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:
Correction:
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.
Given that most of the US media is either partisan-right or partisan-left, a ruling that forced them to behave more responsibly, and with more regard to factual truth, could well be a good thing.
The phrase: “the link to political incitement was clear”, purporting to be a factual statement about a link between a mass murder and the specific speech of a political opponent, seems pretty “reckless” to me.
As their correction admitted “no such link was established”. It was obviously intended to damage her politically, and was written with “reckless disregard for its falsity”. So if that’s not libel then it’s basically impossible to libel a politician.
A lot of US media is not partisan in their news reporting, but do an excellent job of factual reporting. It is in their editorials that they lean one way or the other: The NYT is center left, WaPo is center right, the Wall Street Journal is harder right but not Trump crazy.
And that’s the issue here, the article in question was an editorial, not a news report. One is free to make such conjectures in an editorial. This, after all, was Fox News’ defense, that nobody should take their commentators as actual journalists but as entertainers.
And I’ll add that I see the editorial’s statement that such an ad could well incite violence as a reasonable conjecture. It doesn’t fall anywhere within the scope of libel laws.
But yes, there’s no predicting what the Supreme Court will do.
An editorial saying that the ad “could well incite violence” would indeed have been a reasonable conjecture. Saying that it did incite violence, and that the link between the ad and that specific act of violence was “clear” is rather different.
That’s primarily because a lot of US media buys their news reporting from AP or Reuters. Particularly for international news coverage. So regardless of the lean of the paper’s staff or owner, those particular articles all have the very moderate (Reuters) left lean (AP) of the authoring organization instead. IOW it’s not that the NYT news reporters are some bastion of objectivity, it’s that the paper is too cheap to employ the left-wing news reporters it probably would if it had it’s druthers.
All my cynical opinion, of course.
There are a number of news services that various US news providers subscribe to, depending on the chain, besides AP and Reuters. Gannett and McClatchy provide a lot of their own reporting, as do NYT and Washington Post, and most of that material is syndicated, so it gets picked up by numerous other news organizations. There is no particular political slant to most of that.
During my professional career I worked at three papers, The Seattle Times, the San Jose Mercury News, and The Orange County Register over a period of twelve years. Seattle and OC were right leaning (the Register is strongly libertarian, founded by the Hoyle family), and San Jose was left leaning. I worked with a number of journalists who have moved on to the NYT and WaPo. I also knew people who worked at Hearst, the competing chain, which was also right leaning.
I never saw an instance of leftist bias in news coverage at any of these organizations, and have great respect for the professionalism of the reporters and editors I knew. Where the politics showed up was in the editorial departments (Michele Malkin worked at The Seattle Times when I was there), which were separate from the newsrooms and had no say in news coverage.
It saddens me to see the erosion of trust in the institutions on which society depends, which includes the fourth estate. The resulting vacancy gets filled up with conspiracies and uninformed opinions.
It’s appropriate to approach all news coverage with skepticism, the first step of which should be to check the reliability of the source, and to call out media when they get something wrong. Reliable organizations admit to their errors and publish corrections, as the NYT does.
But to just declare media as a whole, as if it were a monolithic entity, to be biased and untrustworthy is nihilism, to the great detriment of society. Where else will you get your news?
It saddens me too. But Fox in some sense broke the old barriers, and with the woke movement, the more liberal outlets you cite may not be anywhere near as bad but they are, shall we say, reticent to challenge woke ideology the way the 4th estate should. Just to give an example, the WaPo covered the synagogue terrorist event as well as any of them, but did not contradict or analyze authority claims that there was no evidence of anti-Semitism. This is IMO a failure. Is the 4th estate’s job merely to convey to readers what the Emperor’s police put out about his attire, or is it the 4th estate’s job to report in contradiction to the police’s press releases that the Emperor has no clothes? Are they mouthpieces or critical analysts? Because they seem to be doing the former a lot more than the latter.
If this is at all viable, then there should be no end of defamation lawsuits against what passes for media outlets.
Surely that is one of the outcomes that the plaintiffs are hoping for. Implicitly, if not explicitly.
I’ll add that if it’s not explicit, it’s because the wingnut fraternity don’t have the organisational ability to actually coordinate an explicit policy; it’s nothing to do with a plan for secrecy, nor avoiding putting incriminating thoughts in writing etc.
What crosshairs?
Anyone who has been trained with arms, including but not limited to firearms, or who has at least seven days of backyard wildlife defense patrol, or who has watched The A-Team knows that crosshairs…[…searching… reads Wikipedia ] – or, as they are PROPERLY described, reticles (or reticules) used the way the plaintiff (NYT..?) claims would NEVER look like that.
When used the way the plaintiff claims, numerous notations including graduations, stadiametric rangefinding brackets, and … and … yeah. They are simply … ordinates and abscissa to measure votes cast in the districts! I mean come on, that should be obvious!
So yeah. No, those are not “crosshairs”. Case Closed.
