Could spotlight on Palin case bode well for ministries' Supreme Court bid?

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The U.S. Supreme Court stands in Washington, U.S., February 6, 2022. REUTERS/Joshua Roberts

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(Reuters) - David Gibbs of the National Center for Life and Liberty is hoping that the U.S. Supreme Court is paying close attention to the torrent of news from Sarah Palin’s defamation trial against the New York Times.

Gibbs has no role in Palin’s suit, which asserts that the Times defamed the former Alaska governor and Republican vice-presidential candidate in a 2017 editorial that erroneously linked her political rhetoric to a mass shooting. (The jury rejected Palin's claim as I was writing this column.)

But he represents a Christian media company that wants the Supreme Court to revisit landmark defamation precedent – and he told me on Tuesday that he thinks the hoopla surrounding Palin’s case has improved the odds for his client.

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In November, Gibbs’ client, Coral Ridge Ministries Media Inc asked the Supreme Court to review a 2021 ruling from the 11th U.S. Circuit Court of Appeals that upheld the dismissal of the ministries’ suit against the Southern Poverty Law Center. The Coral Ridge group broadcasts previously recorded sermons from a now-deceased Florida minister who, according to the 11th Circuit, opposed homosexuality. The Southern Poverty Law Center designated Coral Ridge as an anti-LGBTQ hate group. Coral Ridge claimed it was defamed by the association with violent, racist groups, but the 11th Circuit, citing the Supreme Court’s 1964 precedent in New York Times Co v. Sullivan, said Coral Ridge could not proceed because it failed to show that the Southern Poverty Law Center acted with actual malice.

Coral Ridge’s petition argues that the time has come for the Supreme Court to reconsider its holding in the 1964 case, which established that public figures alleging defamation must show that defendants published statements they knew to be false or that defendants recklessly failed to investigate the truth of the statements.

The Coral Ridge petition points out that two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have recently raised questions about the court’s continued adherence to Sullivan. In a 2020 dissent from the court’s decision not to hear a case by a woman alleging defamation against comedian Bill Cosby, Thomas cast doubt on the constitutional grounding of Sullivan's actual malice test.

Then, in 2021, Thomas and Gorsuch both dissented when the court turned down a petition by an Albanian man who claimed he was defamed in a 2015 book about an arms-trading deal. Gorsuch said the actual malice test had become “an effective immunity from liability” that perversely discouraged publishers from investigating and fact-checking inflammatory claims.

The Palin trial has undoubtedly highlighted the actual malice test. On Monday, even as the jury continued to deliberate, U.S. District Judge Jed Rakoff of Manhattan said that after the jury has returned a verdict, he would dismiss Palin’s case because she failed to establish that the Times acted with actual malice. The jury heard extensive arguments about whether the Times' conduct constituted actual malice before coming back on Tuesday with its verdict. Palin is expected to appeal.

Coral Ridge Ministries’ lawyer said Palin's trial shows just how insurmountable an obstacle the actual malice test has become for defamation plaintiffs. “It demonstrates the problem: Actual malice is impossible to prove, even after a full jury trial,” Gibbs said. “Most certainly, the Palin case increases the probability” that the Supreme Court will reconsider the test.

Gibbs is not the only defamation lawyer who expects ripples from the Palin case to reach the Supreme Court.

Last year, 1st Amendment scholar Rodney Smolla, dean of the Delaware Law School of Widener University, filed a petition for Supreme Court review on behalf of two former Liberian officials who alleged that an international human rights group, Global Witness Publishing Inc, defamed them with false accusations of accepting bribes. The Liberians’ petition, like the Coral Ridge filing, called on the Supreme Court to re-examine its 1964 actual malice test (though Smolla’s brief argued for modification instead of abandonment of Sullivan precedent). The Supreme Court rejected the Liberians’ petition last September. But Smolla told me via email that he expects the Palin case to change the court’s calculations going forward.

“I do believe the extensive focus on the Sarah Palin case will impact the thinking of the justices,” Smolla said. “The Palin saga illustrates the tremendous frustration that plaintiffs face under the current regime. At the very least, I believe the justices may be persuaded that in applying the actual malice standard, greater deference should be given to juries.”

The Southern Poverty Law Center filed its brief opposing Coral Ridge’s Supreme Court petition last week. It offered the justices a plethora of reasons to leave Sullivan precedent alone. The Supreme Court itself has repeatedly upheld and even expanded the actual malice test in the nearly 60 years since the Sullivan decision, the brief said. Nor has the actual malice test been impossible to satisfy, the Southern Poverty Law Center argued. The Supreme Court itself has twice ruled since Sullivan that defamation plaintiffs established defendants' actual malice, the brief said. More recent proof that the actual malice test doesn't give absolute immunity to defendants, Southern Poverty Law Center said, came in just the last few weeks, when Sarah Palin got her case in front of a jury.

I reached out to the Southern Poverty Law Center’s Supreme Court counsel, Chad Bowman of Ballard Spahr, to ask if the Palin case would affect the Supreme Court’s consideration of the Coral Ridge petition. I didn’t hear back. Bowman, I should note, has already managed quite recently to dissuade the justices from revisiting Sullivan. He represented Global Witness in its successful opposition to Supreme Court review in the Liberian officials’ case filed by Smolla.

Gibbs told me to expect discussion of the Palin outcome in his Supreme Court reply, which is due next week. Of course, even if the justices decide not to hear the Coral Ridge case, it probably won’t be their last opportunity to reconsider the actual malice test. As my colleague Jan Wolfe has reported, it’s a good bet that Palin herself will ultimately challenge Sullivan precedent if she loses her initial appeal.

Read more:

Jury reaches verdict in Sarah Palin defamation lawsuit against NY Times

Analysis-Palin's legal fight with the New York Times is far from over

U.S. Justices Thomas, Gorsuch question libel protections for media

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.