The stakes are high for the American press as a libel case between former Alaska Gov. Sara Palin and The New York Times goes to trial this week, putting the long-settled definition of libel to the test.
Palin sued the newspaper in the summer of 2017, taking aim at the paper’s opinion editor at the time, James Bennet, who was largely responsible for an editorial she considers defamatory. Her case has traveled a rocky road ― it was initially tossed out only to be reinstated a couple years later ― and is now set to be heard in federal court.
The New York Times hasn’t gone to trial over a libel claim since the 1960s, when it emerged victorious over the question of minor inaccuracies contained in an advertisement it published. That case, Times v. Sullivan, set an important precedent: The Supreme Court unanimously ruled that it was not enough to show that a claim was false to prove libel; the plaintiff needed to prove that the claim was made with “actual malice” ― a tough new legal standard.
Some say too tough.
“The actual malice standard is really controversial, especially right now,” Kevin Goldberg, a First Amendment specialist with the nonprofit Freedom Forum, told HuffPost. A win for the Times could possibly end up weighing negatively on the public’s perception of the outlet, he said, if people start thinking it’s impossible to sue the media for libel and win ― that the bar is simply too high.
In 2017, the Times’ public editor at the time, Liz Spayd, wrote, “It’s curious how few companies or individuals actually do sue the paper for allegedly libelous claims.” She said that’s “a good thing if this is a measure of how rarely people feel defamed by The Times,” but that “it’s a bit more disconcerting if it suggests that those with a legitimate claim feel too intimidated to even try.”
A loss for the Times, though, has the potential to embolden public figures to more often use the judicial system to retaliate against unflattering stories. RonNell Andersen Jones, a University of Utah law professor and fellow with Yale Law School’s Information Society Project, told HuffPost that support for the press among regular Americans and among the judiciary “are both at a low mark that I wouldn’t have predicted 10 or 15 years ago.”
“One of the things that I and, I think, other press freedom scholars are concerned about is that losses by the press in these kinds of cases in particular might feed a really dangerous narrative that’s been fostered over the last several years about the press as an enemy of the people,” Jones said.
Lawyers for the paper say that both sides are quarreling over an honest mistake that it dealt with properly, while Palin’s team argues that the editors maliciously targeted her based on personal views ― and need to pay.
Here’s what the case is all about.
What did the Times write about Sarah Palin?
On June 14, 2017, a man namedJames Hodgkinson opened fire on members of Congress who were practicing for their annual charity baseball game in Alexandria, Virginia. He managed to shoot four people, critically injuring Rep. Steve Scalise (R-La.) before dying in a shootout with police.
Hours after the shooting, The New York Times published an editorial decrying political rhetoric that leads to violence that also suggested that Palin incited a previous deadly rampage.
Bennet wantedthe Times’ editorial board to write about the shooting, emails show. The piece that made it to print, titled “America’s Lethal Politics,” brought up another congressional shooting: the 2011 incident in which Jared Lee Loughner shot then-Rep. Gabby Giffords (D-Ariz.) in the head.
The piece argued that political rhetoric had become too cutthroat, recalling contemporaneous news reports of a political ad that depicted a map of the country with crosshairs over certain districts. The ad, created by Sarah Palin’s political action committee, singled out several districts that voted for the GOP presidential ticket in 2008 whose representatives later voted for Democrat-led health care reform. It said voters needed to “take back” those districts.
Palin’s team shared the ad in March 2010 ― nearly a year before Loughner’s attack ― and there was never any evidence that he saw it, or that it influenced his behavior. In fact, investigators later found evidence that Loughner was obsessed with Giffords personally and had been for years.
Yet the original version of the Times’ editorial drew a direct line between Palin’s rhetoric and the shooting.
It read: “In 2011, when Jared Lee Loughner opened fire ... 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 paragraph was subsequently edited to remove the “clear” phrasing, and a disclaimer was tacked on: “But in that case no connection to the shooting was ever established.”
The following paragraph originally reinforced the idea, as well, stating that, with the baseball shooting, “there’s no sign of incitement as direct as in the Giffords attack.” That phrasing was later removed.
