Defamation

Was Charging Sarah Palin With Complicity in Mass Murder an Honest Mistake?

The former vice presidential candidate's revived defamation suit against The New York Times highlights the hazards of us-versus-them thinking.

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This week a federal appeals court revived former Republican vice presidential candidate Sarah Palin's defamation lawsuit against The New York Times, which falsely accused her of complicity in the 2011 Tucson shooting that killed six people and gravely injured then-Rep. Gabrielle Giffords (D–Ariz.). The crucial issue in the case is not the truth or falsity of that thoroughly debunked charge but the mental state of Times Editorial Page Editor James Bennet, who included the canard in a 2017 editorial. Did he make an honest mistake, or did he, because of his animus against Palin and Republicans generally, repeat the smear even though he knew or suspected it was false?

The latter interpretation bolsters Palin's case against the Times, but even the "honest mistake" theory is a mortifying indictment of the paper and the people who run it. If Bennet's editorial is not an example of casual libel masquerading as political commentary, it is at least an object lesson in the cognitive biases that lead smart people astray and feed the mindless partisanship that makes rational debate impossible.

According to the claim that Bennet repeated, a map circulated by Palin's political action committee, SarahPAC, helped incite the Tucson shooter's murderous violence by marking 20 congressional districts, including Giffords', with stylized crosshairs. Yet the map, which was part of the debate over Obamacare, plainly had nothing to do with violence. "20 House Democrats from districts we carried in 2008 voted for the health care bill," the caption said. "IT'S TIME TO TAKE A STAND."

That was obviously a call for opposing the re-election of Obamacare supporters, not for murdering them. And the idea that such run-of-the-mill politicking somehow inspired the Tucson shooter—whose politics leaned left, whose motives were mysterious, and whose behavior and ideas were weird enough to earn him a diagnosis of paranoid schizophrenia—was risible.

Yet in his editorial, written six years after the Tucson attack, Bennet casually revived this long-discredited idea. "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," he wrote. "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." Bennet not only said the "link" between the SarahPAC map and the Tucson shooting was "clear"; he falsely claimed the map depicted Giffords and the other legislators.

The next day, the Times ran a correction acknowledging that Bennet had "incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords," when "in fact, no such link was established." It added that "the editorial also incorrectly described a map distributed by a political action committee before that shooting."

As Palin was quick to point out, Bennet should have known that what he wrote was not true. Before joining the Times, he had served as editor of The Atlantic for a decade, a period when the magazine he oversaw ran several articles debunking the anti-Palin smear. Furthermore, a 2011 ABC News article to which he linked in the editorial explained the problems with his thesis and plainly stated that "no connection has been made between this graphic and the Arizona shooting."

During a 2017 hearing before U.S. District Judge Jed Rakoff, who was overseeing Palin's defamation case, Bennet testified that he did not recall reading any of the articles contradicting his claim in The Atlantic, the Times, or anywhere else. He also said he did not bother to read the articles collected by the writer who composed the first draft of the editorial, including 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."

Taking Bennet at his word, Rakoff dismissed Palin's suit. "What we have here," he wrote, "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."

On Tuesday, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit unanimously disagreed:

In both the original complaint and the PAC [proposed amended complaint], Palin's overarching theory of actual malice is that Bennet had a "pre‐determined" argument he wanted to make in the editorial. Bennet's fixation on this set goal, the claim goes, led him to publish a statement about Palin that he either knew to be false, or at least was reckless as to whether it was false. The PAC contains allegations that paint a plausible picture of this actual‐malice scenario in three respects: (1) Bennet's background as an editor and political advocate provided sufficient evidence to permit a jury to find that he published the editorial with deliberate or reckless disregard for its truth, (2) the drafting and editorial process also permitted an inference of deliberate or reckless falsification, and (3) the Times' subsequent correction to the editorial did not undermine the plausibility of that inference.

