Did you hear the one about the unvaccinated Alaskan who walked into a New York City restaurant? It goes a little something like this:
Last Saturday on CNN, I gave a preview of Sarah Palin’s imminent defamation trial against The New York Times. That same night, Shawn McCreesh — a New York Magazine writer — reported that Palin was having dinner at Elio’s, an old school Italian restaurant on Manhattan’s Upper East Side.
Palin was dining indoors! But why does that matter, exactly?
Well, she’s a vehement anti-vaxxer, who last month told a group in Arizona that “it will be over my dead body that I’ll have to get a shot.”
So it didn’t long for the New York media to recognize that she broke city rules, which require indoor diners age 12 and up to show proof of vaccination.
Elio’s manager told The New York Times they’d “just made a mistake,” and that Palin dined with a longtime regular whose vaccination status had, presumably, already been vetted. Ultimately, the restaurant escaped punishment from the city for the vaccine mandate violation. New York City authorities only do so when a city inspector observes the infraction, not another diner.
The night after her dinner at Elio’s, Palin’s lawyer notified the federal judge overseeing her trial that she had tested positive for COVID-19. It delayed the trial until Feb. 3 — provided, obviously, that she tests negative.
“She is, of course, unvaccinated,” Judge Jed Rakoff said after announcing the results of Palin’s first test.
Two nights later — on Wednesday — Palin returned to Elio’s. This time, she dined in the heated outdoor café section just days after testing positive. Soon, video circulated of her eating outdoors with similarly unmasked companions while being waited on by a masked server.
In a statement, Elio’s manager said: “Tonight, Sarah Palin returned to the restaurant to apologize for the fracas around her previous visit. In accordance with the vaccine mandate and to protect our staff, we seated her outdoors … We are a restaurant open to the public, and we treat all civilians the same.”
But in a text sent to The Washington Post, the owner of Elio’s said she was against having Palin return at all. “It was against my clearly stated wishes that Sarah Palin dined outside that night,” she said.
Unsurprisingly, the restaurant’s Yelp page started receiving such a sudden groundswell of activity that the site temporarily suspended its reviews.
Following the story, I thought it was reckless for Palin to interact with others in a public space while having COVID.
Not just because of the risk of contaminating others. I mean reckless in a legal sense.
She’s about to be the plaintiff in a case that will be litigated in the Southern District of New York. It’s a federal court that will draw jurors from the following Metropolitan and downstate New York counties: the Bronx, Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan.
Surely, Palin knew that dining out with COVID at a Manhattan eatery would be news when it had already been reported that she was positive. It’s as if she returned to the same place to make certain this got coverage.
Why did she not exercise caution so as to not alienate prospective jurors who might receive a jury summons days after reading that Paling contracted COVID and still went out to dinner?
Of course, many have applauded Palin’s defiance. Among them, former GOP Congresswoman Michele Bachmann, who on Friday told Fox News that Palin ought to be “commended.”
Dare I say many won’t agree with Bachman. Palin is going to need everybody in that jury box.
And by the way, the judge made clear will not he automatically exclude unvaccinated jurors.
Then it hit me.
Even though The New York Times printed a falsehood about her that she’s suing over, Palin knows she will lose the upcoming trial. And that’s okay with her.
In the short term, she’ll appear in front of federal jurors. But Palin is playing the long game. Her real goal is to get the case in front of the Supreme Court, banking on the potential reception she’d received from justices who currently divide 6-3 in favor of her ideological lines. Moreover, two of those judges recently tipped their hands on whether that precedent guiding Palin’s trial needs another look.
That case is called New York Times vs. Sullivan, and it restricts the ability of public officials to sue for defamation because of the First Amendment.
During Gorsuch’s March 2017 confirmation hearings, Sullivan was actually one of the few cases he had agreed was settled laws. “Proof of actual malice is required to state a claim, and that’s been the law of the land for — gosh — 50, 60 years,” he said.
But then this past July, while dissenting in a case the court declined to hear, Gorsuch joined Justice Clarence Thomas in saying the court should revisit the breadth of the Sullivan ruling — and explore how it applies to social media and technology companies.
“Not only has the doctrine evolved into a subsidy for published falsehoods on a scale no one could have foreseen, it has come to leave far more people without redress than anyone could have predicted … Anyone can attract some degree of public notoriety in some media segment,” Gorsuch wrote.
Meanwhile, Clarence Thomas wrote that the court’s earlier pronouncements that the First Amendment “required public figures to establish actual malice bears no relation to the text, history, or structure of the Constitution.”
You know who’s also been advocating for a tightening of libel laws for a long time? Former President Donald J. Trump — even before he announced his candidacy.
Back in 2015, Trump called into Fox and Friends to complain about something he’d heard me say on TV and offered: “We should reinstate libel laws so that we could go after people nowadays when they make really egregious statements …”
Here’s what Trump and Palin don’t like: They hate that for a public figure to successfully sue for defamation, they have to show actual malice, the knowledge of falsity or reckless disregard for the truth.
That’s the law they want changed.
So Palin is dining on the fact that future defamation law won’t be New York Times vs. Sullivan. It will be Palin vs. New York Times.
If Palin returns to Elio’s for a third time, you’ll know I was right.
Using the perfect blend of analysis and humor, Michael Smerconish delivers engaging, thought-provoking, and balanced dialogue on today’s political arena and the long-term implications of the polarization in politics. In addition to his acclaimed work as nationally syndicated Sirius XM Radio talk show host, newspaper columnist, and New York Times best-selling author, Michael Smerconish hosts CNN’s Smerconish, which airs live on Saturday at 9:00 am ET.