Sarah Palin and the New York Times: The Next Chapter

As expected by the bien-pensants of the mainstream media, a New York federal district judge dismissed Sarah Palin's libel suit against the New York Times.

The decision reached what is, for the Progressive media, a politically correct result, which is that a scruffy conservative like Palin cannot be allowed to sue the New York Times.

But to get there the judge played some good old New York street hustler shell game, palming the pea so it was under none of the walnut shells and upholding the right of the paper to publish made up facts without consequence.

The factual background is straightforward.  After the June 2017 shooting of Representative Steve Scalise, the NYT ran an unsigned editorial referring to the 2011 shooting of Representative Gabby Giffords.  In the 2017 piece, the paper repeated a canard made in 2011 that the Giffords shooting was triggered by a SarahPac ad showing various Democratic congressional districts with crosshairs superimposed on them.

In fact, and as had been recognized in 2011 and after by several media outlets including the NYT, this meme was false.  No connection existed between the SarahPac ad and the Giffords shooting.  Indeed, the online version of the 2017 editorial linked to a 2011 AP story debunking any connection between the SarahPac ad and the Giffords shooting. Anyone who followed the link would learn that the editorial's assertion was untrue.

The NYT was informed of its error and issued various partial and grudging corrections.  Nonetheless, Palin filed suit.

Under New York Times v. Sullivan and its successors, a plaintiff who is publicly prominent must show not only that a statement was false, but also that the media outlet had "actual malice."  This term does not carry the commonsense meaning of ill will.  It means that the outlet knew that the statement was false and, further, that the specific employee who drafted the article had this knowledge.

The exact bounds of this knowledge requirement are murky.  Pushed to its logical end, the requirement would mean that a paper could publish anything, even if it had no basis for the claim.  For example, it could say: "Senator X is a necrophiliac" and, if sued, say the author did not know the accusation to be false, even if he had no reason to think it true.

Judges shrink from pushing this logic to its limits and qualify the "knowingly false" standard, adding that of course the media cannot deliberately avoid the truth or be guilty of reckless indifference.

On the other hand, they also say violation of good journalistic practice is not actual malice, and the extent of any duty to investigate is minimal.  This in turn raises something akin to the made-it-up issue.  Suppose a reporter gets an email saying, "Senator X is a necrophiliac."  Can the reporter assume it true and publish, or does some degree of duty to check exist?

Palin v. NYT is essentially a "we made it up" and "no duty to check" case.

In 2011, the supposed connection between the SarahPac ad and the Giffords shooting was moonshine.  The shooter was not politically interested, and no evidence existed that he ever saw the ad.

In 2017, NYT editorial page editor James Bennet assigned a staffer to do a first draft of a piece on the Scalise shooting.  He told her to look at the earlier reporting on the Giffords affair – reporting that included references to the SarahPac ad and that debunked the idea of a connection.

The staff draft was carefully written.  It said the shooter's "rage was nurtured in a vile political climate," "just as in 2011," when "in the weeks 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 crosshairs."  In short, it accused the ad of creating a "vile" climate but did not say it directly triggered the Giffords shooting.  (I dispute that the ad contributed to a "vile political climate"; crosshairs are a cliché image for any kind of targeting, used often by media, including the NYT.  Note also that this draft erred in that the ad showed the districts in crosshairs, not the representatives.)

In this draft, "circulated" was a hyperlink to an ABC News story published the day after the Giffords shooting that said "no connection has been made" between the shooting and the SarahPac ad.

Bennet rewrote the draft to say that in the Giffords shooting, "the link to political incitement was clear. Before the shooting Sarah Palin's political action committee circulated a map[.]"  The link to the ABC News story that debunked the connection remained.  In the next paragraph, he referred to "incitement as direct as in the Giffords attack."  

In short, Bennet made the story wrong.  In doing so, he testified, he had no recollection of ever seeing articles debunking the connection, he did no additional research, and he did not look at the link in the draft.

If editing, without checking, something so as to make it wrong on the basis of some vague impression of five years ago does not qualify as actual malice under Sullivan, then we are indeed in strange territory.

To find for the NYT, the judge used a shifting definition of "malice."

