The liberal media’s reaction to Sarah Palin’s lawsuit against The New York Times and its former opinion-page editor, James Bennet, is predictable. There is a generally dour and uptight tone in most of the news coverage of the trial, laced with the overriding theme that Palin’s lawsuit is an existential threat to press freedom. In reality, the case is about a public figure seeking accountability from those who allegedly acted with actual malice – either with knowledge of falsity or with reckless disregard for the truth – in publishing a false statement concerning her.
Palin’s lawsuit involves a New York Times editorial piece that was published on the evening of June 14, 2017: commentary involving events that had occurred earlier that same day. Specifically, on the morning of June 14, 2017, a leftist gunman, who was motivated by anti-Republican rage, opened fire on individuals on a baseball field in Virginia during a congressional baseball practice, injuring four people. One of the shooting victims was Republican Congressman Steve Scalise of Louisiana, who sustained serious injuries. Later that evening, The New York Times published an editorial, under the byline of its Editorial Board, entitled, “America’s Lethal Politics.”
Importantly, the piece at issue was not a news story. It was an opinion piece. At the time this purportedly deadline-driven editorial was published, it was unknown whether Scalise would survive his injuries. Scalise, the father of two children, was in critical condition, fighting for his life.
The gist of the editorial, which raised a hodgepodge of points, is one that essentially condemned politically-motivated violence, decried inflammatory partisan rhetoric, and called for gun-control measures. The editorial did not confine its scope to the shooting that had occurred earlier that day. Instead, it meandered into a separate violent event that had occurred more than a half of a decade earlier: that of the mass shooting in Arizona on January 8, 2011. On that day, a lunatic gunman, Jared Lee Loughner, opened fire at a rally for then-Congresswoman Gabby Giffords (D-AZ), killing six people, and injuring more than a dozen others, including Giffords, who sustained serious injuries.
In the editorial, The New York Times wrongly linked Loughner’s motivations in targeting Gabby Giffords to a map that Sarah Palin’s Political Action Committee (SarahPAC) had disseminated. The map displayed crosshair targets superimposed over the locations of various Democrat congressional districts, including Giffords’ district, but The New York Times incorrectly suggested that the crosshairs were actually over pictures of the representatives themselves. The editorial also falsely claimed that, in regard to the Loughner shooting and the SarahPAC map, “the link to political incitement was clear.” See, Palin v. The New York Times Company, No. 17-3801-cv, 2nd Cir., Aug. 6, 2019, Opinion at page 4.
Moreover, The New York Times editorial emphasized this false notion that a demonstrable link between Loughner’s motives and the SarahPAC map existed, when, in comparing the shooting from earlier that day, it proclaimed to its readership that: “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 of the right.” See, 17-3801-cv, Op. at page 5.
In actuality, there was no evidence demonstrating any link between Jared Lee Loughner’s motivation and the SarahPAC’s map. Rather, the criminal investigation of the 2011 incident indicated that Loughner’s animosity toward Giffords existed before the map’s publication. Within a day, The New York Times removed the falsehoods and issued a correction. See 17-3801-cv, Op. at page 4-5.
The trial on Palin’s cause of action against The New York Times and James Bennet commenced slightly over a week ago. Closing arguments were held on Friday, and it will now be up to the jury to deliberate and reach a verdict. But even before the trial began, the mainstream media had no problem in rolling out various lawyers to speculate that Palin will probably lose the case. For example, prior to the start of the trial, CNN’s Chief Legal Analyst, Jeffrey Toobin, appeared remotely on Brian Stelter’s Reliable Sources, and opined that “under conventional standards, it does seem likely that The New York Times is going to win this case.” See, Palin’s trial against the New York Times tests the Sullivan standard, cnn.com, Jan. 23, 2022.
While Toobin’s pre-trial prediction may come to fruition, it is also entirely possible that the jurors, after having heard all the evidence in the case, may rule in Palin’s favor. It is the role of the jurors in the courtroom – not legal analysts on television – to consider live testimony and other evidence admitted at trial, (e.g., emails), gauge the credibility of the witnesses, and make a determination as to whether the burden of proof has been met. While pre-trial conjecture as to the outcome of a jury trial by legal analysts can be entertaining to watch, it may erode the public’s trust in the judicial system each time an outcome reached by a jury is different than whatever some armchair attorney on television has predicted.
At the end of the day, is it possible for Sarah Palin to win her trial against The New York Times and Bennet? You betcha. But it remains to be seen whether she actually will.