Recommended Reading for Sarah Palin: New York Times v. Sullivan

Sarah Palin is coming after you if you don’t like her.

Bucke up your boot straps, you betcha.

Incensed by the reaction to her resignation as governor of Alaska, Palin is on a  war path with the media, and her lawyer has already targeted a liberal Alaskan blogger, the New York Times, MSNBC, and anyone else who gets in her way.

The soon-to-be former governor is doing everything she can to stay in the headlines, lashing out at every last person who dares to disagree with her.  Can you imagine her as president?

Let’s start with a tip of the hat to GOP 12 for alerting us to a note to supporters that appeared on Palin’s Facebook page today as well as the response from one of her lawyers. In her Facebook post, she bashes the media:

The response in the main stream media has been most predictable, ironic, and as always, detached from the lives of ordinary Americans who are sick of the “politics of personal destruction”. How sad that Washington and the media will never understand; it’s about country. And though it’s honorable for countless others to leave their positions for a higher calling and without finishing a term, of course we know by now, for some reason a different standard applies for the decisions I make.

The legal offense emerges:

The abruptness of her announcement and the mystery surrounding her plans has fed widespread speculation. But Palin attorney Thomas Van Flein on Saturday warned legal action may be taken against bloggers and publications that reprint what he calls fraudulent claims.

“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,” Van Flein said in a statement. “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.”

Has Sarah Palin or her legal team never read the 1964 Supreme Court decision The New York Times Co. v. Sullivan?  Anyone considering a run for public office of any kind should read it before circulating peititions.  Here’s the basic issue, directly from the decision, written by Supreme Court Justice William J. Brennan, Jr.

Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he had been libeled by an advertisement in corporate petitioner’s newspaper, the text of which appeared over the names of the four individual petitioners and many others. The advertisement included statements, some of which were false, about police action allegedly directed against students who participated in a civil rights demonstration and against a leader of the civil rights movement; respondent claimed the statements referred to him because his duties included supervision of the police department.

L. B. Sullivan was one of the three elected Commissioners of the City of Montgomery, Alabama.  He brought civil action against four black Alabama clergymen and the New York Times. A jury in the Circuit Court of Montgomery County awarded him damages of $500,000, the full amount claimed, against all the petitioners, and the Supreme Court of Alabama affirmed.  Sullivan claimed that he had been libeled by statements in a full-page advertisement that was carried in the New York Times on March 29, 1960.  Entitled “Heed Their Rising Voices,” the advertisment stated the following:

“As the whole world knows by now, thousands of Southern Negro students are engaged in widespread nonviolent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.”

It went on to charge that,

“in their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom. . . .”

Succeeding paragraphs purported to illustrate the “wave of terror” by describing certain alleged events. The text concluded with an appeal for funds for three purposes: support of the student movement, “the struggle for the right to vote,” and the legal defense of Dr. Martin Luther King, Jr., leader of the movement, against a perjury indictment then pending in Montgomery.

The third and sixth paragraphs of the ad were Sullivan’s libel complaint:

Third paragraph:

“In Montgomery, Alabama, after students sang ‘My Country, ‘Tis of Thee’ on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to reregister, their dining hall was padlocked in an attempt to starve them into submission.”

Sixth paragraph:

“Again and again, the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home, almost killing his wife and child. They have assaulted his person. They have arrested him seven times — for ‘speeding,’ ‘loitering’ and similar ‘offenses.’ And now they have charged him with ‘perjury’ — a felony under which they could imprison him for ten years. . . .”

You could argue that Sullivan was already on thin ice with this suit.  His name never appears in the advertisement.  Sullivan disagreed:

Although neither of these statements mentions respondent by name, he contended that the word “police” in the third paragraph referred to him as the Montgomery Commissioner who supervised the Police Department, so that he was being accused of “ringing” the campus with police. He further claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking of the dining hall in order to starve the students into submission.  As to the sixth paragraph, he contended that, since arrests are ordinarily made by the police, the statement “They have arrested [Dr. King] seven times” would be read as referring to him; he further contended that the “They” who did the arresting would be equated with the “They” who committed the other described acts and with the “Southern violators.” Thus, he argued, the paragraph would be read as accusing the Montgomery police, and hence him, of answering Dr. King’s protests with “intimidation and violence,” bombing his home, assaulting his person, and charging him with perjury. Respondent and six other Montgomery residents testified that they read some or all of the statements as referring to him in his capacity as Commissioner.

The Supreme Court rejected Sullivan’s arguments, holding “A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves ‘actual malice’ — that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.

The key here is “actual malice.”   Was there actual malice involved?  SCOTUS said no, and this decision has been the standard-bearer for all cases that followed.

In short, to paraphrase a colleague of mine, you would have to falsely accuse a public official of something absolutely horrible, like infanticide, say that you know it is true, that you have seen proof — all the while knowing that what you are saying is a damn lie.  Like it or not, public officials are considered “public property,” and the public can say almost anything at all about them, true or false, and face no consequence for doing so.

From SCOTUS again:

In Beauharnais v. Illinois, 343 U. S. 250, the Court sustained an Illinois criminal libel statute as applied to a publication held to be both defamatory of a racial group and “liable to cause violence and disorder.” But the Court was careful to note that it “retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel”; for “public men are, as it were, public property,” and “discussion cannot be denied, and the right, as well as the duty, of criticism must not be stifled.”

In essence, you’re main limitation on what you can and cannot say about a public official is your conscience.  The law will let you say a lot.

Did you ever wonder why some politicians running for office say the most awful things about their opponents and get away with it?  Despicable and lowly as this behavior is, it’s because they can.  If you don’t like their behavior — and you shouldn’t — then campaign against them.

Palin may not like what New York Times Co. v. Sullivan has to say, but her threats are baseless.   Does this mean that she can’t file a lawsuit, force a blogger to retain an attorney?  Does this mean that no judge will take the case?  Absolutely not.  Our courts are full of baseless lawsuits, and we watch the most ridiculous lawsuits for entertainment on television.  Ask Judge Judy.

Again, from SCOTUS:

We reverse the judgment. We hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.

Is it right to trash Sarah Palin without mercy?  No.  It’s not right to do that to anyone.  Is speculation on why she might have resigned committing libel?  Absolutely not.  She gave very few clues as to why she quit.

Look, Palin can sue anyone she wishes, making life absolute hell for them in the meantime.  Perhaps that’s all she really wants to do.

She can face  every liberal blogger in America on The People’s Court if she likes.  It would be a wonderful venue for her, giving her all the TV time she yearns for and more.

But she will lose.

Right now, whether she likes it or not, she’s public property, just like every other public official in the United States of America.

You betcha.