Clinton and Palin: The Start of a Beautiful Friendship?

Clinton’s swiping of the phrase “actual malice” shows that the Alert Alaskan has succeeded in drafting an unlikely ally to her cause.

Senator Clinton and Governor Hochul during the New York State Democratic Convention at New York Febriaru 17, 2022. AP/Seth Wenig

Could this be the beginning of a beautiful friendship? It might be difficult to imagine Hillary Clinton and Sarah Palin walking through the fog on a runway at Casablanca. Not quite so difficult as it once might have been, though, given the latest developments in the gathering fight over libel law in the United States.

Mrs. Clinton, the erstwhile secretary of state, just gave to the New York State Democratic Club a speech in which she labeled suggestions on Fox News that her campaign illicitly spied on President Trump “awfully close to actual malice.” The definition of “actual malice” is precisely what’s at issue in the litigation between Governor Palin and the New York Times.

So in the broad constitutional sense, these improbable leaders are on the same side. Mrs. Clinton was responding to reports that bloomed in the wake of a filing by Special Counsel John Durham. He is investigating the murky origins of the collusion narrative regarding Mr. Trump and Russia. Mr. Durham suggested that a technology executive connected to Mrs. Clinton’s campaign might have gained access to servers in Trump Tower and even the White House.

If “actual malice” rings a bell, it is because it’s the phrase that has been at the center of Ms. Palin’s legal battle royale with the New York Times over a 2017 editorial that erroneously linked her to the assassination attempt on Congresswoman Gabrielle Giffords that left six people dead. 

While Ms. Palin lost this round of the court case to the Times, with both judge and jury determining that she had failed to meet the sky-high bar to prove actual malice, her litigation spotlighted attention on a constitutional standard that requires public officials to show knowledge of falsity or reckless disregard on the part of the defendant to triumph in a defamation suit.

In fighting the Gray Lady, Ms. Palin has been the tip of the spear in trying to at least partially revoke the carte blanche with which the press covers public figures.  

Mrs. Palin now must decide whether to appeal the district court decision against her. Legal pundits are keeping one eye on the Supreme Court, where Justices Gorsuch and Thomas have indicated willingness to reconsider the criteria for demonstrating actual malice.

Courtroom drama aside, Mrs. Clinton’s swiping of the phrase “actual malice” shows that the Alert Alaskan has succeeded in drafting an unlikely ally to her cause. Invoked by totemic figures on the right and left sides of the aisle, actual malice is emerging as a bipartisan cudgel.   

For his part, Sean Hannity, the Fox News host, responded to Mrs. Clinton’s insinuation of malice by firing back: “Bring it on. Malice, really? It’s called news.”   

The stage is set for these two women, long accustomed to the glare of the media spotlight, to find common cause in fighting to tame media outlets that have long been their bêtes noires.   

The New York Sun

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