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How Malicious Must Actual Malice Be?

Sarah Palin.
Sarah Palin in 2016. Photo by Gage Skidmore.

It is highly unusual for an American politician to bring a libel case to trial against a national news outlet, and practically unheard-of for the politician to win.

I observed as much in 2017, when Sarah Palin first sued The New York Times for defamation. Yet Palin now seems likely to get her day in court against the Times, and a victory is hardly out of the question. Palin’s win would be unfortunate for the nation’s news consumers, as well as for journalists and their employers. It would also be ironic if the Times, which played a key role in developing our country’s vigorously pro-free-speech defamation standards, was instrumental in getting the media’s leeway curtailed.

Reputation matters. In an era when a journalism standard of “without fear or favor” has been largely replaced by a philosophy of “silence is violence,” that reputation may now be so compromised that it no longer serves as a shield for honest mistakes journalists make under deadline pressure.

At issue is an editorial the Times ran in June 2017 after a gunman attacked Republican lawmakers as they practiced for a Capitol Hill baseball game. “Was this attack evidence of how vicious American politics has become? Probably,” the editorial asserted in its original form. “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, the link to political incitement was clear. Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.”

The final draft of the editorial was written by James Bennet, then the editor of the Times opinion section. It was Bennet who introduced the problematic language. Whether there was any “political incitement” at all is at best debatable. Inarguably, the advertising in question showed maps of congressional districts, not images of their representatives, in cross hairs. And far from a “clear” link to the shooting of Giffords and the others at her in-district event, there is no public record that Loughner ever saw the advertisements, let alone that he acted because of them. He had long-standing substance abuse issues and was diagnosed with depression, and later schizophrenia. Even more pertinently, Loughner had a documented history of antipathy toward Giffords dating back to 2007, years before the Palin-linked ads ran.

The basic threshold for a statement to be libelous is that it must be false and defamatory. An opinion, clearly presented as such, is not defamatory. “I think Fred Whatshisface is an idiot” is not a libelous statement. “Fred Whatshisface is a sociopathic pedophile” certainly can be, unless Fred Whatshisface has been diagnosed accordingly.

But for over half a century, the bar for public officials and other public figures to win a case for defamation – which includes libel and its oral counterpart, slander – has been considerably higher. The Supreme Court ruled in 1964 in New York Times v. Sullivan, and in later cases, that under the First Amendment, such prominent individuals must prove “actual malice.” A statement must not only be false and defamatory to meet this standard. The plaintiff must also show that the person making the statement either knew it was false or acted with reckless disregard for its accuracy. In essence, the standard is whether the publisher knew or should have known that the defamatory statement was false.

This puts Bennet and the Times in an awkward position. In his prior tenure as editor of The Atlantic, Bennet was at the helm when that publication – hardly a bastion of support for Palin – published several articles noting that no link between the Palin ads and the Giffords shooting had ever been established. Bennet has said he forgot about those Atlantic articles when he rewrote the Times editorial.

The newspaper published several corrections in the days after the editorial first ran. In the version that remained on the Times website this week, the copy read: “Before the shooting, Sarah Palin’s political action committee circulated a map that showed the targeted electoral districts of Ms. Giffords and 19 other Democrats under stylized cross hairs. But in that case no connection to the shooting was ever established.” The corrections merely replaced an assertion with an insinuation. This is pretty much par for the course in today’s politically corrected journalism.

Palin is a former Alaska governor and Republican vice presidential candidate. She is also noted for her reputed ability to field dress a moose, a skill that is likely neither common nor well regarded in the New York Times newsroom. But it is more widely appreciated in the GOP political base that the Palin-linked advertisement was trying to reach. A graphical reference to target shooting or game hunting in those circles is not an incitement to murder, in spite of how it may be viewed on midtown Manhattan’s Eighth Avenue.

Given the low probability of success on the existing legal standards, U.S. District Judge Jed Rakoff initially dismissed the case after an expedited preliminary procedure. An appeals court reversed that decision. This led to Rakoff’s ruling last week that neither side has a strong enough position to prevail without a trial. He ordered proceedings to begin in February, although pandemic-related restrictions could lead to a delay.

Even if Palin were to win at trial, my guess is that she stands to collect little more than token damages. It would be hard to argue that a disparaging editorial in The New York Times (one of many similar in tone, if not in factually challenged substance), years after her last days in public office, cost her much financially.

But the price to a largely unfettered press could be substantial if the case leads the courts to revisit the Sullivan line of cases. In a world where the media is always on and the internet never forgets, must public figures tolerate any false and disparaging claim that is not made either knowingly or recklessly? Beyond the personal interests of those public individuals, does society at large deserve at least a somewhat higher standard from those who, often sanctimoniously and self-servingly, claim First Amendment privileges exceeding those of, say, a waiter or a plumber (who may now be in a position to report breaking news themselves on occasion)?

In 1964, it would have been hard for the Supreme Court to conceive of the august Gray Lady behaving recklessly with the truth on a matter of grave public importance. In today’s media landscape, the standard of “truth” often means merely that someone – frequently an anonymous someone – said something disparaging about someone else, not that whatever that person said was actually true. That’s how smears like the infamous Steele dossier get disseminated, without consequence to those doing the disseminating.

If the courts decide that this has gone too far, the press will have itself to blame.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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