By Marc Randazza
Sarah Palin always seems to be talking about families. Despite bashing that door open, she takes such umbrage when anyone mentions her own. So, When writer Joe McGinniss starts digging for facts and sources to complete his book “The Rogue: Searching for the Real Sarah Palin,” what does Sarah do? She lawyers up and threatens to sue… you betcha!
If this strikes you as unseemly – a former governor and vice presidential candidate who clings to whatever relevance she has left by making noise about seeking the presidency and touting her unfortunately named family, threatening to sue for investigative journalism about her background – then congratulations: You’re not a mendacious piece of shit.
The United States Constitution is quite clear on this issue: Public figures must prove actual malice (i.e., knowing falsity or a reckless disregard for the truth) to prevail in a defamation action. N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). This is a particularly applicable when the public figure is also a politician, and the speech addresses matters of public concern – namely someone’s fitness for office and prior conduct when wielding (and abusing) executive power. See Boos v. Barry, 485 U.S. 312 (1988); Connick v. Myers, 461 U.S. 138 (1983). This kind of political speech is the most highly protected by the constitution and the very lifeblood of a functioning democracy. Consider this quote from the “God Hates Fags” case.
Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011), citing Tex. v. Johnson, 491 U.S. 397, 414 (1989).
If the Constitution provides such strong protection for the Westboro Baptist Church spewing its stupidity and hate, is there any doubt about reporting on a politician’s fitness for office? Of course, but there is no need to invoke the highest ambitions of the Constitution and the lofty rhetoric that accompanies them. Sarah Palin is a bully, and not a very smart one, so we’ll keep this in terms she and any her attorney can understand. Her legal threats can be debased by the law within Alaska’s boundaries, without having to look outside the state – to Russia or elsewhere.
Alaska is no stranger to the public figure doctrine. Lowell v. Hayes, 117 P.3d 745, 751 (Alaska 2005); Mt. Juneau Enters., Inc. v. Juneau Empire, 891 P.2d 829, 834-35 (Alaska 1995). In Lowell, the plaintiff sought declaratory relief determining that the defendant had defamed him, arguing that the actual malice standard would not apply to such an action — as it had only been used in actual defamation claims in the past. The Alaska Supreme Court soundly rejected this argument. Lowell, 117 P.3d at 757.
In Mount Juneau, the Alaska Supreme Court adopted the test used to determine whether a plaintiff is a public figure in Gertz v. Robert Welch, Incorporated, 418 U.S. 323, 345, 351 (1974). The Mount Juneau court articulated its criteria thusly:
For the most part those who attain this [public figure] status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.
[The public figure] designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby become a public figure for a limited range of issues.
So let’s go down the checklist. Roles of especial prominence in the affairs of society? Former governor, former vice presidential candidate, and on-again, off-again presidential hopeful. Check. Occupy positions of “such persuasive power and influence” that she is a public figure for all purposes? I can escape her state, but cannot avoid her on television, in the bookstore or in the hackneyed catchphrases of soccer moms. Sadly, that’s power – and the worst kind. Check. Thrusting (heh) herself to the forefront of public controversies? CHECK CHECK CHECKITY CHECK. That’s exactly what got her here – and now that she can’t get her and her idiot kids to relinquish the spotlight, she thinks she can sue it away. Not quite, Sarah.
Whether by the designs of others or her own half-witted ambition, Palin is undoubtedly a public figure under Alaska law. And while the speech promulgated by McGinniss and other investigators is of interest to everyone, it is of particular interest to the poor souls known as Alaskans, as so much of Palin’s scrutinized past relates to her mismanagement of the state.
This is to say nothing of the Streisand Effect, though that ship likely has sailed. If there is anything we don’t know about Sarah Palin, we’re going to find out, as she carries the burden of proving the statements about her are false. Mt. Juneau, 891 P.2d at 835; see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 11-17 (1990). If Palin cannot prove that the statements she objects to in the book are false, she’s going to have a lot of problems trying to tamp them down in the future – and, indeed, her failed defamation crusade may open new investigations and speculation about the half-term former governess.
Indeed, even under Alaska’s laws, Palin has a steep hill to climb:
Actual malice involves a subjective inquiry into a speaker’s intent — specifically, whether he knew that his defamatory statement was false or recklessly disregarded the possibility of its falsity. A plaintiff must prove by clear and convincing evidence that the declarant acted with knowledge of the statement’s falsity or in reckless disregard of the statement’s truth or falsity. To show that a declarant recklessly disregarded the truth or falsity of published material, a plaintiff must show that the declarant entertained serious doubts as to the truth of the publication. A defendant’s failure to make a prior investigation into the accuracy of published statements does not, by itself, constitute actual malice. Neither does a defendant’s incorrect usage of a key term or word whose meaning is reasonably disputed. Thus, the actual malice standard is a difficult one to satisfy.
Lowell, 117 P.3d at 751 (internal quotations and citations omitted).
In short, it looks like Palin’s threatened litigation is about as viable as her presidential campaign. But, God bless her misguided heart, don’t let that stop her. If Alaska had an anti-SLAPP statute, I would not merely refrain from discouraging this litigation, I’d dare Palin to bring it.