Judge And Jury Say Sarah Palin Failed To Prove 'Actual Malice' In Defamation Case Against The NY Times

from the because-she-didn't dept

The last time we wrote about Sarah Palin's defamation lawsuit against the NY Times was in 2017 when Judge Jed Rakoff was dismissing the case, noting that Palin had failed to show "actual malice," by the NY Times, which is the necessary standard under the seminal defamation case (also involving the NY Times), NY Times v. Sullivan. However, two years later, the appeals court ruled that Rakoff violated procedural rules in doing so, and reinstated the case. It's been three years since then and over the past few weeks an actual trial was held -- which is extraordinarily rare in defamation cases.

The "actual malice" standard is both extremely important and widely misunderstood. It does not mean that the speaker/publisher "really disliked" the subject or wanted to get them. It has a distinct meaning under the law, which is that that the publisher/speaker either knew it was false at the time of publication, or that they posted it with "reckless disregard" for whether it was true or false. And, again, people often misunderstand the "reckless disregard" part as well. It does not mean that they were simply careless about it. For there to be reckless disregard, it means that they had to have substantial doubts about the truth of the statement, but still published it.

In other words, for defamation of a public figure, you have to show that the publisher/speaker either knew what they were writing was false, or at least had strong reasons to believe it was false, and still went ahead with it. This is extremely important, because without it, public figures could (and frequently would) file nonsense lawsuits any time some small mistake was made in reporting on them -- and small mistakes happen all the time just by accident.

But, still, the Palin case went to trial and before the jury even came back, Judge Rakoff announced that, as a matter of law (which the judge gets to rule on) Palin had failed to show actual malice. The oddity here was that he did so while the jury was still deliberating, and allowing the jury to continue to do so. The next day, the jury came to the same conclusion, finding the NY Times not liable for defamation, as a matter of fact (juries decide matters of fact, judges decide matters of law -- and it's nice when the two agree).

It seems likely that Palin will appeal, in part because there are a contingent of folks in the extreme Trumpist camp -- including Supreme Court Justice Clarence Thomas and some of his close friends who have been campaigning over the past few years to over turn the "actual malice standard" found in the Sullivan case.

As many observers have noted, this case is probably not a very good test case for that question, but that doesn't mean Palin won't try to make it just such a test case -- and even if it's a weak case, we should be watching closely as any such case moves through the courts -- as they are, inherently, attacks on free speech. Weakening the actual malice standard would be a way for the powerful to more easily silence the powerless who speak up against them. The "actual malice" standard is a key element of strong free speech protections -- and attempts to weaken it are attacks on free speech.

Filed Under: 1st amendment, actual malice, defamation, free speech, jed rakoff, nyt v. sullivan, sarah palin
Companies: new york times

Sarah Palin Now Thinks Julian Assange Is A Really Nifty Guy

from the the-enemy-of-my-enemy dept

While many support the idea of Wikileaks, many now worry that the organization's supposed goal of total transparency often plays second fiddle to Julian Assange's ego and the group's often inconsistent behavior. But whatever you think of Assange as a human being, it's important to remember that the group wouldn't be necessary if the established media actually did its job. Groups like Wikileaks are just symptoms of a broader disease: the larger media's shift to banal infotainment, and the failure of these giant media conglomerates to hold companies and governments accountable to the truth.

That said, it's becoming downright comedic to watch Assange, Wikileaks and whistleblowers become increasingly vilified or deified -- depending entirely on what's being said, who it's being said about, or what color-coded partisan jumpsuit you're wearing.

For example, Assange was a hero to Democrats after exposing government misdeeds during the Iraq and Afghanistan wars, but was demonized incessantly in the wake of the DNC hack (to the point where the actual data revealed was thoroughly ignored). Similarly, Assange was derided by Republicans as the very worst sort of scoundrel for the better part of the last decade, a position that has, well, softened in the wake of the Clinton campaign-crippling DNC hack. After all, the enemy of my enemy is my friend, for now, right?

