On Tuesday, federal district court judge Jed S. Rakoff dismissed Sarah Palin’s defamation suit against The New York Times, holding that her complaint failed to allege the actual malice she was required to show in order to proceed with the suit.
His narrow reading of the precedents ends—barring a successful appeal—Palin’s quest for vindication against the latest vicious, untrue smear by a media establishment that has long detested her. It also lends legitimacy to the falling standards in the media wrought by the rise of the Internet and the decline of thorough, old-fashioned journalism.
Palin’s case arose in the aftermath of the congressional baseball shooting by an unhinged leftist on June 14. The shooter, who specifically targeted Republicans, left several people injured before being killed. In an editorial published later that same day, the Times referred back to the 2011 shooting of Rep. Gabrielle Giffords by Jared Lee Loughner, and attempted to blame the deaths that day on Palin, while downplaying the connection between the 2017 shooter and his publicly professed radical politics.
The editorial stated that in the 2011 incident “the link to political violence was clear. 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.” After an outcry at the mischaracterization, the defamatory statements were corrected, but not until the next day. Palin filed suit against the Times and Rakoff, a 1996 Clinton appointee to the district court for Southern District of New York, was assigned to the case.
Balancing Free Speech and Defamation
Rakoff’s decision in the Palin case begins by professing respect for America’s robust tradition of free speech under the First Amendment that allows wide latitude in publishing political opinions. As he writes in his opinion, “Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States.” This freedom separates us from the other nations—even ostensibly free nations—where censorship occurs every day.
But defamation as a cause of action must always co-exist with free speech and, while the government may not fine or jail people for what they say, when a newspaper prints falsehoods that damage a person’s reputation, that person must be allowed to sue for damages, just as she would for any other injury. In deciding her claim before it gets to a jury, Rakoff does Palin, and all people who find themselves on the wrong side of an editorial board, a disservice.
The law of defamation is most profoundly influenced by the rules set forth in New York Times v. Sullivan, a 1964 Supreme Court case that drastically reduced the scope of defamation suits, especially for public figures like Palin. For Palin to prevail in a libel suit under Sullivan, she must prove that (1) there was a written defamatory statement about her, (2) that the statement was published, (3) that the publishers did so with “actual malice,” (4) that the statement was false, (5) and that the publication caused damage to her reputation.
The Times’ attorneys argued that Palin’s claim could not fulfill all of these elements even if everything she alleged were true. Rakoff agreed that four of the five elements could possibly be proven at trial. On the third element, however, he held that Palin could not possibly prove that the Times and the primary author of its unsigned editorial, James Bennet, acted with actual malice. As a result, he dismissed the case.
What Is ‘Actual Malice’?
“Actual malice” is a tough requirement to meet, and purposely so. The court in Sullivan wanted to ensure that libel suits did not stifle free speech, especially where the subject of the speech is a public figure of the type about which newspapers should be expected to publish opinions. They held that the statement in question must have been published “with knowledge that it was false or with reckless disregard of whether it was false or not.”
Palin alleged that Bennet, the brother of Democratic Sen. Michael Bennet of Colorado, had a motive to defame her, both out of political animus and of a desire to please the Times’ subscribers. Whether or not political disagreement alone is sufficient to prove animus—and Rakoff rightly says that it is not—it is useless to deny that the Times opposes Palin and other social conservatives. Palin needed to prove that such opposition led Bennet and others either to ignore what they knew (that the connection to Loughner was false) or that they recklessly made no effort to even verify their wrong assumptions.
Rakoff held an evidentiary hearing to look into what Bennet knew about the five-year-old falsehood. Even holding such a hearing arguably shows that the facts of the matter are in doubt and should be heard by a jury—which rules on the facts—rather than a judge, who rules on the law. By holding that hearing, questioning Bennet, and weighing the evidence, Rakoff stepped into the role properly granted to jurors.
