United States: You Betcha: "It Doesn't Make It A Gotcha Just Because It Got Ya."

Last Updated: September 15 2017
Article by John F. Stephens

On August 29, 2017, U.S. District Court Judge for the Southern District of New York, Jed S. Rakoff, dismissed Sarah Palin's defamation lawsuit against The New York Times. The case was filed in June 2017. Judge Rakoff stated that Ms. Palin's complaint failed to show that a mistake in an editorial was made maliciously.

The suit alleged the newspaper's editorial board maliciously linked the former Alaska governor to a 2011 mass shooting, but the case was dismissed by the defendant's motion setting forth that Ms. Palin failed to put forward plausible evidence of malice.

COURIC: And when it comes to establishing your world view, I was curious, what newspapers and magazines did you regularly read before you were tapped for this — to stay informed and to understand the world?

PALIN: Um, all of 'em, any of 'em that, um, have, have been in front of me over all these years.
 
After apparently reading The New York Times editorial page, in June 2017, Palin sued The Times over an editorial that paralleled the 2011 shooting of Congresswoman Gabrielle Giffords in Tucson, Arizona, with an advertisement from Palin's political action committee (PAC).

The editorial was published in June 2017 online the day of the shooting at a congressional baseball practice. The editorial suggested that Jared Lee Loughner, the man who carried out the Tucson massacre, was inspired by Palin's PAC ad that showed a map with cross hairs over the congressional districts of several Democratic lawmakers, including Giffords' district.

There was no evidence that Loughner even saw the map, much less that he was motivated by it. The Times issued a correction the next day, but Palin filed her suit two weeks later.

"How about the rest of us? Right-winging, bitter-clinging, proud clingers of our guns, our God, and our religion, and our Constitution."

Even though The Times offered some contrition for its error, The Times vowed to defend the lawsuit, asserting that the First Amendment protects its writers in such cases. Palin's attorneys set forth the argument that James Bennet, the editorial page editor who wrote the controversial editorial language, had displayed a reckless disregard of the facts, and claimed that The Times received economic gain as an incentive to invoke Palin's name.

Ms. Palin said in the lawsuit that The Times published a number of other articles that contradicted the editorial's premise regarding the motivation of the shooter. "The Times had ample facts available that established that there was no connection between Mrs. Palin and Loughner's crime," she said.
Palin's attorneys also referenced and emphasized the scandalous 2010 column by The New York Times' Charles Blow, who wrote at the time that liberals talk about the former Alaska governor to "drive viewership and Web clicks."

"In fact it's time to drill, baby, drill down, and hold these folks accountable."

In July 2017, The Times filed a motion to dismiss the case.

Judge Rakoff held an unusual evidentiary hearing in August and ordered the author of the editorial, James Bennet, to testify on the basis that a central question he was considering with respect to The Times' motion was whether Ms. Palin's defamation complaint contained "sufficient allegations of actual malice."

The "actual malice" standard for defamation holds that public officials have to show that news outlets knowingly published false information or had acted with "reckless disregard" for the truth.

James Bennet testified that he had no intention of blaming Ms. Palin for the 2011 shooting. Instead, he said, he was trying to make a point about the heated political environment. He also testified that he did a substantial rewrite on the piece after the first draft was filed by Elizabeth Williamson, a member of The Times' editorial board based in Washington, D.C.

Williamson had written that both the 2011 deadly episode in Tucson and the June 2017 shooting in Alexandria, Virginia, which left Rep. Steve Scalise severely hurt, were "nurtured in a vile political climate." In 2011, Williamson wrote, "it was the pro-gun right being criticized" over the ad, which she said "put Ms. Giffords and 19 other Democrats under stylized cross hairs."

"Was this attack evidence of how vicious American politics has become? Probably," the editorial read. "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. Before the shooting, Sarah Palin's PAC circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs."

At the August hearing, Bennet also testified that the editorial was written under a tight deadline, and that he didn't know whether Loughner had seen the map from Palin's PAC, nor was he aware of the reporting indicating that there was no clear link between Loughner and political incitement. He also said he was shocked to see readers thought the editorial accused Palin of contributing to Loughner's actions.

Of note is the fact that Palin's attorneys Ken Turkel and Shane Vogt also represented pro wrestler Hulk Hogan in his invasion of privacy lawsuit against Gawker last year. They aggressively asserted that Bennet turned "a blind-eye to the truth," and that The Times Editorial Board used the June shooting "as a pulpit to advance their narratives on gun control and political rhetoric."

"Well, and then, funny, ha ha, not funny, but now, what they're doing is wailing."

But Rakoff was unconvinced the corrected editorial was anything more than a mistake: In the exercise of free political journalism, the judge wrote, "mistakes will be made, some of which will be hurtful to others" — but legal redress must be limited to those cases in which the mistake was made "with knowledge it was false or with reckless disregard for its falsity."

"Responsible journals will promptly correct their errors; others will not," Rakoff wrote. "But if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity. Here, plaintiff's complaint, even when supplemented by facts developed at an evidentiary hearing convened by the Court, fails to make that showing."

Rakoff said the evidence offered by Palin's team proved inadequate to proceed.

"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," Rakoff wrote.

"Negligence this may be," he added, "but defamation of a public figure it plainly is not."

"They stomp on our neck, and then they tell us, 'Just chill, O.K., just relax.' Well, look, we are mad, and we've been had. They need to get used to it."

"Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States," Judge Jed Rakoff wrote in an opinion dismissing the case. "In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others."

"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," a Times spokesperson said in a statement. "We regret the errors we made in the editorial. But we were pleased to see that the court acknowledged the importance of the prompt correction we made once we learned of the mistakes. In the words of the court, 'if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited' to cases where there is something more than an honest mistake."

Each piece of evidence Palin's legal team offered as proof of The Times' intent and ill will 'consists either of gross supposition or of evidence so weak that, even together, these items cannot support the high degree of particularized proof" necessary to proceed with the case, Rakoff said in his ruling Wednesday.

Sarah Palin did not comment on the decision. The above quotes are all original statements by Ms. Palin from this NY Times piece, "The Most Mystifying Lines of Sarah Palin's Endorsement Speech."

A copy of the Palin ruling can be found here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions