When Donald J. Trump called for the removal of a law that provides broad protections to the news media from libel lawsuits – “We’re going to have people sue you like you’ve never been sued before”, he said in 2016 while running for president. – many journalists and their defense lawyers have dismissed it as an empty threat.
But a defamation case that began Monday in federal court in Lower Manhattan, Sarah Palin suing The New York Times Company, sheds light on the many ways that Mr. Trump’s seemingly far-fetched wishes could be is no longer a fantasy.
A lot has changed in the country’s political and legal landscape since Ms. Palin, the former governor of Alaska, filed the lawsuit in 2017. It alleges that The Times smeared her with an editorial that incorrectly asserted a link between her political rhetoric and the mass shooting near Tucson, Ariz., in 2011 that left 6 dead and 14 injured, including Gabrielle Giffords, then a Democrat of Congress.
The editorial was published on June 14, 2017, the same day that gunman opened fire at a Virginia baseball field where Republican congressmen were practicing, injuring several people including Congressman Steve Scalise of Louisiana. The headline was “America’s Deadly Politics,” and the editorial asked whether the Virginia shooting was proof of how bad American politics have become.
When it first appeared, the editorial then argued that “a link to political agitation is clear” between the 2011 shooting of Giffords and a map produced by Ms Palin’s political action committee Circulation shows 20 congressional districts that Republicans hope to pick. Those counties, including the county held by Ms. Giffords, are shown under stylized crosses. In correcting the editorial, The Times said it “incorrectly stated that there was a link between political rhetoric and the 2011 shootings”.
Those who argue that media outlets pay a higher legal price when they make mistakes or make mistakes are being encouraged more than at any time since the Supreme Court’s landmark decision. high in 1964 at The New York Times Company sues Sullivan. That ruling sets a high standard for public officials to prove defamation: They must not only prove that a report is inaccurate and damaging to their reputation, but that the creators it acted with “genuine malice”, meaning they showed a reckless disregard for the truth or knew it to be false.
The Palin case, which is being heard in the United States Southern District Court for the Southern District of New York, will not directly address larger constitutional issues. The jury will weigh testimony and evidence that is said to provide a rare glimpse into the often messy process of how day-to-day journalism is produced.
Most alleging lawsuits against The Times are dismissed before they reach a jury, making this case particularly uncommon. Although broad defenders of First Amendment defenses to the media say Ms. Palin’s evidence is weak, they also concede that the jury may decide otherwise.
“The case will depend on whether the jury – as juries sometimes do – will,” said George Freeman, executive director of the Media Law Resource Center and former attorney for The Times. decide based on their preferences and impressions of the parties,” or whether they are actually following the actual malice rules the judge will give them. ”
But the basics of the First Amendment remained in the testing process. And attorney for Ms. Palin, through legal briefs and public statement, has made no secret of the fact that they would like to see courts rethink the legal delay that media organizations make unintentionally. The law now considers an occasional lapse as the natural outcome of a free press.
A number of First Amendment scholars, politicians, and judges, most but not only conservatives, have begun to put more emphasis on their case in order to debunk the fundamental precedent set by the Sullivan case. , says it has not kept pace with the changing nature of news and public commentary. These include two Supreme Court justices, Clarence Thomas, who suggested? in 2019 that Sullivan was not based on the original meaning of the Constitution, and Neil M. Gorsuch, who Written last summer that the standard had “grown into an unwarranted subsidy for the publication of lies.”
At the same time, some Republicans are using defamation charges against journalists with aggression that media advocates say is unprecedented – from the Trump campaign. lawsuit since being dropped against The Times in 2020 for a critical opinion piece on former Representative Devin Nunes of ongoing case against a reporter now working for Politico who posted on Twitter an article Mr. Nunes said was defamatory to his family.
At the heart of The Times’ defense of the Palin case was that the editorial error was not caused by genuine malice but was a mistake made under tight production deadlines and was frequently corrected after it was published. is indicated.
The statements that Ms Palin deemed defamatory were made during the editing process by James Bennet, who was then the editorial page editor for The Times. (The opinion section and the editorial office operate independently of each other.)
The Times has not lost a defamation case on US soil – where the law provides far stronger press protections than in other countries – in 50 years.
Lawyers for the broad freedoms of speech protections that Sullivan and other legal precedents ensure, say the risk to a free and objective press is not only that it may have to responsible for honest mistakes.
Press freedom advocates warn, if public figures no longer have to meet high legislation to prove harm from an unflattering article, press freedom advocates warn , journalists, especially those without the resources of a major news organization behind them, will self-censor.
“We worry a lot about the risk that public officials and other powerful figures could use threats of smears,” said RonNell Andersen Jones, a law professor at the University of Utah. to prevent news gathering and prevent important conversations about issues of public interest. recorded The judiciary’s increasingly dim view of the media. “It’s a trend that scholars of press freedom find very difficult.”
Ms Jones said she and many other legal scholars considered Mr Trump’s insistence in 2016 that defamation laws be reopened as “inevitable, even amusing”. But now she regrets her indifference. And she said she is viewing the Palin case as a test of how a jury – in today’s climate of tribal politics – will judge media companies for their mistakes. any.
Ms. Palin’s lawsuit was initially dismissed by Judge Jed S. Rakoff shortly after it was filed. But a three-judge appeals court panel overturned that decision in 2019 and reinstated the case. Elizabeth Locke, who represented Ms. Palin on the appeal but is no longer involved in the case, has argued on behalf of several high-profile clients in defamation lawsuits against the major media and is at the forefront of a conservative effort to introduce a rethink of the more common defamation law. Ms. Locke said in an interview that while the Sullivan precedent doesn’t deserve to be completely dismissed, it has failed in today’s media culture.
“How do you balance your right to freedom of expression with your right to protect your personal reputation, and in the context of public officials who have volunteered to serve the public and really need to be held accountable? ?” she speaks.
“Redrawing that balance does not mean that we locked up journalists or that any falsehood will lead to a grand jury verdict,” Ms. Locke added. “But imposing liability, which is hardly consistent with the standards Sullivan had in place, would create self-restraint.”
Ms. Palin’s lawyer argued that Mr. Bennet must have known that there was no evidence that her political rhetoric incited the shooter and that he had a “set backstory” and was malicious towards the pro-rights former governor. in part because his brother, Senator Michael Bennet of Colorado, is a pro-gun control Democrat.
The Times has denied those allegations, dismissing the notion that it would knowingly print something untrue and that Mr. Bennet acted in defiance. “We published an editorial on an important topic that contained inaccuracies. The Times spokeswoman Danielle Rhoades Ha said. “We are deeply committed to fairness and accuracy in our journalism, and when there are omissions, we will publicly correct them, as we did in this case.”
Ms. Palin’s attorney did not respond to a request for comment.
Mr. Bennet Leave the paper in 2020 after the Op-Ed newspaper opinion column of Senator Tom Cotton, an Arkansas Republican, called for a military response to the unrest in the cities. of America. The work caused an outcry among Times readers and journalists.
Mr. Bennet is scheduled to testify on Wednesday, a day after Ms. Palin.
https://www.nytimes.com/2022/01/23/business/media/sarah-palin-libel-suit-nyt.html Sarah Palin sues New York Times Spotlight pushes to relax defamation laws