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Opinion ‘You need to look at this’: A key to the New York Times’s defense against Sarah Palin

James Bennet testifies as Sarah Palin, 2008 Republican vice-presidential candidate and former Alaska governor, watches during Palin's defamation lawsuit trial against the New York Times in Manhattan on Feb. 8 in this courtroom sketch. (REUTERS/Jane Rosenberg)

If nothing else, Sarah Palin will come away from her suit against the New York Times with an improved sense of how the “lamestream media” processes copy. Testimony in the trial, which entered its fifth day on Wednesday, has been heavy on references to content-management systems, editorial chains of custody and geeky journo-terms such as “playback” (sending a draft back to a writer after editing revisions).

Amid all the journalistic sausage-making, there’s one moment that’s emerging as a key part of the Times’s defense — when editor Linda Cohn alerts editorial page editor James Bennet to problems with the editorial that prompted Palin’s lawsuit. “You need to look at this,” Cohn said, according to her deposition testimony.

That heads-up may be critical to the Times showing that its editorial board didn’t proceed with the “actual malice” that Palin alleges.

Five years ago, staffers on the Times editorial board were hustling to produce an editorial after the shooting that occurred on June 14, 2017, at an Alexandria, Va., field where Republican lawmakers were practicing for a baseball game. The resulting editorial — titled “America’s Lethal Politics” — drew an unsubstantiated link between Palin’s PAC and the 2011 mass shooting by Jared Lee Loughner in Arizona, which killed six and injured others, including Rep. Gabrielle Giffords.

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As detailed here, discussions about the editorial began just before 11 a.m. on June 14, about three hours after the shooting itself. They clustered around two themes — gun policy and the role of martial rhetoric in incidents of political violence. Robert Semple, an editor on the board, emailed colleagues to say, “we have written a ton (mainly [editorial board member Francis X. Clines]) on gun control … we did a huge series on it a few years ago … while this is almost certainly a lone nut, it would be interesting to know how many of those Republican athletes were beholden to the NRA and its generally anti-regulatory philosophy, and whether something like this might pound a little sense into their heads.”

Bennet, the Times editorial board editor, noted in a subsequent email that the “other question is whether there’s a point to be made about the rhetoric of demonization and whether it incites people to this kind of violence.”

The task of merging these two points fell to Elizabeth Williamson, an editorial board member covering national politics. It was an unenviable assignment, especially on a harried timeline. Shedding competent light on the gun-control implications of a fresh mass shooting bears many complications, among them determining the sorts of weapon(s) at issue and the relevant regulations. And as this case has already demonstrated, nailing the relationship between rhetoric and political violence comes with pitfalls all its own.

Later that afternoon, editor Linda Cohn looked over Williamson’s draft. “I sort of remember standing in front of [Bennet’s] glass door, you know, opening up the door or something, and saying, ‘You need to look at this,’” said Cohn in her deposition in the case. “I thought there had been quite the confusion over the day as to where this piece was headed, as to be either more of a gun control piece or to be more of a piece about the political climate and the sort of lack of civility in America’s political discourse.”

In his Wednesday testimony, Bennet said that Cohn “thought it was a very troubled draft, and she was throwing up her hands a little bit about it.” Bennet heeded Cohn’s suggestion and got into the copy. “I initially started drafting a note to Elizabeth at the top of the editorial to try to provide some instruction on how I thought the piece should be rewritten,” said Bennet. “And at that point, I realized how late in the day it was getting and I was concerned about getting the piece done in time.” So he began editing the text.

To prevail in this case, Palin has to prove that Bennet (and the Times) acted with “actual malice,” meaning that he published knowing falsehoods or proceeded with “reckless disregard” of truth or falsity. In highlighting Cohn’s visit to Bennet, the Times is seeking to portray Bennet as a guy busy with the day’s work, and not as a guy who was out to defame the former Alaska governor.

“Mr. Bennet did not say, ‘Give me that editorial. I want to make some points,’” said Times attorney David Axelrod in his opening statement last Thursday.

Theodore J. Boutrous, Jr., a First Amendment attorney at Gibson, Dunn & Crutcher LLP, says that the handoff is “an important fact for the New York Times to paint in stark relief because it demonstrates that Bennet wasn’t aiming and setting out to say something false about Sarah Palin. It’s a much different factual scenario than the one that’s at the heart of Sarah Palin’s claim.”

In July 2020 arguments before federal Judge Jed S. Rakoff, Palin attorney Shane Vogt proposed another interpretation of how Bennet’s work related to the staff’s efforts: “What Mr. Bennet did when faced with that research, was he completely rewrote it … he completely changed the results of the research,” said Vogt.

And last Thursday, Vogt said in his opening statement, “It was a narrative that you’ll learn over the course of this case, that Mr. Bennet was the one who came up with early on and stuck with, regardless of what was presented to him, regardless of what research they had. He had his narrative and he stuck to it.”

We’ll hazard no predictions as to how the jury will process these competing arguments. What augurs well for the Times, however, is that the false claim about Palin was a discrete and finite affair, inserted in one editorial and later corrected — and not repeated in multiple pieces, as in, say, Fox News’s execrable smearing of two voting-technology firms in its coverage of the 2020 presidential election. “If one edit on deadline pressure can create the threat of massive liability in a libel case, that really does have a chilling effect,” says Boutrous.