You may have heard that Sarah Palin (you remember her, right?) is suing the New York Times for libel. I’m not a lawyer—I just play one on television—but I’d say that in normal circumstances she’d lose. But these are not normal times, for the ultimate arbiter of the case may be the U.S. Supreme Court—no friend of liberals or of the New York Times.
The case is described pretty well, with included links at the GBH site below, the website of the (liberal) National Public Radio in Boston.
According to the law, a libel judgment against a public figure like Palin must involve not just printing something that was palpably false, but printing it with deliberate malice against the candidate. this standard was affirmed in the case of NYT Company v. Sullivan in 1964. Oyez gives the background and details of that case:
During the Civil Rights movement of the 1960s, the New York Times published an ad for contributing donations to defend Martin Luther King, Jr., on perjury charges. The ad contained several minor factual inaccuracies. The city Public Safety Commissioner, L.B. Sullivan, felt that the criticism of his subordinates reflected on him, even though he was not mentioned in the ad. Sullivan sent a written request to the Times to publicly retract the information, as required for a public figure to seek punitive damages in a libel action under Alabama law.
When the Times refused and claimed that they were puzzled by the request, Sullivan filed a libel action against the Times and a group of African American ministers mentioned in the ad. A jury in state court awarded him $500,000 in damages. The state supreme court affirmed and the Times appealed.
The Supremes then ruled unanimously for the NYT (my emphasis):
To sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate.
In a unanimous opinion authored by Justice Brennan, the Court ruled for the Times. When a statement concerns a public figure, the Court held, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity. Brennan used the term “actual malice” to summarize this standard, although he did not intend the usual meaning of a malicious purpose. In libel law, “malice” had meant knowledge or gross recklessness rather than intent, since courts found it difficult to imagine that someone would knowingly disseminate false information without a bad intent.
This is what Palin claims the NYT did to her. Here’s a description from the BGH site:
Palin is suing The New York Times for libel, claiming that a 2017 editorial tying her incendiary rhetoric to the 2011 shooting of then-congresswoman Gabrielle Giffords — a crime that also claimed the lives of six people — was false and defamatory. Jury selection in the long-delayed trial had been set to begin this past Monday in U.S. District Court. Then we learned that Palin had tested positive for COVID-19. “She is of course unvaccinated,” said Judge Jed Rakoff. Yes, of course. And the proceedings have been delayed until Feb. 3.
There is no question that there were mistakes in the Times editorial, published after a gunman shot and injured several members of Congress, including U.S. Rep. Stephen Scalise. The Times compared the event to the Giffords shootings and noted that Palin’s political action committee had published a map on Facebook with gunsights over the districts of several members of Congress it hoped to defeat — including Giffords.
After that, things went awry. First, the editorial originally stated that the map targeted “electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.” In fact, the map targeted only the districts, not the members themselves. More consequentially, the editorial tied the map to the shootings, stating: “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.” (You can read the original Times editorial here, at the Internet Archive; the revised and corrected version is here. You can see the map here.)
The original statement by the NYT that spawned the lawsuit (my emphasis):
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.
The map (from HuffPo) at issue:
An editorial on Thursday about the shooting of Representative Steve Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs.
Well, if you look at the map, yes, it is the districts that have crosshairs in them, but the names of the Representatives are right in there. I remember beefing at the time that this looked like an encouragement of Palin supporters (mostly gun advocates) to go ahead and fire a few off a few rounds at the relevant Congresspeople. But that’s the way it looks. Just as Palin’s team has to show malice on the part of the paper for making its original statement, I suspect that they must also show that Palin was encouraging murder, which is a defamatory statement. None of us can know that, nor could the NYT, which is why it withdrew the offending paragraph.
It was also my impression that if the offender (the NYT) was contacted and issued a requested correction, a libel suit cannot go forward. The NYT did issue that correction, but the suit is still proceeding. Perhaps one of our legal experts can explain this.
Assuming that the case is going forward under libel law, can we conclude that what the NYT published was done out of deliberate malice? To me that would seem hard to prove (see below for the standard of “proof” here), for, just as I made a connection between the gunsights and murder, but was just speculating, so the NYT could have made that same connection without a deliberate attempt to harm Palin. (On the other hand, we do know that they hated their Palin!). But proof is proof, and I can’t see the NYT meeting the standards of defamation here. GBH asked two free-speech experts, and they gave opposite opinions:
[Author Dan Kennedy] put the question to a couple of First Amendment experts. One, Boston lawyer Harvey Silverglate, said that the Times’ (mostly) truthful description of Palin’s actions should cut against Palin’s libel claims. “Since the Times accurately described what Palin did,” Silverglate told me by email, “it would not matter whether it actually incited violence.
Taking a different view was Justin Silverman, a lawyer who is executive director of the New England First Amendment Coalition. “Just because Loughner didn’t use the map as motivation, [that] doesn’t mean that readers of the NYT weren’t told that he did — which arguably is the same as being told that Palin incited the violence and is responsible for that violence by publishing her map,” he said in an email. Silverman added: “By incorrectly saying that Loughner was motivated by the map, isn’t the NYT also incorrectly saying that Palin incited Loughner by publishing it?”
Nevertheless, Silverman said the Times should prevail if it is able to prove that its errors resulted from “sloppy journalism” rather than actual malice.
Which brings us back to where we started. Regardless of whether Palin wins her case, it seems likely that it will begin to wend its way through the appeals process — and perhaps to the Supreme Court.
And since two of the current members of the court (Thomas and Gorsuch) have argued or implied that the Supreme Court Sullivan decision in 1964 was wrong, and since there’s a pile of new conservative justices on the court who weren’t there in 1964, it’s possible that the Supremes could rule against the NYT.
My own view is that this is unlikely since malice of the NYT can’t be demonstrated beyond a “preponderance of the evidence” (i.e. a greater than 50% probability; the standard for liability in these cases). But this assumes, of course, that the Supreme Court follows settled law. By allowing the new Texas anti-abortion statute, which contravenes settled abortion law, to go forward, the new Roberts court can do pretty much do anything it wants.
Finally, an affirmation of Palin’s suit would clearly chill speech by the media, for a “> 50% chance” is about the most subjective decision you can make. You’d want to err on the side of not looking malicious.