Judging Freedom - How Libel Laws Work

Episode Date: February 16, 2022

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Hello there everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Wednesday, February 16th, it's about 2.50 in the afternoon on the East Coast. And I have a couple of questions here to address, very prudent questions that were sent to us by folks who were listening to my explanation of Sarah Palin's defeat in her litigation against the New York Times. Now, Governor Palin argued

that the Times' connection of words she used in New York to the killings in Arizona that resulted in the assassination of a federal judge and the murder of a half dozen people and the permanent injury of Congresswoman Gabby Giffords, this is about five or six years ago, was defamatory. And of course it was defamatory. The question was, did Sarah Palin's lawyers meet the standard that the law requires for a public figure to sue? Now, Governor Palin is a public figure. A public figure is a person who can command the attention of the media and has the ability to reject or rebut whatever was said about them. It used to be you had to be a public official, meaning somebody who worked for the government. The courts changed that to a public figure, so anybody can be a public figure. A rap star is a public figure. You could even be anonymous but thrust into some media controversy,

which makes you what's called a limited purpose public figure. You're a public figure for that purpose. But if you've been the governor of a state, and if you ran for vice president of the United States, and if you were a commentator on a major news network, Governor Palin worked for Fox for a couple of years, you are indisputably a public figure. That means that you, the public figure, when you are a plaintiff, must meet a very high standard. So Benjamin Meltzer asks, and Mr. Meltzer, thank you for the question, sir. Wasn't the higher threshold for public figures established not in the text of the law, but by this Supreme Court ruling, one with

which Antonin Scalia disagreed, by the way. If it is, is it fair to say that in America, libel law is intended not to provide equal footing when the subject is a public figure? Is the bar too high for public figures? All right, so there is no statute of which I'm aware providing for the obligation of public figures to meet the high bar, which is to show that the media engaged in knowledge of falsity, meaning it published something about you and it knew it was false, or reckless disregard for whether it was false or true, referred to as actual malice. That comes from a Supreme Court opinion in 1964 called New York Times against Sullivan, in which Commissioner Sullivan, the police commissioner of Montgomery, Alabama,

sued the New York Times for a full-page ad that didn't even mention him by name, but he argued that it impliedly called him a racist. Now, the issue was not, is he a racist or was he a racist? The issue was, did the New York Times publish this knowing it was false or with reckless disregard for the truth? The standard comes from the case, not from any statute. So that is the law in every court in the union when a public figure sues a media entity, no matter who you are, whether you're Eminem or Bill O'Reilly, you're a public figure. And if you're going to sue a media entity for defamation,

whether it's libel, printed, slander, spoken, you have to meet this very high standard. Is it fair? Well, that's a philosophical question, Mr. Meltzer. Are the scales balanced? Your question is correct. The scales are not balanced. They are intentionally not balanced because the First Amendment, the court has ruled, needs breathing room. So when journalists or when anybody who can get in front of a camera like I am now is going to express an opinion, the court wants to give them breathing room. Where does the breathing room come from? From the First Amendment. So I think that even supporters of Times versus Sullivan would say that the law is not balanced,

that it is intended to make defamation cases difficult, so as to encourage open, wide, and robust speech about public officials and public figures. Next question is from Todd Welsh, who asks, shouldn't the media print or produce a correction in the same format as the misinformation? There, I agree with you. Often you see these corrections in a little tiny box on page three in the New York Times, whereas the statement that's being corrected was a banner headline or even a paragraph on the front page. The media never prints, I shouldn't say never, I could think of one or two exceptions,ly prints a correction with the same magnitude as the original statement. But lots of times the correction doesn't work.

The correction doesn't always absolve the immediate defendant. In fact, many times when the jury saw the correction, they reacted, Todd, Mr. Welsh, excuse me, as you did. And it actually hurt the media that published that. Finally, a viewer wrote to me directly and asked when I was referencing yesterday that I read a Catholic publication in which two mothers of the children who were slaughtered in Sandy Hook often published essays that moved me deeply. What is the publication? The publication is called The Magnificat, and it is magnificent. Judge Napolitano, judging freedom.