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Opinion Sarah Palin needed a smoking gun. She had boring emails.

In a courtroom sketch, former New York Times editorial page editor James Bennet, at far left, and Sarah Palin look on as Judge Jed S. Rakoff instructs the jury on Feb. 11. (Jane Rosenberg/Reuters)

Judge Jed S. Rakoff was impressed with an email from then-New York Times editorial page editor James Bennet on June 14, 2017. “I really reworked this one,” wrote Bennet to colleague Elizabeth Williamson that evening. “I hope you can see what I was trying to do. Please take a look.”

Those four words — “Please take a look” — impressed Rakoff to the point that he cited them in announcing on Monday that he will dismiss former Alaska governor Sarah Palin’s lawsuit against the Times regarding the editorial that Bennet had “reworked.” The ruling came as the jury in the case was still deliberating on its merits and responded to a Times motion under a federal rule that allows the judge to determine a case once a party has been “fully heard” on a complaint.

Judge Jed S. Rakoff said on Feb. 14 that he would dismiss former Alaska governor Sarah Palin's defamation lawsuit against the New York Times. (Video: Reuters)

“I don’t mean to be misunderstood,” explained Rakoff. “I think this is an example of very unfortunate editorializing on the part of the Times.” Yet Palin and her attorneys, the judge determined, hadn’t put forth sufficient evidence to satisfy the demands of New York Times v. Sullivan, the 1964 Supreme Court ruling which established that public officials — and later, a wider group of “public figures” — could only claim defamation if the offending media outlet had knowingly published a falsehood or proceeding with “reckless disregard” of its truth or falsity.

The challenged statements in Palin v. New York Times came in two successive paragraphs in a piece — “America’s Lethal Politics” — that addressed the political environment surrounding the Republican baseball shooting in Alexandria by James T. Hodgkinson, a Bernie Sanders supporter and staunch opponent of President Donald Trump. The Times drew a parallel with the 2011 shooting by Jared Lee Loughner in Arizona, which killed six people and wounded Rep. Gabby Giffords (D), among others:

Was this attack evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, 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 cross hairs.
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.

No evidence has surfaced to support the “political incitement” link between the SarahPAC map and the Loughner shooting. The Times promptly ran a correction.

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As Rakoff said during discussion of the Times’s motion on Monday, “Certainly the case law is clear that mere failure to check is not enough to support ‘reckless disregard’ in the context of any libel claim. But ... where the assertion is that someone incited murder: That is such a strong statement that even under a reckless disregard standard, it calls for more assiduous checking than would be normally the case.”

Rakoff said it wasn’t surprising that Palin, the 2008 Republican vice-presidential nominee, filed her complaint.

That’s different from proving the case, however. Over six days of testimony and documents produced in discovery, Palin’s lawyers exposed an editorial process that was hurried and disjointed — typical of a news organization seeking to hustle on the day’s biggest story. They showed that Bennet, Williamson and others pursued two themes for the editorial — one on gun control and the other on the “rhetoric of demonization.” When the two themes merged uncomfortably in Williamson’s draft, another editor apprised Bennet of the problem. He launched into the copy, inserting the false claims.

What was missing from the whole production was any indication that Bennet was out to smear Palin. And here’s where his email to Williamson comes into play: No matter what you believe about Bennet or his colleagues, he’d be foolish to ask for Williamson’s review of the draft if he’d been committed to planting damaging falsehoods in it. “The allegation that he published with ‘actual malice’ is also undermined, in the court’s view, by the actions he undertook after finishing his revisions of Ms. Williamson’s draft,” said Rakoff, highlighting the email seeking Williamson’s review.

Translation: Palin needed evidence — preferably in email form — that Bennet was eager to nail Palin with something he knew was false: an “actual malice” smoking gun. Instead, she offered only emails outlining another day at the Times.

Palin faced a “very high burden,” acknowledged Rakoff, stressing that First Amendment law is designed to allow a “very robust debate involving especially people in power and that the whole point of the First Amendment as applied in that context would be undercut if the standard for libel and defamation were not as high as the Supreme Court decreed.”

The journalistic implications of Rakoff’s ruling are wide-ranging. The timing of his announcement — which comes during the second day of jury deliberations — creates a problem for all parties. Figuring that the case will eventually be appealed, Rakoff said that the appeals court will benefit from having a jury verdict alongside his ruling. Should the jury rule for Palin, the appeals court could simply reinstate the jury action without having to order a new trial. All that said, does Rakoff really think that, in 2022, an un-sequestered jury won’t catch wind of his ruling?

Putting aside those dynamics, there’s another opportunity lost. For years and years, discussion of New York Times v. Sullivan has been confined to coastal elites in media and legal circles. Now, those hallowed protections would get a hearing from a citizen jury. By ruling before the jury renders its verdict, Rakoff has muddled that prospect.

Through its process-heavy tedium, the trial brought into relief just the sort of journalism that deserves protection from crippling litigation. Here was a one-off claim in a hurried editorial that slimed a public figure. Granted, it perpetrated a gobsmacking falsehood for which the Times and Bennet are appropriately ashamed. But everyone who feeds off unsparing coverage of politicians and celebrities — a pretty healthy American plurality, we’d submit — should applaud the ruling. It’s a principle, after all, that props up your favorite media outlet, too.

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