Sarah Palin’s Sight on the First Amendment
“I can see Russia from my house” is regarded as one of Sara Palin’s most well-known lines.[1] There’s just one problem. She never said it.[2] 15 years later her luck with the free press has still not changed. But with an appeal on her case and the support of potentially the next United States President, she might be the next up for a big break.
Since the Republican Party’s presumptive announcement of Sarah Palin’s vice presidential candidacy, Sarah Palin has graced United States media on a national level.[3] And because of that she has also been a major source of entertainment for our country, especially seen by Tina Fey’s Emmy winning portrayal of the Alaskan governor on Saturday Night Live.[4] Many impressions of actors have taken place on SNL, but Fey’s impression had such an impact, that even other Republican governors would quote Fey’s impression believing them to be Palin’s words.[5] Now Fey’s comment was based on something Palin said, however Palin’s exact words were “They’re our next-door neighbors and you can actually see Russia from land here in Alaska — from an island in Alaska,”[6] which is 100% true.[7] Nevertheless, the comment is so ingrained with Palin that she was bringing it up as recently as last year.[8] Nevertheless, Palin’s relationship with the media isn’t one where she sits idly, blatantly seen by Palin’s 2017 defamation suit against The New York Times for, in sum and substance, stating that there was a link between her and a mass shooting.[9]
Unlike most defamation trials, this case has a few intersecting storylines that manifest into a giant snowball. The story begins with SarahPAC, Sarah Palin’s political action committee, posting a map with gun sights / cross hairs over “targeted congressional districts for the Tea Party campaign in the last election.”[10] At the bottom of the map were the names of the districts and their respective representative.[11] Among the targeted was Arizona’s 8th Congressional District and its representative, Gabrielle Giffords. Tragically, on January 8, 2011, a few days after the map was posted, Representative Giffords and 18 others were targets and victims of a shooting.[12] Six and a half years later, America’s Lethal Politics, a New York Times editorial opinion by The Editorial Board, was published.[13] It stated that “the link to political incitement was clear”[14] in regard to “the mass shooting in Arizona that severely wounded Representative Gabby Giffords and said that Ms. Palin’s ‘political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.’”[15] Two days later, The Times made a correction, saying that the editorial “incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords.[16] and even sent out a tweet to apologize.[17] However, the damage had been done and 11 days later “Palin brought a single defamation claim against The New York Times Company.”[18]
The four elements that a plaintiff must show to prove prima facie defamation are a false statement about a person or entity that claims to be true, a publication/communication of said statement to a third party, a liability of at least negligence, and either damages or some harm caused to the reputation of the statement’s subject.[19] However, two caveats exist, regarding anti-defamation statutes, that are both major players in the Palin case. The first being that New York courts are given a liberal application when it comes to case dismissal,[20] and since the false statement was about Palin in her official capacity, she had to prove culpability of either knowledge or recklessness, otherwise known as the actual malice standard from New York Times v. Sullivan.[21] Both caveats lost Palin the trial with a unanimous jury verdict and U.S. District Judge Rakoff ruling to dismiss the case outright, due to Palin failing to sufficiently argue that the Times acted with actual malice.[22] Judge Rakoff is quoted with saying “You decided the facts. I decided the law…. It turns out they were both in agreement, in this case.”[23] The loss was primarily due to Palin’s failure to show actual malice and lack of damages.[24] Palin’s counsel filed motions in regard to Judge Rakoff impatiently giving his verdict of voting against Palin, before the jury even began deliberating; which are, nonetheless, likely to fail.[25] Though defeated, “[a]ll indications are that Palin intends to pursue her case to the [Supreme Court],” which former AUSA Kevin J. O’Brien states that a journey to the Supreme Court “may have been the point of the lawsuit all along.”[26] Though potentially regarded as a sign of hubris, the case has more merit than one may believe. The Supreme Court is the only body that can grant Palin’s sought relief.[27] Lucky for Palin, current Supreme Court Justices Clarence Thomas, Neil M. Gorsuch, and Elena Kagan have made public statements about their concern with the standard of “actual malice.”[28] The weakness of Palin’s arguments actually strengthens the cases’ attraction to be chosen by the Supreme Court and their reconsideration of “actual malice.”[29] Combined with the article’s editor stating, “[t]his is my fault … I’m not looking to shift the blame,”[30] Palin has an argument that “but for the ‘actual malice’ standard, she might have won her suit.”[31] The last, but potentially foremost, missing piece of the case would be a Ron DeSantis presidency.
On February 7, 2023, Ron DeSantis, current Florida Governor and potential United States President,[32] hosted and led a discussion on “ideas to weaken the press’s First Amendment protections.”[33] Gov. DeSantis stated that the press uses the Sullivan shield to “intentionally ‘smear’”[34] politicians and “attack everyday citizens.”[35] Though these comments are arguable,[36] they show DeSantis’ enthusiasm about amending the legislation and case law.[37] This enthusiasm coupled with DeSantis sitting in the Oval Office could create pressure on the Supreme Court to take the case and raise support for new legislation.[38] Ultimately, the thorn in Sarah Palin’s foot may lead to an elephant trampling of the First Amendment. Nevertheless, the multitude of variables, that coincide with every legal case, increases exponentially when a case journeys to the Supreme Court. So even though Palin’s crosshairs may be on the First Amendment, her shot has quite the range to go.
Footnotes
