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Im-Politic: You Bet Sarah Palin Got Shafted in Her NY Times Libel Suit

20 Sunday Feb 2022

Posted by Alan Tonelson in Im-Politic

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Im-Politic, Mainstream Media, journalism, The New York Times, First Amendment, media bias, Sarah Palin, press freedom, freedom of the press, libel, James Bennet, Elizabeth Williamson, Jed S. Rakoff, Gabrielle Giffords, Jared Loughner

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.

Im-Politic: Signs That The Mob is Starting to Rule

24 Friday Jul 2020

Posted by Alan Tonelson in Im-Politic

≈ 5 Comments

Tags

cancel culture, Chicago, Christopher Columbus, Confederate monuments, Connecticut, election 2020, freedom of the press, history wars, ImPolitic, Nelson Lee, peaceful protests, press freedom, protests, public safety, Seattle, Seattle Police Department, Seattle Times, shield laws, Ulysses S. Grant, violence, Washington Post

The next time you hear or read that the vast majority of protests during these turbulent times in America are peaceful (which will surely be within the next five minutes if you’re a news follower), keep in mind this pair of developments. They give me the willies and should so unnerve you, even if you (like me) believe that the vast majority of the protests have indeed been peaceful.

The first matters because it makes clear as can be that some of the protest groups contain individuals who make the cohort of brazen looters that’s emerged in so many violence-wracked cities look nearly harmless. What else can be reasonably concluded from this Washington Post account (yes, the same Washington Post whose journalism I slammed yesterday) of a court case in Seattle dealing with whether news organizations in the city could be ordered to turn over to the Seattle Police Department photos and video their staffers had taken of protesters who had “smashed windows, set police cars on fire, and looted businesses.” The cops’ intent – use this material to find the perpetrators and arrest them.

I was hugely relieved to read that the judge presiding over the case did rule that most of the material (all unpublished or posted) must be provided. But I was aghast at the reason given for the news organizations’ resistance. The Seattle Times, for its part, did cite freedom of the press concerns – involving Washington State’s shield laws, which entitle news organizations to protect source materials. These laws, which in various forms are practically universal throughout the United States, are indeed essential for enabling journalists to secure information that governments would rather keep secret for self-serving reasons.

The Times also made the reasonable (though in this case, not necessarily dispositive) claim that such cooperating with the police would put its credibility at risk. As contended by Executive Editor Michele Matassa Flores:

“The media exist in large part to hold governments, including law enforcement agencies, accountable to the public. We don’t work in concert with government, and it’s important to our credibility and effectiveness to retain our independence from those we cover.”

But these weren’t the only reasons cited by the paper. In an affidavit, Times Assistant Managing Editor Danny Gawlowski attested “The perception that a journalist might be collaborating with police or other public officials poses a very real, physical danger to journalists, particularly when they are covering protests or civil unrest.”

Moreover, Gawlowski stated, this danger wasn’t hypothetical. It had already happened. According to the Post‘s summary of his affidavit;

“The request could significantly harm journalists, the Times argued, at a time when reporters already face violence and distrust from protesters. One Times photographer was hit in the head with a rock thrown by a protester and punched in the face by another demonstrator.”

In other words, the Seattle Times, anyway, wanted to refuse to help law enforcement protect public safety because at least in part it was afraid that some protesters might attack them even more violently than they already had.

That sure sounds like intimidation to me, and successful intimidation at that. And even though the judge thankfully ordered substantial (though not full) cooperation, who’s to say that the Times won’t pull its protests coverage punches anyway? Even more important, what if violence-prone protesters elsewhere in the country read about this case, try to strong-arm local or national news media, too, and succeed? And what if not every judge holds the same priorities as Seattle’s Nelson Lee? Talk about a danger to democratic norms – as well as public safety.

The second development concerns decisions by governments in at least two parts of the country to take down controversial statues – a major front in the nation’s history wars. Don’t get me wrong: Elected authorities removing these monuments is sure better than unelected mobs toppling or defacing them – as long as these actions follow legitimate procedures and aren’t arbitrary. And as I’ve written repeatedly, in the case of Confederate monuments, it’s usually not only completely justified, but long overdue.

But in these cases, it’s the rationale for these actions that’s deeply disturbing. In both Connecticut and in Chicago, statues of Christopher Columbus and former President and Civil War Union supreme Union commander Ulysses S. Grant, respectively, were removed (as Windy City Mayor Lori Lightfoot explained her reasoning) “in response to demonstrations that became unsafe for both protesters and police, as well as efforts by individuals to independently pull the Grant Park statue down in an extremely dangerous manner.”

Translation: “I was afraid of the mob. And I decided to let them win.” No better definition could be found of the kind of appeasement that only spurs further violence. And no more important challenge will confront the President and candidates for Congress who will be elected or reelected in November. 

