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Jury Finds NYT Did Not Defame Sarah Palin in 2017 Editorial

Jury Finds NYT Did Not Defame Sarah Palin in 2017 Editorial

Verdict comes a day after the judge decided he would dismiss the case after the jury reached a decision.

A Manhattan federal court jury ruled that the New York Times did not defame Sarah Palin in a 2017 editorial that linked her to a mass shooting in 2011 that killed six people and wounded Gabby Giffords.

The jury was unanimous in its decision.

The 2017 editorial was about gun violence and rhetoric. The author “incorrectly suggested that an ad circulated by Ms. Palin’s political-action committee inspired the Arizona spree.”

From The New York Post:

The language about the 2011 shooting was written in by [former editor of the editorial pages James] Bennet and claimed there was a “clear” link between the shooting and “political incitement,” in part because of the map.

“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 editorial stated.

The Times changed the article and made an apology.

On Monday, Judge Rakoff said he would dismiss the case after the jury reached their verdict because he believed Palin’s team did not make the actual malice case:

The jury’s decision Tuesday, which was unanimous, came a day after the judge in the case indicated he would dismiss the lawsuit against the newspaper, saying Palin’s attorneys produced a lack of evidence to suggest the news organization acted recklessly or knowingly published false material about her.

“I think this [was] an example of very unfortunate editorializing on the part of the Times,” U.S. District Court Judge Jed Rakoff said in court on Monday. “The law here sets a very high standard [for actual malice]. The court finds that that standard has not been met.”

Public figures like Palin have to prove actual malice. “Actual malice” means the defendant acted as such “with knowledge that it was false or with reckless disregard of whether it was false or not.”

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Comments

It’s an uphill battle for a public figure.

    IneedAhaircut in reply to 2smartforlibs. | February 15, 2022 at 4:16 pm

    At least in the U.S., juries are highly reluctant to constrain the press.

      Highly reluctant due in no small part to the controlling case law that the US Supreme Court created out of whole cloth in 1964. The “Malice’ standard isn’t found anywhere in the US Constitution, the Federalist Papers or statutory law.

        Milhouse in reply to TargaGTS. | February 15, 2022 at 5:31 pm

        No, but some standard is implied by the protection of the freedom of speech. Defamation is one of the recognized exceptions to that freedom, but only because it’s strictly limited. The precise limits are of course for the courts to determine, since the framers didn’t specify.

    George_Kaplan in reply to 2smartforlibs. | February 15, 2022 at 5:50 pm

    Uphill battle for public figures, or uphill battle for Republicans fighting in a Democrat court?

And, as a bonus, the jurors all got lifetime subscriptions to the NYT! By now it should be apparent that trials in DC and NYC are not worth the time of day. , unless one is left of Lenin or a Dem.

There is so much wrong with this. A judge publicly announces that he is going to grant a JNOV while the jury is still out, a non-sequestered jury in a political trial. Any juror who had found defamation would have been worried about being doxed and attacked, the judge gave them permission to run and hide. Did Palin’s team even get a chance to argue the JNOV?
I’ve been involved in a couple of defamation matters, I get the concept of the NYT v. Sullivan standard, but I also think that was in a time where the media considered itself watchdogs, not party participants. Sullivan now acts to allow the media to defame anyone, simply because the act of being defamed makes the target a public figure. Thank Nick Sandman.
I hope this goes up the chain, and we get some sanity in our defamation law. It is bad enough that Harry Reid can lie his a$$ off, and falsely claim that Romney hadn’t paid taxes in 10 years, because of the speech and debate clause, Now, it is fine to defame private citizens (what part of public life was Palin involved in when the NYT said she instigated the shooting of Giffords?), hopefully the courts an find a better path.

    Milhouse in reply to A Thinker. | February 15, 2022 at 3:26 pm

    Sullivan doesn’t allow the media to deliberately defame anyone. If you can prove it was deliberate you can sue and win. But you do have to prove that. And Palin was a public figure because at the time she published the ad she was . . . publishing political ads, running political campaigns, using her name to influence voters. By definition that is a public role and makes one fair game for critics to say things that they think are likely to be true, even if they’re not 100% sure of it. It’s what allows us to say that Clinton and Biden took bribes, although we can’t actually prove it, without worrying that if it turns out not to be true we might be liable.

      ThePrimordialOrderedPair in reply to Milhouse. | February 15, 2022 at 3:31 pm

      By definition that is a public role and makes one fair game for critics to say things that they think are likely to be true, even if they’re not 100% sure of it.

      LOL. As if any reasonable person thought that the BS the Slimes wrote was “likely to be true” … What a joke. The editorial was a hit job. We all knew it at the time and we all know it, now. The MSM was out to get Sarah Palin for a long, long time and it was never any sort of secret.

