Feb. 8, 2023
The New York Times is locked in courtroom battle with Sarah Palin. It might be framed as the titanic clash between the newspaper of record and the Alaskan Russia watchdog. At stake is
a bedrock foundation for the First Amendment, through the landmark 1964 case of NYT v. Sullivan.
The Times appears to be caught between the proverbial rock and a hard place.
It can lose the case, with Palin conceivably being awarded millions in punitive damages.
It can win, in which case Palin will appeal all the way to a salivating Supreme Court, risking the rarified preferred position the press has held since 1964.
I offer an unorthodox third option. From where I sit in the city of the 1919 Chicago Black Sox scandal, I’m rooting for the New York Times to throw the case. Unheard of, so hear me out.
I can find no mention in the press or public record of an attempt to settle the case as the customary way out for both sides. Maybe it’s out there, but if not, it’s not unusual. Settlement negotiations tend to be closely held secrets from the public and from the jury.
It’s possible Palin has offered to settle. I doubt it. She’s crusading for the political right that understandably knows a windfall when it drops not far from the fake news tree. The Times may have, and certainly should have, tried to settle. Possibly blocking the way, though, are the paper’s hubristic century-old memory that its publisher chided the paper’s lawyer “to never settle a libel lawsuit to save a little money” entrenched by the paper’s claim to an uninterrupted 50-year-old streak of libel wins. In any event, had the Times tried to settle, there isn’t a chance in this hellish case that Palin would have agreed.
What’s left? Throw the case. That’s not easy. As the Wicked Witch of the West said in planning how to dispense with Dorothy to capture the ruby slippers: “These things must be done delicately.” Here’s why.
On a good day, if there were such a thing with this Trump-infused Supreme Court, I’d worry about the Court’s impartiality in a case featuring an iconic GOP standard bearer vs. the paragon of the ENEMY OF THE PEOPLE!, as Donald Trump has referred to America’s media.
And libel is its own kettle of fish. There are two distinct and overlapping strains of vocal Supreme Court logic on libel that have been floated uncharacteristically from the Court as trial balloons.
In a case from 2019 in which a rape victim had accused Bill Cosby’s attorney of defaming her, Justice Clarence Thomas concurred with the Court’s decision to not take the case. He chose to elaborate. Classifying the rape victim as a “limited purpose public figure” needing to prove by clear and convincing evidence, like public officials must, that Cosby’s lawyer had acted with reckless disregard was not, according to Thomas, grounded in the original meaning of the 1st Amendment.
Thomas, who has become the Court’s most unrepentant cherry picker of strict construction obstructionism, sees the seminal 1964 case of NYT v. Sullivan and the Court’s decisions extending it as “policy-driven decisions masquerading as constitutional law.” In his concurrence, Thomas listed a carefully selected catalogue of the nation’s years of historical antecedents. They left him unconvinced that the 1st and 14th Amendments should be interpreted to mean that Congress and the states shall make no laws abridging freedom of the press even if those laws allow public officials to financially shut down the press so the officials can continue to use their badges of honored service to beat the dickens out of protesters in the South. As Thomas wrote, “We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified.”
Justice Neil Gorsuch released his own libel trial balloon last July in a case in which the son of a former Albanian prime minister was implicated in a U.S. defense contract to supply ammunition to the Afghan military by procuring weapons from stockpiles in Albania. The case was dismissed because the lower courts concluded that such a public figure couldn’t possibly prove that the book publisher had acted with reckless disregard by contriving to manufacture the truth.
Gorsuch’s reservations about NYT v. Sullivan differ from Thomas’. Gorsuch’s stem from the out of control evolution of media in a digital age. "Not only has the doctrine evolved into a subsidy for published falsehoods on a scale no one could have foreseen, it has come to leave far more people without redress than anyone could have predicted," Gorsuch wrote. Now, "virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world." The Supreme Court didn’t take that libel case either.
Thomas and Gorsuch have thrown down the gauntlet. The Court is primed to take on the New York Times and to drag down with it the all too often overlooked role of an indispensable free press in a country teetering on the brink of a frayed democracy if not autocracy. A recent empirical study of “The U.S. Supreme Court's Characterizations of the Press” by a University of Utah professor found “a substantial correlation between ideology and the Justices’ attitudes toward the press” that “reveal troubling trends at the Court, with widespread implications for any discussion of contemporary press freedom.”
