Sarah Palin renews challenge of landmark precedent as ‘obsolete’ in libel case against New York Times that Justice Thomas may be watching closely

Justice Clarence Thomas, Sarah Palin

Left: Associate Justice Clarence Thomas (AP Photo/J. Scott Applewhite); Former Alaska Gov. Sarah Palin (R) pictured on Nov. 8, 2022, in Anchorage, Alaska. (AP Photo/Mark Thiessen)

Attorneys for Sarah Palin (R) appeared Monday in the U.S. Court of Appeals for the Second Circuit to argue she should get another chance at suing the New York Times for libel over the newspaper’s 2017 editorial which falsely linked the former Alaska governor to a 2011 Arizona mass shooting that severely wounded Democratic Rep. Gabby Giffords and left a federal judge and five more victims dead.

It’s a case that could be of particular interest to Justice Clarence Thomas, who as recently as October called for the U.S. Supreme Court to “reconsider” the landmark New York Times Co. v. Sullivan defamation precedent of 1964 to potentially upend the “actual malice” standard if the “appropriate” case came along.

Though Justice Thomas declined to grant certiorari in former West Virginia coal executive Don Blankenship’s defamation case against the media, the conservative justice wrote that through Times v. Sullivan the Supreme Court “usurped control over libel law and imposed its own elevated standard,” decreeing that the Constitution “required ‘a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.””

“The Court did not base this ‘actual malice’ rule in the original meaning of the First Amendment,” Thomas added.

The once-revived Palin case, which Law&Crime covered on numerous occasions, was dismissed for the second time by Senior U.S. District Judge Jed Rakoff in early 2022.

A jury controversy quickly emerged, as it was revealed that while deliberations were ongoing “several” jurors heard through push notifications that Judge Rakoff had already decided to toss the case, having found that there was “one essential element that plaintiff [Palin] has not carried its burden with—the portion of actual malice relating to belief in falsity or reckless disregard in falsity.”

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