Sarah Palin Takes on the New York Times

defamation case. Palin claims the newspaper hurt her reputation with the twenty seventeen opinion piece that tried to tie her political rhetoric to a deadly shooting. It's an uphill battle because of the Supreme Courts landmark nineteen sixty four decision in New York Times v. Sullivan. But Palin maybe looking beyond the New York trial to a Supreme Court where two justices have asked it revisiting the Sullivan decision joining

me is got him hands. A professor at Vanderbilt Law School tell us about the New York Times standard that Palin is going to have to meet. So in deformation cases. The Supreme Court has established that for public figures like Sarah Palin, the plaintiff Palin in this case needs to establish that actual malice was present, that that that the publishers choices were so agreed to this. It's such a

high level that they meet that actual malice standard. This is because part of our First Amendment tradition in this country is that we want to encourage speech, We want to encourage debate, particularly about public officials, public people, and so any kind of lower standard than actual malice might discourage that kind of public discourse that the First Amendment is aiming to promote. The Time hasn't lost a defamation case in more than half a century. So is that

a very high bar for plaintiffs to get over. Yes, it's very difficult for plaintiffs to prevail in defamation cases, particularly when they're public officials like Sarah Palin, because of the Supreme Court's decisions dating back to the Sullivan case from their early sixties. That's why, as you noted, the Times says frequently prevailed as it defendant in such cases. If Palin loses here, where does Supreme Court take this case?

Is it likely I think it's hard to say lawyers love to disclaim predictive qualities when it comes to the Supreme Court. I do think that Palin and her legal team realize that it's going to be difficult for them to win under the current law. Sometimes people bring cases thinking that, well, maybe we'll lose at the trial level, maybe we'll even lose at the appellate court level. We're going to aim for the Supreme Court so we can try to get the change to the law from the

Supreme Court. And I think in this case that's not a wild bet to make, because at least two Supreme Court justices have some concerns about the precedent from the Sullivan Kates from the sixties, both Justices Thomas and Corsets. Clarence Thomas and the Corsets have made written statements saying that the Sullivan precedent and potentially the actual malice standard need to be revisited or to be revisited by the

Supreme Court. So it takes four votes on the Supreme Court to grant sir serrari for review of a case, and we know there are possibly two, so that's halfway there. I think the possibility that there are another two. It's certainly conceivable to me. What are the reasons for thinking

it's time to revisit New York Times Sullivan. I think that the Sullivan decision, although I think really necessary to promote a free press in ensuring that we can have a kind of public debate we want in this country, has had critics since it came down in the sixties, and in part because it's made defamation cases harder for plaintiffs to win on If you look at the UK, for example, they have a very different standard and so it's easier in in libel cases in the UK for

plaintiffs to prevail. And so I suppose that some people feel that Sullivan doesn't work, or maybe in a digital economy with a different kind of news media landscape, that it's not applicable. So I think that there might be appetite and certainly, as I mentioned, there is from the justiceist of Coursation Thomas to maybe live in Sullivan or make it a bit easier for plaintiffs to win deformation cases. I think there are lots of ways that we could see the court moving were they to take the Paling

case or another case like it. You know, I think many Supreme Court observers and many citizens have noticed that the Supreme Court has been revisiting a lot of its long standing precedents in recent years, Rovi Wade being the most obvious, and so this might be another entry on that list of long standing cases that, given the conservative nature and the Supreme Court's current members, could be up

for revisiting. Can you explain why there has been this conservative outcry against the Sullivan decision because it protects what people see as liberal media as well as what people see as conservative media. It protects them both. Yeah, I think that's part of the reasons that I'm concerned about the possibility of revisiting Sullivan, because the First Amendment, I like to say, doesn't have a partisan balance. We all benefit from the person number protections. They don't just accrue

