more stringent obligations on lawyers and their clients. Trial judges must now decide at the outset whether a complaint includes sufficient facts to support the claim. Under this new procedural rule, the courthouse door is closed unless the complaint is “plausible” on its face.”

Another rule, this one constitutional and not so new, is the inaptly named “actual malice” requirement in defamation cases brought by public officials or public figures. Under the 1964 New York Times v. Sullivan decision, they must show more than that the published words were false and likely to harm their reputation. They must also prove that the person who wrote them actually knew the statement was false or acted with “reckless disregard” of whether it was true or false. And the burden of proof is not the customary “preponderance of the evidence,” meaning more likely than not, but the more demanding “clear and convincing” standard, meaning a lot more likely than not.

President Trump may not know about the Twombly/Iqbal rule – at least he hasn’t said anything about it. Apparently, he does know, however, about the New York Times case. During last year’s campaign, he promised that “if I become president, oh, do they [the press] have problems.” Within weeks after his inauguration, he twittered that the “failing” New York Times was a “disgrace” and that the law should be changed to make it easier for people like himself and others in the public eye to sue the media for defamation.

Trump continues to call reporters “dishonest” and “crooked.” Meanwhile, his supporter, Sarah Palin, must have it in for the Supreme Court’s “specificity” and “actual malice” requirements, and for the “failing” New York Times as well.

On June 14, 2017, the Times published an editorial connecting the shooting of Louisiana Congressman Steve Scalise during a congressional baseball game to the shooting of Congresswoman Gabby Giffords in 2011. According to the editorial, “Sarah Palin’s political action committee” had “circulated” a map of “targeted” electoral districts with Ms. Giffords and others shown under “stylized cross hairs.” The Times called this “political incitement.”

The Times had it wrong. No factual connection exists between the “map” and the 2011 shooting in Tucson, nor is there any support for the words “political incitement.” The Times corrected the editorial within hours, but Ms. Palin nonetheless sued for defamation.

The newspaper moved to dismiss the complaint, and Palin got past two of its three arguments. Federal Judge Jed Rakoff ruled that the reference to Palin’s political action committee could be understood as a reference to Ms. Palin herself, and that the statements were capable of being proved false. Putting the words on the editorial page, where readers expect to find opinions, does not create immunity from suit.

She fell short, however, under the “actual malice” and “plausibility” standards. According to the judge, “mistakes will be made,” and Palin’s complaint flunked the plausibility test because she had not provided any facts showing that the person who wrote the editorial knew it was false.

The Times may owe Palin an apology, but it is unlikely to owe her any money damages. Even if she were to appeal and overturn the decision, she would face an uphill battle. Despite the President’s rhetoric, the constitutional protection for erroneous speech about public officials and figures isn’t going anywhere. Even if President Trump tried to change the law, Congress has shown no inclination to go along with him. Besides, this isn’t something Congress can change. The First Amendment still stands.

2017-09-12T17:10:23+00:00 By |