New Jerseyans are known for telling you like it is. But words can have consequences, which is why the Dressel/Malikschmitt team fields a lot of questions about defamation, libel, and slander.
Interest in this area of law has ticked up over the past few weeks as former Vice-Presidential nominee Sarah Palin’s libel lawsuit against the New York Times made headlines. It’s an interesting case, with the potential for a big impact, and there are three things we think you should know about it.
1. What is Libel? And how is it Different from Slander and Defamation?
The backstory to the Sarah Palin matter: Back in 2017, a gunman opened fire on Republican members of Congress who were practicing at a Washington, D.C. area ballfield in preparation for the annual Congressional softball game. Rep. Steve Scalise (R-La.) and three other people were wounded in the attack, which was perpetrated by a fan of Sen. Bernie Sanders (I-Vt.).
That same day, the New York Times published an editorial titled “America’s Lethal Politics.” It condemned that day’s attack, and the heated political rhetoric it claimed contributed to it.
As part of that editorial, the paper suggested there was a direct link between a mailing sent out by Sarah Palin’s political action committee and the 2011 mass shooting that seriously injured Rep. Gabby Giffords (D-Ariz.) and killed six other people.
That link didn’t exist.
Within hours, the Times issued a correction to the editorial, but Palin claims the damage was already done. She says the editorial led to fewer speaking engagements and a decrease in the number of politicos asking for her advice, so she filed a libel lawsuit against the Times.
What is libel?
- Libel is a false statement that causes injury or damage to the character of the person it is about. In order to be libel, the statement must be in writing.
- A similar statement that is not in writing, but is instead spoken, is slander.
- Both libel and slander are forms of defamation.
In order to bring a libel or slander lawsuit, you must have evidence that a false statement was made about you, and proof that the statement has made your life more difficult because others believed it and started treating you poorly.
If you do not have the necessary evidence, your case will not succeed. Your case might also fail if the defendant can prove their statement was true, no matter how badly people are treating you because of it.
2. Why Did the Judge In Palin’s Case Issue a Verdict While the Jury was Still Deliberating?
After all the evidence was heard in Palin’s lawsuit, and the jury was sent out to deliberate, Judge Jed S. Rakoff decided to throw out the case. However, he let the jury go ahead and reach its own conclusion because he suspects the case will be appealed, and the appeals court may find the jury’s opinion helpful.
This unusual move is called a judgment as a matter of law. Judges can do this when they believe no reasonable jury could decide the case in the plaintiff’s favor based on the evidence presented.
And this is where the Palin lawsuit gets a bit confusing.
First of all, judges don’t make this move very often. Most cases without strong evidence settle, or get thrown out by the judge much earlier in the process. What is actually unusual about Palin’s case is that it got so far, not that it got thrown out.
The second confusing bit is that Palin is a public figure, so her libel lawsuit is a bit different than one brought by someone like you or me. Thanks to a 1964 U.S. Supreme Court case also involving the New York Times, public figures must prove that libelous statements about them were made with “actual malice.” There must be evidence that the newspaper either knowingly published damning and false information or recklessly disregarded the likelihood that its claims were likely to prove false.
Judge Rakoff found no evidence of actual malice, and neither did the jury, which returned its verdict the next day.
3. What Happens Next in This Civil Litigation Case?
Palin has indicated that one of the reasons she brought this lawsuit was to challenge the “actual malice” standard. She and other politicians are very critical of the “lamestream media,” which they believe is biased against them and often treats them unfairly.
In order to change the law, Palin would need to take her case all the way to the United States Supreme Court. But first she will need to appeal her case to the 2nd Circuit Court of Appeals.
The Dressel/Malikschmitt team will be keeping a close eye on this suit as it progresses. The power to speak freely about others must be carefully balanced with the ability to protect one’s reputation. Any change to the current law could threaten one or both of these important rights.
Although the foregoing is just background and should not be construed as legal advice, our firm represents both plaintiffs and defendants in defamation lawsuits, and we are available for a consultation if you believe your voice or reputation is under attack.