The more I read about it, the clearer it is that the outcome of the Sarah Palin libel suit against The New York Times was a complete travesty of justice.
Let’s start at the end. The presiding judge, Jed S. Rakoff – an appointee of former (Democratic) President Bill Clinton’s – who had already thrown out the case once ostensibly on the merits, and who therefore should have never been permitted to handle the retrial – decided to dismiss Palin’s charges a second time while the jury was still deliberating. What was the hurry, Judge?
Worse, the jury sequestration procedures were so slipshod that its members found out about his decision before their work was done. Rakoff said the jurors insisted that their own verdict against Palin wasn’t influenced by this news. Which means we’re supposed to believe that the ruling of the supreme authority figure they were dealing with for the entirety of the trial, whose very robe-clad figure symbolizes impartiality, and one of whose main duties is to instruct them on the legal dos and don’ts of their role, had no effect on their thinking. That’s remotely believable?
Just as serious – though not so unmistakably biased – was Rakoff’s view that there was so little evidence that Times editors acted with malice in producing an editorial that pinned responsibility on Palin for a failed assassination attempt on a Member of Congress that the paper should have been acquitted literally ASAP. And the jury got it just as wrong.
Here are the two paragraphs, from a June, 2017 Times editorial, on which Palin mainly based her case:
“Was this attack [by a shooter on Republican Members of Congress in 2017] 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 Gabrielle Giffords and killing six people, including a nine-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 nineteen other Democrats under stylized cross hairs.
“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 for of the right.”
The crucial tests that must be passed by libel charges against a public figure (like Palin) are (1) that the statement in question is false (The Times admitted as much a corrections it ran soon after); and (2), created by the Supreme Court in a 1964 case involving The Times, that the statement was published either with “actual malice” or with “knowledge that it was false or with reckless disregard of whether it was false or not.”
As should be obvious to anyone knowing standard English, the key portion comes in the first paragraph, which notes the 2011 attack on Rep. Giffords and others, claims that “the link to political incitement is clear” and directly proceeds to recall a map contained in a Palin political ad. The only possible sane interpretation is that the former Alaska governor and vice presidential candidate’s organization played a role in inciting shooter Loughner. And for good measure, this accusation that Palin’s ad activated Loughner was repeated in the second paragraph.
The allegation about the ad’s effect was not only false, but false on every count. What was depicted under crosshairs in the ad were not pictures of Giffords herself or any other Members of Congress, but their districts on a map of the continental United States. (As shown below, the lawmakers’ names were included under the map.)
And Loughner was so certifiably insane that, as was totally predictable, no evidence has ever emerged that he knew of Palin’s ad. Nor did he have to, as he had become preoccupied with Giffords years earlier. And indeed, as alluded to above, the Times admitted the falsehood in two corrections it ran within a day after the editorial came out.
These corrections have been cited, including by Rakoff, as evidence that the paper was not aiming to smear Palin, but simply committed an innocent mistake. But does he really believe that such brief ex post facto statements, inserted at the end of the new version, are seen by nearly as many readers and have nearly the impact of the original? Moreover, this new version still describes the Palin ad as an example of the dangerous and indeed “lethal” “viciousness” of much American political rhetoric nowadays – before abruptly somersaulting and tacking on the qualifier that “in that case no connection to the shooting was ever established.”
Rakoff found even more convincing of the Times‘ benign intentions an email sent by editorial page chief James Bennet – who rewrote the commentary and added its most controversial language – to original drafter Elizabeth Williamson once his rewrite was finished (and, as both of them knew, finished very close to the deadline they were needlessly determined to meet, as described below). In it, Bennet asked her to “Please take a look” at his changes, which he acknowledged – rather apologetically – were substantial.
As explained by Washington Post media critic Erik Wempel, Rakoff judged that the email established Bennet’s good faith because “No matter what you believe about Bennet or his colleagues, he’d be foolish to ask for Williamson’s review of the draft if he’d been committed to planting damaging falsehoods in it.”
