photo by Gage Skidmore
It is almost impossible for a high-profile public figure, and especially a former official, to win a libel suit in the United States. But Sarah Palin could conceivably win her case against The New York Times anyway.
This is especially remarkable because the item in which Palin says she was libeled was an editorial, not a news story. As opinions, editorials are nearly immune from libel actions. But still, Palin has a case.
Not that she’ll win much; I don’t see any way in which Palin could collect significant monetary damages from the Times, despite the fact she is reportedly seeking more than $75,000. Whether or not she is savvy enough to realize this, her lawyers certainly do. But that is not the point. Palin will win. In fact, she has already won her larger battles merely by filing the suit. She will be an even bigger winner if she extracts a judgment, an apology or both from the self-proclaimed “newspaper of record.”
Let’s review the case. To be libelous, a statement must be both false and defamatory. For a public figure to win a libel case, the plaintiff must prove that the false and defamatory statement was made with knowledge that it was false or with “reckless disregard” as to its veracity.
In the editorial “America’s Lethal Politics,” The Times drew a line from the June 14 shooting in which Rep. Steve Scalise and three others were shot and wounded to the 2011 shooting of Rep. Gabrielle Giffords. The editorial suggested the attack was evidence of the vicious nature of politics in America today. In the course of making this argument, the editorial board repeated a long-debunked talking point linking the attack on Giffords to a map circulated by Palin’s political action committee the year prior.
The corrected version of the editorial, the one anyone can read on the Times website today, is literally true. It is misleading; it is unfair; it is a smear. But it is not false because, as the Times writes, “no connection to the shooting was ever established” – just as it has never been established that Martians are in control of the United Nations Security Council. It is the bare minimum the Times could do, but since the statements in the updated version of the editorial are true, they cannot be libelous.
In contrast, the original version of the editorial contains multiple false statements purporting to be fact, not opinion. I would argue that writing “the link to political incitement was clear” of the map in question was false. It was inarguably false to describe “a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs,” since the map targeted districts, not representatives. Yet any reasonable reader would have taken such a description as factual, not merely part of the editorial board’s opinion.
Was this defamatory? Absolutely. Was it false? Absolutely. Did it injure Palin? In a theoretical sense, yes, since somebody somewhere could conclude that she has been an advocate of gun violence against her political adversaries.
But can she establish that it in any way damaged her professionally or financially – or, for that matter, politically? Absolutely not. Palin is an attention-seeking has-been, and all the Times did by attacking her was make her relevant again, at least momentarily, to a broader audience that is sick of media smears that substitute personal attack for reasoned argument.
No elected officials died the day Scalise and three others were shot. The lack of fatalities is almost certainly due to the fortunate accident that Scalise was traveling with armed protection in the form of two Capitol Police officers, who prevented the shooter from advancing on his fleeing targets and, eventually, took him down. Two city officers also arrived on the scene when the attack was in progress. Had the shooter been able to make his way onto the baseball field, Rep. Joe Barton told The Washington Post, “It would have been a bloodbath.”
Several of the Republican lawmakers and aides who were present that morning are licensed to carry handguns in their own states, but were prevented from bringing them to their baseball practice because they live in the District of Columbia, where carrying such weaponry outside the home is forbidden unless the permit applicant provides a “good reason.” Rep. Thomas Massie, R-Ky., proposed a bill the day after the shooting that would allow individuals with concealed-carry permits in their home states to carry in D.C. as well. Rep. Barry Loudermilk, R-Ga., has also supported the idea of reciprocity; he was one of the lawmakers on the baseball field on June 14. A bill proposed by Rep. Brian Babin, R-Texas, would specifically ensure lawmakers are able to secure concealed-carry permits in the district and would be permitted to carry even in some areas where guns are typically prohibited.
If the Times wants to make the case that somehow, absent Scalise’s armed security, those members of the House and Senate were safer without their personal handguns that morning, then more power to its editorial board. Or if the Times wants to argue that we should, from time to time, sacrifice the lives of some public officials in the broader interests of society, let it try. It has already ignored the point that had anyone in the crowd around Giffords been able to fire at the shooter in self-defense, perhaps six people would not have died and an additional 13 besides Giffords would not have been wounded after the initial shots.
It is emblematic of the intellectual feebleness of the Times’ editorial board that, rather than take its ideological biases to their logical conclusion on these obviously bad facts, it needed to find a conservative boogeyman for the shooting at the ballfield. That boogeyman, direct from central casting and the Times’ archives, was Sarah Palin.
I would never donate to a Palin campaign or PAC. But if asked to kick in a few coins toward a legal effort to hold a prominent and prominently unfair news outlet to even the most basic standards, which most college newspapers have no trouble meeting, I might do so. Any responsible and ethical news organization would have retracted the original editorial in its entirety and apologized for bringing Palin baselessly into the discussion in the aftermath of the recent shooting. The Times long ago stopped being either responsible or ethical.
Palin’s suit rightly called the Times’ corrections insufficient and asked that the paper remove the editorial from its website completely. The Times, instead of doing what it should have done without prompting, responded that it would “defend against any claim vigorously.” Other major news outlets, including The Wall Street Journal and The Washington Post, have since run opinion columns criticizing both the Times’ original editorial and the decision to double down rather than apologizing.
Instead of linking the incident to Palin and her nonexistent involvement in Gifford’s shooting, if the Times was determined to cite a violent metaphor that an unbalanced listener might misinterpret, comedian Kathy Griffin offers a more current example. Griffin caused widespread outrage, on both sides of the aisle, by posting an image of herself with the fake bloody and decapitated head of President Trump. (She later issued a video apologizing for going “way too far.”) This is not to say Griffin would be to blame if someone claimed her tasteless self-expression had inspired violent action. The responsibility for violence always and solely lies with the person who chooses to act violently.
I am not unaware of the irony of having Sarah Palin hold the Times to the minimal standards of accuracy. But as long as someone does, I am not bothered by it either.