Sarah Palin vs. New York Times

Sarah Palin sued the New York Times for defamation yesterday. The case arises out of an editorial by the Times that accused Mrs. Palin (as she is referred to throughout the complaint) of having incited Jared Loughner to murder six people, including a sitting Congresswoman, a federal judge, and a nine year old girl. The Times alleged that Mrs. Palin’s “incitement” of Loughner’s crime was “clear” and “direct.”

This was, of course, a lie. Loughner was crazy, and if anything, he was a leftist. (He listed The Communist Manifesto among his favorite books, and friends described him as a liberal.) There is no evidence that he ever saw the online map with “targeted” Democratic districts that was the supposed incitement.

Palin’s complaint is, I think, well drafted. She assumes the burden of proving “actual malice,” alleging that the Times knew its editorial was false or published it with reckless disregard of whether it was false or not. This is, of course, a high bar, but Palin’s lawyers cite several articles in the Times itself indicating that Loughner’s rampage had nothing to do with Mrs. Palin.

Here is the complaint:

352404642 Sarah Palin Sues the New York Times for Defamation by John Hinderaker on Scribd

One aspect of the Complaint that I found entertaining was the recitation of the Times’s several halfhearted efforts to correct its false editorial:

49. Soon after the Palin Article was published, The Times was hit by public backlash over falsely stating that Mrs. Palin incited Loughner to commit murder.

50. In response, The Times first tried to quietly save face by editing the Palin Article online. When that failed to quell the outcry, The Times made further edits and posted two woefully insufficient online “corrections” and an “apology” to its readers.

51. In its first edit, The Times merely deleted the phrase “the link to political incitement was clear” from the end of the following sentence: “In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl.” It also added the words: “But no connection to that crime was ever established.” The Times left in place, however, an inconsistent and defamatory sentence in the next paragraph of the column, which stated: “Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask of others.”

52. Faced with continuing public and media criticism, The Times eventually deleted the phrase, “[t]hough there’s no sign of incitement as direct as in the Giffords attack…” and posted a half-hearted correction (the “First Attempted Correction”), written in a passive voice, about the “link” between “political incitement” and Loughner’s heinous crime:

53. The First Attempted Correction did not remove the unnecessary reference to Mrs. Palin in the column, even though she had no connection to Loughner’s crime. As written, it also suggests that such a connection may still be established, when The Times already knew that no such link existed. In fact, the First Attempted Correction made no mention of Mrs. Palin, while the column continued to reference her by name.

54. Given that the entire premise of the Palin Article was the “disturbing pattern” of politically incited violence emanating from a non-existent link between Mrs. Palin and Loughner’s 2011 crime, which The Times conceded did not exist, the entire Palin Article should have been retracted – not minimally and inadequately corrected – and The Times should have apologized to Mrs. Palin.

55. The Times published a second online correction, which proved equally lacking. Still devoid of any reference to Mrs. Palin, this second correction (the “Second Attempted Correction”) was issued because the original column mischaracterized the subject map of targeted electoral districts as placing stylized cross hairs on Gabrielle Giffords and other lawmakers – individually – thus continuing to support the false narrative that there was a direct link between Mrs. Palin and Loughner’s vicious attack.

56. By referring only to “a” political action committee, The Times’ Second Attempted Correction continued the paper’s steadfast refusal to acknowledge that it had falsely asserted that Mrs. Palin incited Loughner’s deadly rampage.

57. Unbelievably, even after acknowledging the existence of the false and defamatory statements, The Times continued to publish the false and defamatory column and its reference to Mrs. Palin as its linchpin example of “vicious American Politics”:

Was this attack evidence of how vicious American politics has become? Probably. In 2011, Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl. At the time, we and others were sharply critical of the heated political rhetoric on the right. Before the shooting, Sarah Palin’s political action committee circulated a map that showed targeted electoral districts of Mrs. Giffords and 19 other Democrats under stylized cross hairs. But in that case no connection to the shooting was ever established.

58. In a reflection of The Times’ utter lack of concern for the harm it had inflicted on Mrs. Palin, The Times’ Editorial Page tweeted “We’re sorry about this and we appreciate that our readers called us on the mistake;” as if The Times had made a simple, ministerial error such as misspelling someone’s name or getting a date wrong:

59. The Times did not issue a full and fair retraction of its defamatory Palin Article, nor did it issue a public apology to Mrs. Palin for stating that she incited murder and was the centerpiece of a “sickening” pattern of politically motivated shootings.

It would be fun to cross-examine the Times’s witnesses about their several inadequate efforts at corrections. They admitted that what they wrote was false, but couldn’t bring themselves to actually absolve Mrs. Palin of responsibility for a mass murder committed by someone who, as far as we know, never heard of her.

Mrs. Palin shouldn’t have any trouble proving damages:

79. Not surprisingly, the widely circulated and heavily promoted Palin Article resulted in hatred and hostility toward Mrs. Palin.

80. As one example, a democratic strategist seized on The Times’ narrative about Mrs. Palin, tagging Mrs. Palin in a Tweet about the false link between Mrs. Palin and the Giffords shooting along with the hash tag “#HuntRepublicans.”

Does Palin’s defamation case stand a chance? On paper, I think it does. Actual malice is hard to prove, but the fact that the Times itself has carried columns and news stories debunking the false claims about Palin’s responsibility for murders committed by a nut who may never have heard of her is powerful. And how could there be a stronger case of “reckless disregard” than a newspaper that accuses a public figure of having a “clear” and “direct” link to a mass murderer, without making any effort to verify that such a claim is true?

One thing, however, I do not understand. Palin’s lawyers brought her case in the Southern District of New York. New York City may well be the one place where potential jurors are most likely to share the Times editors’ irrational hatred of Palin. Why bring the case there?

The Times is distributed nationwide, and the case could have been brought in Palin’s home state of Alaska. Granted, Alaska juries are in general more conservative and less inclined to award damages to plaintiffs than New York City juries, but this is hardly a typical case. If I had been advising Mrs. Palin, I would have urged her to file the lawsuit where she lives.

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