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.
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