In fact Assange has bizarrely become a temporary folk hero to many of the same folks that wanted his head on a pike just a few months ago. Sarah Palin, for example, in 2010 got very close to advocating that Assange be hunted down and killed, likening him to an "anti-American operative with blood on his hands." That position was forged, in part, after Wikileaks leaked Palin's Yahoo e-mails back in 2008 after a hacker gained access to the Alaskan government documents Palin had been storing on a private server.

This week, however, Palin took to Twitter and Facebook to lavish praise on Assange after the Wikileaks founder was interviewed on Fox News, an outlet that has also, on occasion, advocated that Assange be put to death. Apparently, that's all water under the bridge now:Palin took things even further over on Facebook, where she not only apologized for her past comments on Assange, but actually encouraged people to go watch the "Snowden" movie:

"Exposing the truth re: the Left having been oh-so-guilty of atrocious actions and attitudes of which they've falsely accused others. The media collusion that hid what many on the Left have been supporting is shocking. This important information that finally opened people's eyes to democrat candidates and operatives would not have been exposed were it not for Julian Assange. I apologize for condemning Assange when he published my infamous (and proven noncontroversial, relatively boring) emails years ago.

ps. If you get the chance, catch the movie "Snowden." That movie and Hannity's interview tonight are quite enlightening."

For the record she didn't "condemn" Assange, she suggested he be treated like al Qaeda and Taliban leaders (read: violence). And while it's nice that Palin now sees (or pretends to see) that her past anti-whistleblower positions were violently misguided, it's unlikely that this is any kind of lasting sea change. After all, the real message being sent here is that whistleblowers and leakers are the very worst sort of villains when they're saying things we don't want to hear, but they're heroes of the highest order when they leak data that damages our enemies or props up the weekly partisan narrative du jour.

And while this positional flip flop on a certain front is incredibly entertaining in a David Lynch sort of way, transparency and truth don't work that way. While leaking organizations and whistleblowers themselves are certainly fallible, the truths they reveal are non-negotiable, and don't care about partisan patty cake. In other words, these same folks suddenly lavishing praise on whistleblowers now because it's tactically convenient, will be back arguing for assassination by drone strike the moment the next whistleblower reveals truths they'd prefer remain hidden.

Filed Under: julian assange, politics, sarah palin, strange bedfellows
Companies: wikileaks

Photographer Demanding Cash From Sites Using Palin's Official Governor Photo

from the copyright-gone-mad dept

Pickle Monger points us to the latest ridiculous story involving copyright and the government. Apparently, a photographer named Jeff Schultz, who has taken many photos of Sarah Palin, took the photo that Palin used as her "official state photo," while she was governor of Alaska. Members of Palin's administration say they regularly handed out that photo to all sorts of folks as Palin's official headshot. Not surprisingly, the image can be found widely on the internet.

However, it appears that Schultz is now claiming that those who use it are violating his copyright, and are demanding they pay up. And not just a marginal sum, but $11,750, according to the demand letter embedded below. The story covers a demand letter that was sent to a restaurant owner who, back during the last Presidential election, hosted an event where he showed the VP debate between Palin and Biden. In promoting that event at the restaurant, the owner pulled Palin's official pic and put it on his website, where it has remained "in the archives" where almost no one sees it. However, Schultz or his lawyers found it and demanded money from the restaurant owner. Even after the image was pulled, they still demanded money, and rather than fight it, the restaurant owner eventually paid up. Schultz's lawyers also demanded a gag order, that he not talk about the threat and the demand for cash, but he refused to agree to the gag order. Of course, this just makes you wonder how many other folks did pay up and can't talk about it...

Palin's deputy press secretary while she was governor notes that Schultz did, in fact, retain the copyright, but that seems silly. If you're going to post a headshot like that for an official government figure and use it as distribution material for all sorts of media, it seems like you should automatically relinquish any copyright on it. That Schultz is going around now, years later, and demanding cash (and silence!) from those using it seems like yet another story of copyright trolling.