As noted, in Sullivan and its successor cases, the phrase "actual malice" means "knowledge."  It does not carry the conventional meaning of ill will.  It matters not whether the media outlet loves or loathes the plaintiff; the crucial question is knowledge of falsity.

However, malice in the conventional sense of ill will remains relevant to libel in two ways.  First, it can establish a motive for disregard of facts.  Second, it can provide a basis for punitive damages.  In her complaint, Palin alleged ill will toward her on the part of the NYT, but the issue should be relevant only later in the case, when a jury is assessing the credibility of witnesses and deciding on damages.  At this early stage, ill will should not be significant.

Analytically, the judge faced two related questions.

First: What is required for the Sullivan defense?  Assuming the accuracy of Bennet's testimony, did his rewrite of something to make it wrong, with no investigation, constitute "actual malice"?

Second: Was it correct to put on Palin the burden of showing actual malice, before discovery, when knowledge of the relevant facts is uniquely within the possession of the NYT and Bennet?

In deciding the first issue in favor of the NYT, the judge put on Palin a new requirement – that she show that the NYT acted not just with Sullivan malice (knowledge of falsity), but with malice in the sense of ill will.  He then took the facts tending to show that NYT did act with reckless disregard of truth or falsity, such as the link to the accurate 2011 ABC article, and used them as evidence that the NYT acted without ill will.  This is not the standard created by Sullivan.  

On the second issue, the judge said he could have dismissed the complaint because Palin has the burden of showing actual malice by the specific employee(s) who wrote the article, and her complaint alleged only knowledge of falsity by the NYT as a corporate entity.  Furthermore, the complaint failed to allege specific facts demonstrating Sullivan malice, so it could be dismissed even if it were amended to focus on the employee.  

The statement that the relevant state of mind is that of the employee is true under Sullivan.  Actual malice cannot be established by generalized institutional knowledge.

But putting the burden of demonstrating malice on the plaintiff at the stage of filing a complaint is absurd.  At this point, a plaintiff knows only that a false statement has been made; she does not know who made it or that person's state of mind.

The judge relied on two major Supreme Court cases (Twombly and Iqbal) for the proposition that the complaint must contain specific facts establishing malice.  But these concerned specialized contexts of antitrust and governmental immunity and cannot easily be extended to a libel action in which the plaintiff has already shown falsity.  These precedents have been applied to libel cases, but cautiously, and only when uncontested facts pretty much established the lack of Sullivan malice because the defendant relied upon reasonable sources for statements.

For a court to say that facts sufficient to prove actual malice must be contained in the initial complaint produces another absurdity.  The libelous editorial was by the NYT editorial board, not an individual.  So if the NYT had said, "We won't tell you who wrote it, n'yah, n'yah!," then the judge would dismiss the complaint because it did not assert specific facts about the actual author.  If the editorial had been signed, then the judge would dismiss it because it did not allege sufficient facts about the actual author's knowledge and state of mind, even though the plaintiff has no way of knowing this.  She knows, and can know, only the falsity.

Note also that the judge accepted Bennet's explanations at face value.  A jury might well regard as improbable his explanation that he looked at nothing and decide that he acted deliberately and that the error was corrected, grudgingly, only because of pressure from others in the NYT, who feared a lawsuit and wanted to move quickly to limit the fallout.  On this issue of credibility, the NYT's ill will toward Palin would indeed be relevant, and a jury might regard it as more important than did the judge.

Palin's chance of winning an appeal are good, and one would certainly like to see the courts impose some sense of responsibility on the media.  In this case, as in other libel cases, the judge delivered a paean to robust political debate, but he ignored the harm to that debate that occurs when "made it up" reporting becomes the norm.  Robust debate cannot thrive when the signal is lost in the noise.

The judge made much of the NYT corrections, but these were rather grudging.  Absent fear of a lawsuit, would they have been made?  Doubtful.  The lie would have stood, ready to be quoted again in the future.

Palin herself is unlikely to reap significant money from any victory.  She may have been damaged greatly by the allegations made in 2011, but she will have difficulty showing much harm from the repetition in 2017.  The corrections will militate against any punitive damages because the NYT can argue that, whatever the state of mind of Bennet, the paper as an institution corrected itself.

But I doubt that she was ever in this for the money, and I hope she appeals.  The need for truth in media has never been greater.

James V. DeLong is a graduate of Harvard Law School.