to liberal sort of servatives. And so what's good for the goose is good for the gander. And you could see a limiting of Solivan not just harm to New York Times, but harm right wing media publications as well. I think that there's a lot of antipathy on the right towards what they consider the media, the mainstream media, and I think that this case is certainly part of

that trend. I think to think that it's only going to harm the mainstream media is shortsighted, as the Sullivan decision and the person and that were broadly present all of us, not just on one side for the other, so that I think is lurking under the surface of

the appetite for limiting the Solivan decision. I know that there's been some scholarship noting that judges have become much more hostile to the media in decisions over the last few decades, and I think that's the sign of the larger public disapproval or maybe hostility towards what they perceive of as the mainstream media. Was an editorial piece, is

that treated differently than a straight news story. That distinction I don't think is really drawn in the cases, uh, in part because I think that's not always a clear line. Certainly for The Times, that they have that distinction between the news and the opinion desks, But I don't think that's material to this case. The Sulivan decision was actually about an advertisement, so it really comes down to what

the publisher is promulgating in its media. The Times argues that it was an honest mistake and that it corrected the errors in about twelve hours. Is that a good defense under the Sullivan standard. Yeah. I think that's the strong point in the Times of favor that they acted expeditiously,

relatively speaking, to correct it. I think that the plaintift Tarapinlan and her legal team would probably note that twelve hours in a digital eco system is like twelve days in the past, and that's maybe part of why they think that Sullivan doesn't work well in today's media landscape because of the acceleration of the time horizon. But you know, that's not part of the current standard under the law. Perhaps it might be if that's where it goes on appeal.

How would you describe what reckless disregard is, because all these pieces go through various levels at newspapers. I think that would have to be just completely shutting your eyes and ignoring the evidence to a really high degree, because it's part of the reason it's a high standard. It really needs to demonstrate the complete lack of any kind of care. And I think the Times would argue that

that's not president this case. You know, some of the defamation cases that have been going on as of late that implicate the standard. You know, I think the dominion case based one of them about voting machines there. I think the plaintiffs have argued that there's this complete and constant putting your head in the stand on the part of the media organization in those cases. So it really needs to be pretty flagrant, which is part of the

reason that most plaintiffs have a hard time winning. I'm wondering, you know, at night, you have TV hosts saying some pretty outrageous things, and without the time standard, would they be held on a tighter rein yes, I think so. I think that you would see much more caution and maybe even hesitancy from members of the media, from interviewees, and that cuts both ways. I think that some would say that, you know, we need to have more care, that the people should be more guarded or thoughtful about

their statements. But more commonly, at least existing cases, the courts have said, no, you know, the First Amendment is really broad for a reason, and we are trying to avoid a kind of self policing or a fear of use and legal action. That the best way to have people try to be cautious about what they say is not for the specter of the lawsuit to be present, but rather for social mores and and other ways of

societal cohesion about certain ideas is better. Oftentimes lawyers in sectors will say, you know, there are lots of social problems that we have, but maybe the law is the best way to address those. The law is not always the best tool to try to promote certain goals or discourage certain outcomes. And the broad standard that we have now sort of takes lawsuits largely off the table for defamation and moves us to a setting where society as a whole, or American culture as a whole, can try

to decide what's inbounds and what's out of bounds. Of course, I'm in the polarized era like today. That's very hard to achieve, and it maybe even impossible, And perhaps that's why the lack of a social mechanism for developing ideas is perhaps why some people are more optimistic about some kind of legal outcome. Very expensive case, and if it goes to the Supreme Court, even more expensive. Is she paying her lawyers or these lawyers pro bono or do

you have any idea about them? I don't know about that. I mean, there's lots of ways to finance lawsuits. It could be a pro bono. I think sometimes you see expensive cases being litigated pro bono because they're high profile, or they might accrue some kind of social standing. There is litigation financing that seems to be a little odd in this kind of situation. But you know, there's all sorts of ways that you can imagine the case finance.

