NEW YORK — A century ago, the publisher of the New York Times scolded an attorney for the newspaper who had just settled a libel lawsuit that had looked as though it would be hard for the paper to win.
That sensibility has guided the newspaper ever since, with the Times generally refusing to settle libel lawsuits for money in this country. Yet it’s also rare for one of these cases to go to trial because of the broad legal protections afforded publishers in the United States.
But the trial that opened on Thursday morning, pitting the Times against former Alaska governor Sarah Palin in a high-stakes showdown over First Amendment principles, could put those protections to the test.
“What am I trying to accomplish? Justice, for people who expect the truth in the media,” Palin told reporters as she entered the Manhattan federal courthouse for the trial over a 2017 editorial she claims defamed her.
But in his opening statements to the jury, an attorney for the New York Times tried to turn down the temperature of the debate, casting the matter as a simple error in presentation that the paper’s editors moved “as quickly as possible” to correct.
Though several editors had reviewed the essay, “no one saw the way some readers would interpret two sentences in that editorial,” said David Axelrod, the Times’s attorney (not to be confused with the same-named adviser to former president Barack Obama).
The case — promising a voyeuristic look inside one of the world’s most powerful news organizations — is a legal tinderbox with the potential to alter more than a half a century of legal precedent granting broad protections to news organizations writing about public figures. But inside the courtroom of U.S. District Court Judge Jed S. Rakoff, it is also part culture war and media spectacle as the firebrand former Alaska governor claims the largest platform she has enjoyed since she accepted the nomination for vice president at the 2008 Republican convention.
“It is the New York Times, and it is Sarah Palin. So there’s no avoiding the sort of clarity of the combatants,” said Floyd Abrams, an attorney at Cahill Gordon & Reindel and an expert on constitutional law who represented the Times in the Pentagon Papers case in 1971.
Still, Palin’s attorney, Shane Vogt, maintained in his opening statement that “we are not here to win your votes” but “to focus on what the defendants did and said.”
Palin claims the editorial defamed her by falsely suggesting a connection between her political rhetoric and a 2011 mass shooting in Arizona. It’s the first libel case against the Times to go to trial in the United States in 18 years.
Although the parties will disagree on many things throughout the trial, key issues are not in dispute. One, Sarah Palin is a public figure, and as such she faces a high hurdle to prove libel. Two, the Times article at the heart of the case was wrong as it relates to Palin.
“There’s no doubt that the New York Times screwed this up,” said Bill Grueskin, a professor at Columbia University’s Graduate School of Journalism, who has written extensively about the case. “Nobody argues that this is an ambiguous thing.”
The case hinges on the actions of James Bennet, then the Times’s editorial-page editor, who Palin argues knowingly published false claims about her because, in the words of Vogt, he viewed the story as “political scorekeeping.” Vogt also argued that Palin’s team was “going to show a history of bias” at the New York Times.
The lawsuit comes at a time when the Times has been otherwise enjoying a string of business and journalistic successes. The paper is aiming to get 15 million subscribers by 2027, and its parent company recently purchased the upstart digital sports publication the Athletic.
Yet it’s also a perilous moment for the Times — and all news organizations. Trust in the media is at an all-time low, and partisan vitriol is on the rise, with the media often taking a beating. Any high-profile libel case can feel risky for the defendant, especially after recent arguments from two Supreme Court justices — Clarence Thomas and Neil M. Gorsuch — indicating that they would like to reexamine a landmark 1964 ruling that gives publications broad protections from libel claims of public figures.
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In that case, New York Times v. Sullivan, the Supreme Court ruled that for a public figure to recover damages in a defamation case, she must prove not only that the statement was defamatory but also that it was made with “actual malice” — a much higher burden than proving simple negligence, the standard in libel lawsuits filed by private citizens. The 1960s-era court reasoned that the more difficult burden of proof was required by the First Amendment, to enable debate on public issues, even when such debates include “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
“Public figures like Sarah Palin usually have an uphill climb pursuing libel claims like this,” said Timothy Zick, professor at William & Mary Law School and a First Amendment expert. “But, in this case, there may be enough evidence to sway a jury that the Times acted with ‘actual malice,’ the legal standard Palin must meet to prevail.”
