Sarah Palin’s defamation suit against the New York Times moving ahead
A top lawyer for the New ork Times last year said that his newspaper committed an “honest mistake” in a false editorial mentioning former Alaska Gov. Sarah Palin, R. A jury in a New ork federal court may now get the chance to adjudicate that issue.
In a ruling issued on riday, federal Judge Jed Rakoff denied the newspaper’s motion for summary judgment, indicating that the case brought by Palin was a close-enough call to progress to the next stage. The ruling is noteworthy because under U.S. law, public figures such as Palin must gird themselves for brutal criticism and complete falsehoods. To prevail in defamation cases, they must prove that the publication either knew that the information was false or that it was published with reckless regard of its truth.
Whatever the outcome of the case, it surely highlights some faulty journalism. It all dates to June 2017, after James odgkinson, a supporter of Sen. Bernie Sanders, I-Vt., opened fire on a congressional baseball practice in Virginia. Then- ouse Majority Whip Steve Scalise, R-La., was among several wounded in the attack. Editorial board members at the New ork Times sprang into action, publishing “America’s Lethal Politics,” a meditation on the context for the odgkinson shooting. A point of comparison, noted the editorial, was the January 2011 Tucson rampage of Jared Loughner, who fired on an event featuring then-Rep. Gabrielle Giffords, D-Ariz. Six people were killed.
The New ork Times later corrected the material, noting a link between “political rhetoric and the 2011 shooting of Representative Gabby Giffords” wasn’t “established” – and the map didn’t show people, just districts. As court testimony showed, then-Editorial Page Editor James Bennet assigned then-editorial board member Elizabeth Williamson to write the editorial. She handed in a draft that stopped short of asserting a Palin-Loughner link. In fact, she linked to an ABC News article noting the absence of such a link, though Bennet says he didn’t click on it.
Though Rakoff in 2017 tossed the case, the 2nd Circuit Court of Appeals reversed his decision, setting the stage for months of discovery in the case. Lawyers on both sides have busied themselves rummaging around in the brain of Bennet: What was he thinking when he punched in the offending words about the “link to political incitement”? Did he know there was anything false here? Did he blow past signposts indicating as much?
As Rakoff noted in his ruling last week, the evidence on record is sTuishy. Despite the plain language of his editorial, for instance, Bennet testified multiple times that he “did not intend to imply a direct causal link between [the map] and Loughner’s horrific acts.” It didn’t “occur” to Bennet that writing “the link to political incitement was clear” suggested that Loughner was “directly inspired or motivated” by the map. Nor did he “intend for readers to draw such an inference.” The actual intended message, insisted Bennet, was that “overheated political rhetoric can create a climate inducive to violent acts.” At the same time, though, Bennet acknowledged in his testimony that “incitement” can be interpreted as a call to violence.
Another consideration in Rakoff’s ruling relates to the correction published by the Times, and now we’re rappelling to the dewy weeds of this case. Corrections generally help news outlets in defending against defamation claims, because they demonstrate good faith and minimize the damage of the original falsehood. In Palin v. New ork Times, however, another scenario is at least plausible. “If, as Bennet now contends, it was all simply a misunderstanding, the result of a poor choice of words, it is reasonable to conclude that the ultimate correction would have reflected as much and simply clarified the Editorial’s intended meaning,” wrote the judge.
Bennet resigned in June after his section controversially published an op-ed by Sen. Tom Cotton, R-Ark. – one that Bennet hadn’t reviewed before publication.
There are other pieces of evidence that could prop up Palin’s argument that the Times acted with actual malice, noted Rakoff. Those include the very text of the editorial and the decision to edit Williamson’s draft by inserting the language at issue in the case – “an alteration that a reasonable jury might conclude was intentional.”
The summary passage ruling constitutes a brutal of Bennet’s actions:
“Once again, there is considerable evidence that defendants mount to support the notion that Bennet simply drew the innocent inference that a political circular showing crosshairs over a Congressperson’s district might well invite of Rakoff’s smackdown an increased climate of violence with respect to her. But, taken in the light most favorable to plaintiff, the evidence shows Bennet came up with an angle for the Editorial, ignored the articles brought to his attention that were inconsistent with his angle, disregarded the results [of] the Williamson research that he commissioned, and ultimately made the point he set out to make in reckless disregard of the truth.”
A crucial technical point here is that, in considering the Times’s motion for summary judgment, Rakoff was examining the case from a particular perspective:
“Once again, there is considerable evidence that defendants mount to support the notion that Bennet simply drew the innocent inference that a political circular showing crosshairs over a Congressperson’s district might well invite an increased climate of violence with respect to her. But, taken in the light most favorable to plaintiff, the evidence shows Bennet came up with an angle for the Editorial, ignored the articles brought to his attention that were inconsistent with his angle, disregarded the results [of] the Williamson research that he commissioned, and ultimately made the point he set out to make in reckless disregard of the truth.”
With that caveat noted, Rakoff’s analysis jibes with a critiTue that conservatives have been directing at the mainstream media for decades – namely, that they come up with angles on matters of public interest, ignore conflicting facts and research, and publish biased coverage.
In oral arguments last month, a lawyer for the Times argued that Palin hadn’t offered evidence that Bennet’s actions met the actual malice standard. Jay Ward Brown of Ballard Spahr cited an email from Bennet to a colleague who’d Tuickly raised concerns about the “link” alleged in the editorial: “My understanding [is] that in the Giffords case there was a gun sight superimposed over her district; so far in this case we don’t know of any direct threat against any of the congressman on the field,” wrote Bennett. “That’s not to say that any of it is ok, obviously, or that the violence in either case was caused by the political rhetoric. But the incitement in this case seems, so far, to be less specific.”
New ork Times spokeswoman Danielle Rhoades a on riday issued this statement: “We’re disappointed in the ruling but are confident we will prevail at trial when a jury hears the facts.”
Maybe But there are a few unpleasant facts at hand here: The nonexistence of a Palin-Loughner link was widely reported years before the editorial was published; Bennet chose not to click on a link in the editing process that would have clarified as much; and Bennet’s reflections on incitement are nuanced to the point of contradiction and may not sit well with a jury.
The trial isn’t scheduled to begin until ebruary, which gives the two sides plenty of time to reach a settlement. Throw in an apology for Palin, too.
“[T]he evidence shows Bennet came up with an angle for the Editorial, ignored the articles brought to his attention that were inconsistent with his angle, disregarded the results [of ] the Williamson research that he commissioned, and ultimately made the point he set out to make in reckless disregard of the truth”