Sarah Palin Gets Libel Trial Against New York Times

Sarah Palin - Getty - H 2017
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Sarah Palin will proceed to trial against The New York Times next February, pandemic permitting. On Friday, U.S. District Court Judge Jed Rakoff rejected the paper's summary judgment motion in a big libel case over an editorial about gun violence. The New York federal judge concludes that she had provided enough evidence to establish actual malice on the part of the paper's former op/ed chief.

The editorial linked one of Palin's political action committee ads to a 2011 mass shooting that severely wounded then-Arizona Congresswoman Gabby Giffords. James Bennet, the writer of the editorial, wanted to make a point about a climate of political incitement, but The New York Times quickly made a correction acknowledging that no link had been established between Palin's ad and the shooting.

Rakoff had previously dismissed the suit in Aug. 2017, writing at the time that "in the exercise of that freedom, mistakes will be made, some of which will be hurtful to others."

The 2nd Circuit Court of Appeals then revived the case based on Rakoff's rash conclusion that Palin couldn't establish actual malice.

Back at the lower court, Palin aimed for something even greater than a win against The New York Times. She aimed to basically upend a half century of jurisprudence in libel cases by overthrowing the actual malice standard — that being how public figures must demonstrate awareness of falsity or reckless disregard of the truth.

Rakoff won't give that to Palin.

"Perhaps recognizing that this Court is not free to disregard preced3ent even if it were so inclined (which in this case it distinctly is not), [Palin] offers what she calls an alternative argument: that 'actual malice rule arose from distinguishable facts and should not be applied,'" writes Rakoff. "More precisely, [Palin's] argument is that the actual malice rule, which was first articulated more than half a century ago in the days before the Internet and social media, has run its course and should no longer govern our contemporary media landscape. Binding precedent does not, however, come with an experiation date. To the extend plaintiff believes the actual malice requirement ought to be abolished, she should make that argument to the appropriate court — the Supreme Court."

At the Supreme Court, Justice Clarence Thomas wants to get rid of actual malice, but whether that would ever happen is a subject for another day. In the meantime, she needs to establish actual malice to prevail.

Fortunately for Palin, Rakoff looks at the evidence and decides there's enough there, especially when viewing it in a light that is most favorable to her. In particular, he points to strong evidence that Bennet may have recklessly disregarded truth by failing to read stuff that the paper's researchers had been sending him on the topic of the shooter. The judge adds that his failure to investigate could support an inference he purposely avoided the truth.

Then again, it's no slam dunk and will be decided at a trial that Rakoff sets for February.

In the opinion (read here), Rakoff writes "there is considerable evidence that defendants mount to support the notion that Bennet simply drew the innocent inference that a political circular showing crosshairs over a Congressperson's district might well invite an increased climate of violence with respect to her. But, taken in the light most favorable to plaintiff, 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, disregarded the results the Williamson research that he commissioned, and ultimately made the point he set out to make in reckless disregard of the truth."

Notably, Bennet resigned as opinion editor in June after a controversy over publishing an opinion piece by U.S. Senator Tom Cotton that called for a military response to civic unrest in American cities. That article spurred a rebellion by much of the paper's staff. Bennet later acknowledged that this piece hadn't been edited carefully enough.