Back in 1964, exactly one month after the Beatles’ iconic debut on the "Ed Sullivan Show," the Supreme Court made history of its own. The court’s landmark ruling in New York Times v. Sullivan (L.B. Sullivan, not Ed) made it very difficult for public officials to win defamation lawsuits.
Now, after a long and winding road through the legal system, a sequel of sorts — Sarah Palin v. The New York Times Company — is scheduled to go to trial in federal court in Manhattan. The case represents an unusually high-profile test of the standard established in the Sullivan decision, which requires prominent people to prove that a news outlet acted with “actual malice.”
The legal battle centers on a Times editorial published in 2017 that erroneously linked Palin’s political action committee to the 2011 shooting of Rep. Gabby Giffords, a Democrat from Arizona. The Times quickly, if somewhat clumsily, issued a correction. But the former Alaska governor and Republican vice presidential candidate, seizing an opportunity to stick it to what she calls the “lamestream” media, promptly sued for defamation.
The Times moved to have the suit dismissed and, after conducting a brief evidentiary hearing, U.S. District Judge Jed S. Rakoff agreed to throw out the case. “What we have here is an editorial, written and rewritten rapidly in order to voice an opinion on an immediate event of importance, in which are included a few factual inaccuracies somewhat pertaining to Mrs. Palin that are very rapidly corrected,” Rakoff wrote in 2017. “Negligence this may be; but defamation of a public figure it plainly is not.”
End of story, right? Not quite. After Palin’s lawyers appealed, a three-judge panel overturned Rakoff’s decision and reinstated the case. Barring a new delay or a last-minute settlement, the upcoming jury trial will cast a harsh light on the internal workings of a major American newspaper.
“I’m sure that the Times is worried,” says attorney Kevin Goldberg, a First Amendment specialist at the Freedom Forum. “The facts are bad for the Times overall.”
As with sausage and legislation, the makings of an editorial aren’t always pretty. The Times’ problems began when the editorial board decided to weigh in quickly after a Bernie Sanders supporter opened fire on Republican congressmen who were practicing at a baseball field in northern Virginia.
The first version of the editorial, drafted by writer Elizabeth Williamson, got to then-editorial page editor James Bennet late in the afternoon. Bennet, who left the Times three years later amid an unrelated controversy, found the draft to be long on narrative but short on opinion and fresh insight. He decided to do a write-through on a tight deadline. (This is not an unusual situation. When I was editorial page editor of USA Today, I did it dozens of times. It was always something of a high-wire act, with a copy editor serving as a safety net to save me from myself.)
In this case, Bennet fell off the tightrope. He apparently forgot the saying, sometimes attributed to Mark Twain, “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.”
In reworking the editorial, which carried the headline “America’s Lethal Politics,” Bennet inserted language suggesting that Jared Lee Loughner, who grievously wounded Giffords and killed six others, had been incited by a map distributed by SarahPAC, which targeted Giffords’ congressional district and 19 others with stylized crosshairs. The map was widely cited in the immediate aftermath of the shooting, but there’s no evidence Loughner ever saw it or that it played any role in his rampage.
Palin’s lawyers argue that this showed Bennet’s malice toward Palin. His brother Michael Bennet, they note, is a Democratic senator from Colorado who once ran against a Palin-endorsed candidate. But the bulk of the evidence, including a flurry of texts and emails following the editorial’s publication, indicates that Bennet made an honest mistake.
The law protects unintentional errors, and Palin’s lawyers will have a tough time demonstrating that she suffered any harm in the brief interlude between publication and correction. Nevertheless, juries can be unpredictable, and even hometown jurors can be hostile toward big news organizations.
The verdict could depend on how the judge instructs the jury to draw the line between sloppy journalism and libelous journalism. “It comes down to what was Bennet thinking?” Goldberg told me. “What was in his head?”
The outcome of the case could have ironic consequences. If the Times wins, Palin’s lawyers might pursue an appeal all the way to the Supreme Court, where at least two justices have expressed interest in revisiting the “actual malice” test, which requires public officials to prove that a news outlet published information it knew to be false or with “reckless disregard” for the truth.
If that high bar were to be lowered, the conservatives who have been egging Palin on — “Why Sarah Palin has a case against the lying liberals at New York Times,” was the headline on one recent column in the Rubert Murdoch-owned New York Post — might rue the day that they lost legal protection for their harsh attacks on the Left.
The best thing to do about the six-decade-old Sullivan standard is to follow the advice of the Fab Four: Let it be.
Bill Sternberg is a veteran Washington journalist and former editorial page editor of USA Today.
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