'Actual malice' and The New York Times

For Sarah Palin to prevail in her libel action against the New York Times, she must prove that the Times knew that the following statement in a June 15, 2017 editorial was false, or was published "with reckless disregard of whether it was false or not: "Sarah Palin's political action committee circulated a map of targeted election districts that put [Congresswoman Gabrielle] Giffords and 19 other Democrats under stylized cross hairs."  The editorial went on to suggest that there was direct incitement "in the Giffords attack."

The next day, the Times published this correction:

Correction: June 16, 2017 

An editorial on Thursday about the shooting of Representative Steve Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs.

This correction offered no apology to Sarah Palin for falsely asserting that her "political action committee circulated a map of targeted election districts" showing "Giffords and 19 other Democrats under stylized cross hairs."  The correction admitted that "no ... link was established" as to "political rhetoric and the 2011 shooting of Representative Gabby Giffords."

Will the New York Times succeed on a motion to dismiss?

Justice William J. Brennan, Jr., in New York Times v. Sullivan – the opinion that provided the "actual malice" standard in libel actions – pointed out that we have "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials [later extended to 'public figures']."

Justice Brennan, asking whether allegedly defamatory statements lose protection when they are false, provided the "actual malice" test: knowledge that the statement "was false or [was made] with reckless disregard of whether it was false or not." 

New York Times v. Sullivan was handed down in 1964, before the "hate speech" concept gained acceptance.  Are we as tolerant of "uninhibited, robust, and wide-open debate" that includes "vehement, caustic, and sometimes unpleasantly sharp attacks" as we were in 1964?  Indeed, we are – provided that attacks come from leftists and are directed at conservatives.  Cries of hate speech seem a function of leftist response to criticism from conservatives.  And now criticism of the media from the Trump White House is declared to amount to bullying and browbeating.  (For leftists, the First Amendment seems to have become a one-way street.)

Governor Palin brought her complaint in federal court, in the Southern District of New York.  It is not unreasonable to wonder: is the Times libel-proof – particularly in the City of New York – when it comes to false statements aimed at Republicans?  Is there a qualitative distinction to claiming that Republican plans on health insurance will cause many people to die – compared to falsely imputing the shooting of Rep. Giffords to inaccurately described maps?  Today, when the left raises the banner of reckless, partisan journalism as an integral part of "the Resistance," would a New York jury place reckless partisan journalism in the context of falsely shouting "fire" in a crowded theater?

Why didn't that Times "correction" include a sincere apology to Sarah Palin – and be done with it?  The New York Times?  Apologizing to Governor Palin?  Clearly an unthinkable thought.

Meanwhile, Times employees soon to be thrown out of work are protesting.  Have any of the soon to be former Times employees wondered: how many cutbacks are due to the expense incurred by the paper's phalanx of anti-Trump columnists? 

For Sarah Palin to prevail in her libel action against the New York Times, she must prove that the Times knew that the following statement in a June 15, 2017 editorial was false, or was published "with reckless disregard of whether it was false or not: "Sarah Palin's political action committee circulated a map of targeted election districts that put [Congresswoman Gabrielle] Giffords and 19 other Democrats under stylized cross hairs."  The editorial went on to suggest that there was direct incitement "in the Giffords attack."

The next day, the Times published this correction:

Correction: June 16, 2017 

An editorial on Thursday about the shooting of Representative Steve Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs.

This correction offered no apology to Sarah Palin for falsely asserting that her "political action committee circulated a map of targeted election districts" showing "Giffords and 19 other Democrats under stylized cross hairs."  The correction admitted that "no ... link was established" as to "political rhetoric and the 2011 shooting of Representative Gabby Giffords."

Will the New York Times succeed on a motion to dismiss?

Justice William J. Brennan, Jr., in New York Times v. Sullivan – the opinion that provided the "actual malice" standard in libel actions – pointed out that we have "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials [later extended to 'public figures']."

Justice Brennan, asking whether allegedly defamatory statements lose protection when they are false, provided the "actual malice" test: knowledge that the statement "was false or [was made] with reckless disregard of whether it was false or not." 

New York Times v. Sullivan was handed down in 1964, before the "hate speech" concept gained acceptance.  Are we as tolerant of "uninhibited, robust, and wide-open debate" that includes "vehement, caustic, and sometimes unpleasantly sharp attacks" as we were in 1964?  Indeed, we are – provided that attacks come from leftists and are directed at conservatives.  Cries of hate speech seem a function of leftist response to criticism from conservatives.  And now criticism of the media from the Trump White House is declared to amount to bullying and browbeating.  (For leftists, the First Amendment seems to have become a one-way street.)

Governor Palin brought her complaint in federal court, in the Southern District of New York.  It is not unreasonable to wonder: is the Times libel-proof – particularly in the City of New York – when it comes to false statements aimed at Republicans?  Is there a qualitative distinction to claiming that Republican plans on health insurance will cause many people to die – compared to falsely imputing the shooting of Rep. Giffords to inaccurately described maps?  Today, when the left raises the banner of reckless, partisan journalism as an integral part of "the Resistance," would a New York jury place reckless partisan journalism in the context of falsely shouting "fire" in a crowded theater?

Why didn't that Times "correction" include a sincere apology to Sarah Palin – and be done with it?  The New York Times?  Apologizing to Governor Palin?  Clearly an unthinkable thought.

Meanwhile, Times employees soon to be thrown out of work are protesting.  Have any of the soon to be former Times employees wondered: how many cutbacks are due to the expense incurred by the paper's phalanx of anti-Trump columnists?