Sarah Palin’s lawsuit

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Dr. Malcolm Cross

Sarah Palin is suing the New York Times for libel.  She’ll probably lose.  But in doing so, she’ll expose the Times to embarrassment and ridicule, and may even offer a valuable lesson for the news media to follow.

At issue is whether the New York Times libeled Palin in an editorial published on June 14, 2017, decrying gun violence in general and especially the attempt by a Bernie Sanders supporter, one James T. Hodgekinson, to shoot and kill Republican congressmen as they were practicing for a softball game (Hodgekinson was shot and killed by Capitol Hill police).  The passages at which the GOP’s 2008 vice presidential nominee is taking offense said:

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 nine-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.

Conservatives and right-wing media were quick on Wednesday to demand forceful condemnation of hate speech and crimes by anti-Trump liberals. They’re right. Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask of the right.

No responsible news outlet has ever tried to link Bernie Sanders to Hodgekinson, and with good reason:  No evidence of a link has ever been found.  Sanders has no record of incitement to violence.  But the rush of the media to exonerate Sanders of the Hodgekinson shooting stands in sharp contrast to the willingness of the Times to try to link Palin to the Giffords shooting despite a similar lack of evidence of a causal link.

Nonetheless, legal analysts predict that Palin’s trial, which begins this week with jury selection, will probably end with a victory for the Times.  They note that the Supreme Court has ruled that for a public figure to win a libel suit he or she must prove that the news outlet was motivated either by actual malice or by a complete disregard for the truth.  This standard creates an almost insurmountable burden for a plaintiff, perhaps even for a plaintiff accused of murder.  This is necessary, says the Supreme Court, to protect the news media from lawsuits which might otherwise have a chilling effect on media efforts to keep the public well informed of current events.  Moreover, in this particular case, analysts note that while the Times has not explicitly apologized to Palin by name, it has nonetheless admitted error in the case, acknowledging no connection between her political committee’s actions and Loughner’s murder spree, and Palin has suffered no discernable harm to either her reputation or her finances. 

In fact, while Palin will probably not emerge as the victor of record in this case, she will probably be able to enjoy some satisfaction from the proceedings anyway.  Already, news accounts of the upcoming case are reporting the Times’s “error,” and her exoneration.  Nobody’s actually defending the Times.  To the contrary, they’re predicting that the examination of the process by which it made the “error” will expose the Times to considerable condemnation for its sloppy (to put it mildly) rush to falsely blame Palin for something she never did.

Indeed, straight reporting of the story will no doubt feed the right’s narrative that the media are irredeemably biased, as did “reporting” by ABC News’s Brian Ross who tried to link the Tea Party to a mass shooting in Aurora Colorado in 2012 (the shooter had the same name as a Tea Party official; reporting by other news outlets showed that the shooter and the Tea Partier were two different people).  But the right should be careful not to take too much satisfaction in the upcoming humiliation of the New York Times.  Various voting machine companies are suing, or have threatened to sue, Fox News, Newsmax, and One America News for airing stories linking the companies to alleged election fraud.  Should the Times actually lose is its case, the conservative media may be next.  In any event, the dissection of the Times may give a foretaste of what’s to come for the conservative media as well.

Perhaps under the circumstances the best lesson for the media to learn is that despite Supreme Court protections, it’s best to get the facts right the first time.  The First Amendment as interpreted by the Supreme Court may protect the news media from libel judgments.  But it won’t protect them from the condemnation and ridicule which their “mistakes” elicit.  After all, the same First Amendment which protects the media protects their critics as well.


Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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