[ ^^^ facetious or something. The A-Team reference should be the tip-off ]
I have no doubt that what the NYT does is done out of malice. Even the NPR piece can’t hide it’s disdain. I don’t know what Palin is suing about, though. A knock from the NYT is practically an endorsement to her base. Maybe that’s it, though: since her supporters don’t read the NYT, she’s doing this to advertise. Her case seems like small beer, though, all things considered.
Well, there is hardly a more contemptible character in contemporary US politics, hardly anyone more deserving of disdain, than Sister Sarah. In her way, she served as Donald Trump’s John the Baptist — a harbinger of bad tidings to come.
Well, she certainly has a place towards the top of the list, but the outcome of the case should not be decided on our personal opinions of her.
I don’t know for sure how I want the case to go. The first amendment is first for a good reason. However, the slide of the mainstream press into propaganda organs of political parties is also terribly worrying.
It does appear that the current state of journalism is that, for each potential story, the writers and editors seem perfectly content to exaggerate, omit, or add invented facts to the story to ensure that it promotes their political views. They will kill a newsworthy story that puts their political beliefs in a bad light, and create fake fact checking to refute such a story, if others publish it.
At best, they will report it in a way that is factually correct, but parsing the words to give the reader a different impression than the facts would support.
The “current state of journalism,” as you describe it, Max, is more a return to form. For most of this nation’s history, newspapers served as propaganda organs. Consider, for example, the “yellow journalism” of the Hearst and Pulitzer empires. A commitment to “objective” reporting is a fairly recent development in US journalism (a recent development I would like to see perpetuated, current trends notwithstanding).
And I by no means meant to suggest that the outcome of Palin’s libel lawsuit should turn on anyone’s personal opinion of her. I was merely responding to DrBrydon’s comment, by explaining why the reporting about her personal conduct may seem suffused with disdain.
I agree with your history, but I’m not sure I wish for the same return to “objectivity”. It never was quite real (it had a narrow built-in Overton Window) and it’s hard to see how it could ever be better. Real, flawed human beings have to run these – typically for-profit – news organizations. If a news organization or reporter is open about their orientation, that is probably the best one can hope for.
It seems a fair point that the lawsuit is a calculation to invigorate support and attention from the far right. But I do remember this fracas, and I can see why she would feel aggrieved at the implication that this ad had anything to do with the shooting. It was a very emotional situation.
Nah, Palin doesn’t care about the right, she’s in it purely for the money and self-aggrandizement. She made that clear when she “ran” for President, didn’t file the necessary candidate paperwork, and then used the early campaign contributions she got to take her family on a big vacation instead of actually running for President (all legal, since she wasn’t an official candidate yet).
Would she use the publicity of winning this suit for some other scam? Oh you betcha. Is she some Gingrich or Bannon type doing this as part of some plan to usher in a new era of right wing thought dominance? No. She’s too narcissistic for that.
And too dumb. This is a woman, after all, who thought Africa a country and the Queen the head of the UK government.
Also too lazy. Let’s not forget that she resigned (for no reason that made any sense) after serving just half a term as Alaska’s governor.
Gingrich and Bannon, OTOH, as repugnant as each is in his own way, have actually read books cover-to-cover and seek political power as a means to effect changes in public policy.
In the Disney movie The Rescuers mice run their own version of the United Nations underneath the actual UN building and one of the “countries” represented is Africa! http://4.bp.blogspot.com/_HMFFK38MMQY/TOQlLVRCVpI/AAAAAAAAAXs/wJ5EtORjT68/s1600/The-Rescuers-the-rescuers-5009174-1024-576.jpg
I recall that when Team Palin began getting grief over its ad targeting particular congressional districts, it tried to put forward the risible claim that the crosshairs were not those of a rifle scope, but merely surveyor symbols.
Hey! My argument is better! They are abscissa and ordinate to measure the votes! /s
LOL surveyor marks! That is RICH.
I love the quote :
“BRUCE: Well, it’s a surveyor’s symbol. It’s a surveyor’s symbol.”
I think I can, I think I can – the school of the little engine that could!
I will predict that the Supremes will refuse cert, letting the (future) lower court ruling denying her suit stand.
I’m not super confident that they’re that high-minded, but I’ll give it better than even odds.
I’d also note that it’s remarkably hypocritical as well as taking some big legal cajones, if they were to make the argument that “gunsight on a map” rhetoric is protected free speech while an opponent commenting on “gunsight on a map” rhetoric is not.
The editor’s eye wanted to correct “cajones” (which could mean “big boxes”) to cojones, but then I thought about the staggering amounts of paper that such cases usually involve (my own anti-SLAPP case filled several banker’s boxes), so maybe you had it right the first time.
An unintended double entendre to be sure. You were right to attribute it to incompetence. 🙂
To be fair, it IS a rare rifle scope indeed in which the crosshairs extend beyond the circumference of the scope. But that’s artistic license, so to speak.
And to be honest, though I have no sympathy for and precious little charity toward Sarah Palin (an idiotic yet lamentably influential figure without whose birth the world would almost certainly have been better off) I never did think this map looked like it was inciting anyone to use firearms against anyone (maybe nuclear weapons?). The sights–which ARE over regions on the map, and a broad, low-resolution map at that–are clearly stylized and metaphorical, invoking a very popular and common figure of speech*. I think one needs to be willfully looking for something to complain about to call this claim that this could constitute an incitement to violence, even ex post facto the shootings, and it’s not as though it was ever hard to find LEGITIMATE things to criticize about the person in question.
