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The New York Times doesn’t often defend its journalistic practices before a jury. But later this month, the “Gray Lady” will indeed do so, as the influential newspaper has a trial date with Sarah Palin. Very much under the radar, jury selection in the 4-year-old case begins Jan. 24.
The former vice presidential candidate alleges being defamed by a 2017 editorial linking one of her political action committee ads to a 2011 mass shooting that severely wounded then-Arizona Congresswoman Gabby Giffords. James Bennet, the author of the editorial, picked up on the use of crosshairs in the advertisement and wished to make a point about the “rhetoric of demonization and whether it incites people to this kind of violence.” But less than a day after the editorial ran, the paper revised the editorial and published a series of corrections clarifying that no link had ever been established between Palin’s ad and the shooter’s motivation.
This case comes nearly 60 years after the Supreme Court established that public figures must establish actual malice to prevail in a libel suit. That old controversy involved The New York Times, and in some ways, Palin v. NYT is a sequel.
After conducting an unusual evidentiary hearing soon after Palin filed the lawsuit, U.S. District Court Judge Jed Rakoff quickly dismissed her complaint for a cognizable lack of actual malice. “Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States,” wrote the judge in the order. “In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others.”
But the 2nd Circuit Court of Appeals concluded Rakoff was too rash, and after the complaint was revived, Rakoff came to a new conclusion when denying summary judgment. The judge said that while there may be considerable evidence that Bennet simply drew an innocent inference, taken in a light most favorable to Palin, “the evidence shows Bennet came up with an angle for the Editorial, ignored the articles brought to his attention that were inconsistent with his angle … and ultimately made the point he set out to make in reckless disregard of the truth.”
At trial, there will likely be attention on newsroom politics, particularly how the op/ed section at the New York Times operates. Before this anti-gun editorial was published, for instance, fellow Times opinion writer Ross Douthat expressed concern to Bennet about his conclusion.
There may also be some attention on Palin’s celebrity since being Alaska governor and John McCain’s ticket-mate. In a motion brought on Monday, Palin’s attorneys asked Rakoff to bar The New York Times from using, disclosing, discussing or describing any of its trial exhibits without court permission. Those exhibits include everything from Palin’s tweets to Alaska Sen. Lisa Murkowski to Palin being revealed as a bear on the competition show Masked Singer.
On Tuesday, Rakoff made it clear to the parties that the trial would indeed be moving forward this month, although he wasn’t quite certain of its exact whereabouts. The judge did say it would be in one of the four rooms enlarged in a federal courthouse in Manhattan for the pandemic. The judge also addressed logistics and put one potential hot button issue to bed right away: “Will the court automatically exclude unvaccinated jurors? The answer is no.”
Rakoff is reserving up to two weeks of time for this trial, and before it gets started, the parties will duel on how to pick a jury and what evidence is admissible. Attorneys for the paper say they will bring a motion soon that’s intended to knock out some of what Palin has planned.
Palin is represented by a legal team led by Shane Vogt at Bajo Cuva Cohen Turkel, while The New York Times is being handled by a team including David A. Schulz at Ballard Spahr.
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