Here’s why Palin v. NYT is just the right trojan horse at the right’s time.
NYT v. Sullivan cannot be appreciated without some recall of the Civil Rights movement in the South in the ‘60s. In taking laws into their own hands, lawmakers from legislators to sheriffs imposed their will on blacks and on protesters. The whole world was watching thanks to the free press, local and national, that is until lawmakers filed smothering libel suits. To win, the lawmakers needed to prove to a local jury only that something reported was false even in the most negligible way, like reporting that protesters marching to the state capitol were singing My Country Tis of Thee, not the Star Spangled Banner, and that the stories referring to the lawmakers put them in a worse light to some people after reading the stories. That’s it. Not even financial damages were needed. That’s what state laws could and did allow until the Supreme Court began “meddling in this area” in 1964, nearly 175 years after the First Amendment was ratified,” as Justice Thomas wrote.
In contrast to Thomas’ predetermined reading of history, the Court’s unanimous opinion in Sullivan, which was issued when Thomas was 16 years old, addressed posterity in framing the case “against the background of 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.
In concurring, Justice William O’ Douglas, often the ornery conscience of the Court in such matters, combined with Justice Hugo Black, a former member of the Ku Klux Klan, in writing:
“This Nation, I suspect, can live in peace without libel suits based on public discussions of public affairs and public officials. But I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials.”
”It was a majestic opinion,’ summarized Floyd Abrams, a prominent 1st Amendment lawyer who’s represented the Times. “It had a command of American history that is rare in a judicial opinion. It reminded us of how young we are as a country.”
NYT v. Sullivan has often been regarded as one of the most enduring exports of American democracy.
Or you can value Thomas’ veneration for justice and American history.
A critical and at the time heralded historical misdirection came later in the ‘60s and in the ‘70s when a series of Supreme Court decisions extended NYT v. Sullivan’s carefully circumscribed applicability of the protective 1st Amendment freedom that liberated breathing room to cover the actions and misdeeds of “public officials. The opinions applied the same rigorous “reckless disregard for truth or falsity” standard to the bottomless public arena that tracks in “public figures” whose special sauce is that they can commandeer microphones and sound systems that resemble the social media influencers of today.
Trouble is that has allowed all breeds of media, often as crude as the self-serving celebs they cover, to have a preferred, almost exalted, position when they cover the territory with bravado and one-upmanship that relegates truth to a commodity indistinguishable from clickbait or promotional loss leaders. That is more to Judge Gorsuch’s point and it’s a nettlesome one at that.
Once the province of vigilant watchdogs of governments, public officials and democracy devolved into the hobnobbers with public figures and into the makers and breakers of celebrities, it’s a slithery slope to get to Donald Trump, the real estate mogul, but not yet ignominious public official. No wonder that the pre-public official Trump emerged from his real estate-TV Apprenticeship period into the political arena already committed publicly to eviscerating the 1st Amendment. At about that time, public figure and Trump’s wife Melania pursued a lucratively successful series of libel suits that stemmed from stories brazenly reporting of rumors of her involvement in a high end escort service. She reaped a huge, though undisclosed, settlement, because the lead case targeted the British press, which is unprotected by NYT v. Sullivan and the 1st Amendment.
Just as Trump has set the table for the public to distrust election results and fake news, he descended the escalator into electoral politics in June 2015 toting a resolute agenda to undermine NYT v. Sullivan, the 1st Amendment and libel. “We’re going to open up those libel laws,” Trump pledged on the campaign trail. “So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”
******
So here we are now back in Manhattan in week 2 of Palin v. NYT. If you were to follow the American press and its naïve, complacent, even blind, over-reliance on the onerous reckless disregard standard appended to the 1st Amendment, you might think, I believe potentially disastrously, that Palin and her lawyers’ admission to an “uphill fight,” as the Politico headline read last week, means that the Times has the upper hand as is typical in libel cases. Or as the Times’ own coverage reported Jan. 23, “Though defenders of broad First Amendment protections for the media have said Ms. Palin’s evidence is weak, they also acknowledged that a jury could decide otherwise.”
