The New York Times Is In Trouble

We have noted here and elsewhere Sarah Palin’s libel case against the New York Times. In a June 14 editorial, the Times accused Palin of being responsible for Jared Loughner’s murder of six people in Tucson, Arizona. Since then, the Times has issued two corrections to the editorial.

Lawyers for Ms. Palin and the newspaper were in court yesterday. The New York Post’s brief account does not make clear the context of the court hearing, but it quotes the newspaper’s lawyer:

Sarah Palin’s defamation lawsuit against The New York Times should be tossed because the paper made “an honest mistake” when it said she incited a 2011 shooting that severely wounded Arizona Rep. Gabby Giffords and killed six people, a lawyer for the Gray Lady said on Friday.

“There was an honest mistake in posting the editorial,” lawyer David Schultz told Manhattan federal Judge Jed Rakoff.

The Times said that Palin’s “incitement,” which it described wrongly, had a “clear” and “direct” connection to the murder of six people and wounding of several more. That is obviously a very serious charge. And yet, as the Times now admits, there is not a shred of evidence to support it. In fact, we don’t know whether the murderer, Jared Loughner, had ever heard of Sarah Palin. There is zero reason to think that he ever saw her political action committee’s map of “targeted” districts.

So, how can accusing a person of having a “clear” and “direct” causal connection to six murders, without a shred of evidence, possibly be an “honest mistake”? Isn’t it a textbook case of reckless disregard?

Ms. Palin can make a strong argument that the Times editorialists knew that their smear was a lie, based on reporting done by the Times itself. (The editorialists’ defense likely will have to be that they don’t read their own newspaper.) But at a minimum, it seems that the Times editorial was published with reckless disregard for whether it was true or not. It was a product of sheer hatred toward Palin.

The “actual malice” standard that applies to defamation cases brought by public figures is often considered to be impossibly high. It has little to do with the usual meaning of the word “malice.” Rather, it requires that a defendant publish a statement that he knows to be false, or about which he has no idea whether it is true or not, and publishes it anyway (“reckless disregard”). Sarah Palin’s lawsuit against the Times is the rare case where it is hard to see how the paper will be able to mount a defense.

It seems to me that the weakest aspect of Palin’s lawsuit is that she brought it in New York. If the case goes to trial, it likely will be heard by a jury consisting entirely of Democrats who share the New York Times’s antipathy toward Palin. Regardless of the facts, I think there is a serious risk that such a jury may return an unjust verdict against her. I sincerely hope her lawyers know something that I don’t.

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