All of which makes me suspicious that there really was “malice” involved in the NYT’s editorial.
*i.e. “…in my/our sights…”
“I think one needs to be willfully looking for something to complain about to call this claim that this could constitute an incitement to violence,…”
I see it exactly opposite. The ad gave rifle crosshairs, the names of the targets, and said it “was a call to action”. I can’t imagine the intent being more clear or more reckless.
A lawyer can perhaps argue about their intent in publishing this map but it was surely extremely reckless. There are evidently people on the wilder fringes of the American right who are just itching for a call to arms, many of whom are not predisposed to get bogged down with niceties such as “well they might be surveyors’ symbols’, ‘it’s the districts that are targeted not the individuals’ etc..
What kind of sights, if not gun sights? As someone else has pointed out, does the First Amendment only protect the person who used the symbol, or does it extend to the person who commented on the use of the symbol as well?
A comment on the use of the symbol–perhaps noting that it might be in poor taste, though my understanding is that it preceded the shooting incident in question, so the poor taste wouldn’t be with respect to that–is certainly protected, and should be. But to claim that that the ad was an incitement to violence (with the implication that it was willfully done as such) is something entirely unproven and manipulative, and also strikes me as contemptible, especially given the surrounding events. At the top of the ad is a plain statement that the message is about re-winning those districts that had been lost in the prior election.
Such a symbol could, in principle, have been meant to symbolize the “Direct Sum” operation from abstract algebra, or the “Disjoint Union”, or even, apparently, to signify that one has enabled one’s phone’s data saver feature. I don’t remotely suspect that it was actually meant to signify any of those things, of course; I’m not sure Sarah Palin ever learned how to do a SIMPLE arithmetic sum. But the point of the ad is clearly that they have those districts “in their sights” as places to win back for their party in the next election. To look for and imply a causal connection with a horrible, violent act (by someone who has been diagnosed as paranoid schizophrenic) after the fact of the shootings is just post hoc ergo propter hoc fallacious reasoning, done in what seems to be a deliberate and (possibly) malicious fashion.
I have a bad feeling about this case. It could lead to US libel laws being as bad as the UK’s. I fear our right-wing Supreme Court will rule in a way that has a chilling effect on free speech. Suing over supposed libel has often been an effective way for the rich and powerful silence to their critics.
They might want to think twice before potentially opening the door to those on the left who might want to sue Fox news or other right wing media outlets.
On the other hand, do not forget the precedent of Arkell vs Pressdram, which has long been a discouragement to the litigation-happy.
Off-topic Breaking News!!!
Justice Breyer has decided to retire.
Setting the country up for Biden to…fail to convince Manchin and Sinema to get rid of the filibuster. Despite McConnell doing exactly that for Trump’s SCOTUS nominees.
The language of argument, campaigning and election is partially based on conceptual metaphors of war. Contenders are being attacked, must defend a position, someone is taking (over, or back) a district, and some candidate is defeated. This cannot count in itself as incitement to violence.
Republicans are pro-gun or “2nd Amendment”, like to carry their gun around, and fighting the government is an important fantasy. Palin is that stereotype. It‘s mostly “culture war” virtue signalling, but anti-democratic undercurrents were laid bare by Trump‘s last con, where he claimed the election was stolen and to fight this, believers could donate. Unfortunately, pushing such war metaphors too far is “on brand” too. The crosshairs can be read as “too far”, but also as typically Republican.
I’d say the map is not specific enough to count as incitement, and I would anyway put most on the person who carries it out, who is already totally unhinged if a map like this was the final straw. But the NYT did not strongly imply a link between the shooting and the map, either, and their correction is adequate, but looks more like adressing a nitpick. There is no stongly worded assertion, and it‘s too weak to count as libel.
This lawsuit is just “culture war” red meat where Palin wins whatever the outcome. The Red Tribe will feel either invigorated, or more besieged, and Palin’s profile rises a bit — perhaps preparation for the show in 2024 (I don’t think she wants to win, but raising her profile to collect more money).
Certainly not incitement in terms of precedent, as I believe several pro-life groups have been sued for “crosshairs over people” imagery on their web sites and those suits were rejected. “Crosshairs over districts” is much less incendiary than putting them over actual people’s faces, so this example would be easily covered by those earlier precedents.
But worth remembering that this case is about libel not incitement. The judges aren’t going to rehash complaints about Palin’s imagery, they’re going to rule on whether printed comments in response to her imagery were intentional and malicious lies.
What is outrageous is that no one producing the ad – that didn’t get fired – raised the fact that clear iconography of weapons was in the overt message of the ad.
Then again, it is very likely that fact was deliberately used in a way that they might have said :
“oh yeah, liberal pussies will freak out over this we definitely will use gunsights! There are no words so there is no first amendment infringement! This’ll be HILARIOUS! F them and their lawyers!”