The basis for the complacency has been pierced. More than five years ago, in Aug. 2017, the trial judge in the case dismissed Palin’s suit, ruling that under no set of facts could Palin meet the high burden of proving by clear and convincing evidence that the Times had published the facts in the editorial with reckless disregard for their truth. Palin appealed. It took two years for the appeals court in 2019 to reverse and send the case back to the trial court where it is now.
In issuing its opinion, the unanimous appeals panel provided an unusual sneak peek at some of the evidence.
The dispute is over an editorial published by the Times on June 14, 2017, the same day that a gunman opened fire at a baseball field in Virginia where Republican congressmen were practicing. GOP Congressman Steve Scalise of Louisiana was among those injured. The editorial, headlined “America’s Lethal Politics,” asked whether the Virginia shooting was evidence of how vicious American politics had become. It recounted another incident from six years earlier when in 2011 Democratic Congresswoman Gabby Gifford of Arizona suffered severe brain damage and partial paralysis during an attempted assassination in which six others were killed by the gunman.
The editorial page editor assigned the editorial to an established editorial page writer. After the draft was written, it went back to the editorial page editor who inserted a reference dating back to the 2011 massacre that added the context that the earlier shooting occurred after Palin’s fundraising political action committee had circulated a map putting Gifford and 19 other Democrats under “stylized cross hairs.”
The revised editorial made a distinction between the two shootings. In the earlier shooting, “the link to political incitement was clear.” No one reviewed the editorial after the revisions and it was published.
Almost immediately that day it became apparent that the gunman in 2011 had no access to the Palin committee map putting Gifford and 19 other Democrats under “stylized cross hairs.” Therefore there was no “link to political incitement.” Moreover, the claim of a link to political incitement had been debunked years earlier.
The Times changed the editorial text online by deleting “the link to political incitement was clear” and toning it down to: “But no connection” to the shooting and Palin’s PAC’s map “was ever established.”
By morning with a firestorm gathering even within the paper, The Times published two separate corrections.
From basically those facts, the trial judge had concluded that no matter what other facts might be introduced at trial, the actions of the Times and its staffers would at most amount to an unintentional screw up of a severity rising merely to negligence, as the law calls it, insufficient for the higher threshold of “reckless disregard” for arriving at the truth.
The appeals court must have used a more refined lens than the trial judge. Among the facts the panel summoned in sending the case back for trial, it noted that a jury might see “reckless disregard,” knowing that:
1. The editorial page editor who single-handedly inserted the revisions that brought Palin into the story and linked her committee to political incitement, was James Bennet.
2. Bennet had previously been editor-in-chief at The Atlantic during which time the magazine had published a number of stories about the Gabby Gifford shooting, including one entitled, “Ten Days That Defined 2011,” which read in part, “the bad thing to come out of this already terrible story was a round of blame hurling, with people rushing to point at Sarah Palin’s infamous target map.” That story clarified that the gunman was clinically insane and the atrocity was “not really about politics at all.”
3. Bennet has staked out the position under oath that he has no recollection of the content of the story in The Atlantic. The appeals panel considered two options a jury might conclude from that; either he was reckless when he published the editorial without reacquainting himself with the contrary articles published in The Atlantic six years earlier, or he’s lying.
4. Bennet resigned from the Times in June 2020 under a cloud because of “a significant breakdown in our editing processes” relating to the publication of an op-ed entitled “Send In the Troops” by a GOP senator from Arkansas who was advocating for a military response to civic unrest.
5. Bennet’s brother, Michael, has served as a Democratic Senator from Colorado since 2009 and is a strong proponent of gun reform legislation. The appeals panel wrote that the Bennet brothers are both “outspoken advocate[s] for gun control” and raised the possibility that a jury might find that Bennet had “reason to be personally hostile toward Palin, her political party, and her pro-gun stance.
6. The appeals panel gave weight to the Times’ argument that the paper couldn’t have acted with reckless disregard for the story’s truth in that it published corrections the day after the editorial ran. Yet the panel concluded that it’s also “plausible that the correction was issued after a calculus that standing by the editorial was not worth the cost of the public backlash.”