      But thanks for pretending that anyone at thee New York Slimes was “serious” and not just trying to take advantage of a shooting to smear Palin and harm conservatives.

        I agree the editorial was a slime and libel with likely malice

        That being said, Milhouse was only stating what the law is currently based on Sullivan v NYT and Harte Hanks, etc.

        The second point is proofing malice is a significant hurdle.

        FWIW – milhouse serves a valid reality check for a lot of unfounded opining that happens here. Almost every comment by Milhouse is based on solid facts and/or the current state of the law.

          ThePrimordialOrderedPair in reply to Joe-dallas. | February 15, 2022 at 4:18 pm

          The second point is proofing malice is a significant hurdle.

          And the way the MSM went after Palin was significantly vicious and obvious. The fact that the verdict was unanimous should say something to you about this – a clear FACT.

          You know, a good scientist might be one, as Einstein said, who “can doubt the obvious”, but that does not make for a decent juror. That makes for a mockery of the judicial system.

          Doc-Wahala in reply to Joe-dallas. | February 15, 2022 at 6:02 pm

          Spit on about Milhouse. Many times I don’t like what he says, but I recognize what he writes is correct.

        I’m quite sure Bennett thought what he wrote was likely to be true. In fact I think he was confident that it was true, because it’s how he remembered it happening. He was surely astonished to be corrected and to find that it didn’t happen the way he remembered it.

        We all perceive the news through our own biases, and we remember things the way we think they happened. For instance I’m sure that when every person here first read about H. Clinton’s cattle futures transaction, or about H. Biden’s Burisma job, we immediately understood that they took bribes.

        But that’s a conclusion we all drew; I’m still convinced it’s a correct conclusion, but it is a conclusion. Someone with opposite biases could look at the same facts and not conclude that they took bribes. If they’re honest they’d remember that there was some funny business, but the word “bribery” might not even have crossed their minds, because that’s not how they think of things.

        Someone like Bennett already “knows” that political violence has its home on the right, that right-wing populists habitually encourage violence, and that anything with two lines at right angles inside a circle is a gunsight, and therefore automatically violent. So when someone shoots a Democrat the person “must” have been influenced by right-wing propaganda, and if they hear that there was a Palin ad with crosshairs that just makes sense and is laid down as a true memory. That’s just how those people’s minds work.

          Titan28 in reply to Milhouse. | February 15, 2022 at 6:26 pm

          @Milhouse, I agree with your position. I also agree with ThePrimordialOrderedPair. Bennett was lying. I don’t believe his act for one cold second. He tagged Palin via guilt by association. He knew damn well what he was trying to get away with. His mea culpa is just to shield the Times. They still have the Duranty Pulitzer. They damn well slandered Palin, they did it deliberately and they knew they would get away with it. Connecting her to murder, oops? Not a chance.

          ThePrimordialOrderedPair in reply to Milhouse. | February 15, 2022 at 7:01 pm

          Someone with opposite biases could look at the same facts and not conclude that they took bribes. If they’re honest they’d remember that there was some funny business, but the word “bribery” might not even have crossed their minds, because that’s not how they think of things.

          Yeah … you see, that’s the sort of argument I would file under “Completely Farfetched”. People who support Shrillary or the Dems know good and well how dirty Shrillary and Hunter Biden are, They just won’t admit to it (for obvious reasons). Do you think any of BJ Clinton’s supporters bought any of the crap he offered up? No. They supported him and backed his lies, but they all knew they were lies. Then, this is a guy who actually testified that “It depends on what the definition of ‘is’ is” and got away with that. Not because anyone believed his attempted excuse but because they had other reasons to pretend they accepted his excuse.

          You know, someone can say that aliens landed and did something and flew away … and, it might well be true – how would we know? Can we claim to know that aliens don’t exist? That they wouldn’t do that? Of course not. But normal people understand that such explanations as ‘aliens did it’ are complete bullshit, even though you can play devil’s advocate and make a very good case that one cannot dismiss such a possibility out of hand.

          If you don’t have a reasonable perspective regarding language and logic then you end up making everything a mockery in that meaning and value is sucked out of everything. This is the sort of thing that lawyers love to do. They think it’s clever. It’s not. ANyone can mangle a human language and anyone can claim to serve unbiased reasoning in accepting any farfetched offering as reasonably potential. That doesn’t take any great intelligence or skill, and it’s just plain wrong.