But I think that pro bono or reduced hourly rate certainly possible for a high profile case where if they win, not only do they win big potentially on a financial reward, but they may also win reputationally as the legal team that took down or limited Sullivan and took down or or harmed the Times. Is this the highest profile defamation

case that we've seen in a while. This is I think the most high profile example of a lot of defamation cases that are being litigated right now are being contemplated, and I think there's one against the Southern Poverty Law Center as well. And so I think those who are opposed to Sullivan smell blood in the water because of the statements of justice is Courstitch and Thomas, and I suspect that we will see if not in this case, some other case that may pique the Supreme Court's interest.

As a scholar in this area, do you think that times the Sullivan is the right standard? I think so yes, because I think it is really allowed for the growth of media and a real strong or stronger media landscape than we would have had otherwise. In terms of the differences of opinions. I mentioned the UK. If you look there, there's a lot of reporting that happens in the US that can't be done in the UK, particularly because of their higher prevailing rates for livel cases. And so I

think it is on balanced good. I understand some of the concerns, but I think a world without the Sullivan case would really be to all of our detriment. Thanks for being on the show that's got him, Hans of Vanderbilt Law School President. Joe Biden's unprecedented inaugural day firing of the Federal Labor Board's top lawyer during the Trump administration is teed up for judicial review at a Republican

dominated US appeals court in New Orleans. Business software firm Excella Enterprise says that Biden did not have the legal authority to remove former National Labor Relations Board General Counsel Peter Robb. The company argues that made the actions of Rob's replacement legally invalid. Those actions included issuing an unfair labor practice complaint against Excella for failing to bargain with a union, leading to an n l RB ruling against

the company. Joe Aemy is Anne Lafosso, a law professor at West Virginia University, and tell us about the issue here. So the question here is whether the President was allowed to remove the General Council from the National Labor Relations Board, which the President did. It was one of his very very first acts on January twenty though it might have been the twenty one, and he removed the General Council Peter Rob and eventually he put in acting General Council

Peter Or although there was a step in between. There was an interim acting one, and then eventually there is now a full pledged general Counsel in there, Jennifer Bruzzo, who has been with the advice and consent of the Senate, has been approved by the Senate, so she's in there legitimately. At this point, the question here is whether or not that act was constitutional. And if it was unconstitutional, does that mean that this case now is void. Do you

know why Biden moved right away to remove him. Yeah, The unions felt that Peter rob was moving in a direction that was at a very accelerated pace that was very anti union. Now, whether that's true or not, but that certainly was the perception of unions, and that he was constantly challenging the way the board had done things for three quarters of a century. And so unions put pressure on Biden to get rid of Rob as soon as possible in order to, in their view, limit the

damage that Rob was doing. Because the general counsel can shape exactly what goes before the board, the board can't do anything without a case before it, so it's very important too. The general counsel is in the n l RB, so tell us what the company excels position is here. So the company allegedly engaged in unfairly practice. The board found that unfairly practice. So the company says, oh, that's all well and good. We don't think we did it

at all. We don't think we acted unlawfully. But even if we did act unlawfully, um, this whole case is void because the General Council was not allowed to bring this case because the General Council was appointed unconstitutionally. Has the n l RB ruled on Biden's termination of rob Yes, and it says that the Supreme Court's case and Collins v.

Yellen um closes the door to that. So, in other words, that it is perfectly fine what Biden did because the case that was before the Supreme Court last term, Collins b. Yellen, makes it very clear that the president has removal authority over agencies, administrative agencies. So Collins v. Ellen is one of two cases. There's Sailor Law and Collins v. Yellen. And this is what's really important here is that in these two cases, the Supreme Court held that the president

has authority to remove lesser executive officials. So essentially, Article to vest the full executive power in the presidents, and that generally requires that the president maintain unrestricted removal power over lesser executive officers who exercise significant executive authority, so that the president is ultimately accountable to the people for

those actions. So, in other words, this is a very expansive view of executive authority that the president has these inherent powers, the full executive power to remove agency heads. And therefore, even if Congress wrote into a statute that there are restrictions on the president's power removal, those at least so far been ruled unconstitution at all. I mean, doesn't that answer this case. That's what the board said.