The court concluded that Palin's complaint "plausibly states a claim for defamation and may proceed to full discovery." The Times may yet succeed in arguing that Bennet simply messed up. The paper's quick and embarrassing correction, along with the self-refutation contained in the ABC News article to which Bennet linked, does suggest that he did not deliberately lie, although it is still possible he was reckless enough to meet the "actual malice" standard for proving defamation of a public figure.

The most plausible explanation for this sorry episode is that Bennet vaguely remembered the alleged link between the SarahPAC map and the Tucson shooting, decided it fit the story he was trying to tell about the dangers of extreme political rhetoric, and was thereafter blind to any contrary evidence. His blindness was not necessarily willful, but that does not make it less disturbing.

To the contrary, the likelihood that Bennet sincerely believed Sarah Palin had blood on her hands dramatically illustrates the insidious power of confirmation bias to reinforce an us-versus-them mentality. If you think Republicans are the sort of people who blithely encourage violence through vicious attacks on their political opponents, you will be inclined to accept the notion that Palin is somehow responsible for the attempted assassination of Gabrielle Giffords. And once you've accepted that bizarre theory, facts are unlikely to dislodge it, if you even notice them.

When people think this way, it is hard to take them seriously, even when they are making valid points. Fair-minded readers who know how readily James Bennet accepted a decisively discredited charge against a politician he does not like are apt to be skeptical, for instance, of New York Times editorials blaming Donald Trump for feeding the anti-immigrant bigotry that motivated the man who murdered 22 people in El Paso last weekend. Any cause-and-effect theory connecting the president's ugly rhetoric to that hideous crime is belied by the fact that the shooter's hatred of Hispanics, by his own account, predated Trump's election. But there is a serious argument to be made about the dangerous divisions on which Trump thrives; it's just not one I would trust the Times editorial page to make in a careful and intellectually honest fashion.

That situation is fine, I suppose, if opinion journalists are simply in the business of reinforcing people's prejudices. But if they are actually trying to persuade people, it's a problem.

NEXT: No, Texas Did Not Respond to El Paso Shooting by Passing Lenient Gun Laws

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  1. >>>decided it fit the story he was trying to tell

    makes the argument for recklessness

    1. According to other reports I have read about this case, Bennet testified at the hearing that another writer wrote the editorial and that he, as editor, inserted the stuff about Palin and the Tucson shootings and that he was unaware of stories in the New York Times that debunked the connection. Wouldn’t that in and of itself constitute a “reckless disregard of the truth”, which is one of the standards used in defamation of a public figure? If that is not reckless disregard of the truth, then what is?

    2. With respect, I think you have mis-stated the legal/factual issue: if a person sincerely, but unreasonably believed that Sarah Palin was guilty, does it matter that she’s innocent & that any reasonable investigation would have established her innocence? To illustrate my point by analogy, can I plant a bomb in a crowded theater merely because I sincerely believe the bomb won’t hurt anyone or do I have an obligation to investigate before I plant the bomb? By the same standard, can a journalist simply fail to investigate some claims (like Sarah Palin incited murder) because they sincerely (but unreasonably) believe she did? I think that’s the more important issue. The key is whether or not this journalist’s belief was reasonable, not whether or not it was sincere; sincerity shouldn’t be a defense (or at least not an absolute one). In a case like this, all the journalist had to do was investigate their own employer’s own reports on the same subject – seems like actual malice to fail to make such a rudimentary step. In other words, I don’t think actual malice is actual malice because the law has always held that some forms of negligence are treated as actual malice (like the bomb in a theater, doesn’t really matter what the bomber thought a bomb in a theater would do because the law imputes malicious intent to them). In short, can the NYT claim that they publish editorials w/o bothering to check the NYT first? I’d argue they can’t – at least when they’re accusing someone of inciting violence. Under the circumstances (the severity of the accusation), they simply had to look at their own prior reports; if they didn’t, doesn’t matter why – that’s actual malice as a matter of law (even if you don’t think it proves actual malice as a matter of fact).