Axelrod, meanwhile, argued Thursday that Palin would have a hard time demonstrating that she was harmed by the editorial in part because “she continues to be a media sensation.”
The editorial in question was written in the hours after the June 2017 shooting attack at a baseball practice for Republican lawmakers in Alexandria, Va. Gunman James T. Hodgkinson shot and injured several people, some seriously, including Rep. Steve Scalise (R-La.).
Published that same night under the title “America’s Lethal Politics,” the editorial decried the state of political discourse and its effect on a country awash in guns. More specifically, the piece drew a line between that day’s shooting and one in 2011, when Jared Lee Loughner shot and killed six people, including a federal judge and a 9-year-old girl, and injured 13 others at a constituents meeting hosted by then-Rep. Gabrielle Giffords (D-Ariz.) in a Tucson shopping center. Giffords survived after being shot in the head.
The editorial stated that in 2011, “the link to political incitement was clear. 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.”
The editorial also suggested that the 2017 shooting was different from the one in 2011: “Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask of the right.”
The backlash was immediate, including from within the Times, according to exhibits filed in the case that include emails, texts and other internal communications.
One of the paper’s opinion columnists, Ross Douthat, emailed James Bennet, then the editorial page editor, at about 10:30 that night: “I would be remiss if I didn’t express my bafflement at the editorial we just ran. … There was not, and continues to be so far as I can tell, no evidence that Jared Lee Loughner was incited by Sarah Palin or anyone else, given his extreme mental illness and lack of any tangential connection to that crosshair map.” Bennet responded about a half-hour later: “I’ll look into this tomorrow. But my understanding was that in the Giffords case there was a gun sight superimposed over her district.”
Later that night, at about 11:40, Bennet emailed the piece’s initial author, Elizabeth Williamson, an experienced Times editorial page writer. “Are you up? The right is coming after us over the Giffords comparison. Do we have it right?”
Williamson — who on Thursday was the first witness to testify, describing editors’ early discussions about the opinion piece — had gone to bed but was up the following morning at 6:15, apologizing to Bennet and promising to look into the backlash, according to court records.
She quickly ascertained that a correction was needed. While Palin’s PAC had indeed put out the ad with various districts in the crosshairs, multiple articles from the time noted that no link was established between Palin’s map and the actions of Loughner, who had been obsessed with Giffords for years.
But the error was not Williamson’s. Bennet had inserted the lines about political incitement over which Palin would later sue, according to the exhibits.
The Times revised the editorial text online by deleting the phrases Bennet had inserted, including that “the link to political incitement was clear,” and added the sentence, “But no connection to that crime was ever established,” when describing the Loughner shooting and Palin’s PAC’s map.
The paper made a later revision to delete “Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask of others.”
The paper also fixed a reference to the stylized crosshairs on PAC’s map, noting that they appeared over electoral districts, not over individual Democratic lawmakers.
The paper appended two corrections to the story. The first mimicked the language of the corrected piece, noting that “no such link was established” between political incitement and the Giffords shooting; later, the paper issued a second correction noting that the PAC ad depicted electoral districts, not individual Democratic lawmakers.
But Palin wasn’t mentioned in either correction, and she sued within days, alleging that the Times had defamed her.
Bennet, once considered a likely contender to become the newspaper’s executive editor one day, left the Times in 2020 after a staff uproar over a controversial op-ed from Sen. Tom Cotton (R.-Ark.) that he later acknowledged not having read before publication.
The trial is a legal case, of course, but it is also one that delves into embarrassing journalistic breakdowns within the nation’s most influential newspaper. Whether the Times wins or loses, it could set in motion appeals that could undercut the media’s ability to report aggressively on public figures in the United States.
“It will be hard for the jury to entirely ignore the cultural and political context. Even though this case is several years old, the connection between violent political rhetoric and political violence continues to garner attention, as do right wing attacks on the press,” Zick said.
Regardless of all the issues surrounding the case, “the central issue and perhaps the only issue genuinely in dispute is the state of mind of Mr. Bennet,” Abrams said.
This story, originally published at 9:19 a.m., has been updated with arguments and testimony from today’s courtroom appearances.
Alice Crites contributed to this article.