Sarah Palin is quite a public figure. She served as governor of Alaska; Sen. John McCain’s running mate on the 2008 presidential ticket; a Fox News contributor; a reality TV host; an advocate for conservative causes and candidates; and a convener of a big Facebook crowd.
Under the law, then, it is difficult to libel Palin. Successful libel suits from public officials and public figures require proving that the offending media outlet published false and defamatory information with knowledge of its falsity, or at least with reckless disregard of the truth.
And even with such a high legal bar to clear, Palin’s just-filed suit against the New York Times Co. comes off as a convincing legal argument. Filed in federal court in New York, the suit seeks unspecified damages stemming from a much-discussed June 14 editorial stating that a Palin group was responsible for inciting the Jan. 8, 2011, shooting rampage by Jared Loughner in Tucson, which killed six people and wounded then-Rep. Gabrielle Giffords. The news peg for this particular editorial was the June 14 shooting attack by James Hodgkinson on members of Congress as they practiced in preparation for a baseball game.
Social media roared at the New York Times:
— Jeff B/DDHQ (@EsotericCD) June 15, 2017
The backlash had merit, too. For one, Palin’s group hadn’t, in fact, put stylized cross hairs over Democratic politicians; it had placed them over the targeted districts on a map. And just as crucially, media reports established that Loughner wasn’t animated by the work of Palin’s group. Jake Tapper was on this story at the time and resurfaced his findings:
even way back in Jan 2011 we knew that Loughlin's obsession began 3 years before the Palin map.https://t.co/9nJccuIQnb
— Jake Tapper (@jaketapper) June 15, 2017
The complaint, submitted by law firms in New York and Tampa, takes direct aim at the state of knowledge at the New York Times editorial board: “At the time of publication,” it reads, “The Times knew and had published pieces acknowledging that there was no connection between Mrs. Palin and Loughner’s 2011 shooting. Moreover, The Times’ false statements about the link between Mrs. Palin and the Loughner shooting stood in stark contrast to how The Times treated speculation about political motives behind Hodgkinson’s rampage: The Times concluded that there was not a connection between Hodgkinson and his professed penchant for Democratic stances sufficient to warrant implicating Democrats or the Bernie Sanders campaign as inciting factors for Hodgkinson’s attack.”
Nor did the editorial board’s response to all the debunking please Palin and her lawyers. On June 15, the paper appended a correction that read, “An earlier version of this editorial incorrectly stated that a link existed between political incitement and and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established.”
Lame, cries the complaint. That correction didn’t even mention Palin by name, so it failed to exonerate her directly. “Given that the entire premise of the Palin Article was the ‘disturbing pattern’ of politically incited violence emanating from a non-existent link between Mrs. Palin and Loughner’s 2011 crime, which The Times conceded did not exist, the entire Palin Article should have been retracted — not minimally and inadequately corrected — and The Times should have apologized to Mrs. Palin.”
Then the editorial board tried again:
Correction: June 16, 2017
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.
Again, what’s up with the failure to cite Palin in the corrective language? “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,” says the complaint. Another brick in this wall of logic against the New York Times is a statement from James Bennet, the top editor at the New York Times’ editorial operation, to CNN attempting to salvage the piece’s respectability: “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.
Of course, a factual error of this magnitude cannot avoid undercutting and weakening the argument of the piece.
In cases like this, the Erik Wemple Blog sometimes checks in with trusted voices steeped in media law. Clay Calvert, a University of Florida professor, tells us: “Any statement or implication of incitement by the New York Times was used in a loose, figurative and rhetorical sense rather than a literal, legal one. The fact that the allegedly defamatory statements appear in an editorial column adds to the idea that reasonable readers the New York Times, also knowing its usually liberal political editorial viewpoint, would treat this as protected opinion.” Theodore Boutrous, a partner at the law firm Gibson, Dunn & Crutcher LLP, says, “The Times opinion piece is plainly opinion, they quickly corrected it in response to reactions once it was published, and the First Amendment provides breathing space and protection for such statements absent clear and convincing evidence of actual malice precisely so that threats and lawsuits won’t squelch a vigorous real-time discussion of public issues. In the end, I predict that this lawsuit will get publicity for Ms. Palin, but nothing else.”
Perhaps that prediction will bear out. Yet these assessments, in the less considered view of the Erik Wemple Blog, too readily excuse some smelly conduct by the New York Times. If there’s one thing that the editorial board of the New York Times is paid to do, it’s to master the factual underpinnings of national traumas such as the Loughner shooting. To mangle the causality in that murderous event — and to attribute it to Palin’s group — constitutes acute journalistic malpractice. So does the paper’s apparently constitutional failure to articulate a full-throated apology to Palin. Even if the longtime commentator fails to extract millions from the newspaper, a genuine mea culpa would be welcome. Too bad the existence of this lawsuit would cast doubt on its sincerity.
A spokeswoman for the New York Times says, “We have not reviewed the claim yet but will defend against any claim vigorously.”