      1. The difference between your analogy and this situation is simple: retractions and addendum.

        This fact, apparently pulled from memory and without checking, shows a lack of journalistic rigor and poor editing. However, it does not show malice. The Times did issue a correction promptly when requested. While it doesn’t absolve them completely, it does mitigate the damage. As long as it does not show a history of deliberate deception with late-retractions, I think this should definitely be a defense. The media need the ability to be wrong and make mistakes. Otherwise you have a Bernie Madoff situation, where the papers are too scared to put out a story, despite almost-indisputable evidence of wrongdoing.

        On the other hand, I think this evaluation needs to be put to a jury. While I do not think that Palin should win the case, the pre-trial dismissal was incorrect. She should at least get her day in court.

  2. Was Charging Sarah Palin With Complicity in Mass Murder an Honest Mistake?

    Was the same concern expressed regarding the Republican baseball-game shooting in the wake of a similar graphic from the Sanders campaign?

    No, you say?

    Hmmm . . . .

  3. Oh Shit. Just like Gawker, NYT is going down!

    Propagandists live by the sword and will die by the sword.

    1. It’s too valuable a tool for the establishment to fail. They’ll back it even if it costs billions.

    2. About time. NYT has deserved to get the shit sued out of it for decades.

    3. Ha! No.
      At worst, this individual editor may receive a small fine, which the NYT will probably cover for him.

      Gawker went down because a) they were a small budget publisher, and b) during the case, they told the judge to eff off and disobeyed court orders.

  4. “This week a federal appeals court revived former Republican vice presidential candidate Sarah Palin’s defamation lawsuit against The New York Times, which falsely accused her of complicity in the 2011 Tucson shooting that killed six people and gravely injured then-Rep. Gabrielle Giffords (D–Ariz.).”

    If the NYT did indeed falsely accuse her of complicity when she didn’t have any involvement of the shooting, then, yes, it could be considered a libelous action committed by the newspaper.
    This should be an interesting case, and wonder if both parties are willing to go all the way to SCOTUS to rule.
    If nothing else, both parties will spend a shitload of money on lawyers which I’m sure the attorneys on both sides will love.

    1. Discovery will be even more fun, it will be interesting to see the New York Times’ internal communications regarding this story being read in court.

      1. “The Times determined that all communications related to the Palin matter have been lost. The Times regrets the error.”

        1. I’m sure they already hired Hillary’s IT guy to bleachbit the servers.

      2. Probably not. From everything I can tell, it was a rushed, hack job, and he pulled facts from memory rather than researching them. I’d bet dollars to doughnuts that the only communications are “Where’s that story? Your deadline is approaching!” and “Here boss”. I wouldn’t be surprised if there was no editing either.

        1. Well, he DOES admit to some editing…inserting the bit about the (already debunked) Palin connection.

          Malice? Oh hell naw, just an honest mistake. Thing is, the NYT employs and seems very determined to employ, a lot of people who make “honest mistakes” of this sort. Sometimes over the course of years.

          This whole nasty claim that speech “leads to a mindset” and “creates an atmosphere of”, and “encourages the thinking of” certain actions we might wish to prevent, is bullshit. Otherwise, how can we not apply the same ‘logic’ to the constant vilification of, say, young white men and their subsequent violent actions?

          Oh yeah. Hypocrisy. Double standards. Never mind.

  5. They’ve cried “Wolf!” too many times, and have only themselves to blame.

  6. Fortunately for the New York Times, this case will presumably go to a jury from the federal Southern District of New York – where the inhabitants are used to the Times and know that paper would never recklessly lie about anyone.

    1. Or on a more serious note, we may safely assume that there’s a lot of potential jurors in that district willing to believe the worst of Palin and unwilling to rule in her favor.

      Though I’m sure those potential jurors can be weeded out by asking them if they’re prejudiced.

      1. She’s a republican, therefore racist. You can’t side with them else you be a racist too.

      2. Companies consider juries unpredictable.

        Older people tend to be a bit more conservative than you might think. This includes people of every race in the USA. So one’s reputation might mean something to them too.

