Win, lose, or draw, congratulations are in order to Governor Sarah Palin in respect of her libel suit against the New York Times. Her claim is being heard in federal court. Testimony — particularly, but not only, from the paper’s erstwhile editorial page editor — is putting into sharp relief the Gray Lady’s arrogance, insipidness, bias, and lack of good faith. Good for the governor. Even if she loses on libel technicalities, she wins.
Mrs. Palin — the Alert Alaskan, as we like to call her — launched her suit against the Times in 2017. Her claim was over an editorial suggesting that an advertisement put out by a Palin political committee and featuring “stylized crosshairs” had a direct role in inciting the shooting that injured Congresswoman Gabrielle Giffords. It was a shocking — reckless — suggestion. The Times, though, tried to hide behind a fading precedent.
The precedent had been handed down by a unanimous Supreme Court in 1964 in a case called Times v. Sullivan. It set a high bar for public figures — like, say, Mrs. Palin — to win a claim that they were libeled. It held that to win a libel case, a public figure would have to prove “actual malice.” What actual malice meant was either lying or acting with reckless disregard for the truth. So the Federal judge, Jed Rakoff, tried to toss Mrs. Palin’s case out of court.
The Second Circuit, however, reversed Judge Rakoff and sent the matter back down to the district court for trial. At some point, Judge Rakoff seems to have gotten the message. He suggested that the behavior of the Times editorial page editor, James Bennet in the event, “could support the inference that he was purposely avoiding the truth.” That is certainly what comes through in Mr. Bennet’s cringeworthy testimony this week.
First, Mr. Bennet offered jurors his own definition of the term “incitement,” Politico reports. Judge Rakoff read aloud what the dictionary says. Yet Mr. Bennet said covering conflict between Israel and Palestinian Arabs led him to believe the term can “basically describe all sorts of communications that teach people to treat each other as enemies.” He tried to palm off on the court the idea that he wasn’t “looking to shift the blame,” only to blame an underling for not catching his own blasted error.
The evening the editorial ran, Mr. Bennet’s colleague, Ross Douthat, expressed his “bafflement” with the reasoning Mr. Bennet had put forward about Mrs. Palin. Mr. Bennet waited until the morning to direct staff to check it out. Mr. Bennet sniffed that it would be “meaningless” were the Times to apologize for every mistake. Had he apologized to Mrs. Palin? “I hope that as a consequence of this process, now I have,” he condescended.
At one point an e-mail was brought in with a misspelling of the word “kerfuffle,” leading Judge Rakoff to quip “the e-mail wasn’t fact-checked.” Laughs rippled in court, though the questions in the trial couldn’t be more serious. It’s one thing to crack wise about a telegram. The Times’ treatment of Mrs. Palin, though, reeks of actual malice and helps explain a collapse in credibility for the paper that boasts “All the News That’s Fit to Print.”
A University of Missouri survey the same year as Mr. Bennet’s editorial noted that the Times’ ranking in a list of trusted news sources had plunged to 19th, way behind, say, the Wall Street Journal. That came despite the Times’ own effort to malign the Journal as likely to lower its standards and “convey misinformation through innuendo” once Rupert Murdoch acquired it. Our instinct is that it’s past time for the principle of Times v. Sullivan to be revised for Palin v. Times.
Image: Governor Palin via AP/John Minchillo.