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  • Writer's pictureThe San Juan Daily Star

Sarah Palin v. New York Times spotlights push to loosen libel law

Sarah Palin at an event in 2015. Her libel case against The New York Times began Monday in federal court in Lower Manhattan.

By Jeremy W. Peters

When Donald Trump called for scrapping laws that offer the news media broad protection from libel suits — “We’re going to have people sue you like you’ve never got sued before,” he said in 2016 as he was running for president — many journalists and the lawyers who defend them brushed it off as an empty threat.

But a libel case that began Monday in federal court in lower Manhattan, Sarah Palin v. The New York Times Company, shines a spotlight on the many ways that Trump’s seemingly far-fetched wish may no longer be so unthinkable.

A lot has changed in the country’s political and legal landscape since Palin, a former Alaska governor, filed her suit in 2017. It alleges that the Times defamed her with an editorial that incorrectly asserted a link between her political rhetoric and a mass shooting near Tucson, Arizona, in 2011 that left six people dead and 14 wounded, including Gabrielle Giffords, then a Democratic member of Congress.

The editorial was published June 14, 2017, the same day that a gunman opened fire at a baseball field where Republican members of Congress were practicing, injuring several people including Rep. Steve Scalise of Louisiana. The headline was “America’s Lethal Politics,” and the editorial asked whether the Virginia shooting was evidence of how vicious American politics had become.

As it first appeared, the editorial then argued that “the link to political incitement was clear” between the 2011 Giffords shooting and a map circulated by Palin’s political action committee that showed 20 congressional districts that Republicans were hoping to pick up. Those districts, including the one held by Giffords, were displayed under stylized crosshairs. In correcting the editorial, the Times said it had “incorrectly stated that a link existed between political rhetoric and the 2011 shooting.”

Those who argue that media outlets should pay a steeper legal price when they get something wrong or make a mistake are more emboldened now than at any point since the landmark 1964 Supreme Court decision in The New York Times Company v. Sullivan. That ruling set a high bar for public officials to prove defamation: They had to show not only that a report was inaccurate and harmed their reputation, but that those who produced it had acted with “actual malice,” meaning they displayed a reckless disregard for the truth or knew it was false.

The Palin case, being tried in the U.S. District Court for the Southern District of New York, won’t directly deal with larger constitutional issues. The jury will weigh testimony and evidence that is expected to offer a rare, under-the-hood glimpse at the often messy process of how daily journalism is produced.

Most libel suits against the Times are dismissed before they ever reach a jury, making this case particularly uncommon. Although defenders of broad First Amendment protections for the media have said Palin’s evidence is weak, they also acknowledged that a jury could decide otherwise.

“The case will come down to whether the jury — as juries sometimes do — will decide based on their likes and impressions of the parties,” said George Freeman, executive director of the Media Law Resource Center and a former lawyer for the Times, “or whether they will actually follow the actual malice rules the judge will give them.”

But those fundamental First Amendment issues loom over the trial. And lawyers for Palin, through legal briefs and public statements, have made no secret of the fact that they want to see the courts rethink the legal leeway that media organizations have to make an unintentional error. The law currently considers an occasional mistake a natural result of a free press.

Some First Amendment scholars, politicians and judges, mostly but not exclusively conservative, have started to press their case more boldly for unwinding the bedrock precedent set by the Sullivan case, saying it has not kept pace with the changing nature of news and public commentary.

The heart of the Times’ defense in the Palin case is that the error in the editorial was not a case of actual malice but a mistake made under a tight and routine production deadline that was corrected after it was pointed out.

The statements that Palin argues were defamatory were introduced during the editing process by James Bennet, who was then the editorial page editor for the Times. (The opinion section and the newsroom operate independently of each other.)

The Times has not lost a libel case on American soil — where laws provide much more robust press protections than in other countries — in 50 years.

Palin’s lawyers have argued that Bennet had to know that there was no evidence that her political rhetoric incited the shooter and that he had a “preconceived storyline” and harbored ill-will toward the pro-gun rights former governor in part because his brother, Sen. Michael Bennet of Colorado, is a Democrat who favors gun control.

The Times has denied those allegations, rebutting the notions that it would ever knowingly print something false and that Bennet was acting out of spite. “We published an editorial about an important topic that contained an inaccuracy. We set the record straight with a correction,” said Danielle Rhoades Ha, a spokesperson for the Times. “We are deeply committed to fairness and accuracy in our journalism, and when we fall short, we correct our errors publicly, as we did in this case.”

A lawyer for Palin did not respond to a request for comment.

Bennet left the paper in 2020 after the newspaper’s opinion section published an op-ed by Sen. Tom Cotton, R-Ark., calling for a military response to civic unrest in American cities. The piece caused an outcry among readers and Times journalists.

Bennet is expected to testify Wednesday, a day after Palin.

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