On Tuesday, the Times petitioned that same appeals court for a rehearing of the matter.
The original complaint had been dismissed by federal Judge Jed S. Rakoff in August 2017. “Negligence this may be; but defamation of a public figure it plainly is not,” wrote the judge in reference to the editorial. David McCraw, the Times’s deputy general counsel, said Monday in an interview with the Erik Wemple Blog, “In our view, this was an honest mistake. It was not an exhibit of actual malice.”
Mistake, negligence, actual malice — those are debatable. The piece of journalism at the center of this dispute was a mess by any standard. In June 2017, the Times published an editorial seeking to shed light on the actions of James Hodgkinson, a Bernie Sanders supporter who fired on a practice session in Virginia for a congressional baseball game. Several people were injured, including then-House Majority Whip Steve Scalise (R-La.). Under the title “America’s Lethal Politics,” the editorial contextualized violent radicalization by pointing to the circumstances behind the deadly rampage of Jared Loughner, who in January 2011 killed six people at an event with Democratic Rep. Gabrielle Giffords in Tucson. In explaining the attack, the editorial cited a widely debunked idea regarding Loughner’s motivations:
A subsequent passage repeated the point: “Conservatives and right-wing media were quick on Wednesday to demand forceful condemnation of hate speech and crimes by anti-Trump liberals. They’re right. 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 for of the right.”
In fact, there was nothing “clear” about political incitement. The map circulated by SarahPAC didn’t put Giffords under stylized cross hairs; it put congressional districts under stylized cross hairs. And Loughner’s rage against Giffords predated the circulation of the map. Pelted on social media and beyond, the Times published a correction stating, “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.”
The defamation complaint from Palin was swift. “At the time of publication,” it read, “The Times knew and had published pieces acknowledging that there was no connection between Mrs. Palin and Loughner’s 2011 shooting.” The complaint was attempting something elusive in U.S. courts: As a public figure, Palin had to prove the Times acted with “actual malice,” meaning that it published a falsehood with full knowledge or acted with reckless disregard of the truth. That standard — stemming from the landmark 1964 case New York Times v. Sullivan — enables news organizations to bash prominent people without spending half of their revenues on legal fees.
And Rakoff decided that that ruling’s ample protections cushioned the Times. After hearing testimony from Times editorial page editor James Bennet — who inserted some of the faulty language after receiving a draft from a colleague — he dismissed Palin’s case. “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.
Maybe not, but an appeal would suffice, decided Palin and her lawyers. In its decision, the three-judge panel of the U.S. Circuit Court of Appeals for the 2nd Circuit found that Rakoff had erred on procedure by holding the hearing with Bennet and using that material to consider the motion to dismiss — a decision that “runs headlong into the federal rules," according to the appeals court ruling. It went further, ruling that an amended complaint from Palin “plausibly states a claim for defamation." Accordingly, it ordered further proceedings.
At the center of those proceedings is whether Bennet and the Times acted with “actual malice” in producing the faulty editorial. It’s a tough thing to prove, and it’s one of the reasons that Robert Sack said that victorious libel plaintiffs “resemble the remnants of an army platoon caught in an enemy crossfire.” In the amended complaint, Palin’s lawyers argue that Bennet’s conduct satisfies both prongs of the test. First: “Mr. Bennet had actual knowledge that the false and defamatory statements he wrote and The Times published about Mrs. Palin were untrue,” notes the complaint. Second: “Alternatively, Mr. Bennet and The Times published the Palin Article with reckless disregard for and a purposeful avoidance of the truth,” reads the complaint.
To bolster those contentions, Palin’s counsel mines Bennet’s deep history in journalism. When the Loughner attack occurred, Bennet was serving as the top editor of the Atlantic, a capacity in which he oversaw various articles about the deadly Tucson rampage. One of those was a look-back piece — “Ten Days That Defined 2011” — rueing the way that people imputed political motives to Loughner’s actions without waiting for the evidence. “In truth, Loughner is clinically insane and this was not really about politics at all. That many, including us, immediately jumped to that conclusion says some pretty sorry things about the state of our political machine,” read the piece.
The complaint calls attention to the story: “Certainly, Mr. Bennet read, reviewed, edited and remembered The Atlantic’s recap of the most important events in 2011, the most prominent of which is listed as the Loughner Shooting and refers to ‘pointing at Sarah Palin’s infamous target map’ as ‘blame hurling.’” Another passage in the complaint drives at the sense that Bennet had to have known the facts: “Without question, Mr. Bennet and his colleagues diligently searched for evidence and reports that established any such link or connection because uncovering such a connection would have validated Mr. Bennet’s beliefs and opinions about the implications of violent political rhetoric and the need for gun control,” reads the complaint. “In other words, Mr. Bennet certainly would know and recall whether a direct and clear link between Mrs. Palin or the Palin Map and the Loughner Shooting had actually been established.”
There’s one problem with that argument: Bennet in his testimony indicated otherwise. He said that he had no recollection of reading articles on the Palin-Loughner non-link back in 2011 or of seeing the SarahPAC map with the cross hairs over congressional districts. And he said he didn’t review any stories citing the lack of evidence that Loughner had seen the map.