Now in their briefs, the company has their attorneys have argued that, first of all, Um, section three of the Act says that the president has the authority to remove board members. Well, first of all, that might be, like you suggested, that might be unconstitutional. But second, given these cases before the Supreme Court. But now, Um, on top of this, there's no text. There's actually no restriction on the president's removal power in the National Abe Relations Act

with regard to the General Council. So it should answer the question. Now, that's why I think they're probably teeing up to re challenge this in the Supreme Court. So it would be hard for the Fifth Circuit to go against these two presidents because their mandatory authority for the Fifth Circuit, And that's even though it's considered the most conservative circuit in the country. Yeah, it's conservative, but it's not going to be It can't be results oriented right.

So in other words, that's why a lot of people think that conservative means it's gonna come up with a conservative result. But I always tell my students what's good for the goose is good for the gander. So if you have a strong executive um authority, the president now is very strong executive power. And by the way, that's what Trump put into the Supreme Court, like Kavanaugh is known for having very very strong beliefs about a strong executive So we have Supreme Court right now that seems

to at least starting to favor very strong executive powers. Well, now, that means when the president is a Democrat, the president has strong executive powers. It doesn't matter whether the president is pro business, pro labor, or whatever the presidents is. That's strong executive powers. And the Fifth Circuit has no choice but to go with the Supreme Court's precedents. So the only thing the Fifth Circuit can do is if it thinks that these cases are not not on point.

But it's really hard to imagine why they wouldn't be on points because one of them, at least one of them deals with an independent agency like the National Labor Relations Board, And in fact, these cases are weaker than the case right now in the n LRB, because in the l RB case, there's literally no text that puts a limit on the president's removal power. So what they could try to argue is, well, the president doesn't have

removal power because not in the text. Except these cases stand for a sort of inherent power that the president has to remove under the Constitution. So they're saying that the n l r AS removal sections for n l r B members also applied to the General Council. Does that make sense to you? Under Section three of the Act,

the President cannot remove board members except for cause. It's limited cause to They define it as this one says any member of the Board may be removed by the President upon notice and hearing for neglect of duty or mouthfeasance in office, but for no other cause. And then it says nothing about the General Council. So what I'm saying is one Section three may be unconstitutional, in which case the president could even remove board members based on

this precedent. But to forget about that, let's say that's constitutional, which I think is in grave. That's an highly dubious Now, after these precedents, Okay, there's nothing in the text that limits president's removal authority of the General Council. There's no text like that at all. Doesn't it's silent completely. They alleged that it makes the role more political to have the president be able to fire the General Counsel without cause.

Do we accept already that this role is political? Oh? Yeah, absolutely, And it does make it even more political. It makes it more accountable political, meaning accountable to the people. That's what politics is, right. I mean, we can agree or disagree whether we want this to be. I mean we're stepping into a world now where it looks like if there's a change in party, or even if it's not, the president can remove the heads of agencies. That is

definitely what these cases are saying. And now presidents don't want to do that completely because there's a couple of reasons. One is it creates incredible instability in the agencies, or

at least some instability, right. You don't want to keep on removing heads of agencies, so you want to do it at times when you think there's a reason, right, but that reason now and I think this is probably with the company suggesting can be political after the political election and some people think that's good because they'll say that, well, if we go from Republicans Democrat, or from Democrat to Republican.

What we're basically saying is the people want a different course of action, and they don't want to wait two years into the president's term to see things happening. So, for example, unions greatly supported Biden, and so they want to see action right away. It would have been delayed. Um has Biden not taken this action right away? And by the way, if the Republicans win the next time, the Republicans can remove Jennifer Brutso right away. So that's

called accountability to the people. But the problem with that view is that our people really are the people really voting for a president because of what the president views on the National lab Relations Board are Some people might be, but others might be because they like the president's views on abortion and they want to have certain um judicial picks.

