Former Alaska Governor Sarah Palin’s defamation case against The New York Times will go to trial on Monday, as jury selection begins for a case that could have implications for the freedom of the press. In 2017, Palin sued the newspaper over an editorial that, in a hasty attempt to make sense of a gunman opening fire on a congressional baseball practice, incorrectly made a connection between a map circulated by Palin’s political action committee and another mass shooting involving elected officials: The 2011 shooting in Arizona, which killed six people and wounded then-congresswoman Gabby Giffords. There was no proof to back up a link between Palin’s election ad and the shooting, and the Times quickly clarified and corrected the error, with then-editorial page editor James Bennet acknowledging it was a consequence of “[moving] too fast,” per NPR. Weeks later, Palin filed suit anyway, alleging that the newspaper and Bennet—who added the disputed passage to the draft—defamed her. While a judge initially tossed the case, a federal appeals court brought it back to life in 2019, setting the stage for Monday’s trial.
“At issue is the elasticity of the protections that allow news organizations to present tough coverage of public figures,” the Washington Post’s Erik Wemple writes of the case, noting it is one that “will help demarcate the line between really bad journalism and libelous journalism.”
Palin’s success in court will depend on her ability to convince a jury that Bennet and the newspaper acted with “actual malice,” meaning the news organization knew what they were publishing was false or acted with reckless disregard for the truth. The legal standard has protected the media in libel cases brought by public figures since the 1964 New York Times v. Sullivan case, and legal experts expect the 2008 Republican vice presidential nominee will have a difficult time prevailing at trial. Bennet’s “immediate sort of emergency mode or panic mode” upon learning what happened strongly suggests he had been unaware of any mistake, Fordham University law professor Benjamin Zipursky told Reuters, noting “negligence or carelessness—even gross negligence—is clearly not good enough for Palin to win.”
But Palin’s revived case raises concerns about First Amendment protections for the press, even if she ends up losing. The dispute being “over an editorial, essentially an opinion” makes it “a potentially dangerous area” for “[giving] public officials a green light to litigate on editorials they disagree with,” said Syracuse University law and communications professor Roy Gutterman. First Amendment attorney Ted Boutrous raised similar concerns to CNN, categorizing Palin’s efforts as “part of a disturbing trend in recent years of high-profile political figures misusing libel suits as political stunts intended to chill speech on matters of public concern—exactly what the First Amendment forbids.”
As the Republican nominee for vice president in 2008, Palin made attacks on the “lamestream media” a mainstay of her campaign, NPR’s David Folkenflik notes, and has for years accused news outlets of unfair treatment. A Times spokesperson told CNN’s Oliver Darcy that it hopes “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.” It will regardless be “an excruciating experience” for the Gray Lady, CNN chief legal analyst Jeffrey Toobin predicted, “because the simple fact is the story was wrong. And no journalist wants to be in a position of defending a story that was wrong.”
The battle over what Times deputy general counsel David McGraw has called “an honest mistake” could work its way up to the Supreme Court. Palin “has signaled in court papers she would challenge the Sullivan case precedent on appeal if she loses at trial,” according to Reuters. At least two conservative justices—Clarence Thomas and Neil Gorsuch—have indicated their willingness to revisit the landmark ruling, potentially opening the door for irate public officials to file libel suits against the media more easily.
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