Which is to say, Bennet inserted language about “political incitement” without much investigation. Doesn’t that amount to reckless disregard? No, argues McCraw: “'Reckless disregard’ really focuses on what is in the mind of the publisher, what is in the mind of the writer ... as opposed to what steps the publisher or the writer took ... Did the writer know something was false and published it anyway? That’s a different matter than saying, 'Well, a writer should have gone to the library,’” says McCraw. “And that’s one of our concerns about the decision is that I fear it was not careful in keeping those two things straight.”
To understand how hard it is to prove reckless disregard, poke around in the 1989 Supreme Court ruling in Harte-Hanks Communications v. Connaughton. At issue was a complicated story in Hamilton, Ohio, published by the Journal News alleging that Daniel Connaughton, who had run for the post of municipal judge in 1983, had engaged in “dirty tricks” for political ends. The problem was, the newspaper had pointedly ignored key information — well within its reach — that could have upended its hit piece.
That’s actual malice, the court found.
On its way to that ruling, however, the court clarified what does not constitute “reckless disregard”: “A ‘reckless disregard’ for the truth, however, requires more than a departure from reasonably prudent conduct," noted the opinion from Justice John Paul Stevens, quoting from a previous case: "There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” And: "Although failure to investigate will not alone support a finding of actual malice, ... the purposeful avoidance of the truth is in a different category,” reads the decision.
Bolding added to accentuate the generous protections of the First Amendment: The failure to investigate is a betrayal of every journalistic standard on the books. It equates to negligence. Which is to say, it’s not enough to libel a public figure.
To advance their case for Bennet’s alleged “reckless disregard,” Palin’s lawyers write, “Mr. Bennet was outraged over the Hodgkinson shooting and the inability to implement gun control and quell political rhetoric in the years since the Loughner Shooting,” notes the amended complaint. “Mr. Bennet was further enraged by the current president and his rhetoric....So, Mr. Bennet decided to use the Hodgkinson shooting as a pulpit to re-affirm his predetermined narrative about political rhetoric and gun control and to use Mrs. Palin as its only factual support.” Bias-via-association allegations also crowd the Palin complaint, as her lawyers note that the former Alaska governor, for instance, had endorsed a politician who would challenge Bennet’s brother, Sen. Michael Bennet, in the 2016 elections. “Mr. Bennet held ill-will and animosity toward Mrs. Palin and a vested personal and professional interest in and closely followed the events surrounding the Loughner Shooting,” notes the document.
In his own testimony, Bennet betrayed no doubts about the editorial. “I believed them to be true,” he said of the claims in the piece. Nor was he prepared for the backlash that followed the editorial’s publication. “Politicians should be ... criticized when they use incendiary rhetoric, but it doesn’t mean when they do that — I don’t believe that it means when they do that, that they’re trying to get anybody killed,” said Bennet. “Really, we didn’t mean to communicate that, so I was very concerned to see that that was one of the inferences that people had drawn from what I had written.”
McCraw makes a similar point to the Erik Wemple Blog: “He talked about political incitement and that term strikes me as being different from criminal incitement or encouraging a crime,” says McCraw. Here, the Times appears to be arguing against the plain-language meaning of its uncorrected editorial. Incitement means incitement.
In its Tuesday petition for rehearing, the Times charges that the appeals court had “misapprehended” the actual-malice standard. The ruling from the appeals court, argue the company’s lawyers, ignored precedent by assessing “whether Bennet’s conduct could plausibly be viewed as ‘reckless’ in the traditional sense, faulting him for, among other things, publishing ‘the editorial without reacquainting himself with the contrary articles published in The Atlantic six years earlier,’...and ‘hyperlink[ing to] an article that he did not read,’" notes the brief.
Lawyers for the newspaper also have freshened their argument with references to very recent tragedies in the United States. Following the mass shootings in El Paso and Dayton, Ohio, notes the argument, debate centered on possible political motivations. "[W]hile the El Paso shooter wrote that his anti-immigrant views predated President Trump’s political ascendancy, many have nonetheless expressed their belief that the President’s rhetoric enabled and encouraged him,” argues the brief, adding that there has been similar back-and-forth about the Dayton shooter’s mind-set. “Whether that sort of speculation is misguided or cogent, it is not capable of being proved false, and precisely because such speculation addresses a subject of profound national importance, it resides at the core of the First Amendment’s protections.”
The Twitter account @NYTOpinion apologized to readers for the lapse:
According to the amended complaint, however, the newspaper “never issued any apology to Mrs. Palin for stating that she incited murder.” Asked about that allegation, McCraw said that decisions on apologies fall to others. “We have a standard format that we use in clarifications and corrections and as a matter of style and policy, the newsroom doesn’t include the apology as a matter of course,” he says. (News coverage and editorial/opinion pieces are produced by different staffs.)
The litigation spans some prominent names in the First Amendment plaintiff’s bar. The original trial work on behalf of Palin was handled by Ken Turkel and Shane Vogt, who piloted the Hulk Hogan invasion of privacy suit that killed the website Gawker. Libby Locke, lead trial counsel against Rolling Stone over its disastrous campus-rape story, joined for the appeal.
The Erik Wemple Blog will refrain from anything approximating a prediction regarding the remaining activity in this case. Our original impression was that Palin’s suit was “convincing,” though people on social media and on our email hammered us for saying as much. When it was dismissed, we ate crow. Now that an appeals court has found the amended complaint plausible, we’d love to say we were right along — but plausible doesn’t equate to convincing. As one libel-proof president is fond of saying, “We’ll see what happens.”