By Jan Wolfe

WASHINGTON (Reuters] – Sarah Palin must follow a specific path if she wishes to use her New York Times defamation suit against it as a way to challenge broad U.S. legal rights for news media organizations.

Experts say that the Republican prominent is expected to appeal after losing Tuesday’s trial before a jury. He will then ask for the Supreme Court to reconsider the landmark New York Times v. Sullivan decision.

Palin indicated this month that she will consider such a challenge. However, her plan has not been revealed.

This 1964 decision made it more difficult for Palin and other public figures to win defamation suits. It has become increasingly scrutinized in recent years.

The U.S. has stronger protections from defamation claims than other countries. However, some have criticized the framework for allowing too many errors, particularly in today’s internet age. The standard’s supporters claim it is essential for protecting a free press.

But even if the high court is interested in reconsidering the Sullivan case — which is far from clear — Palin’s lawsuit may not present the ideal opportunity for doing so, in part because both a judge and jury have now forcefully ruled against her, media law experts said.

Gautam Hans from Vanderbilt University, a law professor said “This case may not be the right vehicle to review Sullivan”. I think that this is just an uphill climb for Palin.

Although the Times made errors about Palin in its editorial, the case against her has been based on the question of whether it acted with actual malice. That legal standard was established in the Sullivan case which dealt with lawsuits bringing defamation claims brought by public figures. A publisher must prove by clear and convincing evidence that they either intentionally disseminated false news or had a reckless disregard of the truth.

Nine-member federal juries in Manhattan decided Tuesday that Palin (a former vice president candidate) was not defamed in the New York Times’ 2017 editorial which incorrectly linked Palin’s rhetoric with a mass shooting many years ago. Jed Rakoff, U.S. District Judge, announced Monday that he would decide for the Times, regardless of whether the jury had made a decision.

David Logan from Roger Williams University, a law professor said “The fact the judge and jury did not find any actual malice could be a cautionary sign for her (Palin’s) lawyers as to whether they should pursue this matter further.” The odds are now a little less favorable.

Next Steps

Next stop would be the U.S. Circuit Court of Appeals. They are not likely to reconsider jurors’ decisions because they have the power of hearing testimony from witnesses and making credibility judgments. Ryan Cummings, Hodgson Russell’s media lawyer, stated that appeals courts will be reluctant to reverse those findings.

Palin can appeal to the Intermediate Court if she rules in her favor. In that case, Palin will be able to seek review from the High Court.

In a separate case, two Supreme Court justices, Neil Gorsuch and Clarence Thomas, stated that they would like to revisit the media friendly standard. To hear a case you need four justices. Only a majority can create new laws.

Thomas and Gorsuch argued that “actual malice”, the old standard, is obsolete and allows for falsehoods and a rapid spread of them without much accountability.

Gorsuch stated that the doctrine has become a subvention for falsehoods published on a scale nobody could have imagined. It has also left far more people without recourse than anybody could have anticipated.

According to Hans, a Vanderbilt law professor, it is not clear if Justices Brett Kavanaugh or Amy Coney Barrett are keen to revisit “actual malice”.

Defamation cases are rarely brought to trial. Therefore, Kavanaugh, Barrett and Hans did not participate in the Sullivan case as judges of lower courts. Hans stated.

Even though Thomas and Gorsuch might be eager to review the malice framework in detail, Palin would not make the cut because it is a New York State law. Benjamin Zipursky, an Fordham University professor of law, stated that the Palin case was unlikely to receive any review.

New York’s 2020 state legislature approved a law that codified the actual malice standard. Rakoff found that this law was applicable in her case. This means that Palin will need to prove actual malice, even if New York Times v. Sullivan is overruled.

Zipursky stated that the Supreme Court doesn’t generally hear cases that are based on state law, or whose outcomes would be affected by the ruling of the court.

Hans stated that there was another case to be challenged in New York Times v. Sullivan. This involved a Florida megachurch who claimed that a non-profit falsely called it a hate organization. Coral Ridge Ministries Media Inc. sued the Supreme Court in November to have its case reviewed. An appeals court had upheld the dismissal of its lower court lawsuit. Florida doesn’t have an independent statute that makes “actual Malice” the state standard, unlike New York.

Hans stated, “It might be that the case is more attractive.”