On July 4 Governor Sarah Palin's attorney Thomas Van Flein issued a statement threatening to sue bloggers, reporters, newspapers, and television stations for defamation. What does the Constitution have to say about this?
In his statement Attorney Van Flein defended Palin against allegations that she may have resigned under threat of investigation. The bulk of Van Flein's statement consists of a lengthy rebuttal to an article by Wayne Barrett that had been published by the Village Voice on October 7, 2008. Van Flein stated that Barrett's allegations of corruption were "meritless." Van Flein concluded his statement by threatening to sue bloggers, journalists, and news outlets who repeat rumors that Palin may have resigned as Governor because she is "under investigation." In the concluding paragraph of his statement Van Flein specifically targeted blogger Shannyn Moore and news outlets Huffington Post, MSNBC, the New York Times, and the Washington Post:
To the extent several websites, most notably liberal Alaska blogger Shannyn Moore, are now claiming as “fact” that Governor Palin resigned because she is “under federal investigation” for embezzlement or other criminal wrongdoing, we will be exploring legal options this week to address such defamation. This is to provide notice to Ms. Moore, and those who re-publish the defamation, such as Huffington Post, MSNBC, the New York Times and The Washington Post, that the Palins will not allow them to propagate defamatory material without answering to this in a court of law. The Alaska Constitution protects the right of free speech, while simultaneously holding those “responsible for the abuse of that right.” Alaska Constitution Art. I, Sec. 5. These falsehoods abuse the right to free speech; continuing to publish these falsehoods of criminal activity is reckless, done without any regard for the truth, and is actionable.
In this article published yesterday in the Village Voice Barrett responded to Van Flein defending his original story and implicitly daring Palin to sue him for defamation. In addition, in a recent post Jeanne Devon of the Huffington Post explicitly defied Van Flein's threat, repeating Moore's comments and concluding with the words, “Sue me.”
I take no position on the underlying factual questions of whether Palin is or is not guilty of corruption or under investigation for corruption. The sole purpose of this post is to review the constitutional standards for defamation suits in a situation like this.
The landmark case establishing the law of defamation under the First Amendment is New York Times v. Sullivan (1964). At that time – the height of the civil rights movement – public officials in several southern states had brought defamation suits against the New York Times and other news outlets on account of their coverage of events in the south. The news media had begun to report about acts of violence by police and other officials against peaceful protestors. In an effort to squelch these reports, public officials in southern states sued for defamation, and all-white juries were all to happy to oblige.
The facts in New York Times v. Sullivan were outrageous. The Times had run an advertisement by the NAACP describing how the police had brutally broken up demonstrations by students at the Alabama State College campus in Montgomery. L.B. Sullivan, a county commissioner who was in charge of the police department in Montgomery, sued the Times and the black clergymen who had paid for the advertisment for defamation on the ground that the story was factually incorrect in some minor details – for example, the story had alleged that the students had sung "My Country 'Tis of Thee" on the steps of the State Capitol – in reality they had sung the National Anthem. Sullivan was not even named in the news article, but the jury entered a verdict for $500,000 for him against the Times and the other defendants.
The Supreme Court saw this lawsuit for what it was – an attempt to use the law of defamation to silence news coverage of the civil rights movement, and the Court ruled that this was in violation of the First Amendment. The Court stated that the First Amendment
was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people
and that it reflects
a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
Accordingly, the Court ruled that when a public official sues the news media for defamation, the official must prove the following elements:
1. That the defendant made statements “of and concerning” the public official;
2. That the statements were false (and remember, there is no such thing as a false opinion – to constitute defamation, there must be a false assertion of fact);
3. That the defendant either knew that the statements were false or acted with careless disregard as to their truth or falsity (the reporter's negligence would not be enough);
4. That the public official's reputation was actually injured as a result of these statements (the public official may not recover punitive damages); and
5. The plaintiff would have to prove these elements by clear and convincing evidence – that is, by more than a preponderance of the evidence (the usual standard of proof in a civil lawsuit) but less than proof beyond a reasonable doubt (the standard of proof in criminal cases).
At the time that the articles about Sarah Palin were published by Wayne Barrett and Shannyn Moore, Palin was (and is) the Governor of Alaska – a public official. Accordingly, in order to recover from Barrett or Moore Palin would have to prove, by clear and convincing evidence, that the reporters knowingly or recklessly made untruthful statements of fact about her.
Even after her resignation takes effect later this month Palin would still be subject to this heightened standard. In the case of Gertz v. Robert Welch, Inc. (1974) the Supreme Court stated that "public figures" should be treated the same as "public officials" under the First Amendment:
Those classed as public figures stand in a similar position [to public officials]. Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.
There is little doubt that Sarah Palin would be regarded as a "public figure" within this definition, and therefore still subject to the heightened standards of proof under New York Times v. Sullivan before she could recover for defamation.
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Interesting post. One question – is Shannyn Moore a public figure under the case law? Hypothetically, if anything in Van Flein's letter could be considered defamatory about Moore, could Moore sue Palin for defamation?
I could sure use a recap about the "matter of public concern" (or something like that) standard too.