Six people ― including a 9-year-old and a federal judge ― died when Loughner opened fire on a crowd of people surrounding the congresswoman at an Arizona strip mall on Jan. 8, 2011. Giffords survived with vision and language impairments.
It may be strange to think about now, but people were concerned about the tone political rhetoric was taking at the time of the Giffords attack. Christina Bellantoni, now a professor at the University of Southern California’s Annenberg School, was then working as a political reporter for Roll Call and remembered seeing political language turn harsher and harsher after Barack Obama came on the national scene.
“People being afraid in their districts, needing extra security, or going in disguise ... all of those things have happened over the last decade,” Bellantoni said. “AndI believe that really started with that era in 2008, which Palin was effectively the leader of.”
Who is James Bennet?
With his glittering East Coast pedigree as an Ivy League grad from a politically connected family, Bennet has held prominent positions in two major newsrooms over the past few decades. He joined The New York Times in 1991, rising to lead the paper’s Jerusalem bureau before leaving in 2006 to serve as editor-in-chief of The Atlantic. Ten years later, he returned to the Times to oversee its opinion pages.
His leadership there was marred by controversy: Bennet made some unpopular hires and allowed some questionable arguments to take up precious column inches in what is widely considered the nation’s most prestigious newspaper.
He was pushed off the Times’ masthead in June 2020 following the publication of a column by Sen. Tom Cotton (R-Ark.), who wanted to sic the military on anti-racism protesters protesting across the country at the time. After initially defending the decision to run Cotton’s piece, Bennet admitted that he had not actually read it before publishing it in The New York Times.
How did the editorial come together as it did?
The Times’ editorial board comprises a dozen or more journalists (its membership fluctuates) with different areas of expertise who brainstorm ideas for editorials — that is, opinionated columns. Editorials are published under the collective editorial board byline.
An editorial writer for the paper, Elizabeth Williamson, originally pitched the idea of commenting on the congressional baseball shooting in its aftermath, Bennet said in his deposition. After discussing specific points the piece should make, Bennet told Williamson to look back at editorials from around the time of the Giffords shooting for the sake of “harmonizing” the new with the old, and a researcher helped her out.
Williamson turned in a draft around 5 p.m. the day of the shooting, court documents show, but Bennet wanted to make some revisions.
“I really reworked this one,” Bennet told Williamson in an email sent at 7:22 p.m. “I hope you can see what I was trying to do. Please take a look. Thank you for the hard work today and I’m sorry to do such a heavy edit,” he wrote.
Williamson responded, “no worries.”
Court documents show that Bennet added the lines that Palin found offensive. “America’s Lethal Politics” was both published online and printed in the paper the next day.
How did the Times respond to errors in the piece?
Backlash came swiftly. An opinion columnist for the Times, Ross Douthat, emailed Bennet around 10:30 p.m. to express his “bafflement” at the editorial.
“There was not, and continues to be so far as I can tell, no evidence that Jared Lee Loughner was incited by Sarah Palin or anyone else, given his extreme mental illness and lack of any tangible connection to that crosshair map, the Tea Party or other right-wing cause,” he wrote in an email to Bennet, who thanked his colleague for his feedback and said he would look into it more the next day.
Shortly before midnight, Bennet texted Williamson: “Are you up? The right is coming after us over the Giffords comparison. Do we have it right?”
Williamson had gone to bed, and responded early the next morning. Bennet was also up early, sending an email around 5 a.m. that read in part, “I’d like to get to the bottom of this as quickly as possible this morning and correct the piece if needed.”
Bennet also apologized to Williamson. “I feel lousy about this one ― I just moved too fast. I’m sorry,” he said in a text message later that morning.
The Times revised the column twice, issuing two corrections. First it removed the suggestion that there was a “clear” or “direct” link to “political incitement” in the Giffords case. Then it updated its description of Palin’s advertisement ― the map that “put Ms. Giffords and 19 other Democrats under stylized cross hairs,” because, in fact, Giffords’ likeness was not on the map. There was just a target over the approximate location of her district.
