Perspective: With its big error in an editorial The New York Times may not have legally slandered Sarah Palin, but they still did her wrong and owe Palin an apology, writes a critic.
The New York Times pronounced itself “delighted” that federal Judge Jed S. Rakoff threw out Sarah Palin’s lawsuit against the newspaper for a June 14 editorial that came in the immediate aftermath of the shooting at a congressional baseball practice in Alexandria, Va.
“Judge Rakoff’s opinion is an important reminder of the country’s deep commitment to a free press and the important role that journalism plays in our democracy. We regret the errors we made in the editorial,” noted, in part, a statement from the New York Times.
In his ruling, Rakoff said that the Times may be guilty of negligence but not defamation of a public figure. The editorial in question posited a link between an ad promoted by Palin’s political action committee and the tragic rampage of Jared Lee Loughner near Tucson, Ariz., in 2011. No link had ever been established, a point reported by the news media in the aftermath of the event.
In reaching his determination, Rakoff found that Palin’s lawyers had failed to establish that the New York Times had acted with knowledge of the falsity of the link or at least with reckless disregard thereof — the test for establishing “actual malice” toward a public figure such as Palin.
That the New York Times wrote corrections intended to clean up its factual mess worked in its favor, as it should. “Such behavior is much more plausibly consistent with making an unintended mistake and then correcting it than with acting with actual malice,” argued Rakoff.
It’s a well-argued ruling, demonstrating the jurisprudence that protects journalists when writing about public figures. These protections are so powerful that an editor, without doing any research to speak of, can insert language in an editorial accusing a politician of inciting murder — and secure a quick and unequivocal bouncing of the case.
As Rakoff wrote, “Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States. In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others.”
Dismissal, however, is less than a full-throated victory for the New York Times. For starters, the false charge cost the newspaper some unknown level of trust with its readers, especially conservative ones. And it endured an embarrassing hearing in which Editorial Page Editor James Bennet gave testimony on the editorial’s provenance; he inserted the objectionable passages after receiving a draft from D.C.based editorial writer Elizabeth Williamson.
The paper’s response to learning of the falsehood was sufficient to satisfy a judge ruling on a lawsuit, but not sufficient to satisfy any standard of decency and respect. The immediate correction didn’t even mention Palin’s name: “An earlier version of this editorial incorrectly stated that a link existed between political incitement and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established.”
Nor did a second correction on June 16: “An editorial on Thursday about the shooting of Representative Steve Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs.”
As for apologies, the newspaper issued one to its readers, not to Palin herself. “The Times did not issue a full and fair retraction of its defamatory Palin Article, nor did it issue a public apology to Mrs. Palin for stating that she incited murder and was the centerpiece of a ‘sickening’ pattern of politically motivated shootings,” notes the Palin camp’s original complaint.
Bennet gave a statement to CNN in which he clung to a premise undermined by factual malpractice: “While it is always agonizing to get something wrong we appreciate it when our readers call us out like this. We made an error of fact in the editorial and we’ve corrected it. But that error doesn’t undercut or weaken the argument of the piece,” said the statement.
So is it any wonder that Palin brought a complaint against the New York Times?
I’m not arguing that the New York Times should have handed Palin a bundle of cash. A letter of apology would have done just fine. Now that a judge has dismissed her complaint, there’s no pressure on the New York Times to take this step. Which is all the more reason it should.
As the judge argued, “Negligence this may be; but defamation of a public figure it plainly is not.”