Filed Under: copyright, jeff schultz, photos, sarah palin, shakedowns

If Sarah Palin Has Someone Else Doing Her Facebooking, Is She A Criminal?

from the according-to-facebook dept

The EFF has been working to make people aware of the ridiculous consequences of the really ridiculous stretching of the Computer Fraud and Abuse Act to make such things as violating the terms of service on a website a criminal offense. As part of this, they're now pointing out that rumors that Sarah Palin doesn't write her own Facebook messages and Tweets could mean that Palin is violating the law and criminally liable, since it goes against Facebook's terms of service:

The problem is that Facebook's terms of use prohibit several things that Palin and her ghostwriter may have done. Specifically, it forbids users from:

• accessing someone else's account
• sharing their passwords to let someone else access their accounts
• transferring their accounts to someone else (without Facebook's written permission)
• providing false personal information
• "facilitating" or "encouraging" someone else to violate the terms of use

If Palin and her ghostwriter are in fact violating Facebook's terms of use, that probably doesn't seem like a big deal to most people. Just by surfing around the internet, we "agree" to dozens of website terms of use every day, usually before we even read them. These terms can say anything a website operator wants, and often specifically note that they can be changed at any time without notice (or with minimal notice).

But violating a website's terms of use is a big deal, according to Facebook. In fact, Facebook says it's a federal crime.

The point, of course, is not to accuse Sarah Palin of criminal behavior, but to point out the ridiculousness of saying that terms of service violations are a criminal offense, as many have been doing (including Facebook) in various lawsuits.

Filed Under: fraud, sarah palin, terms of service
Companies: facebook

If Google's Book Scanning Violates Copyright Law, What About The AP's Book Scanning?

from the hard-to-see-the-difference dept

Danny Sullivan does a great job calling out the hypocrisy of the Associated Press yet again. The organization, which has taken a very maximalist position on copyright, where fair use gets mostly ignored, apparently had no problem scanning Sarah Palin's entire book into a computer so that reporters could search it. Of course, this is no different than what Google is doing with its book scanning program (which, again, I still believe is a clear case of fair use). Yet, since the AP seems to take such a limited view on fair use (and has a habit of accusing Google of "stealing" content), it's amusing that it's now trying to defend its actions by claiming that it was legal because it was for the sake of journalism, and the scan wasn't for public consumption. Except, of course, Google's book scanning isn't for "public consumption" of the entire work either, but so people can do a search to find the relevant tidbit of info within the book. The AP's statement on the matter is laughable:

"The book, purchased several days ahead of its on-sale date by the AP, was scanned after the first spot stories moved on the wire from New York so that staffers in bureaus in Washington and Alaska with knowledge of various parts of Gov. Palin's life and political career could read those relevant sections the next day."

Yes, you can understand why they did it, and even why it seems reasonable. But that doesn't change the fact that it appears the AP made an unauthorized copy of the book, in violation of its own interpretation of copyright law. Funny how the law seems oh so different when it limits what you can do, than when it's about limiting what your competitors can do...

Filed Under: book scanning, copyright, fair use, going rogue, journalism, sarah palin
Companies: associated press, google

Sarah Palin Joins Al Gore In Not Realizing That Everyone's A Reporter These Days

from the something-in-the-veep-sauce? dept

Last year, we wrote how odd it was that former VP Al Gore banned reporters from a speech he gave, where all audio-video equipment was also banned. These days, such "no reporters allowed" speeches make no sense -- because anyone can be a reporter. Yet, it seems that there's something in the veep sauce (or veep wannabe sauce) that leads to these sorts of positions, as former VP candidate, Sarah Palin, is trying to do the same thing, barring "reporters" along with any kind of recording devices from a talk that she is giving. You can understand, perhaps, why politicians like to do this, but it seems both out of touch and completely pointless. Every single person in that room can be a reporter in one way or another -- and it doesn't take a recording device, but a pencil and some paper (or a decent memory). Trying to block out the "official" press is just a waste of time.

