Decision Dismissing Sarah Palin's Libel Suit Is an Embarrassment to the Times
The ruling shows how carelessly the paper peddled nonsense about Republican rhetoric and mass murder.
After a congressional baseball game in Alexandria, Virginia, was interrupted by gunfire on June 14, a New York Times editorial revived the much-debunked myth that a graphic created by Sarah Palin's political action committee had something to do with the 2011 mass shooting in Tucson. Two weeks later, the former Alaska governor and Republican vice presidential candidate sued the Times for defamation, and yesterday a federal judge dismissed the case.
Although it seems correct as a matter of law, the decision should not be interpreted as a vindication of the Times. To the contrary, the details described in U.S. District Judge Jed Rakoff's ruling highlight the journalistic malpractice, magical thinking, and blinkered tribalism that led to this stupid and embarrassing mistake.
The editorial, "America's Lethal Politics," used a violent attack on Republicans as a pretext to remind us how awful they are:
Was this attack [on Republicans at the baseball game] 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 9-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin's political action committee [SarahPAC] 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.
The Times thus managed to feign evenhandedness even while suggesting that right-wing rhetoric is more vicious than left-wing rhetoric and more clearly implicated in violence. But as the paper admitted in a correction published the next day, it was all nonsense:
An editorial on Thursday about the shooting of Representative Steve Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized crosshairs.
Although the editorial was inaccurate and reflected negatively on Palin, Rakoff concludes that she failed to allege facts sufficient to show that it was a product of "actual malice," the standard that applies in defamation cases involving public figures. Actual malice means the person responsible for a defamatory statement—in this case, James Bennet, the paper's editorial page editor—knew it was false or published it with "reckless disregard" as to its accuracy. In Rakoff's view, Bennet was in a rush and screwed up, which does not mean he knew or suspected that what he said was wrong.
"What we have here," Rakoff writes, "is an editorial, written and rewritten rapidly in order to voice an opinion on an immediate event of importance, in which are included a few factual inaccuracies somewhat pertaining to Mrs. Palin that are very rapidly corrected. Negligence this may be; but defamation of a public figure it plainly is not."
I think that assessment is basically right, but the direction of Bennet's negligence is telling. It seems unlikely that he would have been so quick to repeat a baseless accusation linking a Democrat to mass murder.
The purported connection between Palin and the Tucson attack was something that stuck in Bennet's mind, even though it had been repeatedly debunked in the pages of his own newspaper and in The Atlantic, which he used to edit. It stuck in his mind even though it was contradicted by the ABC News article to which the editorial linked, a fact that undermines Palin's case even while it underlines Bennet's carelessness. It stuck in his mind because he wanted to believe it, and he wanted to believe it because it was consistent with his preconceptions about nasty right-wingers.
At a hearing that Rakoff convened to clarify how the editorial had been produced, Bennet testified that he instructed Elizabeth Williamson, the editorial writer who composed the first draft, to look up the commentary that the Times had published after the Tucson shooting. Apparently he remembered that attack as motivated by right-wing ideology or hostility toward liberal Democrats, even though there was never any evidence that it was.
Bennet testified that he does not recall reading any of the articles contradicting that notion in the Times, The Atlantic, or anywhere else. Nor did he bother to read the articles he told Williamson to read, which included a column that said "Loughner was likely insane, with no coherent ideological agenda" and a Times editorial that said "it is facile and mistaken to attribute this particular madman's act directly to Republicans or Tea Party members." Bennet did not even dip into the ABC News article that the editorial cited, which noted that "no connection has been made between [the SarahPAC Map] and the Arizona shooting."
Bennet's ignorance on the subject did not stop him from reinforcing the nonexistent link between Palin and Loughner when he rewrote the editorial. Williamson's draft claimed the Tucson and Alexandria attacks both were motivated by "rage" that was "nurtured in a vile political climate," and it mentioned criticism of the SarahPAC map. Bennet's version said "the link to political incitement was clear" and "direct," citing the map and its banal imagery as evidence.
Bennet testified that he was surprised to hear readers had interpreted what he wrote to mean that Sarah Palin had blood on her hands. He insisted he "did not intend to imply a causal link" between the map and the Tucson shooting, which is hard to believe. By contrast, it is easy to believe that Bennet was disinclined to take even a cursory look at the empirical basis for his assertion that "political incitement" moved Loughner to murder. As far as he was concerned, that was a well-known fact.
Promoting baseless claims because they are ideologically convenient and make your enemies look bad may not be defamation. But neither is it good, or even mediocre, journalism. The best that can be said in Bennet's defense is that, like Donald Trump, he sincerely believed the nonsense he peddled.