While there were reasons for the hearing, such as finding out who, specifically, was responsible for writing the unsigned editorial, that should have been the limit of the court’s findings. Instead, the judge discovered Bennet’s role in the process, then took the additional step of absolving him of responsibility.
Different Times, Different Facts
The court’s application of the precedent in Sullivan is flawed in two ways. In the 1964 case, the Times published assertions about the actions of Alabama law enforcement personnel that were provably false, exaggerating the extent to which they had acted against civil rights protestors. The Alabamians believed the Times should have known that the statements were false, yet published them anyway. The Supreme Court held that showing the newspaper to have previously published the true version of events “supports, at most, a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice.”
That may have been true in 1964, but today, when every word published by the New York Times is almost instantly searchable in the newspaper’s online archives, calling it negligence falls short of the mark. With the most minimal of efforts, Bennet and his staff could have accessed their own coverage of the 2011 shooting and seen that the connection to Palin’s PAC, alleged in the immediate aftermath of that day’s events, was very quickly debunked, and that no evidence has ever emerged that Loughner had even seen the item that supposedly inspired him. It would have taken mere minutes of fact-checking to sort out their error (if indeed it was an error,) but they neglected even that level of diligence. Is it unreasonable to believe that a jury might find that level of neglect to have been a reckless disregard for the truth?
The other difference between the Sullivan case and Palin’s is in the nature of the publication. Rakoff quotes from Sullivan in his ruling (at page 22), saying, “The mere presence of stories in the files does not, of course, establish that the Times ‘knew’ the [publication at issue] was false.” The bracketed section draws the eye, but is not uncommon in legal writing, often used to exclude extraneous information not essential to the point of the citation. But compare it to the original sentence from Sullivan, and a problem emerges:
The mere presence of the stories in the files does not, of course, establish that the Times ‘knew’ the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times’ organization having responsibility for the publication of the advertisement. (emphasis added)
There lies an important distinction between Sullivan and this case: the defamatory publication in Sullivan was an advertisement, not an article or editorial written by the Times staff. The court in Sullivan held that it was not malicious for the advertising department to accept an ad without cross-checking it against all of the newspaper’s previously published articles. That’s a reasonable point: the advertising department’s job is to sell ads, not to fact-check stories, a labor-intensive process in those days.
Compare that to Palin’s case. The editorial Bennet wrote was not a third-party ad, it was a product of the Times’ own staff. Not only is research and fact-checking easier in 2017, but the editorial was the product of the part of the newspaper’s staff that should be used to getting things right.
That the ad salesmen might not know about the exact details of the civil rights movement in Alabama is plausible; that the editorial board was ignorant of the basic facts of a recent high-profile news story beggars belief. Add to that the coincidence that the “mistake” just happened to defame a political figure reviled by the mainstream media establishment and it might not immediately prove malice, but it is certainly enough to get the case to trial and let a jury decide.
New Media Doesn’t Care About Facts
Rakoff describes the case this way: “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.” That statement describes journalism in twenty-first-century America and is a serious indictment of the profession. The state of affairs in journalism these days is to publish first and fact-check later, and this decision helps legitimize the slapdash approach to writing that has spread from bloggers to once-venerable newspapers.
When newspapers, including the Times, are laying off editors left and right, the result will necessarily be a weaker work product. Newspapers have always competed with each other to publish a news story first, and in breaking news errors will always be made. What has changed is that fewer editors and fact-checkers now intermediate between a reporter’s pen and the published product. Firing those people no doubt saves money, but only at the cost of accuracy and legitimacy.
In an editorial, this is doubly absurd. The news might “need” to be published as it happens, but opinions can and should wait until facts are known and sober judgment is applied. When editorial writers choose speed over accuracy, they leave readers ill-served. They also risk misstating facts in a way that has real-life consequences.
Inaccuracy in the June 14 editorial was a choice, born of laziness and closed-mindedness, and one that the slightest effort would have easily avoided. Palin would do the news industry a favor by appealing this decision and reminding them they are responsible for what they publish and required to make an effort, at least, to tell the people the truth.