Analyzing the Sarah Palin defamation threats

By Eriq Gardner

Alaska governor Sarah Palin's shocking resignation last week triggered a parlor game of sorts to figure out the real reason why she abandoned her political office. 

On the more outrageous end were whispers echoed in the political blogosphere that Palin was about to be indicted for embezzling construction material from a local sports complex. The shadowy charge was enough to prompt Palin's lawyer to send an open letter to MSNBC, The Washington Post, The New York Times, and other media outlets, threatening a defamation lawsuit if they reported the rumor.

Many pundits have shrugged off the threat. For example, Slate's Mickey Kaus asks, "Is Palin's Legal Threat Really 'Toothless,'" answering that it probably is. Kaus points to Section 230 of the Communications Decency Act which seems to immunize anyone on the Internet from putting up "offensive materials." 

Whether Section 230 applies to libelous statements is subject to much debate, but we suspect that people often miss a much larger point when it comes to defamation laws.

For years, members of the media have cited Supreme Court cases like New York Times v. Sullivan, which reigned in defamation claims by saying that public figures (like Sarah Palin) could only win a libel suit if they could show "actual malice" or "reckless disregard of whether (a published statement is) false or not."

The Supreme Court's constitutional limits on defamation (and perhaps Section 230 too) engender a feeling of invincibility in people who feel they can say anything about public officials. What's missing from all the talk about defamation, however, is a realization that people bring defamation claims in state court—not federal court—and that defamation laws vary from state to state.

We were interested in this primer put out by the Alaska Supreme Court in 1989 to judges about crafting jury instructions in defamation cases. It's 20 years old, so some of it might not be applicable, but clearly states have a lot of leeway in deciding things like whether improper motive can prevent truth from being a defense in a defamation claim.

Alaska's courts are subject to the U.S. Constitution, of course, but before anybody professes to know everything there is to know about defamation standards, best to check if they've boned up on applicable state law.

Comments

[Vickie Pynchon]

Not surprisingly, Alaska law is no different from the law of any other state when it comes to speech "in the public interest." See e.g. Olivit v. City and Borough of Juneau (Alaska Supreme Court 2007) 171 P.3d 1137

"Thus, to make out a claim for defamation based on speech about a matter of public interest, a plaintiff must show that the false and defamatory statements were made with actual malice. 'Actual malice exists when it is proved that the defamatory statement was made with knowledge that it was false or with a reckless disregard of whether it was false or not.' We have applied this standard to both publishers and government speakers."

Speculation about a potential indictment for wrongdoing such as embezzlement MIGHT give rise to an actionable claim by Palin for defamation if the statement implied the existence of a factual basis for such a claim AND was made by the speaker with the knowledge that no such factual basis existed (falsity + the requisite malice arising from the lack of belief in the truth of the implied "fact").

Reporting the existence of a RUMOR on the other hand wouldn't appear to fit the "false statement of fact" element of the cause of action for defamation regardless of the available Constitutional privilege. If it's TRUE that "rumors are circulating" I don't see how Palin could prove the most essential element of a defamation claim - falsity.

But I'm just a lawyer who remembers torts and Con Law vividly and who follows First Amendment legal developments avidly. I'd immediately defer to any lawyer who specializes in defamation and/or Constitutional Law.