How to argue Sarah Palin v. New York Times

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Sarah Palin’s libel suit against the New York Times likely hinges on one legal phrase: “actual malice.” The law requires a public figure such as the former Republican vice-presidential nominee to show a high degree of journalistic malfeasance — not merely an honest mistake — to win a defamation case.

I’ve broken down some key points that a court might consider, along with arguments for each side, with help from Jonathan M. Albano, a partner at Morgan, Lewis & Bockius in Boston, who has represented the Boston Globe for decades; and Joe Sibley of Camara & Sibley in Houston, who represents plaintiffs in libel cases.

What did the Times say?

The lawsuit is a response to a Times published online June 14, the day of a shooting by James T. Hodgkinson at a Republican practice for the annual Congressional Baseball Game. Here is the relevant passage:

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 crosshairs.

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 of the right.

In reality, there was no “clear” or “direct” link between literature distributed by the Palin committee and the shooting that wounded Giffords — or any link at all. As The Washington Post Fact Checker , Loughner’s “focus on Giffords , long before the map was published. He became fixated on her since he .”

There is no evidence that Loughner ever saw the map in question, which the Times also mischaracterized. The map featured targets on the geographical locations of Democrat-held congressional districts but did not “put Ms. Giffords and 19 other Democrats under stylized crosshairs.”

The Times issued a correction on June 16: “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 crosshairs.”

What did Palin say?

Here’s the opening line of the Palin’s attorneys filed in U.S. District Court for the Southern District of New York on Tuesday: “Mrs. Palin brings this action to hold the Times accountable for defaming her by publishing a statement about her that it knew to be false: that Mrs. Palin was responsible for inciting a mass shooting at a political event in January 2011.”

The most important phrase here is “knew to be false.” Palin is not merely alleging that the Times made a mistake; she claims the paper’s editorial board intentionally published inaccurate information.

“The defamatory content in the column is not overt but is by implication,” Sibley said. “In other words, it doesn’t say, in so many words, that Palin incited Loughner, but it clearly suggests it. In such a case, federal courts have held that a defamation plaintiff must show that the author intended the defamatory impression. Based on the wording of the column itself and the retraction, that should be easy to do in this case.”

What does the law say?

I’ll let the at Cornell handle this one:

The U.S. Supreme Court’s 1964 decision in  has restricted defamation claims, limited by the First Amendment concerns. Thus, for instance, public officials and public figures (people who are famous) must show that statements were made with actual malice to recover in an action for defamation.

Actual malice means that a statement was made with knowledge that it was false or with reckless disregard of whether or not it was false. In addition, a plaintiff must show actual malice by “” evidence rather than the usual burden of proof in a civil case, of the evidence.

According to Albano, “reckless, in this area of the law, does not mean extremely negligent. It means that the defendant entertained serious, subjective doubts about the truth of the statement, sometimes rephrased as publishing with a ‘high degree of awareness of probable falsity.’ Proof of negligence is not enough to show actual malice — the plaintiff has to prove more than that a reasonable investigation or a reasonable person would have or should have known the statement is false.”

The case for Palin

The former Alaska governor can (and did, in her complaint) point to previous Times coverage that indicates the newspaper knew there was no link between Palin’s committee and the shooting of Giffords.

Three days after the shooting, in January 2011, the Times that “there is no evidence that the person charged in the shootings, Jared L. Loughner, was a fan or a follower of Ms. Palin.” The same article relayed an argument presented by Palin defenders, who “noted that the police had found evidence suggesting that Mr. Loughner was obsessed with Ms. Giffords long before Ms. Palin put any kind of target on her.”

A few days later, Times op-ed columnist Charles M. Blow Democrats for overreaching in their attempt to cast blame on Palin. Here’s an excerpt:

The dots were too close and the temptation to connect them too strong. The target was a Democratic congresswoman. There was the map of her district in the crosshairs. There were her own prescient worries about overheated rhetoric.

Within hours of the shooting, there was a full-fledged witch hunt to link the shooter to the right.

“I saw Goody Proctor with the devil! Oh, I mean Jared Lee Loughner! Yes him. With the devil!”

The only problem is that there was no evidence then, and even now, that overheated rhetoric from the right had anything to do with the shooting. (In fact, a couple of people who said they knew him have described him as either apolitical or “quite liberal.”) The picture emerging is of a sad and lonely soul slowly, and publicly, slipping into insanity.

“Courts have held that when a journalist has a motive or agenda in connection with a story that would cause them to turn a blind eye to the truth, this can evidence of actual malice,” Sibley said. “I would expect Palin’s lawyers to portray the Times in the expected way, as a ‘false news’ clearinghouse against conservative figures.”

The case for the Times

The Times it will defend itself “vigorously” but has not yet filed a formal response to Palin’s complaint.

The newspaper might argue that the timing of the editorial’s publication, just hours after Hodgkinson shot Scalise and four others, is evidence that errors should be attributed to haste, not malice. The editorial, as originally published, linked to an ABC News from the day after the Giffords shooting that began like this:

In the stunned aftermath of the Tucson massacre, Sarah Palin has found herself in the crosshairs of the ensuing political debate with opponents suggesting she may have fueled the gunman’s rage and her supporters saying it is “grotesque” to blame her and to politicize the tragedy.

There were many other reports of a similar nature at the same time. The Times could argue that its editorial writers were aware of these reports but, in their rush to publish quickly after the shooting of Scalise, committed an honest oversight and missed the follow-up reports — including the ones in their own paper — that debunked the notion of a link between Palin’s committee and Loughner.

“The prior Times coverage of the Giffords shooting does not automatically prove that the editorial was published with actual malice,” Albano said. He pointed to the Supreme Court’s decision in Times v. Sullivan, a landmark libel case that the Times won, despite publishing an advertisement that contained false information previously contradicted by Times news reports. Here’s an excerpt from the ruling:

There is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times’ own files. The mere presence of the stories in the files does not, of course, establish that the Times “knew” the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times’ organization having responsibility for the publication of the advertisement.

The Times also might contend that, although it got the particulars wrong, it was right to say that the map produced by Palin’s committee contributed generally to a toxic political climate that many people believe makes violence more likely. The paper could present as evidence the Palin committee’s initial, absurd claim that the crosshairs on the map were intended to evoke surveyors’ tools, not gun sights.

That assertion, later contradicted by Palin herself, indicated that the committee felt a twinge of guilt about its imagery, the Times could argue.

Alternatively — and despite the correction — the Times could argue that the factors which motivated Loughner are matters of opinion, not fact, and that an opinion of what inspired the shooting is protected free speech, however dubious the conclusion.

This post has been updated.

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