Palin libel suit tackles media accountability

Arguments are set to start next week in a lower Manhattan courtroom in a trial that pits former Alaska Gov. Sarah Palin against The New York Times. Palin, a one-time Republican vice presidential nominee, says the newspaper committed libel in a 2017 editorial that accused her political action committee of inciting a mass shooting.

The case, currently scheduled for Feb. 3, was postponed this week because Palin tested positive for the coronavirus.

This is the first major libel suit The New York Times has faced in nearly 20 years. Media and legal experts agree it could eventually reach the Supreme Court, triggering a review of decades-old precedent on libel law and affecting reporting standards at media organizations across the country.

On the evening of June 14, 2017, New York Times editor James Bennet hurriedly polished a staffer’s editorial about political assassination attempts. During his heavy rewrites of some sections, he linked an ad from Palin’s political action committee to a 2011 mass shooting that wounded former Rep. Gabby Giffords, D-Ariz., and killed six.

“In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot … the link to political incitement was clear,” Bennet wrote. “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.”

Within hours, the news outlet became a trending topic on social media as readers expressed outrage at the claim. The crosshairs in the ad were actually over Democratic districts, not specific people, and the ad was about a healthcare bill Palin opposed. The same day the editorial hit the presses, the Times also published a news article that reported there was no link between the crosshairs map and the Arizona shooting. The Times printed a correction, but Palin still filed a defamation lawsuit asking for more than $400,000 in damages.

Palin claims Bennet’s sentence harmed her reputation and stemmed from deep-seated bias against conservative public figures. Bennet and Times attorneys say it was an “honest mistake” resulting from quick writing under a deadline.

In 1964, the U.S. Supreme Court created landmark protections for the media in New York Times Company v. Sullivan. The justices ruled that the First Amendment protects newspapers when they accidentally print falsehoods so long as they do so “without knowledge of falsity or reckless disregard for the truth”—now known as the “actual malice” standard. This standard places a high burden of proof on plaintiffs to show a writer or editor intentionally slandered them. The Times has not lost a libel case since the Sullivan ruling.

Palin’s attorneys are expected to use anecdotes about Bennet—who later left the Times over another controversy involving an op-ed—to try to show the company regularly promotes anti-conservative positions to attack lawmakers like Palin. This would make it easier to prove actual malice.

Palin must jump several hurdles to win punitive damages: prove her reputation was hurt, prove the editor hurt it knowingly, and prove she deserves compensation. While a private citizen would only need to prove negligence, cases involving public figures must meet the actual malice standard since they are often the subject of media scrutiny and have a broader platform to correct the record.

Aimee Edmondson, a professor of media law and journalism history at Ohio University, attributes the case to the same anti-media sentiment prevalent in the 1960s. The Supreme Court recognized that plaintiffs like L.B. Sullivan, the public safety commissioner in Montgomery, Ala., who sued the Times for inaccuracies in an ad defending Martin Luther King Jr., wanted to push back against media outlets that covered the civil rights movement. Edmondson said the ruling provided the press with “breathing room” to make some mistakes while still covering important issues.

Edmondson wants more protections for the media in the form of anti-SLAPP—strategic lawsuits against public participation—legislation. Several states, including New York, use such legislation to fend off lawsuits from public figures trying to retaliate against criticism. This makes it harder for public figures to claim defamation in a dispute involving a public statement, such as Palin’s ad.

David Logan, a law professor at Roger Williams University and adviser to the American Law Institute, said Palin’s case spotlights the tensions a perhaps-outdated libel law faces in the modern era.

“Retracting and apologizing doesn’t fix damage to trust and reputation,” Logan said. “I’m not convinced that the exact mix of protections that the Supreme Court has recognized over the last 60 years does enough to protect our democracy from potentially false statements.”

In a dissenting opinion about the Supreme Court’s refusal to hear a First Amendment case in July, Justice Neil Gorsuch quoted Logan and argued the information and media landscape has changed so much since Sullivan that it might be the public that needs protection now more than newspapers: “Not only has the doctrine evolved into a subsidy for published falsehoods on a scale no one could have foreseen, it has come to leave far more people without redress than anyone could have predicted.”