A compelling lesson in libel law
By Carolyn Schurr Levin
Sarah Palin’s libel lawsuit against The New York Times is not a new case. It was initially filed on June 26, 2017. But, as the case continues to wind its way through the courts, it offers a compelling lesson in libel law.
Here’s what it’s all about: In 2010, former Alaska Governor and Vice-Presidential candidate Sarah Palin’s political action committee, SarahPAC, published an online map with crosshairs over congressional districts of some Democrats, including U.S. Representative Gabrielle Giffords. In January 2011, a gunman opened fire at a political event in Tucson, Arizona, killing six and wounding 13, including Giffords. The gunman who shot Giffords pled guilty; there was no evidence that he had seen the SarahPAC map. Several years later, another U.S. Representative was injured when a gunman fired at a congressional baseball practice in Virginia. The night of that attack, which injured U.S. Representative Steve Scalise, the New York Times published an editorial on its website titled “America’s Lethal Politics,” tying the two shootings to the SarahPAC map. The June 14, 2017 New York Times editorial asked:
“Was this attack evidence of how vicious American politics has become? Probably. 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.
Some New York Times readers challenged the editorial’s assertion that the map constituted “political incitement” and that there was a link between the map and the Giffords shooting. The New York Times promptly removed those references from the online editorial, and issued corrections and an apology, saying there was no link between political rhetoric and the shooting. The New York Times Opinion Twitter account, @nytopinion, also sent out the correction the next day, on June 15, 2017: “We’re sorry about this and we appreciate that our readers called us on the mistake. We’ve corrected the editorial.”
Palin did not contact the New York Times to complain about the editorial. Instead, 12 days after the editorial was published, she filed a defamation lawsuit against the New York Times in federal court, claiming that the editorial had wrongfully linked her to the 2011 mass shooting, and that the New York Times had connected her map to the shooting despite knowing that it was false. She wrote in her court filing that when the New York Times published the editorial, “it knew that there was no link or connection. . .between Mrs. Palin’s political activities and Loughner’s 2011 shooting.” By doing so, she wrote, the New York Times “implicitly attacked the conservative policies Mrs. Palin promotes and drove its digital advertising revenues at Mrs. Palin’s expense.”
Defamation is an area of law that allows an individual whose reputation is harmed by false statements of fact to seek a remedy against the offending parties in a civil lawsuit. “The hallmark of a defamation claim is reputational harm.” (Freedom Forum Institute)
It is difficult for a public figure or a public official (which it seems clear Palin is) to win a libel lawsuit in the U.S. She must prove that the publisher made the statements with actual malice – either knowing the statements were false or with reckless disregard for whether they were true or false, the longstanding standard established by the U.S. Supreme Court in 1964 in the case of New York Times v. Sullivan.
Libel suits can and often do drag on for years, costing both time and money to defend. Palin v. New York Times is a prime example. The progress of this case is quite complicated. The New York Times made a motion to dismiss the lawsuit in July 2017, shortly after Palin filed it. The New York Times argued that there was no actual malice and also that the editorial in question was opinion not fact (only a statement of fact can be the basis for a libel claim). The federal district court judge held an unusual evidentiary hearing to decide that motion, and the author of the editorial in question was called to testify. James Bennet, the New York Times editorial page editor at the Times and the author of the editorial, testified that his reference to Palin in the editorial was intended to make a rhetorical point about the present atmosphere of political anger.
In August 2017, the federal district judge agreed with the New York Times that there was no actual malice, and dismissed Palin’s case. U.S. District Court Judge Jed Rakoff began his decision by saying, “Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States. In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others. . .But if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously.” Judge Rakoff found that Palin did not have such a basis.
Palin asked Judge Rakoff to reconsider his decision, but he declined to do so, so Palin appealed Judge Rakoff’s dismissal of her libel case. Two years after the case was dismissed, on August 6, 2019, a three-judge panel of the federal appeals court reversed the dismissal on procedural grounds and reinstated the lawsuit. The appeals court held that Judge Rakoff had dismissed the case too quickly, that the hearing at which Bennet testified was not the proper procedure for a motion to dismiss, and that Palin had plausibly stated a claim for defamation and so is entitled to proceed with her case.
The appeals court thus sent the case back to the lower court to proceed to the discovery phase of the lawsuit and the taking of evidence between the parties. The appeals court declined to issue a decision on the ultimate libel question until all of the evidence has been considered.
But before that discovery process even began, on August 20, 2019, the New York Times filed a petition to the appellate court for a rehearing, arguing that the appellate decision reinstating the case “inevitably will inhibit the type of core political speech that invariably follows mass shootings.”
Although parties file petitions for rehearing in many cases, few are granted. To grant this type of petition, the federal appeals court would have had to find that it misapprehended the actual malice standard in libel cases, as the New York Times argued, or that its August 2019 decision did not follow settled law about opinion in libel cases. On November 7, 2019, the appeals court denied the petition for rehearing, without further explanation.
Several media outlets and organizations, including the Associated Press, Dow Jones, Bloomberg, HBO, BuzzFeed, Gannett, CNN, Hearst, the Washington Post, and Reporters Committee for Freedom of the Press, had filed a “friend of court” brief in support of the New York Times’ request for a rehearing by the appeals court. Those “friends,” who described themselves in their court papers as “dedicated to and dependent upon the First Amendment,” argued that the appellate court decision in the Palin case was inconsistent with the standards established by the U.S. Supreme Court in the NY Times v. Sullivan case. At this time, since the rehearing was just denied, it is unclear whether the New York Times will try to appeal to the U.S. Supreme Court, or whether the case will go back to the district court for discovery, and ultimately a trial.
Where does this more than two year back and forth, with the dismissal and then the reversal of the dismissal of the Palin libel case, leave us? The case offers many takeaways for student journalists learning best practices in minimizing libel risks and avoiding libel lawsuits.
The first takeaway is that it is not only investigative news stories that can lead to lawsuits. Editorials (such as in Palin v. New York Times), opinion columns, tweets – virtually any communication – can be the basis of a libel case.
The second takeaway is that, despite the well-established, and very difficult to prove, legal actual malice standard, public officials – and celebrities and other public figures – do sue for libel.
The third takeaway is that student journalists should be trained in the basics of libel law so that practices can be implemented and efforts can be taken to minimize legal risks. Of course, there is no guarantee against being sued, but thorough and careful reporting and skeptical editing can minimize those risks.
The fourth takeaway is that all content should be thoroughly reviewed – by copyeditors, section editors, editors-in-chief – before posting or publishing. Don’t allow the desire to post online quickly hamper the meticulous review of content.
The fifth takeaway is that mistakes should be promptly corrected. A correction is not a panacea against a lawsuit (Palin sued the New York Times despite its prompt correction), but it is nevertheless extremely important and can be seen as mitigating evidence in court. If you get it wrong, admit the error and apologize.
And, if in doubt, seek legal guidance, either through the Student Press Law Center, your local press association, or other available legal resources. Libel is complex and dense. The Palin v. New York Times lawsuit is far from over, two years later.
Carolyn Schurr Levin is a media and First Amendment attorney affiliated with the New York City Law firm of Miller Korzenik Sommers Rayman LLP. She was the Vice President and General Counsel of Newsday, Vice President and General Counsel of Ziff Davis Media, and Media Law Adviser for the School of Journalism at Stony Brook University. She has taught media law at Baruch College, Stony Brook University, Long Island University, and Pace University. From 2010-2019, she was the faculty adviser for the Pioneer, the student newspaper at Long Island University, during which time the Pioneer won 28 awards.