Updated January 24, 2022 at 2:35 PM ET
Sarah Palin's defamation lawsuit against The New York Times, scheduled to open Monday, was pushed back until at least Feb. 3 after her attorneys informed the presiding judge that she tested positive for COVID-19.
U.S. District Court Judge Jed Rakoff informed those in attendance Monday morning that the Republican former governor and vice presidential candidate had tested positive.
"She is, of course, not vaccinated," Rakoff said. Late last year, Palin said she would be vaccinated against COVID-19 only "over my dead body."
A second test after an hour's recess offered another positive result Monday morning, persuading Rakoff to put the trial's start off despite concerns from the newspaper's legal teams that it was one more delay in a case that was filed more than four years ago.
Before doing so, however, Rakoff issued a few rulings that seemed to favor The Times. He disqualified an expert witness Palin's attorneys had proposed to call and said jurors would not hear about the details under which former Times editorial page editor James Bennet was forced to leave. Bennet departed under duress in 2020, several years after the editorial that prompted this suit.
As Palin's political career first unfurled on the national scene in 2008, she frequently criticized what she called the "lamestream media," saying it was unfair to her and took pains to cast her in the worst possible light.
Once the trial starts back up, Palin will get her day in court against The Times, one of the most august titles in American journalism. The case pits First Amendment protections for robust free speech against the right of someone not to be defamed, that is, the right not to have damaging and untrue claims made publicly against her, even if she's a prominent public figure. It is also likely to shine an unwanted light into the behavior of the nation's leading newspaper when it's under deadline pressure.
"It's going to be ugly," says Lucy Dalglish, a First Amendment attorney who is dean of the University of Maryland Merrill College of Journalism. If you're a news outlet, Dalglish says, "you really never want a libel case to go to trial. It's hard to win. It can be done, but they're hard to win."
There is no argument or ambiguity here about the facts: What the Times originally published was wrong.
The case centers on a June 2017 editorial that wrongly asserted a link between an ad made by Palin's political action committee six years earlier and a 2011 mass shooting in Arizona, in which six people were killed and several others wounded, including Democratic Congresswoman Gabby Giffords.
Editorial writer Elizabeth Williamson drafted the piece the day of another mass shooting, this time at a congressional baseball practice outside Washington, D.C. A man who was a supporter of liberal causes seriously wounded U.S. Rep. Steve Scalise, a top Republican from Louisiana, and injured five others.
Opinion editor added passages to editorial
Williamson's boss, then-Times editorial page editor James Bennet, sought a more sweeping editorial, one that argued for greater gun control laws and against the use of heated political rhetoric and incitement, as he explained in a deposition later on.
So Bennet added a passage to the editorial saying that "the link to political incitement was clear" between Palin's ads and the shooting in Tucson, Ariz. In fact, an ABC News story that the online version of the Times editorial linked to stated there was no proof that the gunman had seen the material from Palin's political action committee.
Additionally, the editorial mischaracterized the Palin committee's ad. The graphic showed crosshairs targeting 20 congressional districts, represented by Democrats, including Giffords' in Arizona, on a map of the U.S. But it did not place crosshairs over images of the lawmakers themselves, as the Times originally suggested.
The newspaper posted the editorial, titled "America's Lethal Politics," the night of the Scalise shooting. Social media erupted. A columnist for the Times, Ross Douthat, alerted Bennet to the errors; Bennet texted Williamson, "The right is coming after us over the Giffords comparison. Do we have it right?" Both the writer and the editor took responsibility in a text exchange the next morning. Bennet wrote, "I feel lousy about this one — I just moved too fast. I'm sorry."
The Times revised its stories, posted corrections and tweeted an austere apology the next day that did not mention Palin by name. Her attorneys called the tweets "half-hearted." Days later, Palin filed suit.
Despite Times' mistakes, Palin has a high bar to meet
"It's going to be great courtroom theater," says William Grueskin, a former top editor at the The Wall Street Journal and Bloomberg News who has written about the case for the Columbia Journalism Review. "You're going to have Sarah Palin up there on the stand. You're going to have some of the top people at the Times -- at least of the opinion section. I don't see how that can fail to be interesting."
Palin's attorneys have alleged that Bennet had demonstrated a desire to attack Palin — pointing to posts on The Atlantic's site from years earlier, when Bennet was editor, by blogger Andrew Sullivan questioning details about the birth of her youngest child. Grueskin says he did not see anything in the court file to support that claim, noting Bennet's swift public correction and private contrition.
Yet, Grueskin, now on the faculty of Columbia University's journalism school, notes that the idea Palin had inspired the shooter in Arizona had been examined and discounted years earlier — including in the pages of the Times.
To prevail in court, Palin must convince the jury that Bennet and the Times acted with actual malice — that is, they knew what they wrote in the editorial was false or that they recklessly disregarded whether the claims were true or not. That standard emerged from a landmark 1964 Supreme Court ruling, also involving The New York Times.
"In our view, this was an honest mistake," David McCraw, the Times' deputy general counsel, told The Washington Post's Erik Wemple in 2019. "It was not an exhibit of actual malice."
Typically, misstatements about a well-known person, especially someone holding senior political office, are given greater protection under the law than those about private individuals. And the trial judge, Jed Rakoff, initially dismissed Palin's suit, saying she hadn't adequately alleged a cause of action. She appealed, and the appellate court sent it back to him to review once more. Under the new instructions, the case moved forward.
"Ordinarily, it's very tough to libel a public official or a public figure," Dalglish says. "When you're dealing with a libel case that involves something that is supposed to be an opinion piece, things can tend to get messy."
Proving harm vs. sending a message
Attorneys for the Times had sought to bar any discussion in court of the other controversies that surrounded Bennet in his four years as editorial page editor.
In his relatively brief tenure, Bennet was slammed by critics on the left and the right for his choice of writers to hire and pieces to publish as he sought to expand the range of voices in the paper's largely liberal pages. Bennet left in June 2020 after acknowledging he had failed to read an op-ed by Arkansas Republican Sen. Tom Cotton before publication that sparked an outcry inside the paper's newsroom. Cotton had called on then-President Donald Trump to use the military to put down social justice protests that got out of hand. Publisher A.G. Sulzberger noted it was one of several controversies under Bennet.
After leaving public office, Palin has stayed in the public eye, on television reality shows as well as serving as a Fox News commentator. The network hired her twice but parted ways with Palin in 2015 — years before the New York Times editorial was published.
Her attorneys are seeking to preclude any talk of her 2020 appearance on the Fox TV show The Masked Singer, which included a segment in which she rapped. (Audience members audibly gasped when Palin pulled the head off her colorful furry bear costume to reveal her identity.)
The former governor is asking for actual and punitive damages. But she may find it tough to prove actual harm or any specific lost revenues due to the editorial. Her lawyers have called on the court to deliver a message to the Times and to journalists that they cannot unfairly malign people, even if they are public figures.
It's a message that could find a warm reception in at least one wing of the nation's highest court: U.S. Supreme Court Justice Clarence Thomas has indicated he wants to toss the 1964 ruling setting a high bar for proving defamation claims. Justice Neil Gorsuch has argued in favor of at minimum revisiting the ruling.
"This case could add more fuel for that fire," Grueskin says.
Copyright 2023 NPR. To see more, visit https://www.npr.org.