Im-Politic: How Trump Could Really Make the News Media Great Again

12 Thursday Jan 2017

Posted by Alan Tonelson in Uncategorized

≈ 1 Comment

Tags

CNN, Constitution, First Amendment, Harvard University, Im-Politic, Mainstream Media, press freedom, Sean Spicer, The New York Times, Trump, White House Correspondents Association, White House press corps

The nation’s intertwined media and political elites are in an uproar over President-elect Trump’s performance at his press conference yesterday – the first he’s held since July. Their stated fear: Mr. Trump’s refusal to answer questions from a CNN reporter at the session add to evidence that he and his administration will be willing to “retaliate, bully, and ban journalists whose questions he doesn’t want to answer.”

As a result, the media won’t have “the access and information necessary to accurately and honestly cover the new administration” and the public will lose out “on the perspective those reporters bring, and we as an industry lose out in our efforts to hold power accountable.”

Sounds pretty serious. Except here’s what these supposed watchdogs of democracy either don’t get or won’t admit: More than ever before in recent memory, the Mainstream Media that Mr. Trump has so often attacked are hardly the totality of the U.S. media universe. They’re clearly not the totality of the competent or intellectually honest U.S media universe. And therefore, restricting some of their members’ access to American officials no longer means that the public’s right to know need be endangered.

The nation, and especially those increasingly overlapping political and media classes, have gotten so used to the structure of the journalistic universe as it’s evolved in recent decades that everyone’s forgotten that it has never, and shouldn’t be, set in stone. More specifically, although freedom of the press unmistakably is and should be protected vigorously by the Constitution, the role of today’s leading national news organizations, and in particular, the current White House press corps, has no legal or Constitutional basis. Nor should they enjoy such a privilege.

The White House Correspondents’ Association (WHCA), for example, exists and itself influences access to White House officials through its membership criteria, solely at the president’s behest. No government officials are required to deal with reporters on its roster, and as the organization itself acknowledges, presidents have treated it with dramatically varying measures of respect and disdain for more than a century.

In fact, the last word on who can interact in the role of journalists with government officials on any level legally belongs with government agencies themselves. In the words of this 2014 Harvard University study on such issues, the First Amendment

“does not cover the full spectrum of newsgathering activity, and, as presently understood, does not confer a right to gather news in particular places or circumstances to which the public is not otherwise admitted. This includes access to private events, as well as access to nonpublic spaces owned by the government (such as government offices and prisons).”

Could American leaders exploit this situation in order to deny the public the information it needs to evaluate their performance, and weaken the vibrancy of truly representative government? Of course. But keep the following three considerations in mind:

First, according to the Harvard report, “Recognizing that effective newsgathering requires greater levels of access than what the First Amendment provides, legislators and regulators at various levels of government have adopted policies granting to a subset of the public identified as the ‘press’ certain privileges to do things that ordinary citizens may not.”

In addition, as this study documents, the courts have demonstrated a clear determination to ensure extensive access by journalists to public officials, and to define “journalist” in ways that have enabled aggressive reporting.

Regarding worries about the presidency in particular, the federal government also contains a legislative branch with plenty of members of opposition political parties. Even disgruntled members of a president’s own party have ample means to disclose information they consider important – either through their authority to compel testimony and reports from the executive, as well as their power of the purse; or by working with the media themselves.  

Second, how democratic would it be to empower the media themselves – which after all consist overwhelmingly of privately owned, profit-seeking businesses – to determine who can attend press conferences and belong to media pools covering traveling leaders? Indeed, how democratic would it be to entrust the establishment media specifically with this responsibility?

These businesses – again at the government’s sufferance – already play a decisive role in these matters. How many Americans – outside Beltway insider circles – are satisfied with the results? And what evidence is available that the White House Correspondents Association has adequately disciplined members who have been exposed as partisans? As little as has been seen from the journalistic employers of these hacks – who don’t seem to have fired any of them.

Third, the better establishment journalists perform at reporting accurately and impartially, the likelier they are to create, maintain or reestablish the kinds of informal relationships with the widest variety of officials that have always been central to the most valuable investigative reporting – as opposed to shouting questions in the White House press room. And don’t forget the importance of filing Freedom of Information Act suits, or even keeping up with information on the public record – which can be astonishingly revealing.  

In the meantime, the incoming administration has indicated that it’s thinking of introducing some badly needed accountability of its own into its dealings with the press – for example, Mr. Trump’s refusal to respond to the CNN reporter in the (not unreasonable) judgment that the organization has too often fallen short of best journalistic practices. Moreover, his press secretary-designate, Sean Spicer, has spoken of changing the authorized White House press pool in various ways in order to reflect better the makeup of contemporary journalism.

So America may be heading towards a world in which presidents (and other senior government officials) don’t feel any particular need to deal with, say, CNN. Or The New York Times. In the short term, the result might be a rocky period for the government, for the media, and possibly for the flow of high quality information a real democracy needs. Yet the status quo ante plainly was not sustainable – both because of new technologies that have been rapidly transforming the media landscape, and because traditional journalism’s recent performance in particular has been so deficient.

But American leaders will still have powerful interests in getting their stories and narratives out through news organizations with large audiences. That’s why I’m confident that, however scornfully they treat individual media companies, they’ll nonetheless wind up dealing with responsible and dedicated journalists. And who knows? Maybe heightened competition will help make the Mainstream Media great again.

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