Sullivan survives Sarah’s suit


“The law here sets a very high standard. The court finds that that standard has not been met.”

— Jed Rakoff, U.S. District Judge

“It was devastating to read a false accusation that I had anything to do with murder.”

— Sarah Palin

On June 14, 2017, the Republican Congressional baseball team met on a field in Alexandria, Virginia, to practice for an upcoming game against their Democratic counterparts — a charity event that had been held since 1909. Among those gathered were senators Jeff Flake and Rand Paul, and a dozen members of the House of Representatives, including Ohio’s Brad Wenstrup — a doctor by trade.

Generally, the U.S. Captiol Police would not be on hand for such an event, but Majority Whip Steve Scalise was on the team, and his position in House leadership meant that they were present. Approximately 30 minutes into the practice, a crazed Illinois man who had prior charges for violent offenses, entered the field near the third base dugout and began shooting with a rifle and a 9 mm handgun.

Capitol Police officers immediately returned fire, pinning the shooter down and eventually killing him. Rep. Scalise, of Louisiana, and a congressional staffer had both been hit. Rep. Mo Brooks used his belt as a tourniquet for the injured staffer, and Dr. Wenstrup — who had service with the Army’s 344th Combat Support Hospital — provided aid. Scalise and Mike Mika, a Tyson Foods lobbyist, were most seriously injured, but both recovered following surgery. Officer Crystal Griner and Zach Barth, the legislative aide, were both treated for gunshot wounds and released. There were other, minor, non-gunshot injuries.

The shooting led the New York Times to run an editorial about political polarization and the nature of political rhetoric. But the Times did not yet know the identity of the shooter or what the shooter’s motives were. Among other things, the Times editorial tied acts of political violence to an ad run by Sarah Palin’s political action committee in 2010 that showed crosshairs over the congressional districts of 18 Democrats that the PAC was targeting for defeat.

A short time later, it became known that the shooter was a former volunteer for the Illinois office of the campaign of Sen. Bernie Sanders, and that his home contained research about Republican congressional leaders and writings railing against Donald Trump and Trump’s affect on American politics. Simply put, the Times had made a mistake tying the event to Palin. They issued a retraction and an apology, but Palin sued for libel.

The landmark libel case in the United States is a 1960 U.S. Supreme Court decision also involving the New York Times — N.Y. Times v. Sullivan. The court’s decision was unanimous and in favor of the Times. It created a standard for libel of public figures that is very different from that of many European nations. The standard it created is sometimes referred to as the “Actual Malice” rule. In order for a public figure to prevail against anyone for allegedly libelous statements, the public figure must prove that source of the statements either had actual knowledge that the information was false, or that it recklessly disregarded the truth.

Who qualifies as a “public figure” has been sorted out by subsequent cases, but the “actual malice” rule has come under fire from some legal scholars and, in some very public speeches, by Supreme Court Justice Clarence Thomas. First Amendment lawyers have been closely watching the Palin case for that reason — to see if the Sullivan case would survive, or if the phrase “actual malice” would get different treatment.

In the end, which came on Tuesday of this week, Sullivan remained entirely intact, and no clearer than it was before — at least for now. The case was submitted to the jury on Monday, but immediately after it was, the judge announced that, regardless of the findings the jury made as to the facts, he was going to make a legal ruling that Palin’s lawyers did not establish actual malice. That is, that the Times editorial staff was hasty and flat wrong, but that they did not know that they were wrong at the time, corrected the error once they did, and did not act out of malice toward Palin. The jury came back on Tuesday and ruled in favor of the Times, meaning that they won based both on the facts, and the law.

The former governor’s lawyers will almost certainly appeal and a federal appeals court may be more likely to delve into whether the holding in the Sullivan case needs to be tinkered with in light of the 24-hour news cycle of today. But for now, Sullivan stands and the actual malice rule remains the law of the land.

By David Hejmanowski

Case Study

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.

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