iOS app Android app More

Howard Schweber

Howard Schweber

Posted: July 5, 2009 03:59 PM

Sarah Palin, the First Amendment, and Santa Claus


Dear Santa,

Sarah Palin, through her attorney, is threatening to sue Shannyn Moore for reporting the existence of rumors about a pending investigation of Palin's dealings with a firm called Spenard Building Supply and various contractors, in connection with the construction of the Wasilla Sports Complex and the Palin residence. The implication is that investigators suspect corruption. Palin categorically denies the implication and is threatening to sue for libel.

oh please, oh please, oh please

The basis for such a suit is clear. For too long we have witnessed the politics of personal destruction, the bloodsport of smearing a persons' reputation. The courts are the last resort, the place where the innocent can avenger her honor, save her reputation, and take some measure of revenge on her tormentors.

oh double please, oh double please, I'll be good for a whole year, I promise

Remember the lengthy list of hit jobs on Hillary? The accusations that Bill hired killers to murder his opponents and ran planes full of cocaine up from Latin America? Remember black helicopters? And how about the current incumbent, have you heard any false accusations about him? Well, Sarah Palin stands ready to ride tall into the sagebrush of the mountaintop ... wait a minute, I lost my metaphor....

remember that time I was ten and I really wanted a pony? I want this more. Much, much more.

Okay, I suppose I ought to make some pretense of a serious point. Here goes. The standards for a public figure suing someone for libel are set by New York Times v Sullivan (1964), as modified by Gertz v Welch (1974). The original Sullivan rule applied to political figures; the Gertz gloss extended it to "public figures" generally. The standard is that for a public figure to prevail in a libel suit, they have to prove that the statement in question was made with "malice," or at a minimum with "reckless disregard for the truth." In practice, that "reckless disregard" standard has been pretty well abandoned; the only way for a public figure to win a libel suit is to show that the party making the statement knew it was false.

The context of Sullivan is interesting. In 1960 a group of four African-American Alabama clergymen took out a full-page ad in the New York Times describing the brutal suppression of civil rights protests in Montgomery, Alabama. The ad specifically stated that police had "ringed" the capitol building and had used shotguns and teargas to dispel student protestors, that the entire student body had protested in response, and described the protesting students singing "My Country 'Tis of Thee" on the Capitol steps just before the police charged them. Commissioner of Police Sullivan objected. Cops had not actually "ringed" the Capitol; only most, not all, of the student body had protested. And! The students protesting on the Capitol steps did not, as the ad said, sing "My Country 'Tis of Thee"; they sang the national anthem.

That was the background. The Supreme Court did not want to see libel suits used by powerful politicians to intimidate and silence protesters. But then Gertz went further. Gertz involved a Chicago lawyer who represented the family of a young man killed by the police in their suit against the policeman involved. The John Birch Society disapproved; in their magazine, they charged that Gertz was a communist and that the lawsuit was part of a national conspiracy against law enforcement. In that case the Court applied the same Sullivan standard on the grounds that Gertz's activities made him a public figure. The Supreme Court's explanation was that a public figure has access to the media, and is therefore able to respond effectively to any accusations of wrongdoing or assertions impugning their character.

This is a singularly unsatisfactory explanation, particularly in the case of an involuntary public figure. Think Richard Jewell ... or Governor Palin's children. Do we really think that Bristol Palin or Chelsea Clinton are "public figures" in the sense that their parents are? Why should the fact that someone's activities bring them into the public eye mean that they are subject to the same level of rough criticism that we expect our elected officials to endure? No other country has embraced the Sullivan/Gertz standard; courts in Australia and New Zealand, for example, have explicitly singled out the American rule as one they did not want to see at work in their jurisdictions.

That American protection for free speech goes farther than that in other countries is a cause for celebration on this July 4th weekend. Nonetheless there are serious questions when involuntary public figures, or non-political public figures, or especially the family members of public figures are swept within the ambit of the Gertz rule.

But! Governor Palin isn't threatening to sue people who say bad things about her children, or even her husband. She is threatening to sue a blogger who accurately reported the existence of rumors of an investigation of wrongdoing by her in her at a time when she was already a government official.

Please-please-please. I'll never ask for another thing, I promise.

Now, I haven't practiced law in a while, and I do not have a current Bar membership. But I will go get one if Shannyn Moore will let me represent her. The thought of the deposition of Governor Palin alone is enough to make it worth the money, but that's only the tip of the iceberg; a motion for sanctions followed by a counter-suit for vexatious litigation is just begging to be heard.

Oh please, oh please, oh please. I'll do the dishes and put the cap on the toothpaste and everything.

Never mind Santa. Shannyn? Fellow Huffpo blogger? Are you listening? Pleeeeease?