      A Thinker in reply to Milhouse. | February 15, 2022 at 4:13 pm

      Sullivan does effectively allow the media to deliberately defame people, as long as they don’t publicly admit the deliberation. Mens rea always has to be proven indirectly, and Sullivan raises the standard of evidence so high that it is virtually impossible to prove intent against what is seen as a public figure.
      My second point was a little more nuanced than I think you read. When running for VP, Palin was absolutely a public figure. But if she stays out of public discourse, can she ever regain her status as a private figure? Is the media protected forever more once someone becomes a public figure? The standard for being a public figure is seemingly no more than finding yourself in the limelight, whether or not you volunteered to be there.
      I understand the why of Sullivan (moreso at the time), but I grow increasingly concerned that the media (both sides) is abusing the standard more and more. At what point do the courts reel in the protections, for what was originally believed to be a check and balance on the government, when the check and balance has become clearly partisan?

        Joe-dallas in reply to A Thinker. | February 15, 2022 at 4:57 pm

        A – Gorsuch and Thomas have both indicated that Sullivan should be reined in,
        B – I think it is doubtful that once a public figure that you can just fade away and become a non public figure.
        C- Nicolas Sandman (?) demonstrated that you can not become a public figure solely because of the libel

          A Thinker in reply to Joe-dallas. | February 15, 2022 at 5:43 pm

          I am aware of A, and agree that Sullivan should be revisited.
          There are so many degrees of being a public figure, voluntary or involuntary, and so many degrees of defamation or libel, that all of the bright line rules we are imposing cause me heartburn. Richard Jewell was held to be a voluntary limited purpose public figure, because he was falsely accused of the Atlanta bombing. If he were still alive, could we again falsely accuse him of the Atlanta bombing, and then argue whoops, my bad, but because he once was a public figure, he has to prove actual malice?
          I don’t think a court would have ruled NS to be a public figure, but every media outlet argued that he was. Did he put himself into the public debate by wearing a MAGA hat?

        Milhouse in reply to A Thinker. | February 15, 2022 at 5:58 pm

        I think Palin could become a private figure again, but not in respect of the things she did while she was undoubtedly a public figure. When SarahPAC was running political ads, there is no question that she was a public figure, so any story about those ads, even 50 years from now when she’s an old lady, will be covered by Sullivan if that’s still the law then.

        And what needs to be proven to overcome Sullivan is not so much intent as knowledge. If you can show that the defendant knew what he said was false, or at least had no reason to think it likely to be true, then you can prevail. Doing that is difficult but not impossible.

          A Thinker in reply to Milhouse. | February 15, 2022 at 6:15 pm

          I gave the example of Richard Jewell, who is an interesting analog here. He was held to be a limited public figure because he tried to evacuate the area around a bomb. The FBI investigated him as the bomber, the media destroyed him publicly. If the NY Times repeated the false accusation now, 26 years later, does he still have to prove actual malice?
          Your second point above regarding bias is an interesting support for the contention that the media CAN defame anyone who is arguably a public figure. All the editors have to argue is confirmational bias on the part of the writer, and voila, they can’t have actual malice! Should this be our standard for defamation and libel? Or should there be some subjective (reasonable person) standard? I’m not arguing what is, but rather whether it is the best standard for the current environment.

          The_Mew_Cat in reply to Milhouse. | February 15, 2022 at 10:13 pm

          I don’t think Palin wants to be a private figure again. She was hoping a favorable verdict would be a springboard for a Senate candidacy, so she could take on Murkowski, and whomever else in the upcoming all-party primary. Now she has to decide whether to get into the Senate race under much less favorable circumstances.

          Milhouse in reply to Milhouse. | February 16, 2022 at 10:18 am

          Yes, I do think that Jewell will always have to prove “actual malice” if someone repeats that allegation, because for the purpose of that allegation he is a public person. But by now “actual malice” is a lot easier to prove, because his innocence is now a well-publicized fact.

This jury verdict proves, yet again, that defamation/slander/libel cases are best fought outside of a courtroom. The percentage of cases which see success is under 10%. The percentage is even smaller with public figures.

Her lawyers should have schooled Palin and themselves on these hard stats, Think of all the time that went into writing the complaint, the motions, depositions, trial preparation, all to come out with nada at the end.

The only grounds I can think of for appeal would be that the judge gave the jury the wrong standard, that the standard should be not Bennett’s knowledge but that of the NY Times as a corporate entity.

    filiusdextris in reply to Milhouse. | February 15, 2022 at 4:13 pm

    Perhaps also that the legal reasoning in Sullivan needs to be revisited?

    A Thinker in reply to Milhouse. | February 15, 2022 at 4:28 pm

    Actual malice is a question of fact, hence subject to de novo review. Was Palin allowed to submit a brief before the JNOV? Did the Times even file a Rule 50 motion? I think having given the question of actual malice to the jury, the judge should not have withdrawn it with a public statement, before the jury decided. Evidence of actual bias by the judge? IIRC, he’s been reversed once in this matter already.
    I’d also guess that there were a fair number of evidentiary objections during trial . . .

