Sarah Palin court rul­ing good for free speech, press

The Phoenix - - OPINION - Gene Policin­ski Colum­nist Gene Policin­ski Gene Policin­ski is chief op­er­at­ing of­fi­cer of the New­seum In­sti­tute. He can be reached at gpolicin­ski@new­seum.org, or fol­low him on Twitter at @ gene­fac

So Sarah Palin does not get to move for­ward with a defama­tion law­suit against The New York Times for link­ing ma­te­rial on a Palin po­lit­i­cal web­site to shooting in­ci­dents tar­get­ing politi­cians.

The link ap­peared in a Times ed­i­to­rial pub­lished June 14 af­ter a shooting in­ci­dent in Washington, D.C., where the shooter opened fire on an ear­ly­morn­ing soft­ball prac­tice in­volv­ing mem­bers of Congress and leg­isla­tive aides.

It was plain, flat wrong to draw such a direct con­nec­tion. Palin said so im­me­di­ately, and the Times quickly pub­lished a cor­rec­tion.

The dis­missal of the law­suit does not mean the Times “got away” with pub­lish­ing fake news. Nor does it mean open sea­son for jour­nal­ists on con­tro­ver­sial public of­fi­cials and public fig­ures.

It does mean that laws pro­tect­ing the First Amend­ment were up­held and re­main in force: Specif­i­cally, the law that says public of­fi­cials must prove not just er­ror but ac­tual mal­ice — know­ing fal­sity or reck­less dis­re­gard for truth — to suc­cess­fully pur­sue a defama­tion law­suit.

The de­ci­sion has sig­nif­i­cant im­pli­ca­tions for po­lit­i­cal re­porters and public fig­ures, of course, but also for the rest of us who may oc­ca­sion­ally share crit­i­cal opin­ions about of­fice­hold­ers or public fig­ures.

We write un­der the same pro­tec­tion — and with­out it, I sus­pect far fewer would take pen or key­board in hand.

Let’s say this again (im­por­tant to do in an era when many are ques­tion­ing whether “real news” even ex­ists): Noth­ing in the Sarah Palin rul­ing con­dones er­ror. But the judge’s de­ci­sion does rec­og­nize that with­out pro­tec­tion for in­ad­ver­tent er­ror, po­lit­i­cal dis­cus­sion would grind to a halt for fear of in­stant le­gal ac­tion and ru­inous fi­nan­cial penalty.

The Aug. 29 de­ci­sion, made in the South­ern Dis­trict of New York, rests on a 1964 U.S. Supreme Court de­ci­sion that, with some irony, also in­volved The New York Times.

In Times v. Sul­li­van, a case in­volv­ing a po­lit­i­cal ad, the Court said that a sim­ple fac­tual er­ror is not enough for a public of­fi­cial to col­lect defama­tion dam­ages, when weighed against the value to so­ci­ety of ro­bust, en­er­getic po­lit­i­cal de­bate.

The of­fend­ing Times ed­i­to­rial pub­lished this June ref­er­enced a map that ap­peared on Palin’s po­lit­i­cal ac­tion com­mit­tee web­site, and wrongly im­plied that the ma­te­rial in­cited po­lit­i­cal vi­o­lence. The Times cor­rec­tion stated that “no such link was es­tab­lished” be­tween in­cite­ment and vi­o­lence.

The stir­ring, 26-page opin­ion by U.S. Dis­trict Judge Jed Rakoff is a text­book ex­pla­na­tion of why po­lit­i­cal speech — even, at times, if it is er­ro­neous — is and ought to be pro­tected.

“Nowhere is po­lit­i­cal journalism so free, so ro­bust, or per­haps so rowdy as in the United States,” Rakoff wrote.

“In the ex­er­cise of that free­dom, mis­takes will be made, some of which will be hurt­ful to oth­ers. Re­spon­si­ble jour­nals will promptly cor­rect their er­rors; oth­ers will not.”

An old journalism bro­mide says that get­ting it right is more im­por­tant than get­ting it first.

In Rakoff’s de­ci­sion, he noted, “What we have here is an ed­i­to­rial, writ­ten and rewrit­ten rapidly in or­der to voice an opin­ion on an im­me­di­ate event of im­por­tance, in which are in­cluded a few fac­tual in­ac­cu­ra­cies some­what per­tain­ing to Mrs. Palin that are very rapidly cor­rected... Neg­li­gence this may be; but defama­tion of a public fig­ure it plainly is not.”

The Times ini­tially got it wrong. But the judge has it right, from the start.

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