Perhaps the S. Ct. Will Reconsider the “Actual Malice” Libel Test — but Not in Palin v. N.Y. Times

Sarah Palin is almost certain that she will appeal the verdict in her favor. She could not prevail under the existing libel laws unless she can show “actual malice”. This basically means she must prove that she is guilty of the offense. Times knew that the statement about her was false (knowing falsehood), or at least published it with a “high degree of awareness of … probable falsity” or “entertain[ing]”Serious doubts about the authenticity of his publication.” (reckless disregard for the possibility of falsehood). It is not enough to have a simple negligence or gross negligence. Palin’s factual question regarding the allegations has been decided by the jury. Times Editors’ mental states are highly likely to be affected by the Second Circuit Court of Appeals ruling.

In principle, of course, Palin could then petition the Supreme Court, asking it to exercise its discretion to review the case, and perhaps reconsider whether the “actual malice” test really should apply—the Supreme Court could reverse that precedent, even though the Court of Appeals can’t. Technically, however, this precedent doesn’t apply. New York Times v. SullivanIt required the official malice testing for public officials. However, follow-up cases like Curtis Publishing, v. ButtsThe law also extended this to the so-called “public figures.”

But it seems to me extremely unlikely that the Court would agree to hear Palin’s case, because it arises under New York law—and a recent New York statute adopts the “actual malice” test as a matter of state law, whether or not it applies as a matter of First Amendment law.

Palin’s case wouldn’t be affected by the Court’s decision to overrule some First Amendment libel precedents. However, the New York jury must have been instructed according to New York law. Palin could argue that Alaska law applies because she’s an Alaska resident. However, the plaintiffs have explicitly rejected such an argument. The Court cannot hear the case because of legal irrelevance to the First Amendment question.

However, there is one twist. The New York statute that was adopted after this case was filed could be used to argue against its application in the present case. In late 2020 Judge Rakoff ruled that the statute should have been applied. I don’t think the Second Circuit will revisit this question because it is not necessary to their decision. The Second Circuit must apply the First Amendment “actual malice test” in all cases. And the chances of the Supreme Court agreeing to hear the Palin case when the first step would have to be interpreting a New York statute—and when an interpretation of the statute that affirms Judge Rakoff’s would make the meaty First Amendment issue go away—strike me as very low.

However, it is possible that many Justices will be reluctant or unable to reconsider precedents under the First Amendment in a politically charged case. Although some Justices won’t care, I think others would. It doesn’t matter what, though. I do not see Palin as being procedurally appropriate for this question.

It is possible for the Court to reconsider certain precedents in a case. Justices Thomas, Gorsuch and former Professor Kagan have made similar suggestions recently. Recently, a Justice called for an answer in a case that required such reconsideration. Coral Ridge Ministries Media, Inc. against Southern Poverty Law CenterHowever, the Court also missed some chances to do so in recent years. However Palin v. New York TimesIt won’t, as I believe, be the Court’s way to accomplish this.