Welcome back to Opening Argument, a column in which I dive into the disputes facing lower courts and unpack complicated litigation. On the agenda today, a preview of Sarah Palin’s libel lawsuit against the New York Times could limit press protections.

Winning or losing Sarah Palin’s libel case against the New York Times could be very damaging to the press.

That’s because his libel suit creates an opening for the heavyweight conservative Supreme Court to revisit a landmark ruling that protected journalists from being sued if they make a mistake while writing about public officials and public figures. If the case is appealed by either side, Palin would have the opportunity to challenge the legal standard that has protected the press for nearly 60 years.

While legal scholars doubt there will be five Supreme Court votes to erase it entirely, there could be enough to narrow it down quite significantly.

In 1964, the Supreme Court declared in New York Times Co. v. Sullivan this public officials could only win a libel suit if they could show that they had been harmed by a false statement published with “actual malice”. This set the bar high that has prevented many libel suits from reaching a jury.

Because the Sullivan ruling is considered sacred and necessary to have a strong public discourse about those who govern us, Samantha Barbas, a professor at the University at Buffalo School of Law, said the court was unlikely to overturn it.

Subsequent cases that continued at Sullivan’s However, the standard of actual meanness to public figures appears to be fair game, she said.

Palin claims she suffered reputational damage after The New York Times published an op-ed in 2017 suggesting she helped instigate a 2011 mass shooting that killed six people in Tucson, Arizona. In court documents, her lawyers called it a judicially imposed solution, created in a “bygone era before the internet and social media took hold of American society.”

Supreme Court Justice Neil Gorsuch expressed similar concerns when he argued with Justice Clarence Thomas in July that Sullivan should be revisited. The comments came in separate divisiveness after the court dismissed a case asking it to reassess the standard for public figures.

Just because the court dismissed that particular case doesn’t mean the judges won’t take up another one with the same issue in the future.

Rodney Smolla, dean and professor at Widener University’s Delaware School of Law, said the court often likes to wait for a case that clearly presents a problem. It could also take time, he said, to convince other judges to consider it.

If the court were to erase the standard of actual malice even for public figures, it could have a real chilling effect on how the media covers influential people like Facebook co-founder Mark Zuckerberg.

“I would say people like a Zuckerberg have so much power and so much impact on citizens around the world, in some ways more than their elected officials, that the norm should apply to people like him,” Jane said. Kirtley, a college professor. University of Minnesota Law School.

However, Smolla doesn’t think it would change media coverage that much if the Supreme Court removed protection for the press when writing about public figures, as a number of states have their own laws in place that extend the standard of actual malice beyond the government. officials. While some would call the change a chill, Smolla said others would say it creates a requirement for the press to be more careful and ensure stories are sourced.

It’s a very different world today than it was when the Supreme Court created the malice standard and expanded it in the 1960s and 1970s.

“The power of the internet to destroy people’s reputations is now gigantic,” Smolla said. “Stories go viral and repeat themselves.”

That’s why someone else will probably push the Supreme Court to change Sullivan if Palin doesn’t get there first.