But nothing in Bennet’s message alerted Williamson – who, as made clear above, also believed in a Palin-Gifford shooting connection – to the possibility that he’d exaggerated the Palin angle in any way. It doesn’t appear that this aspect of the rewrite was even mentioned. (I haven’t managed to find a copy of the entire message, but am relying on the reproduction contained in the above-linked Columbia Journalism Review article.) If anything, the last-minute nature and apologetic tone of the message indicate most strongly that Bennet viewed it as a sop to a colleague whose work he found thoroughly unsatisfactory
Moreover, Williamson’s response shows that the last issue she was thinking about was whether Palin’s role in the nation’s violent politics had been misrepresented.
For his part, Bennet contends both that he was unaware of previous Times reporting, and that when he wrote about the “clear” “link” between the type of “political incitement” represented by the Palin ad and the Giffords shooting, he never intended to argue that there was a clear link between the two.
Amazingly, when he presided over the first case in 2017, Rakoff simply ignored this transparently feeble attempt – from a highly educated individual who for decades had earned his living and carved out a distinguished career at the very top of his profession through his skill at using words – to argue that the words he set down on paper had nothing to do with the message he wished to convey.
Instead, the judge declared (in his above-linked 2017 ruling) that “What we have here is an editorial, written and rewritten rapidly in order to voice an opinion on an immediate event of importance, in which are included a few factual inaccuracies somewhat pertaining to Mrs. Palin that are very rapidly corrected. Negligence this may be; but defamation of a public figure it plainly is not.” That is, nothing of legal significance to see here.
But during the retrial, evidence came out undercutting his reading of events. First, as mentioned above, it became apparent that the editorial was a rush job where there was no need to rush. In fact, as recounted here, the morning that news appeared of the 2017 attack on the Congressional Republicans appeared, Times editorial staffers weren’t even sure that any commentary was warranted, much less what it would say.
It’s important to realize here that, unlike their news division counterparts, the editorial page staff was under no competitive pressures from rival news organizations to keep releasing breaking, originally reported material. And especially, as noted above, since editorial page chief Bennet didn’t even receive the first draft of the piece from Williamson until very late in the production day, any responsible publication should have proceeded with caution on such a highly charged topic.
That’s an even stronger point considering that, as even Rakoff has acknowledged,
“Certainly the case law is clear that mere failure to check is not enough to support ‘reckless disregard’ in the context of any libel claim. But … where the assertion is that someone incited murder: That is such a strong statement that even under a reckless disregard standard, it calls for more assiduous checking than would be normally the case.”
And revealingly, despite the ongoing confusion about what focus the editorial should take, Palin was fingered from the beginning as a culprit behind what looked like a national outburst of political violence. As argued in the first draft (cited in the 2017 Rakoff judgement linked above):
“Just as in 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a nine year-old girl, Mr. Hodgkinson’s [the Congressional Republicans’ attacker] rage was nurtured in a vile political climate. Then, it was the progun right being criticized: in the weeks 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.”
Weirdly, the draft included a hyperlink to a post from ABC News debunking the Palin-Giffords shooting connection. But upon seeing an insinuation that someone – especially a national politician – had incited murder, Bennet didn’t engage in the kind of “more assiduous checking” Rakoff suggested is called for (even when a public figure is involved) when it comes to libel claims revolving around such grave charges. He didn’t make any effort at all. Instead, he decided that itwas much more important to meet the 8 PM deadline for making the following morning’s edition. And in the process, he wound up actually dialing up the anti-Palin rhetoric.
As reported here, in pre-trial testimony, Bennet “cited deadline pressures as he explained that he did not personally research the information about Palin’s political action committee before approving the editorial’s publication. He said he believed the editorial was accurate when it was published.”
But this is the crucial point: Why did he swallow the Palin claim so easily? Because it was Sarah Palin. Someone who, in the milieu in which he spent his entire professional life, was almost uniformly derided as a ditz at best (“I can see Russia from my house!”) and at worst as a demagogue who paved the way for Public Enemy Number One Donald Trump. And if this unmistakably blithe assumption that Palin was of course a hate- and violence-mongerer doesn’t amount to a reckless disregard for the truth, it’s hard to imagine what would,
Fortunately, Rakoff’s legal but bizarro and gratuitous decision to jump the gun on the jury seems likely to increase the odds of a retrial -and perhaps a Palin victory. Unless a U.S. justice system that’s fallen flat on its face in this case gives him yet another chance to allow a news giant to abuse its power.