The stakes are high for the American press as a libel case between former Alaska Gov. Sara Palin and The New York Times goes to trial this week, putting the long-settled definition of libel to the test.
Palin sued the newspaper in the summer of 2017, taking aim at the paper’s opinion editor at the time, James Bennet, who was largely responsible for an editorial she considers defamatory. Her case has traveled a rocky road ― it was initially tossed out only to be reinstated a couple years later ― and is now set to be heard in federal court.
“The actual malice standard is really controversial, especially right now,” Kevin Goldberg, a First Amendment specialist with the nonprofit Freedom Forum, told HuffPost. A win for the Times could possibly end up weighing negatively on the public’s perception of the outlet, he said, if people start thinking it’s impossible to sue the media for libel and win ― that the bar is simply too high.
In 2017, the Times’ public editor at the time, Liz Spayd, wrote, “It’s curious how few companies or individuals actually do sue the paper for allegedly libelous claims.” She said that’s “a good thing if this is a measure of how rarely people feel defamed by The Times,” but that “it’s a bit more disconcerting if it suggests that those with a legitimate claim feel too intimidated to even try.”
A loss for the Times, though, has the potential to embolden public figures to more often use the judicial system to retaliate against unflattering stories. RonNell Andersen Jones, a University of Utah law professor and fellow with Yale Law School’s Information Society Project, told HuffPost that support for the press among regular Americans and among the judiciary “are both at a low mark that I wouldn’t have predicted 10 or 15 years ago.”
“One of the things that I and, I think, other press freedom scholars are concerned about is that losses by the press in these kinds of cases in particular might feed a really dangerous narrative that’s been fostered over the last several years about the press as an enemy of the people,” Jones said.
On June 14, 2017, a man named James Hodgkinson opened fire on members of Congress who were practicing for their annual charity baseball game in Alexandria, Virginia. He managed to shoot four people, critically injuring Rep. Steve Scalise (R-La.) before dying in a shootout with police.
It may be strange to think about now, but people were concerned about the tone political rhetoric was taking at the time of the Giffords attack. Christina Bellantoni, now a professor at the University of Southern California’s Annenberg School, was then working as a political reporter for Roll Call and remembered seeing political language turn harsher and harsher after Barack Obama came on the national scene.
“People being afraid in their districts, needing extra security, or going in disguise … all of those things have happened over the last decade,” Bellantoni said. “And I believe that really started with that era in 2008, which Palin was effectively the leader of.”
With his glittering East Coast pedigree as an Ivy League grad from a politically connected family, Bennet has held prominent positions in two major newsrooms over the past few decades. He joined The New York Times in 1991, rising to lead the paper’s Jerusalem bureau before leaving in 2006 to serve as editor-in-chief of The Atlantic. Ten years later, he returned to the Times to oversee its opinion pages.
He was pushed off the Times’ masthead following the publication of a column by Sen. Tom Cotton (R-Ark.), who wanted to sic the military on anti-racism protesters protesting across the country at the time. After initially defending the decision to run Cotton’s piece, Bennet admitted that he had not actually read it before publishing it in The New York Times.
The Times’ editorial board comprises a dozen or more journalists (its membership fluctuates) with different areas of expertise who brainstorm ideas for editorials — that is, opinionated columns. Editorials are published under the collective editorial board byline.
An editorial writer for the paper, Elizabeth Williamson, originally pitched the idea of commenting on the congressional baseball shooting in its aftermath, Bennet said in his deposition. After discussing specific points the piece should make, Bennet told Williamson to look back at editorials from around the time of the Giffords shooting for the sake of “harmonizing” the new with the old, and a researcher helped her out.
“I really reworked this one,” Bennet told Williamson in an email sent at 7:22 p.m. “I hope you can see what I was trying to do. Please take a look. Thank you for the hard work today and I’m sorry to do such a heavy edit,” he wrote.
“There was not, and continues to be so far as I can tell, no evidence that Jared Lee Loughner was incited by Sarah Palin or anyone else, given his extreme mental illness and lack of any tangible connection to that crosshair map, the Tea Party or other right-wing cause,” he wrote in an email to Bennet, who thanked his colleague for his feedback and said he would look into it more the next day.
Williamson had gone to bed, and responded early the next morning. Bennet was also up early, sending an email around 5 a.m. that read in part, “I’d like to get to the bottom of this as quickly as possible this morning and correct the piece if needed.”
The Times revised the column twice, issuing two corrections. First it removed the suggestion that there was a “clear” or “direct” link to “political incitement” in the Giffords case. Then it updated its description of Palin’s advertisement ― the map that “put Ms. Giffords and 19 other Democrats under stylized cross hairs,” because, in fact, Giffords’ likeness was not on the map. There was just a target over the approximate location of her district.
Palin’s legal team argues that the editorial interfered with Palin’s work as a Fox News commentator (even though she has continued to work with the network in recent years) and influenced her decision not to run for president, according to court documents.
“At the time of publication of the Palin article Mr. Bennet and The Times did not suspect that the false attack upon Gov. Palin (the proverbial punching-bag for gun-control and political civility assaults) would evoke criticism and backlash from their own readers and liberal media outlets. But, it did,” they said in court records.
Palin’s attorneys have seized upon Bennet’s personal history, trying to paint him as an unreasonable, liberal gun-control advocate who had a bone to pick with the Alaska Republican. (Bennet’s father and grandfather served three Democratic presidential administrations between them, while his brother is a sitting Democratic senator from Colorado. Palin once endorsed his brother’s opponent.) And they point to the fact Bennet helmed a major news magazine at the time of the 2011 Giffords shooting and would supposedly have been aware that there was never any evidence linking Loughner to Palin.
Jordan Cohen, a spokesperson for the Times, told HuffPost that the company is currently “seeking to reaffirm a foundational principle of American law: public figures should not be permitted to use libel suits to punish unintentional errors by news organizations.”
“We published an editorial about an important topic that contained an inaccuracy. We set the record straight with a correction,” Cohen said. “We are deeply committed to fairness and accuracy in our journalism, and when we fall short, we correct our errors publicly, as we did in this case.”
Court documents also show Times attorneys pushing back on the idea that Bennet harbored personal ill-will toward Palin. Bennet’s past work in Israel coincided with the 1995 assassination of Israeli Prime Minister Yitzhak Rabin, they point out in court papers, making him particularly wary of violent political rhetoric and the actions it can inspire.
In a statement filed with the court, Bennet said: “I did not intend to imply a direct causal link between the Crosshairs Map and Loughner’s horrific acts. … Rather, I intended to advance the idea that overheated political rhetoric can create a climate conducive to violent acts.”
In an industry that is still struggling to define its business model in the digital age, there is concern that loosening defamation standards in the U.S. could unleash more litigation than media outlets can bear. The New York Times may have the financial resources to fight back, but the same might not be true for local or digital-only outlets that take on powerful public figures in their reporting.
This content was originally published here.
