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Opinion Sarah Palin v. NYT: Exploring the line between bad journalism and libelous journalism

Former vice presidential nominee Sarah Palin is suing The New York Times for defamation over an editorial. (Video: Reuters, Photo: Brynn Anderson/AP/Reuters)

First Amendment watchers, take note: Sarah Palin’s defamation claim against the New York Times will go to trial starting Jan. 24 in a New York federal courthouse. At issue is the elasticity of the protections that allow news organizations to present tough coverage of public figures.

Or, to put things a bit more sharply, the case will help demarcate the line between really bad journalism and libelous journalism.

The case got its start nearly five years ago on one of the darkest days in American political memory: James T. Hodgkinson on June 14, 2017, fired on a group of Republican lawmakers at a baseball practice in Alexandria, Va., injuring several people. In a deadline frenzy to comment on the matter, the New York Times published a piece titled, “America’s Lethal Politics.” The editorial attempted to draw a parallel between the Hodgkinson attack and the 2011 shooting attack in Arizona by Jared Lee Loughner that killed six and injured 12 others.

“[T]he link to political incitement was clear,” wrote the Times editorial board of the Arizona shooting, which targeted then-Rep. Gabby Giffords. “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 cross hairs.”

There was, in fact, no “link” between the ad of the Palin committee and the Loughner crimes. So the Times editorial board ran a correction, but it didn’t even mention Palin. She quickly sued. In August 2017, Judge Jed Rakoff tossed the suit. An appeals court subsequently reinstated the complaint and sent it to Rakoff for further consideration. He ruled in August 2020 that the case could proceed to a jury trial.

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From the start, the Palin case has been a square-off over the most fundamental of media protections — namely, the “actual malice” standard. The 1964 case New York Times v. Sullivan and subsequent rulings established that if public figures wished to prevail in defamation actions against news organizations, they’d need to establish that the outlet knowingly published a falsehood or did so with “reckless disregard” to its truth or falsity. “In our view, this was an honest mistake,” New York Times deputy general counsel David McCraw told this blog in 2019.* “It was not an exhibit of actual malice.”

There was never any dispute that Palin — a former Alaska governor, former vice presidential candidate, Fox News contributor and reality-TV person — qualified under the law as a public figure. Her lawyers, however, argued that the actions of James Bennet, who at the time served as editor of the Times’s editorial board, met the stringent evidentiary standards of actual malice. “Mr. Bennet had actual knowledge that the false and defamatory statements he wrote and The Times published about Mrs. Palin were untrue,” argues Palin’s amended complaint. “Alternatively, Mr. Bennet and The Times published the Palin Article with reckless disregard for and a purposeful avoidance of the truth.” (Elizabeth Williamson, then a member of the Times editorial board, wrote the first draft of the editorial, though Bennet inserted the passage at issue in the suit, according to the factual record developed on the motion to dismiss.)

In hopes of documenting Bennet’s state of mind, Palin’s attorneys pointed out that when he previously worked as editor of the Atlantic, the company published journalism that debunked the Palin-Loughner incitement link. Yet Bennet testified that he didn’t recall reading those articles.

As we’ve written before, showing that a journalist acted with “reckless disregard” is a pain. It’s not enough to point out that industry standards weren’t followed or that facts weren’t checked. “There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication,” noted a key Supreme Court ruling on the matter.

Pretrial tussling in Palin v. New York Times, accordingly, has related in part to Bennet’s state of mind. Lawyers for the Times on Jan. 14 filed a motion fighting Palin’s efforts to introduce various long-ago postings on Atlantic magazine sister sites such as the Daily Dish — the former roosting spot of blogger Andrew Sullivan — and the now-defunct Atlantic Wire. The posts relate to Loughner’s actions, but the Times argues that they’re irrelevant to the case, considering that “discovery established that Mr. Bennet" — who did not exert “day-to-day” supervision of this content — “had nothing to do with the publication of these articles and blog posts."

Palin has countered by arguing that plaintiffs in these cases are “entitled to present any circumstantial evidence tending to show the defendant was aware that what they published was untrue.”

In that same motion, the Times seeks to exclude as irrelevant a Jan. 14, 2011, article by T.A. Frank that was sent to Bennet not long after the shooting, as well as evidence concerning Bennet’s relationship with his brother, Sen. Michael Bennet (D-Colo.). In seeking to buttress her actual-malice arguments, Palin has argued that Bennet’s alleged animus stems in part from her backing of Michael Bennet’s 2016 reelection opponent.

The Times also has asked the court to rule that the statements regarding Palin are not defamatory per se, meaning that she would have to prove actual harm to her reputation, rather than being entitled to presumed damages in court. Palin’s lawyers have responded that the statements in question “connote criminality,” and therefore qualify for per se treatment.

Even if the Times prevails at trial, the proceedings are likely to produce more bad news for the newspaper. There will be testimony, after all, about an editing process that has already been exposed as shoddy, not to mention an editor who has already given court testimony casting doubt on his preparedness to take on the issue before him. (Bennet declined to comment.) Based on years of legal precedent, the Times is conceding that this was an “honest mistake,” though not a defamatory one.

We’ll see whether a jury of New Yorkers shares that view.

*Correction: An earlier version of this post misspelled the last name of David McCraw.