        That and some people are okay with awarding big judgments against companies since they have “deep pockets”.

        1. I don’t think the NYT wants to go in front of *any* jury – but as juries go, NYC juries are better than, say, Alaska juries or Salt Lake City juries when the Times is accused of defaming a Republican.

          Maybe the Times can improve the odds by getting a jury in Seattle or Berkeley. (/joke)

          1. I have seen opinion pieces that harshly criticize her attorneys for filing suit in New York instead of in Alaska.

  7. Was Charging Sarah Palin With Complicity in Mass Murder an Honest Mistake?

    No.

    Was it actionable? I guess we’ll have to let the courts decide.

  8. When people think this way, it is hard to take them seriously…

    Or their publications.

  9. repeat the smear even though he knew or suspected it was false?

    There’s no winning for James Bennett here. Either he honestly believed it was true, which makes him unfit to lead the Newspaper of Record, or he knew it wasn’t true, which really, really makes him unfit to lead the Newspaper of Record.

    1. Historical note: NYT is no longer the paper of record, it is not even a reliable source.

      1. They’re the paper of broken record.

        1. All the news that fits, they print.

    2. “There’s no winning for James Bennett here.”

      You’re right. Willfully ignorant or stupid; take your pick.

      1. The Hillary defense to the rescue.

  10. “What we have here,” he wrote, “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.

    It’s times like this that I wished I owned a half-dozen major newspapers where I would write a front page, above the fold opinion piece headlined, “U.S. District Judge Jed Rakoff Sexually Molested Young Boys While at Law School.”

    Then a day later, write a hasty retraction saying that “no link to child molestation has ever been established”.

    I’m going to guess that mr rakoff would take a different view.

    1. So they are arguing that, because it was an opinion piece, what they stated as fact in support of the conclusions of their opinion were actually another form of opinion?

    2. “no link to child molestation has ever been established”.

      So, you aren’t actually exonerating him?

      1. I want to be clear, no link to Judge Rakoff and child molestation has been firmly established.

        1. If we could have proven he wasn’t doing it, we would have said so.

    3. Don’t forget to bury that correction on the third page of the Sport section! Because *every* correction should be carefully buried, rather than put forth with the same prominence that the original story was given!

  11. The NY Times has been struggling financially.

    It would be kinda funny if she wins and the judgment forces them to sell or close.

    1. We would never run out of liberal tears ever again

    2. I have a dream, that Sarah Palin is awarded ownership of the NY Times, and the Covington kids are awarded ownership of the Washington Post.

  12. It was done with actual premeditated malice.
    No question at all.

  13. It was not a mere mistake, nor was it honest.

  14. “Was Charging Sarah Palin With Complicity in Mass Murder an Honest Mistake?”

    I mean, you just posted an article 15 minutes ago about how the media’s trying to blame Texas for the shooting due to gun law changes they made…

    You have been here for the entirety of Trump’s term, yes? You have seen how the media treats him and anyone who supports him (actually, anyone who doesn’t support the Democrats)? The fact you think it might have been a mistake after the last 3 years makes me question your IQ.

  15. It’s as big a mistake as trump saying the KKK had fine people or that he wants to exterminate Hispanics. It is a repetition of known false goods to produce a narrative. It absolutely was intentional and based on malice. Nice to see the courts realizing that.

    Unfortunately the decision was more procedural than argumentative. The trial judge was completely out of order and violated multiple rules of procedure to stop even discovery. They need a new judge, not just a remand.

  16. My impression is the idjit hates the second amendment and found it easier to slander the Hawt Mom. If her lawyers wrap his entrails around his throat and sue him for two years’ pay, I’ll try not to wake the neighbors in a cackling fit of schadenfreude.

  17. I’m sure there’s an honest lefty somewhere, but you wouldn’t know it from the bottom of the septic-tank progs who post here.
    So I’m guessing there was no honest mistake; he simply didn’t care about the harm his bullshit would cause.

