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Malice is intentional. It is designed to injure. Actual malice, a misnomer if ever there was one, is a constitutional standard applied in defamation actions that does not include the intent to cause harm.

Sarah Palin is suing the New York Times for defamation, specifically libel, which is the written form of defamation; slander is the verbal form. To win, she will have to prove the New York Times acted with actual malice. Giving Palin the benefit of the doubt, her decision to dine in a New York City restaurant, was not malicious, but it might be the best evidence of actual malice in this whole sordid affair.

On June 14, 2017, the New York Times published an editorial entitled America’s Lethal Politics which falsely linked the 2011 shooting of Representative Gabby Gifford to campaign materials published by Palin’s Political Action Committee. There is no evidence that the gunman, Jared Loughner, a paranoid schizophrenic, currently serving seven life sentences for murder and attempted murder, was in any way influenced by Palin or her PAC. The New York Times later printed retractions and clarifications.

Palin alleges that the retractions were inadequate, and she suffered emotional and economic injury from the editorial. More particularly, she insists that as a direct result of the publication she was forced to relinquish her role as a Fox News political commentator…Read More

Lynn Greenky is an Associate Teaching Professor at Syracuse University in the Department of Communication and Rhetorical Studies. She teaches a beloved undergraduate course about the First Amendment. She is the author of When Freedom Speaks: The Boundaries and Boundlessness of the First Amendment. You can follow her on Instagram @LynnGreenky.