Sarah Palin v. the Media

Sarah Palin has indicated that she may file a defamation lawsuit against the New York Times for an editorial falsely linking her to the 2011 shooting of Rep. Gabby Giffords. Defamation lawsuits are especially difficult for public figures to prove, but she appears to have a pretty solid case. More importantly, the information she gathers through discovery would have sweeping ramifications, including concrete evidence of media bias against conservatives.

The Editorial & Correction

The Times published its editorial titled “America’s Lethal Politics” on June 14, in response to the recent shooting of Rep. Steve Scalise. Here is the relevant excerpt:

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 Times subsequently back-peddled and modified the text as follows:

In 2011, 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. At the time, we and others were sharply critical of the heated political rhetoric on the right. 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 following correction notice is now posted below the revised article:

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.

The Times therefore admits that it made two mistakes: (1) it falsely stated that Gov. Palin’s PAC was linked to the Gabby Giffords shooting, and (2) it falsely stated that Gov. Palin’s PAC circulated materials that placed Giffords and others under stylized cross-hairs. This article was published not by the Editorial Board, which is the collective voice of the publication. That is a very bad look.

Elements of Proving Defamation in New York

But, was it legally defamatory? Let’s take a look at the elements for proving defamation in the State of New York.

She would need to prove the existence of a false statement published to a third party without privilege or authorization, with actual malice, that either causes special harm or constitutes defamation per se. The general categories of defamation per se include allegations that the plaintiff was involved in criminal activity; has a loathsome, contagious, or infectious disease; was unchaste or engaged in sexual misconduct; or acted inappropriately in her business, trade, or profession.

Gov. Palin can prove most of this with ease. The Times admittedly published two false statements about her to its readership with no privilege or authorization, and I suspect she can prove damages in some form. Note, however, that she would need to prove that the Times acted with actual malice. This is the challenging part of the inquiry.

Defamation law imposes a heavier burden on public figures than private figures. A private figure would only need to prove that the Times was negligent in printing the false information; in other words, the Times didn’t do its homework. Actual malice, on the other hand, requires clear and convincing evidence that the Times either knew the statements were false or acted with reckless disregard for the truth. It requires more specific evidence than the Times‘ general dislike of Gov. Palin.

This is a heavy burden requiring proof of the defendants’ mindset, and it shows why it’s so difficult for public figures to successfully sue for defamation. The Supreme Court established this rule as a matter of constitutional law, ironically in the case of New York Times Co. v. Sullivan.

Analysis

I can see both sides of this argument. Gov. Palin could argue that the Times has the expertise and resources to diligent research its statements, but its Editorial Board’s disdain for Gov. Palin caused it to neglect cursory fact-checking that is readily available online. After all, the Times is not some small-time blog; it’s a world-renowned publication that attracts some of the country’s best journalists. Moreover, this mistake was made by the Editorial Board, comprised of journalists trusted to speak on behalf of the Times.

They have the expertise to conduct this basic research, and the New York Times Company’s $2.8 billion affords them all the resources they need. Besides, the information the Times needed is easily available through a quick Google query, so it should have been very easy for the Editorial Board to get this right. Couple this with any number of articles the Times has published over the past decade criticizing Gov. Palin––along with the likely dearth of any articles casting her in a favorable light––and Gov. Palin has a strong case that the Editorial Board’s disdain for her caused its members to shirk very basic journalistic responsibilities.

Of course, there are two sides to every case. The Times could argue that it made a pair of honest mistakes. For example, perhaps they will argue that the phrase “the link to political incitement was clear” was a poor choice of words; perhaps they meant to say that the link was clear to them, rather than to the authorities as the statement implied. An honest mistake, in other words. Similarly, maybe the Times will argue that the “targeted electoral districts of Ms. Giffords and 19 other Democrats under stylized cross hairs” may falsely imply that the legislators themselves were under cross hairs, but the Editorial Board intended to correctly convey that the districts themselves were under the cross hairs. Again, honest mistake. Furthermore, the prompt correction evidences the Times‘ good faith, and may reduce any damages it owes Gov. Palin under Civil Rights Law § 78.

Still, the Times‘ correction also admits that it “incorrectly stated” and “incorrectly described” the facts. I am unaware of any New York laws that would prevent Gov. Palin from using these statements against the Times as an admission of guilt.

Putting the Media on Trial

This will be an interesting case if Gov. Palin chooses to pursue it. I suspect Gov. Palin would at least make it through the pleading stages, especially given the weakness of New York’s anti-SLAPP law in comparison to California’s. This means the case would proceed through discovery, where Gov. Palin could really dig into the Editorial Board members’ personal opinions on Gov. Palin, as well as the Republican Party, tea partiers, and conservatism in general. Their mindset is at issue, so she could legitimately demand text messages, e-mails, instant messages, and other documents and testimony that could evidence this bias. Her attorney would be wise to promptly send a letter to the Times directing them to preserve records of all such correspondence.

Conservatives believe that the mainstream media is biased against them. Now they have a chance to literally put the media on trial.

Categories: Constitutional Law, Defamation, First Amendment, Free Speech, SLAPP, and Uncategorized.