As it defends itself in a federal courtroom in Manhattan this week against a defamation lawsuit brought by former Alaska Gov. Sarah Palin, here’s the predicament for The New York Times: The facts and the law may be on its side, but it very much appears that the public mood isn’t.
Can the “Paper of Record” and its pricey lawyers convince a jury that the Times’ editorial staff made an “honest mistake” at a moment when most Americans believe the media is fundamentally dishonest?
As the defendant in Sarah Palin v. The New York Times Company—which is scheduled to begin in the U.S. District Court for the Southern District of New York on Feb. 3, delayed for a week because Palin tested positive for COVID-19—the Times doesn’t have to prove anything.
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The burden is on the 2008 Republican vice presidential nominee and her equally expensive attorneys to show by “a preponderance of the evidence” that the Times’ editorial staff deliberately and willfully colored outside the lines. They also have to prove that, as a result, Palin was harmed and should receive monetary damages.
That task is made more difficult by the landmark 1964 Supreme Court decision in the case, The New York Times Company vs Sullivan. The ruling, which is sacred to journalists, makes our profession nearly bulletproof. That’s because it also makes it extremely difficult for public officials or public figures to prove defamation. Plaintiffs have to show that a story, report, article, or opinion piece was produced with “actual malice.” That means journalists either printed or broadcasted something that they knew was false, or that they displayed “reckless disregard” for the truth.
At issue is a Times editorial from June 14, 2017—dealing with gun violence—that claimed there was a clear connection between an ad by a Palin-sponsored Political Action Committee targeting congressional districts and the 2011 shooting of then-Democratic Rep. Gabby Giffords, in a supermarket parking lot near Tucson.
The problem for the Times is that no such causal link existed, a fact that was widely understood for some time, and which the paper later acknowledged in a correction.
The Times insists that the error was an honest mistake given the time pressures of a deadline, adding that the statements in question were woven into the editorial during the editing process by James Bennet, who was the Times’ editorial page editor. The Times also points out that the mistake was quickly acknowledged and that the record was corrected.
Thus, the newspaper claims, Palin's lawsuit is without merit. And since the Times hasn’t lost a libel lawsuit on U.S. soil in more than 50 years, the newspaper is confident that the Palin lawsuit will extend the streak.
Maybe it’s a tad too confident, in light of how the public feels about the media these days.
In June 2021, the annual digital news report from the Reuters Institute for the Study of Journalism at the University of Oxford found that among 92,000 news consumers surveyed in 46 different countries the U.S. ranked dead last in media trust. Just 29 percent of Americans trust the media. Finland led the list at 65 percent.
Sarah Palin has railed against the “lamestream media” ever since John McCain launched the then-Alaska governor into the national spotlight in 2008.
It’s to Palin’s advantage that she’s pleading her case not before a panel of journalists, but to a group of everyday Americans, at least some of whom surely fall into the 71 percent of folks in both political parties who distrust the media.
Of course, juries are supposed to only weigh the facts and the law. But in practice, as human beings, they bring their own emotion, biases, and beliefs into the jury box.
Don’t kill the messenger. I’m simply putting the Palin lawsuit in the context of the times in which we live.
Yet here’s what really interests me: Is the media ready to admit (if not in open court, then at least to themselves) that the wording in the Sullivan decision was never a great fit for editorials, columns, and other forms of opinion writing?
While we’re at it, we could also consider the possibility that a Supreme Court decision about media freedom that is now nearly 60 years old might be ready for a bit of a rewrite. After all, think about how much the media has evolved over the last six decades.
Newspapers claim there is—to borrow a phrase—a “big beautiful wall” between news and editorial. Having worked as a reporter but also as an editorial writer and editorial columnist, I’ve been on both sides of that wall. Take it from me: When it comes to Sullivan’s requirement that plaintiffs in libel cases show “actual malice,” opinion is a different animal which ought to be treated differently.
Why? It’s not because editorials or columns deserve less legal protection. It’s because if we’re talking about opinion writing that criticizes politicians, the people who write such pieces very possibly might harbor at least some malice toward the people they write about.
In legal terms, “malice” is defined as “wrongful intention.” But in the dictionary that is used by the rest of us, the word can simply mean “ill will.”
After 30 years of covering politicians up-close, do I harbor ill will toward many of them and, in a larger sense, toward the entire profession? Hell yes.
I’ll go further. Having sat through thousands of editorial board meetings, I have rarely if ever met a colleague who wrote sharp and passionate prose about an elected or appointed official without harboring even a touch of animosity, disgust or “malice” toward that official.
In more than three decades of covering cowardly or crooked or two-faced politicians—especially at the local level—I myself came to despise many of those miscreants who ostensibly serve the public.
This isn’t a bad thing. As a columnist, pummeling politicians isn’t just my right. It’s my job. It’s part of how the media holds the powerful accountable for their mistakes and their misdeeds. Whether you’re a mayor, district attorney, member of Congress, governor or president, taking a government paycheck also means taking your lumps from people like me.
Don’t get me wrong. Of course, editorial writers and columnists still have to be honest, fair and accurate. We can’t write things we know to be false. That part of Sullivan is solid.
But we in the media have—over the last 50 years—constructed, from ego and sanctimony, this fantasy that everyone in our business is magically free of malice. Anyone who believes this fable has never stepped foot into the editorial department of a newspaper or attended a news meeting at a television network when the discussion centered around a politician or appointed official. They probably haven’t even read a column by the scribes who were once considered the giants of my industry: Jimmy Breslin, Mike Royko, Pete Hamill, Anna Quindlen, Ellen Goodman, William Raspberry, Anthony Lewis, Tom Wicker, William Safire. No disrespect to The New York Yankees of the late 1920s, but there’s your murderers’ row of journalists with opinions.
You’ll get no apology from me for throwing punches at the powerful. Because, as far as opinion writing goes, expressing the occasional burst of ill will is a major part of the exercise. We criticize and hammer politicians of both parties who we find worthy of contempt. That’s how we try to keep them honest. And, as you can imagine, business is always good.
That's not libel. That’s a public service.
