Press Freedom, Defamation / Reputation
Nunes v. Cable News Network, Inc.
In Progress Expands Expression
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The US District Court for the Southern District of New York held that New York’s amended anti-SLAPP law, which required public figures to prove actual malice by clear and convincing evidence, applied retroactively to the plaintiff’s defamation action. The plaintiff, Sarah Palin, had brought a claim against The New York Times Company and an author for a defamatory editorial. She disputed whether she had to prove “actual malice” in her lawsuit, but the US District Court had decided that such a burden was imposed on her by virtue of federal law. Based on an amendment to New York’s anti-SLAPP law, the defendants argued that the change in law should apply retroactively to the case – making the burden imposed on the plaintiff one by virtue of state law. US District Court Judge Jed S. Rakoff accepted that the amendment applied to the case, noting that the modified law was a remedial statute that should be given retroactive effect. The defendants’ motion was thereby granted.
The plaintiff in this case was Sarah Palin. On June 27, 2017, she had brought a single defamation claim against The New York Times Company (the Times) based on an editorial it published on June 14, 2017. Entitled “America’s Lethal Politics”, the initial version of the editorial included a segment that seemingly linked the rhetoric of the plaintiff’s political action committee, which targeted an electoral district, with violence that ensued there. She filed a new complaint on December 30, 2019 and named James Bennet, the author of that segment, along with the Times (collectively the defendants).
The plaintiff disputed that she was required to prove “actual malice” and “prove it by clear and convincing evidence, on the ground that the federal constitutional rule imposing that burden in the case of public figures either [was] no longer good law or [did] not apply to this case” [p. 1].
The defendants argued that the federal constitutional rule applied to the case and, nevertheless, New York law imposed an actual malice requirement. The US District Court for the Southern District of New York found that the federal constitutional rule indeed imposed the requirement based on binding precedent. No decision was made over whether New York law imposed the requirement. The case was set for trial on June 21, 2021.
Thereafter, the defendants filed a new motion to modify the opinion, arguing for the application of a new amendment to New York law. Specifically, New York amended its anti-strategic litigation against public participation (anti-SLAPP) law on November 10, 2020. The amendment required public figures to prove actual malice by clear and convincing evidence. The defendants requested for the Court to apply the amended rule retroactively to the action so as to require the plaintiff to “prove actual malice by clear and convincing evidence as a matter of New York law” [p. 5], distinct from that of the federal Constitution.
Judge Jed S. Rakoff of the US District Court for the Southern District of New York sought to determine if the amended law should be given retroactive effect in respect of the defamation action, which was filed beforehand and had not yet gone to trial. Neither party had disputed the content of the amended law – that public figures, like the plaintiff, were required to prove actual malice by clear and convincing evidence.
The defendants argued that a ruling would “inform the drafting of jury instructions at trial, simplify future proceedings including on appeal, and give effect to constitutional avoidance” [p. 5].
The plaintiff countered that there were no extraordinary circumstances to warrant reconsideration. Simply, the Court had decided that the actual malice rule applied and the source from which the rule stemmed was irrelevant for the upcoming trial. Moreover, if the plaintiff was to lose at trial and renew her claim to the federal actual malice rule, the defendants would have preserved their argument that New York independently imposed the requirement. Overall, nothing would be simplified from reconsideration and it would just amount to an advisory opinion.
Firstly, the Court noted that the Federal Rule of Civil Procedure provided that an interlocutory order could be revised at any time prior to the entry of the judgment that adjudicates all the claims, particularly for the reason of an intervening change in the law. In this case, there had been an intervening change in the law: New York’s anti-SLAPP law, which contained the actual malice requirement, was amended to broaden the reach of the rule.
In accordance with New York law, statutory amendments were generally applied prospectively unless the legislature explicitly indicated that they were retroactive. However, remedial statutes that “correct imperfections in prior law” [p. 7] operated retroactively to give effect to their beneficial purpose. In this case, the law was a remedial statute that should have been given retroactive effect. The legislation “conveyed a sense of urgency” [p. 8] by pushing for the amendment to have immediate effect. Similarly, legislative history had demonstrated that the amendments were aimed at correcting the narrow scope of the prior anti-SLAPP law and protecting the free exercise of speech, petition, and association rights. Thus, the Court found that the remedial purpose of the amendment was effected through retroactive application.
The plaintiff had offered three reasons to forego retroactive effect. Firstly, there was no temporal expression in the amended law and so the changes were not intended to be remedial. The Court disagreed; such a discrepancy did not undermine the clear evidence that the legislature intended the relevant law to have retroactive effect. Secondly, the plaintiff argued that there was a presumption in case law against retroactivity where an amendment would affect substantive rights. The Court noted that this rule was not articulated under case law, and even if it was, the relevant amendment would not impact the plaintiff’s substantive rights since she had to prove actual malice as a matter of federal law separate from that of New York law.
Thirdly, the plaintiff suggested that retroactive application would raise constitutional concerns, including around due process. Specifically, the plaintiff would be required to prove actual malice by clear and convincing evidence for a claim that was three years old. While the Court accepted that retroactive legislation could implicate due process concerns in certain cases, the plaintiff had failed to identify any harsh impact retroactivity would have in this case.
Based on these reasons, the Court held that the amended law applied to this action, requiring the plaintiff to prove that the defendants acted with actual malice by clear and convincing evidence by virtue of state law – a standard she previously had to prove under federal law. The defendants’ motion was granted.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by retroactively applying and reinforcing the requirement (by virtue of state law, not just federal law) that the plaintiff prove in her defamation claim that the defendants acted with “actual malice” by clear and convincing evidence.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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