    MattMusson in reply to Milhouse. | February 15, 2022 at 4:35 pm

    Let’s get real. There are some areas of the country where you cannot get a fair trial. Do you believe any conservative could get a fair trial in Washington DC? Anyone?

    Looks like New York is jumping on the bus.

      NYBruin in reply to MattMusson. | February 15, 2022 at 5:49 pm

      Which is why Comey let Hillary walk (or waddle!) and Tish James is still beating the anti-Trump drum so hard.

        Speaking of Hillary Clinton: anyone want to take odds she mysteriously commits suicide in the next few months?

        The federal government is – no hyperbole here – nothing more than a gigantic organization of organized crime. If Clinton gets near being indicted, she’ll die. Maybe of the same ‘bump’ that split Bob Saget’s entire skull open – on both sides of his head.

        Tish James has a Governorship she’s been angling for, so there’s that to look forward to.

“The jury’s decision Tuesday, which was unanimous, came a day after the judge in the case indicated he would dismiss the lawsuit against the newspaper”

I’m shocked. Shocked I tell you.

I mean who could have seen that coming?

The question is, did she lose the battle but win the war? The NYT did their usual trick of publishing the retraction on page 13, but after a couple weeks of being in the news for being sued over it, there are a lot more people who now know that Palin was abused, the Times was sloppy, and they have freely admitted they screwed up.

    henrybowman in reply to henrybowman. | February 15, 2022 at 3:57 pm

    (That was supposed to be a reply to fscarn.)

    NYBruin in reply to henrybowman. | February 15, 2022 at 5:50 pm

    Perhaps, but Times readers don’t care. If it hurt Palin, they support it.

    Anything that reduces the Times credibility is good.

    But Sarah Palin is not someone to bring back. I don’t like the neo-con era. ]

    Someone who called water boarding a terrorists baptism approvingly, and called for hunting down Julian Assange as a terrorist isn’t ideal or good for the current Republican Party.

    You lose your right to call Liz Cheney a War Pig if your trying to bring back Sarah Palin’s career.

      Milhouse in reply to Danny. | February 16, 2022 at 1:18 am

      You lose your right to call Liz Cheney a War Pig if your trying to bring back Sarah Palin’s career.

      There are a lot of things I’d like to call her, but that isn’t one of them.

      SuddenlyHappyToBeHere in reply to Danny. | February 16, 2022 at 10:51 am

      “Someone who called water boarding a terrorists baptism approvingly, and called for hunting down Julian Assange as a terrorist isn’t ideal or good for the current Republican Party.”

      OMG, there is actually a sane person commenting. Congrats, sir. Welcome to the nut house.

The verdict will embolden the liberal press. What’s to prevent the NYT or any other far left news organization from doing again what they did to Palin to others?

    CommoChief in reply to Ghostrider. | February 15, 2022 at 6:57 pm

    Sullivan makes it impossible, as a practical matter, to succeed in a defamation case when one is a public figure. Of course there isn’t any distinction between the NYT and Joe Rogan or some internet rando as a legal matter in determining what constitutes the ‘press’ or a ‘journalist’.
    That’s the source of the angst v Rogan displayed by some legacy media; CNN. As the Palin case shows, even when the Nation’s premier newspaper with all it’s resources makes a deliberate editorial decision to alter the copy and insert unchecked falsehoods based on bias that’s not enough to overcome Sullivan.

    If the NYT can make egregious errors and be largely unaccountable then certainly someone like Rogan or someone with even less resources can do the same. So the bottom line is as long as you make a retraction and correction the original copy can be as wrong as you like and unless you admit to doing it deliberately you are home free v a public figure. Legal defense costs and your own reputational damage excepted.

Any garbage the Democrats Propaganda Ministry wants to put out is fair game.
Thems the rules and nothing you can do about it.

like I said the other day, after the lawyers are gone the judges are next….

Subotai Bahadur | February 15, 2022 at 5:09 pm

The New York Times, being the Völkischer Beobachter of the Democrat Party, cannot be successfully sued by anyone to the right of Trotsky.

Subotai Bahadur

Eventually Sullivan will be challenged explicitly on 14th Amendment grounds. I am shocked that it has not been already. Sullivan established, and allows, a dual class application of the law, where protection under the law for a person deemed to be a “public” person differs from all others. The 14th Amendment demands EQUAL protection under the law for all. Nothing less. Period.

Maybe she is hoping to get a reality TV show, a book or a movie out of this?

The regime protects it’s own, always.

But I will never forget people who I had thought were my friends calling for every Republican to be pulled out and shot in the head because of newsies from the Times and their sister publications.

And still they sow the wind.