In Re: Palin v. New York Times, You Have to Like Sarah's Chances
As both Ariel Sharon and Gen. William Westmoreland found out, it's almost impossible for a public figure -- especially a controversial public figure -- to win a defamation lawsuit against the media. For this, you can thank the Supreme Court's landmark 1964 Sullivan decision, which established the "actual malice / reckless disregard" standard. Thereafter, it was not enough for a printed or broadcast statement to be factually false; the media had to know, or should have known, that the statement was false and then went ahead and published it anyway, either from animus or malignant carelessness.
The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed.
And that's the problem for the plaintiffs: who knows what went on inside the minds of the writers and editors? As it happens, I lived through the Sharon v. Time Inc. $50 million libel lawsuit in 1984, when I was writing for the newsweekly as its classical music critic. Although the suit involved the front of the book, specifically the World section, all of us on the staff followed the proceedings very closely.
The key to the suit was a paragraph in the Time story -- stop me if this sounds familiar -- based on a "secret appendix" in an Israeli government report investigating mass killings at two Palestinian refugee camps:
The publication, he says, grievously harmed his reputation by stating that he encouraged the Christian Phalangists in their massacre of hundreds of Palestinians in the Sabra and Shatila refugee camps in the Beirut area in September 1982. Time, which says it based its dispatch on a secret appendix to a report by the Israeli commission investigating the killings, denied Mr. Sharon's charges.
In the end, Sharon lost on the narrow grounds of "absence of malice," although Time later paid a handsome settlement:
In January 1985, a jury in Federal District Court in Manhattan ruled in a libel case filed there by Mr. Sharon that the article -- although it contained a false and defamatory paragraph -- did not libel Mr. Sharon because Time had not published it with ''serious doubts as to its truth.''
Last Sept. 26, the Tel Aviv District Judge, Eliahu Vinogradov, ruled that his court would accept the assessment of the New York jury that Time had defamed Mr. Sharon and printed false material about him. The judge was in the process of determining whether this would constitute libel under Israeli law when the two sides announced a settlement in the suit.
In return for Mr. Sharon's dropping his libel action, Time stated to the Tel Aviv District Court today that the reference in the article to Mr. Sharon's supposed conversations in Beirut was ''erroneous.'' In addition, Time agreed to pay part of the Israeli minister's legal fees. The settlement appeared to offer a wider admission of error on the part of Time than had previously been made.