Sarah Palin vs. New York Times highlights pressure to loosen libel law

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When Donald J. Trump called for the repeal of laws that give the media broad protection from libel suits – “We’re going to have people suing you like you’ve never been sued before,” he said. he said in 2016 as he ran for president. — many journalists and the lawyers who defend them called it a hollow threat.

But a defamation case that begins Monday in lower Manhattan federal court, Sarah Palin v. The New York Times Company, sheds light on the many ways Mr. Trump’s seemingly outlandish wish may no longer be so unthinkable.

Much has changed in the country’s political and legal landscape since Ms Palin, a former governor of Alaska, filed her lawsuit in 2017. He alleges the Times defamed her with an editorial that falsely claimed a connection between his political rhetoric and a mass shooting. near Tucson, Ariz., in 2011, which left six people dead and 14 injured, including Gabrielle Giffords, then a Democratic congresswoman.

The editorial was published on June 14, 2017, the same day a gunman opened fire at a baseball diamond where Republican congressmen were training, injuring several people, including Rep. Steve Scalise of Louisiana. The headline was “America’s Lethal Politics,” and the editorial asked if the shooting in Virginia was proof of the violence of American politics.

When first published, the op-ed went on to argue that ‘the political incitement connection was clear’ between the 2011 Giffords shooting and a map released by Ms Palin’s political action committee that showed 20 districts in the Congress that the Republicans hoped to recover. These districts, including that held by Mrs. Giffords, were displayed under stylized crosshairs. Correcting the editorial, the Times said it had “incorrectly stated that there was a link between political rhetoric and the 2011 shootings”.

Those who argue that the media should pay a higher legal price when they err or err are more emboldened now than at any time since the landmark 1964 Supreme Court decision in The New York Times Company v. Sullivan. The ruling set a very high bar for public officials to prove defamation: they had to show not only that a report was inaccurate and damaged their reputation, but that those who produced it acted with “actual malice.” meaning they either had a reckless disregard for the truth or knew it to be untrue.

The Palin case, tried in the United States District Court for the Southern District of New York, will not directly address larger constitutional issues. The jury will weigh testimony and evidence that should offer rare, under-the-hood insight into the often messy process of producing daily journalism.

Most libel suits against The Times are thrown out before they even reach a jury, making this case particularly rare. Although advocates of broad First Amendment protections for the media have said Ms. Palin’s evidence is weak, they also acknowledged that a jury could decide otherwise.

“The case will come down to whether the jury — as juries sometimes do — will decide based on their tastes and their impressions of the parties,” said George Freeman, executive director of the Media Law Resource Center and former attorney for the Times,” or whether they will actually follow the actual malice rules the judge gives them.

But these core First Amendment issues loom over the lawsuit. And Ms. Palin’s lawyers, through legal briefs and public statements, have made no secret of the fact that they want to see the courts rethink the legal leeway the media have to make an unintended error. The law currently considers the occasional mistake a natural result of a free press.

Some mostly but not exclusively conservative First Amendment scholars, politicians and judges have begun to make their case more boldly to undo the fundamental precedent set by the Sullivan case, saying it did not follow. the pace of the changing nature of news and public commentary. These include two Supreme Court justices, Clarence Thomas, who suggested in 2019 that Sullivan was not based on the original meaning of the Constitution, and Neil M. Gorsuch, who wrote last summer that the standard has “evolved into an ironclad subsidy for publication. of lies. »

At the same time, some Republicans are using defamation claims against journalists with an aggressiveness that media advocates say is unprecedented — from the dismissed lawsuit since the Trump campaign against the Times in 2020 over an article by critical opinion to former Rep. Devin Nunes’ ongoing case against a reporter now working for Politico who posted an article on Twitter that Mr. Nunes said defamed his family.

The heart of the Times’ defense in the Palin case is that the error in the editorial was not a case of actual malice, but an error made within a tight, routine production deadline which was corrected after being reported.

The statements which Ms Palin said were defamatory were introduced during the editing process by James Bennet, who was then editor of the Times editorial page. (The Opinion Section and Newsroom operate independently of each other.)

The Times hasn’t lost a defamation case on American soil — where laws offer much stronger press protections than in other countries — in 50 years.

Lawyers who support the broad free speech protections that Sullivan and other legal precedents guarantee say the risk to a free and unbiased press is not just that it could be held liable for honest mistakes.

If public figures are no longer held to a high legal bar to prove harm from an unflattering story, warn press freedom advocates, journalists, especially those without the resources to a large news organization behind them, will censor themselves.

“We are very concerned about the risk that public officials and other powerful figures may use threats of defamation lawsuits to deter information gathering and suppress important conversations about matters of public interest,” RonNell Andersen said. Jones, a law professor at the University of Utah. documented the judiciary’s increasingly bleak view of the media. “It’s a trend that press freedom scholars find deeply troubling.”

Ms Jones said she and many other legal scholars considered Mr Trump’s insistence in 2016 that libel laws be reopened “deeply unlikely, even laughable”. But now she regrets her indifference. And she said she sees the Palin case as a test of how severely a jury — in today’s tribal political climate — will judge media companies for their mistakes.

Ms. Palin’s lawsuit was initially dismissed by Judge Jed S. Rakoff shortly after it was filed. But a three-judge appeals court panel overturned that decision in 2019 and reinstated the case. Elizabeth Locke, who represented Ms Palin on the appeal but is no longer involved in the case, has argued on behalf of several high-profile clients in defamation suits against major media outlets and has been at the front -guard the conservative effort to rethink more current libel laws. Ms. Locke said in an interview that while the Sullivan precedent isn’t worth abandoning completely, it fails in today’s media culture.

“How do you balance the rights to free speech with the right to your individual reputation, and in the context of public officials who have volunteered for public service and who should be held accountable? ” she said.

“Redesigning that balance doesn’t mean we lock up journalists or that any lie should result in a huge jury verdict,” Ms Locke added. “But imposing the potential for legal liability, which is virtually non-existent with the Sullivan standard in place, would create restraint.”

Lawyers for Ms Palin argued that Mr Bennet must have known there was no evidence that his political rhetoric incited the shooter and that he had a ‘preconceived script’ and harbored ill will towards the former pro-gun rights governor in part because his brother, Senator Michael Bennet of Colorado, is a pro-gun control Democrat.

The Times denied the claims, refuting the idea that he would knowingly print something untrue and that Mr Bennet was acting out of spite. “We published an editorial on an important topic that contained an inaccuracy. We have set the record straight with a correction,” Times spokeswoman Danielle Rhoades Ha said. “We are deeply committed to fairness and accuracy in our journalism, and when we fail, we correct our errors publicly, as we did in this case.”

A lawyer for Ms. Palin did not respond to a request for comment.

Mr Bennet left the newspaper in 2020 after the newspaper’s opinion section published an op-ed by Senator Tom Cotton, Republican of Arkansas, calling for a military response to civic unrest in US cities. The article caused an outcry among Times readers and reporters.

Mr. Bennet is expected to testify on Wednesday, a day after Ms. Palin.

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