So this is this is a very interesting debate, and this is definitely we are definitely changing from a a different model of administrative law here, and that's why I think this could easily go to the Supreme Court. The President just announced that he's removed UM I think the head of the Social Security Administration so recently, so this is definitely going to I think this will go to the Supreme Court again. Why do you think that if the Court has already ruled on this in two other cases,

why why take this one as well? Maybe not this one, but others just to because this is why the first one was a five four decision, and there's two strong descents in the second one by Gorcage and Thomas and Gorcige and Thomas are not fans of this at all. So there is what they need to do is they need to get They need to convince someone because potentially you can look at the first one, Sailor Law, and say, oh, what was different about that one that got it closer?

So they would have to think of some arguments. Why would this be different? Is this the right case to take up to lessen presidential authority? Do you know where Justice Barrett stands on this? I think she would right now tend to be with presidential authority. But that's not going to necessarily we have to see, there's not enough data to really predict. I think we know that Thomas and gorst really don't like this at all, all Right, Alito loves this. So this is what I'm saying. This

is presidential power tends to be a conservative thing. Republicans tend to want more and more power in the president. Well, the Democrats are just taking advantage of that right now. They like, Okay, that's what you wanted. What's good for the goose is good for the gander. But then that's the way it works. Why are the conservatives split? Then? Why do Gorsage and Thomas oppose the presidential power and in Alito you think is for it? Well that's what

they said. But why do I think they're like that? Why is the conservative block split on this? Okay? Because this is my guess about Gorsage. My guests on Gorsage is because he doesn't like the administrative state at all. So there's other things. What what I think the late what lay people or people are not experts in constitutional law or in the in the court don't understand because and they shouldn't they shouldn't have to think about these things.

Is they think that everything is about um, what your pity, what your political views are. But these justices have very strong views and ideologies and theories about how the Constitution should run. So whether you you'll see that sometimes Thomas Will will actually go with the Liberals on something because of a different principle that he really wants that's more important than the results. Really, the only the most results oriented person right now on the Court is a leado.

The leado almost always you can predict which way he's going to go. It's probably going to be whatever politically is conservative. And I'm not suggesting that that means he's not authentic or anything, but it just seemed. But he's the one. The others it's hard to predict. Remember Gorcich and he wrote Bostock, which was on same sex marriage.

People were shocked. I was not shocked about that because Gorstch cares about textualism, and that was what he was pushing, was the textualism because he wants that argument then for the next case, and he wants to be consistent. So they're pushing agendas that we don't necessarily see. But if this went to the Supreme Court, now, what's your best guess about how it would turn out Biden would be upheld?

Let's just say that Biden wasn't upheld. Has a BRUTESO done enough within the agency so that whatever or did has been ratified. I think so. I mean she's been doing a lot. I mean they have been the the NLRB has been screwed by its actions so much in the last twenty years by doing things and then it has to be re ratified, you know, no canning in other cases that went to the Supreme Court that I think it's learned its lessons, so they were ready for this.

She hit the ground running, and she already had she was ratifying things. So I don't think we're going to have a replay of what happened in the early century, you know, like a decade ago. I don't think we're gonna have a replay of that. But it's going to be depend on what the court says. But my best analysis as a person who teaches both labor law and constitutional law is that we will not have a replay

of that and that very little will be affected going forward. Also, there are a much stronger ground than they were a decade ago. We really I've seen a change in the perception of executive power that's much less nuanced and much more about the president has a lot of power. Thanks so much. Anne. That's Anne Lofasso, a professor at West Virginia University. And that's it for the edition of the

Bloomberg Law Show. Remember you can always get the latest legal news by listening to our Bloomberg Law Podcast wherever you get your favorite podcasts. I'm June Grosso and you're listening to Bloomberg