At issue in the case is a June 14 editorial pegged a horrific scene at an Alexandria baseball field where James Hodgkinson — a Bernie Sanders supported who bitterly opposed President Trump — opened fire on members of Congress and others. Rep. Steve Scalise, victim of the shooting, wasn’t discharged from the hospital until late July. Titled “America’s Lethal Politics,” the editorial sought to explore connections between political divisions and violence. It included this passage:
Social media pounded the New York Times for its conclusions. Not only did the map distributed by Palin’s PAC not place cross hairs over politicians (just over congressional districts), but no link had ever been established between the map and Loughner’s actions. The newspaper issued corrections and an apology to readers, though it failed to apologize directly to Palin. She sued just weeks after the editorial was published.
From the beginning, Palin faced a high bar in her civil action. As a public figure, she needs to prove “actual malice” on part of the New York Times, meaning that it acted with knowledge of the falsity of its claims, or at least with reckless disregard thereof. In the complaint, Palin’s lawyers argued that the New York Times knew at the time of publication that Palin’s PAC, in fact, didn’t have any connection to the Loughner rampage. The New York Times countered that the editorial addressed Palin’s PAC and not Palin herself, not to mention that such a claim about Loughner’s motivations isn’t provably false in any case.
In his ruling, Rakoff said that Palin and her lawyers had failed to show evidence that they could ever meet the “actual malice” standard. “The complaint fails on its face to adequately allege actual malice, because it fails to identify any individual who possessed the requisite knowledge and intent and, instead, attributes it to the Times in general. This will not suffice,” wrote Rakoff.
Before ruling on the motion to dismiss, Rakoff took the uncommon step of hearing testimony from a journalist. James Bennet, the editorial page editor of the New York Times, told the court that he had edited the piece in question, which was originally drafted by D.C.-based editorial board member Elizabeth Williamson. As discussed here, the editing inserted the language about “political incitement” stemming from the work of Palin’s PAC. Under questioning from Palin attorney and Rakoff, Bennet repeatedly said that he hadn’t read or remembered various stories noting that there was, indeed, no Palin PAC-Loughner link. Check out this exchange:
Rakoff: Well, maybe I am misunderstanding the question. What you’re linking to political incitement is the shooting by Mr. Loughner in 2011 of Ms. Giffords and others, yes?Bennet: Your Honor, what I was thinking of with the word the link to political incitement was clear. What I was thinking of was the link between an example of political incitement and this larger atmosphere. What I mean is I was very mindful as I was editing this editorial, I was thinking here we are, we’re deploring political incitement on the left. We’re not actually calling out any concrete example of such incitement, not citing a single politician or political organization. And we were looking for — I had asked Elizabeth, I had said — the shooter in Virginia was a Bernie Sanders supporter. One of the questions I’d asked was is there an example of really incendiary rhetoric from Bernie Sanders? Is there a connection between — we didn’t see that word and we didn’t see a connection between the victims in Virginia and any specific political incitement. That was the link I was thinking of.Rakoff: Well, maybe I am asking a more narrow question. I am asking a question about grammar and sentence structure, which presumably you have some expertise in. The sentence in its entirety reads: “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.” Doesn’t that mean as a matter of ordinary English grammar and usage that that sentence is saying that the shooting in 2011 was clearly linked to political incitement?Bennet: That is not what I intended it to mean. I understand what you’re saying, Your Honor. But what I was thinking of was of the link between the victim and the overall climate, that there was actually an example of political incitement that we could point to in that case to create a link between the victim and the incitement. I wasn’t — what I wasn’t trying to say was that there was a causal link between — a direct causal link between this map and the shooting.Rakoff: In the next sentence you seem to be saying that the political incitement was the result, in part, of Sarah Palin’s political action committee’s map, yes?Bennet: In which sentence, Your Honor?Rakoff: The very next sentence, “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 crosshairs.”Bennet: Right, Your Honor. That is the — is again — in my mind was the example — the specific example of — and the word I used was “political incitement” or “incendiary rhetoric” that connected the climate to the victim.
The pattern followed by Bennet and his colleagues, noted Rakoff, squares with something that falls far south of actionable conduct. “To put the matter more simply, Bennet — as the undisputed testimony shows — wrote the putatively offending passages of the editorial over a period of a few hours and published it very soon thereafter. Shortly after that, his mistakes in linking the SarahPAC Map to the Loughner shooting were called to his attention … and he immediately corrected the errors, not only in the editorial itself but also by publishing corrections both electronically and in print. … Such behavior is much more plausibly consistent with making an unintended mistake and then correcting it than with acting with actual malice.”
In opening his discussion, Rakoff rips away:
Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States. 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. 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. ice consists either of gross supposition or of evidence so weak that, even together, these items cannot support the high degree of particularized proof that must be provided before plaintiff can be said to have adequately alleged clear and convincing evidence of actual malice.
And to conclude this discussion, the Erik Wemple Blog helps himself to an early dinner of crow. We wrote weeks ago that the Palin complaint appeared “convincing.” Just not to a long-serving federal judge.
UPDATE 8/29 at 4:30 p.m.: The New York Times has issued this statement:
We were delighted to see today’s decision. 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. 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.