How Did Sarah Palin Lose Her Defamation Case?

In mid-February, Federal District Court Judge Jed Rakoff of the Southern District of New York, “ruled that a libel lawsuit former Alaska Gov. Sarah Palin filed against the New York Times over a 2017 editorial should be thrown out because her lawyers failed to produce adequate evidence that the newspaper knew what it wrote about her was false or acted recklessly toward indications it was false. The ruling…came as a Manhattan jury was deliberating on Palin’s suit, which claimed the Times and former editorial page editor James Bennet defamed her by unfairly linking her to a 2011 shooting spree in Arizona that killed six people and gravely wounded then-Rep. Gabby Giffords (D-Ariz.).” At first glance, it would have seemed that Palin had a good case against the Times.  But upon closer inspection, the reasons for her loss become evident. “On January 8, 2011,  Gabrielle Giffords, a U.S. congresswoman from Arizona, (was) critically injured when a man (went) on a shooting spree during a constituents meeting held by the congresswoman outside a Tucson-area supermarket. Six people died in the attack and another 13, including Giffords, were wounded. The gunman, 22-year-old Jared Lee Loughner, was taken into custody at the scene.” “Contemporaneous news reports noted that Giffords was one of 20 Democrats targeted in a map circulated by Sarah Palin’s political action committee in March 2010. The map portrayed stylized crosshairs to mark each of their districts, in a ‘Take Back the 20’ campaign to reclaim seats in the 2010 midterm elections…(i)t’s unclear whether Loughner even knew of Palin’s map, but it probably would not have changed the outcome. His focus on Giffords began as early as 2007, long before the map was published…Loughner had no clear political views. Instead, he was a troubled man who abused alcohol and drugs, and whose mental illness was apparent to his classmates and family even before he was diagnosed as schizophrenic during his court trial.” Fast forward to June 14, 2017, when “a gunman walked onto a baseball field at Eugene Simpson Park in Alexandria, Virginia, opening fire on politicians and wounding House GOP Whip Steve Scalise of Louisiana and four others. The representatives had been practicing for the annual Congressional Baseball Game for Charity. James Hodgkinson, a 66-year-old man, asked…whether Republicans or Democrats were on the field practicing. Once he received confirmation that the Republican representatives were the ones playing ball, Hodgkinson fired off 60 rounds into the unsuspecting elected officials…When officers arrived on the scene, they exchanged fire with the suspect, running towards him while dodging the spray of bullets, and eventually killing him….(s)ubsequent investigations revealed Hodgkinson as a man with a clear hatred for Republicans. He had arrived at the field…with a list of six conservative members of congress, presumably his targets.” Despite the shooter’s clear motive to attack Republicans, the New York Times ran an editorial shortly after the shooting “that broadly condemned political violence but… claimed that maps circulated by Sarah Palin’s PAC amounted to ‘political incitement,’ which the authors said was clearly linked to the subsequent 2011 shooting of Rep. Gabby Giffords” a Democrat. “‘In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear,’ the uncorrected editorial read. ‘Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.'” Of course, the “link to political incitement” and Loughner’s shooting of Gifford was not clear, as discussed above, and the Times was forced to make a correction of their editorial, not once but twice. First, “staffers removed the language about the clear link between political incitement and Giffords’ shooting, and issued the following correction: ‘an earlier version of this editorial incorrectly stated that a link existed between political incitement and the 2011 shooting of Representative Gabby Giffords,’ the correction reads. ‘In fact, no such link was established.'” Later that same day, “the New York Times amended its correction to clarify its description of the maps distributed by Sarah Palin’s political action committee. ‘The editorial has also been updated to clarify that in a map distributed by a political action committee before that shooting, electoral districts, not Democratic lawmakers, were depicted beneath stylized cross hairs,’ it read.” Despite these corrections, as in 2011, Palin was again heavily criticized by much of the media and public for allegedly “targeting” Giffords.  Her lawsuit against the Times followed. To understand how the Court could find for the Times before the jury had completed their deliberations, it is necessary to realize just how difficult it is for a public figure like Palin to win a case against a news publisher.  The standard was established in New York Times Company v. Sullivan, 376 US 256 (1964).  There, the US Supreme Court ruled that “(t)o sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate.  In a unanimous opinion authored by Justice Brennan, the Court ruled for the Times. When a statement concerns a public figure, the Court held, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity.” In his ruling, Judge Rakoff stated “that during the trial, Palin’s attorneys failed to elicit enough evidence for a reasonable jury to conclude that the 2008 Republican vice presidential nominee had met the ‘actual malice’ standard…Rakoff said, ‘I don’t think a reasonable juror could conclude that Mr. Bennet either knew the statements were false or that he thought the statements were false and he recklessly disregarded that high probability’…Testimony at the trial exposed sloppy practices at the Times, with…a fact-checker skipping over the language that gave rise to the suit and an editorial writer failing to closely read all of Bennet’s changes when they were sent to her. Still, the judge said the key question was whether Bennet harbored serious doubt about the truth of his statements at the time they were published. Rakoff said there was no evidence the editor had any concern about the accuracy of the statements until a colleague emailed him after the editorial was posted online.” A day after Judge Rakoff indicated his intention to dismiss the lawsuit, the jury came back with a verdict in favor of the Times. Obviously, the Times acted in reckless disregard of the truth.  Rather than investigate whether Palin had actually targeted Giffords in 2011, and whether Palin’s actions had actually led to Giffords being shot, the Times went ahead and made the comparison in print.  But when it comes to a public figure, reckless disregard is not enough.  A public figure like Sarah Palin must show that the publisher knew the information they published was false, and printed it anyway.  A high bar to pass, indeed. This has been the legal standard for more than 50 years.  However, Palin’s case, and the mainstream media’s treatment of former President Donald Trump has raised questions about whether or not the Times v. Sullivan standard should remain in effect.  As discussed by Jonathan Turley in The Hill, “Journalists and schools of journalism have embraced the model of ‘advocacy journalism.’ Some writers and academics now reject the very concept of objectivity in journalism. For example, Stanford journalism professor Ted Glasser has explained that journalism needs to ‘free itself from this notion of objectivity to develop a sense of social justice.’ He insists that ‘journalists need to be overt and candid advocates for social justice, and it’s hard to do that under the constraints of objectivity’…(w)ith market pressures transforming media in the advocacy journalism model, defamation lawsuits could now be the vehicle to protect rather than destroy journalism. The Times and other media outlets have shown they are unwilling or unable to resist demands for unbiased coverage. As sacrilegious as it may sound, a little liability may now be just what journalism needs.” Was the Times engaged in “advocacy journalism” when Bennet wrote his editorial about Palin? Probably not.  More likely, Bennet sought to offset the violence perpetrated against Republicans with a “look, Republicans support violence too,” sort of analysis.  Unfortunately for Bennet, his unconsciously biased example was not applicable – In fact, all the best examples advocating violence are from the left; “Rep. Maxine Waters (D-CA), for example, notably called for her supporters to harass Trump administration officials in public during a rally in 2018…(and) in 2019, (Sen Jon) Tester (D-MN) said on MSNBC that the way to beat Trump in the election was to ‘punch him in the face.’” Palin will probably appeal, and the odds are high, she will lose her appeal, and the Times v. Sullivan standard will stand.  But at this rate, it is only a matter of time before another public figure, most likely one on the right, will be able to show actual malice against a publisher like the New York Times. Judge John Wilson (ret.)  served on the bench in NYC. Illustration: Wikipedia