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Reckless ‘power’ or ‘honest mistake’? Palin’s and New York Times’s lawyers make their final cases in libel trial

A jury is now considering Sarah Palin’s lawsuit, the first libel case against the Times to go to trial in nearly two decades

James Bennet testifies as the jury and Sarah Palin watch during the former Alaska governor's defamation lawsuit trial against the New York Times on Feb. 8 in this courtroom sketch. (Jane Rosenberg/Reuters)

To hear Sarah Palin’s lawyers tell it, her libel case against the New York Times is about power — and how much more of it the newspaper possessed than she did in 2017, when it published an error in an editorial that the former Alaska governor claims defamed her.

And although the Times ran a correction, it did so without mentioning her name or sufficiently explaining how the error happened, her attorney Kenneth Turkel told a New York City jury Friday, “indicative of an arrogance and a sense of power that is uncontrolled, for which Governor Palin’s only remedy is to use our system here, the judicial system.”

But in the view of the Times, the faulty sentence — which erroneously suggested a link between some vivid rhetoric from her political action committee and a 2011 mass shooting — was simply “an honest mistake that was made very quickly,” said the newspaper’s lawyer, David Axelrod, that was “rectified less than 14 hours later.”

“There was no conspiracy. This was a mess-up. This was a goof,” he said. “And yes, it stinks, but because we value the First Amendment, we tolerate it because nothing was done intentionally.”

The federal jury on Friday afternoon began deliberating the case, the first libel case against the Times to get to trial in the United States in nearly two decades. Since Palin, the 2008 Republican nominee for vice president, is a public figure, her lawyers must prove not only that the Times defamed her but that the paper was motivated by “actual malice.” If they prevail, either now or on appeal, the case could upend the long-standing protections afforded journalists writing about prominent people.

The editorial in question, titled “America’s Lethal Politics,” was written just hours after a June 2017 shooting attack on a group of Republican lawmakers at a Virginia baseball field — and heavily rewritten on deadline by James Bennet, then the Times’s editorial page editor. The original draft took note of a campaign map published by Palin’s political action committee in 2011 that placed stylized crosshairs over several Democratic congressional districts, including the one in Tucson where then-Rep. Gabrielle Giffords was later injured in a mass shooting that killed six people.

But Bennet, in his edits, drew a direct line by inserting the phrase “the link to political incitement was clear.” After a torrent of criticism alerted his staff to the error, he testified earlier this week, the Times corrected the editorial the following day.

While Palin’s attorneys argued that Bennet’s work was reckless and driven by a dislike of Palin, Axelrod noted Friday that “he edited the draft by chance” and didn’t realize the error until later. In his testimony, Bennet said he has “regretted this pretty much every day since” and said it was his fault.

“Why correct so fast?” the lawyer asked. “Why apologize to readers? Why take personal responsibility? … If James Bennet knew it was false [when he published the error], none of this makes sense.”

Turkel, though, argued that Bennet “tried to reverse-engineer the facts” to support his editorial’s argument and crossed a line by publishing “materially false facts.”

Pointing to emails exchanged during the day the editorial was being drafted, Turkel argued there was a political bias at play. “This bias they have, it doesn’t make people villains or evil necessarily, it’s just how they think.”

Palin testified that by 2017 she was not the high-power public figure she once had been and felt “powerless” against the Times, comparing herself to David having to throw stones at Goliath. “In 2017, she is trying to stay busy enough with the consulting work and trying to be a mom and a grandmother and to be with her sisters and brother and family in Wasilla,” Turkel said Friday in court.

But the Times’s lawyers tried to show that she was still a “media sensation,” pointing to her media appearances at the time and since.

Palin’s lawyer said they are not seeking a specific dollar amount in damages. The Times’s lawyer argued that Palin was not able to demonstrate how she suffered as a result of the editorial, “only vague assertions that she was mortified and restless.”

Proving actual malice on the part of a news organization “is ordinarily a very high burden to meet,” said Timothy Zick, a professor and First Amendment specialist at William & Mary Law School; plaintiffs must demonstrate that journalists either knew they were publishing a false statement or that they acted with reckless disregard to the truth. That standard, he said, “is intended to create breathing space for press commentary about public officials and public figures like the former governor.”

Zick said there is increasing worry that “journalistic opinion on matters of public concern might be chilled by defamation lawsuits like this one.” Even if Palin loses, the case could move to higher courts on appeal, where it could find a different climate than the one that prompted the Supreme Court to set such high standards for libel and journalists, starting with its 1964 New York Times v. Sullivan ruling. Two justices, Clarence Thomas and Neil M. Gorsuch, have previously indicated a willingness to reassess those standards as they apply to public figures.

“At stake here,” Axelrod told the court on Friday, “is the right of free expression and the right of the free press.”

Shayna Jacobs contributed to this report.

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