A high-profile lawsuit is about to add much to the conversation about media integrity, as former vice presidential candidate Sarah Palin takes on the New York Times. Palin is suing The Times for defamation after the newspaper published an editorial suggesting her actions incited the 2011 shooting of Arizona Democrat Gabby Giffords.
The link between Palin and the Giffords shooting has been soundly discredited. Even The Times had previously rejected such an idea. As Palin’s lawyers state in a complaint filed Tuesday in the federal court for New York’s Southern District, “At the time of publication, The Times knew and had published pieces acknowledging that there was no connection between Mrs. Palin and Loughner’s 2011 shooting.” Perhaps, the paper’s editors assumed that everyone else had forgotten about the real background and motivations that lead up to the 2011 attack, which claimed the lives of six people. The paper quickly faced a deluge of indignation over its decision – on the very day that Republican Rep. Steve Scalise was shot – to rehash this accusation. Within two days, The Times issued a correction to its editorial which acknowledged that Palin bore no responsibility for the actions of Jared Loughner. For Palin, however, that was not satisfactory; no apology accompanied the correction and the section of the editorial that revisits Palin’s alleged culpability was left in place.
Successful legal action for defamation – a somewhat general term which includes slander and libel – is predicated on being able to prove that the accused knowingly said, or wrote, something false and harmful. Public figures have an additional burden, however. In 1964 the Supreme Court unanimously ruled in New York Times Co. v. Sullivan, that for public officials the defamation standard included acting with “actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity).” Intent – both of the public figure’s actions and of the accuser’s interpretation of those actions, is a principle factor. The right to free speech figures prominently, here; one has the right to insult another deliberately. One is also protected from legal action that arises from a genuine misunderstanding.
The key factors in any public figure defamation lawsuit are intent and malice; were the statements of the accused, whether slanderous (spoken) or libelous (written), intended to cause harm to another’s reputation? Was malice a part of the defendant’s thinking and action?
The editorial board of the New York Times – being the entity credited for the opinion at the center of the lawsuit – might also be classed as a ‘public figure’, since, as the complaint says, it “represents the ‘voice’ of The Times” and made its false claim “to millions of people...” The established fact that a third party – the “millions of people” – had read their allegation goes against them, in this case. One is completely free to lie about someone else, providing that no-one hears that lie.
Ultimately, the best defense the newspaper might have is a purely passive one; that Sarah Palin’s legal team will simply fall short of proving malicious intent on the part of the editors.
The facts appear to stack up fairly solidly against The Times, however. Palin’s complete lack of responsibility for the Giffords shooting had already been acknowledged, even by The Times itself. Given that the paper issued its correction only after two days of criticism, it can be argued that the editors would not have corrected the piece at all – or made any attempt to retract their allegation – had they not been called out for their apparent dishonesty. Additionally, they printed no apology to Palin and did not, in fact, completely retract the allegation; the circumstances of Palin’s supposed incitement of the shooting remained in the editorial, with one additional line: “But in that case no connection to the shooting was ever established.” The correction was printed as a footnote. Was the editors’ intent to leave the accusation intact, making the assumption that many readers might not even read the correction below the editorial? It could be argued that the intent was to leave the allegation in place, with a mere caveat.
It seems that the paper would most effectively have forestalled legal action by simply pulling the whole editorial and printing a direct apology to the former Alaska governor. It is almost as if the editors’ message is ‘we’re sorry that we made an allegation that has never been proven, but here are the details, in any case; make up your own mind.’ In this way, they are – one could argue – not retracting the allegation, at all.
Sarah Palin’s complaint demands a jury trial. Clearly, her own intent is to create a public spectacle and give the Times no option to offer a settlement. The outcome of such a trial is not easy to predict, but the issue of integrity and honesty within the establishment media warrants much public discourse. The freedom of the press is vital to American life and to the business of politics, but no right comes without responsibility. The American people also have a right; to expect a fair and, above all, honest press.
