The outcome of her defamation against the paper trial hangs in large part on each side's ability to distance itself from its own history
I was intrigued this week by the ongoing trial in a federal court in New York in which former Alaska governor Sarah Palin is suing the New York Times for defamation of character. Her suit alleges that the newspaper defamed her in a 2017 editorial that, in its first version, tried to connect a mass shooting at a Virginia park on the same day with a political group connected to Ms. Palin.
The original editorial, entitled “America’s Lethal Politics,” suggested that another mass shooter was driven to murder by the PAC’s actions back in 2011, when Jared Loughner shot into an Arizona crowd. That shooting left six people dead and Congresswoman Gabrielle Giffords physically impaired. The editorial that appeared in 2017 argued that “the link to political incitement was clear” between the 2011 Giffords’ shooting, citing a map circulated by Ms. Palin’s political action committee.
The graphic showed 20 congressional districts, including the one held by Ms. Giffords, that Republicans hoped to win, and they were marked by cross-hairs, which the Times tried to connect to the Virginia shooting. In this passage, the paper then made its case against Palin’s group:
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.
Conservative media reacted strongly against the Times when the piece came out, and the paper began to amend its position the very next day, when they had to admit that they really had no evidence linking Palin’s PAC to Loughner or his crime. Crucially, their corrections did not include an apology to Palin, and she filed suit two weeks later. The Times, which has not lost a libel case on American soil in 50 years, is now locked in a legal battle whose outcome is not clear. They could win, but a loss could wind up altering what is known as the Sullivan Rule, a 1964 case, again involving the paper, that established broad protections for the press against accusations of libel.
As the case wrapped up this week, the closing arguments made clear the techniques each side is using to try to persuade the jury to their side. The Palin team has tried to paint the Times as a “Goliath,” a powerful liberal media organization that did not care about the damage that its editorial would do to the conservative Palin. As her lawyer argued, the paper continuously advanced a narrative that “demonized the right wing.” What’s more, he said, they are in trouble now because the media organization’s character was one defined by hatred of people like the former governor. “All they had to do was dislike her a little less and we’re not sitting here today,” he said.
The Times’ lawyer tried to persuade jury this case is really about an honest mistake, that there was no larger anti-conservative agenda at work, and that the Times’ “fast and broad” correction is proof of their willingness to amend the record as soon as they knew they had made a mistake. “Freedom of the press and freedom of speech are fragile things,” claimed the paper’s lawyer, adding that holding the press liable for honest mistakes would limit its ability to do its job in a free society.
Ms. Palin has the burden of proof in this trial, and her team must persuade the jury of two important things. First, that the Times acted with malice or “reckless disregard” toward her. Second, that she was harmed by their editorial. Interestingly, it is the second goal that, the trial coverage suggests, has proven the more difficult. In her testimony, Palin tried to paint herself as a normal grandmother living in her small hometown of Wasilla, Alaska. She claimed to feel “powerless” and “mortified” when the editorial appeared, and that it caused her to lose sleep, worried that people would “think less of her.”
Unfortunately for Palin, at least some observers seem to think she did not present a persuasive case that she was damaged. She was not a “normal” grandmother at the time, given her status as a celebrity, and there is no sign that the editorial damaged her reputation with her fans or in any way diminished her lucrative speaking career. In short, it seems that everything that Palin was and had before the piece remained intact despite the Times piece and that she may just be exaggerating her claims of harm done. Indeed, one of Palin’s major persuasion obstacles is her own history and character “brand.” She made her name claiming to be a charismatic and fearless warrior for freedom and conservative values. She bragged about killing bears and claimed that the only thing that stops a “bad man with a nuke” is a “good man with a nuke.” Indeed, perhaps her most famous line is the one where she compared “hockey moms” like herself to pit bulls. With this past character profile in mind, it might be a challenge for the jurors to believe that “it was devastating to read, again, an accusation, a false accusation that I had anything to do with murder” or that she really felt “powerless” against the Times.
On the other hand, Palin’s lawyers are on more solid footing when they try to link the Times with its own liberal history. It will be difficult for a jury to ignore the paper’s past liberal leanings and to accept their claim that there was no agenda against conservatives in their editorial page. Both sides, then, are in some ways trying to walk away from their respective histories in order to persuade the jury, which is what lends this trial an unusual and intriguing twist.
I’ll be watching the results of the trial, which should end this week, to see if Ms. Palin and her team were able to persuade the jury to her side. Libel and defamation trials are by nature about character, and it will be interesting to see how Ms. Palin’s own past and present character — such an important contributor to her power and influence — impact the jury’s ultimate decision.