Bill Sternberg, The Free Speech Center, January 24, 2022, writes that in Palin v. The New York Times, Palin is claiming the Times acted with actual malice in mistakenly linking her to the shooting of Rep. Gabby Giffords of Arizona. Sternberg says the texts and e-mails after publication show that it was an honest mistake, but it’s no guarantee of how a jury will see the case.
And if the Times wins the upcoming trial, Palin will certainly appeal to the Supreme Court whose conservative members have shown scant support for Times v. Sullivan. Palin claims that she should not have to show actual malice because with the internet anyone can claim to be a journalist and the standard itself poses “an insurmountable barrier in all but a relative handful of egregious cases.” (Daily Beast, January 25, 2022, by Mitchell Epner)
Law professor David McGowan presented an argument against Times v. Sullivan, Journal of Free Speech Law, January 2022, that the actual malice rule was essential in the civil rights era when dissenting views could be silenced by awards in defamation lawsuits but with the proliferation of platforms and lower publication costs, “the premise that firms need economic protection from defamation suits in order to sustain vibrant public discourse is weakened.” McGowan argues that we need to abandon the actual malice rule and rely on negligence. “There is good reason to believe that falsity may tend to drain other speech of what it is that matters,” he writes, “To the extent one is persuaded that is the case, the actual malice rule is part of the problem, not the solution.”