What are Palin’s attorneys saying?
Palin’s legal team argues that the editorial interfered with Palin’s work as a Fox News commentator (even though she has continued to work with the network in recent years) and influenced her decision not to run for president, according to court documents.
The Times editors took advantage of Palin’s “unfortunate role as an easy target for barbs against conservative policies,” her attorneys have claimed.
“At the time of publication of the Palin article Mr. Bennet and The Times did not suspect that the false attack upon Gov. Palin (the proverbial punching-bag for gun-control and political civility assaults) would evoke criticism and backlash from their own readers and liberal media outlets. But, it did,” they said in court records.
Palin’s attorneys have seized upon Bennet’s personal history, trying to paint him as an unreasonable, liberal gun-control advocate who had a bone to pick with the Alaska Republican. (Bennet’s father and grandfather served three Democratic presidential administrations between them, while his brother is a sitting Democratic senator from Colorado. Palin once endorsed his brother’s opponent.) And they point to the fact Bennet helmed a major news magazine at the time of the 2011 Giffords shooting and would supposedly have been aware that there was never any evidence linking Loughner to Palin.
What is The New York Times saying?
In August 2019, a lawyer for the Times, David McCraw, said of the editorial, “In our view, this was an honest mistake. It was not an exhibit of actual malice.”
Jordan Cohen, a spokesperson for the Times, told HuffPost that the company is currently “seeking to reaffirm a foundational principle of American law: public figures should not be permitted to use libel suits to punish unintentional errors by news organizations.”
“We published an editorial about an important topic that contained an inaccuracy. We set the record straight with a correction,” Cohen said. “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.”
Court documents also show Times attorneys pushing back on the idea that Bennet harbored personal ill-will toward Palin. Bennet’s past work in Israel coincided with the 1995 assassination of Israeli Prime Minister Yitzhak Rabin, they point out in court papers, making him particularly wary of violent political rhetoric and the actions it can inspire.
In a statement filed with the court, Bennet said: “I did not intend to imply a direct causal link between the Crosshairs Map and Loughner’s horrific acts. ... Rather, I intended to advance the idea that overheated political rhetoric can create a climate conducive to violent acts.”
Is Sarah Palin going to win? What does it mean if she does?
Defamation cases are tough to win in the United States, thanks in large part to the “actual malice” standard, which requires proof that the defendant knew the claim was wrong or acted with “reckless disregard” of the truth.
It’s hard to prove what somebody was thinking. Most libel cases are dismissed before they ever reach the stage of trial by jury.
“It’s a very hefty weight,” Jones said of the standard Palin’s team must meet. “She bears the burden of proving by clear and convincing evidence that the writer either knew what they published was false, or recklessly disregarded whether it was true or false.”
Bellantoni said she thought it was a “stretch” to meet the “actual malice” standard in this case.
“This was not good journalism,” Goldberg told HuffPost. “But that doesn’t mean it’s legally defamatory.”
Yet Goldberg said juries can be difficult to predict. “They are not hesitant to rule in favor of defamation plaintiffs, and certainly not hesitant to impose big damage awards,” he noted.
Everyone HuffPost spoke with for this article pointed out how public perception of the news media is at all-time lows. A New York jury might be more comfortable deciding against its hometown newspaper than it would have been in the past.
Either party in this case could appeal if the jury goes against them, meaning there is at least some chance it could go all the way to the Supreme Court. Justices Neil Gorsuch and Clarence Thomas have both argued, separately, that the Times v. Sullivan decision needs revisiting, offering a clue as to how they might rule if Palin’s case ever made it that far.
In an industry that is still struggling to define its business model in the digital age, there is concern that loosening defamation standards in the U.S. could unleash more litigation than media outlets can bear. The New York Times may have the financial resources to fight back, but the same might not be true for local or digital-only outlets that take on powerful public figures in their reporting.
“If we’re tallying ways that democracy might be at risk,” Jones said, “serious scale-backs to protections for the press probably are on that list.”
This article originally appeared on HuffPost and has been updated.