Filed Under: al gore, citizen journalism, reporters, sarah palin

Palin Threats To News Organizations Seem Misguided

from the why-would-you-do-that dept

I'm hoping the comments here don't turn into a political snowball fight that does no one any good. Personally, I don't care much about "politics" or political parties, and there are few things I could care less about than why Sarah Palin resigned from her job as Governor of Alaska. However, what does interest me is the news that apparently her lawyers sent a letter threatening to sue the press for writing anything defamatory about Palin, specifically mentioning some of the speculation found on various blogs about why she suddenly quit. It's difficult to understand the thinking behind sending such a letter. People will speculate -- it's what they do, and it's perfectly legal. Defamation is declaring something that's patently false as fact, and I don't see any mainstream news sources doing that. But, speculating on the reasons why it might have happened isn't defamation. Even worse, as Jay Rosen notes, in sending such a threatening letter, Palin's lawyers have just "legitimized the story." Now the press has even more to cover, in that they can simply report on the legal threat, and explain the "speculative" stories behind it. Pre-threatening the press not to report on some speculation found on blogs seems like a sure-fire way to get coverage of that story you're trying to suppress.

Filed Under: defamation, free press, sarah palin, speculation, threats

Palin Email Hacker Says Emails Were Public Record... So No Crime?

from the legal-twists-and-turns dept

Last year, we noted two separate problems with trying to prosecute the guy accused of figuring out Sarah Palin's Yahoo email account password and posting it to the internet. First, the Justice Department has stood behind a position that opened emails are not private, based on a very literal reading of the law (you can check the link to understand the reasoning). Second, the law used to charge the guy specifically said that it was only a felony if it was used to further a criminal activity. That is, the hacking, by itself, wouldn't be seen as a crime unless it was a part of a larger criminal activity -- which it wasn't. Prosecutors changed the charges earlier this year to address that -- claiming that the criminal activity was a violation of Palin's privacy.

The accused guy, David Kernell, and his lawyers are trying a variety of different defenses (not surprisingly, of course), including claiming that Palin's privacy was not violated, because Palin's emails were a public record because (due to a separate lawsuit) a court had ruled that Palin was required to preserve her Yahoo account email. Because of this, the argument goes, the emails are part of the public record (which, given the first DOJ definition above, could fit under the DOJ's interpretation of the law). It's difficult to see this line of reasoning succeeding directly, as it seems to defy common sense, so it would be surprising if a judge bought into it.

Filed Under: david kernell, email, hacking, sarah palin

State Of Alaska Threatens CrackHo After Confusing Redirect With Hijacking...

from the why-lawyers-should-have-some-tech-knowlege dept

It's always bad news when the technically illiterate start filing lawsuits over technology issues. A few folks have sent in the news that the state of Alaska, under Sarah Palin's governorship, has (we're not making this up) sent a cease and desist letter to the website CrackHo.com supposedly for hijacking a page from the state's website and using the official seal of Alaska without permission -- which the state claims violates both state laws (fines up to $500 or six months in prison) and federal copyright laws.

So what did the site CrackHo.com do to deserve this? Well, it simply redirected anyone who went to Crackho.com to Sarah Palin's website on the state webpage. Yes. A simple redirect. And the state claims that this is hijacking the website, a misuse of the seal of the state and a violation of federal copyright laws. Based on that logic, with a few simple magic tricks, I've just made TinyUrl, Bitly and Is.gd guilty of the same things.

I mean... I'm sure the lawyers working for the state of Alaska have some free time on their hands right now... but... seriously? Did no one bother to actually investigate what they were threatening?

Filed Under: alaska, copyright, crackho, hijacking, redirects, sarah palin