7. Part of the backlash came from The Times itself. One of the paper’s opinion columnists, Ross Douthat, emailed Bennet at about 10:30 the night story posted: “I would be remiss if I didn’t express my bafflement at the editorial we just ran…There was not, and continues to be so far as I can tell, no evidence that (the gunman) was incited by Sarah Palin or anyone else, given his extreme mental illness and lack of any tangential connection to that crosshair map.” Bennet responded about a half-hour later that he’d look into it in the morning.
In case you’re curious as I was, the three-judge panel was composed of two judges who were appointed to the federal bench by Ronald Reagan and one by Barack Obama. The trial judge was appointed by Bill Clinton.
*****
The trial is in New York City. The New York Times has home field advantage over Palin. If you are of the left, as New York culture is, you may regard Palin as a joke, the butt of spot-on Saturday Night Live skits by Tina Fey, the albatross running mate around the neck of John McCain’s 2008 presidential bid, and as having finally gone away as Paul Waldman wrote recently in The American Prospect.
Palin’s legal team are no one’s fools. To get the multi-million dollar jury verdict they covet, they
need to neutralize the home field advantage. The “uphill fight” they cop to publicly and in front
of the jury is scripted in bold letters suitable for a Times Square marquee: Super soaker celeb
vs. big bad media.
Some of you may recall a similar headliner event, Hulk Hogan (or should I say alter ego Terry Bollea) v. Gawker, that resulted in a 2016 jury verdict against the media for $115 million in compensatory damages and $25 million more in punitive damages, all for the unauthorized release of a sex tape.
The implicit question for the Palin juror is to whom do they want to teach a lesson? A much
maligned, media-bashed celeb or the big bad media, keeping in mind that since the 2016 Hogan
verdict, Trump and the right wing have fumigated the landscape with toxic fake news mantras so repellent that millions of people won’t touch the stuff or their information, vaccines, masks, or climate changes.
The jury is obliged to color within the lines. It must conclude by clear and convincing evidence that the Times and its employees acted with “reckless disregard” for whether the facts included in the editorial were true when they were published. The states of mind of the players matter.
When I teach libel law, I tend to deploy a gutteral device to get the point across to avoid, for instance, the diametrical interpretations used in this case by the trial judge and the ones enumerated by the three-judge appeals panel.
Being Jack, I use the “Jack spit test.” If in publishing a story, you don’t really "give Jack spit" if the facts are true or false, then you’re acting with reckless disregard for their truth. Then for effect, I turn to the right (my favored direction) and let out a spitless chock-tooey.
That will be the jury’s charge. Under the facts as I fear them now, with Bennet now testifying, I think the odds for journalism are painfully prohibitive. If the jury were to side with the Times, Palin will appeal and appeal again until the Supreme Court gets its crack at deciding that such jury instructions on reckless disregard should no longer be given involving public figures, maybe even public officials. The Court would then likely return the case to be retried, using a jury instruction more favorable to Palin and in the future, less favorable to well-meaning and industrious new outlets.
With the facts as treacherous for the Times as they are in this case anyway, I counsel: Throw the case, if your liability insurance company lets you. You still have time to protect your flanks as you play out your trial strategy. Keep Palin from being portrayed either so sympathetically that she emerges as a victim indefensible to the rapacious powers of the big, bad media or villainously that you make her out to be a gold digger who needs this to revive her political career. As for how to present the Times, of course be remorseful but don’t go so far as to dig in your editorial heels that it was obviously an honest mistake because The New York Times never has libeled anyone and never will.
If in the process, with James Bennet’s almost singular culpability for the edits in the Palin piece, it may appear that you’re throwing a fellow journalist under the bus. That’s always unseemly. If it comes to pass in throwing the case, I suggest a modest re-calibration of the saying that will reveal an ethical imperative. It’s revoking the license of a runaway bus driver. Ralph Cramden would approve.
#####
Jack Doppelt is an emeritus professor of journalism at Northwestern University, who regularly taught Media Law & Ethics in which he characterized NYT v. Sullivan as one of the two most seminal cases for journalists to learn. He is a perennial subscriber to, and trusting reader of, the New York Times.