    1. The story was written in the aftermath of a Bernie Sanders supporter attempting a mass assassination of Republican lawmakers while they were practicing for a charity softball game. It was vital to ‘remind’ readers about how evil Sarah Palin got poor Gabby Giffords shot, too, or rational people might begin to think that only Democrats shoot up their political opponents.

      He knew exactly what kind of harm his bullshit would cause to Palin’s reputation. Exactly the kind it was intended to.

      1. Wasn’t the Giffords shooter a leftist they tried to paint as being a Republican?

        1. He was a schizophrenic with leftward leanings. It’s *somewhat* unfair to say he was a leftist, but it’s certainly more fair than claiming he was a Republican.

        2. As I recall, they tried to pin it on a Tea Party activist in South Dakota. ABC News Maybe?

  18. The former vice presidential candidate’s revived defamation suit against The New York Times highlights the hazards of us-versus-them thinking.

    She must be running for office again.

  19. The crucial issue in the case is not the truth or falsity of that thoroughly debunked charge but the mental state of Times Editorial Page Editor James Bennet, who included the canard in a 2017 editorial. Did he make an honest mistake, or did he, because of his animus against Palin and Republicans generally, repeat the smear even though he knew or suspected it was false?

    This is a civil lawsuit. If you are responsible for causing me damage, you have to pay for the damage you caused, whether you intended to cause me damage or not. Therefore, the mental state of the editorial writer shouldn’t matter in a civil lawsuit.

    1. You can talk about what it should or should not be until you’re blue in the face but this is a defamation suit brought by a public figure and that’s not the standard that these things are judged by.

      In fact, its not the standard defamation suits are judged by for non-public figures either.

      1. And we need to change that.

        You cause damage due to your negligence, you should be punished.

        The NYT has “layers” of editors and ALL of them missed it? Well, next time, do better. Here’s a bill for a few hundred million to remind you.

  20. “That situation is fine, I suppose, if opinion journalists are simply in the business of reinforcing people’s prejudices. But if they are actually trying to persuade people, it’s a problem.”

    That makes no sense at all.

    Publishing of opinion is intended to persuade.

    publishing of facts has a wide margin of error.

    Both are given great latitude in legal definition.

    Defamation lawsuits should almost never succeed.

  21. “Was Charging Sarah Palin With Complicity in Mass Murder an Honest Mistake?”

    No, next question.

  22. ” but even the “honest mistake” theory is a mortifying indictment of the paper and the people who run it.”

    My experience with the newspaper industry, (It used to be my hobby to pursue corrections from the Detroit Free Press.) suggests that they are incapable of being mortified.

    If the mistake was not deliberate, it was only by dumb luck.

  23. But there is a serious argument to be made about the dangerous divisions on which Trump thrives

    Oh fuck. I was actually stoked (I’m serious!) to be reaching the end of a Reason article without seeing their trademarked “to be sure” bullshit, but there it was.

    What a crap site.

    1. Amen. I can’t stand President Trump, but for all the angst that people have about him “creating” these dangerous divisions, you’d think that there’d be a nod concerning the 80% or so of the division is caused by the Media doing everything in their power to make President Trump look bad.

      Trump may thrive in this, but Trump is largely there because the Media set up this very environment years ago. (As evidenced by this New York Times fiasco, which happened before President Trump was a twinkle in any political analyst’s eye…)

      1. I agree with your analysis about the media. It’s bad enough watching the rantings on the left-wing news and glorying endorsements on the right-wing news. But reading Reason is starting to get just as tedious. Why does nearly every single article have to swizzle around to Trump somehow?

  24. About the Original Shooting and the question whether or not Palin is responsible. One of the Arguments I have heard in favor of Defamation Laws is the claim that’s Someone’s Words can encourage Another’s Action and therefore the person who spoke those words should be responsible, however if the case can be made that Palin should be be responsible for the Shootings then that brings the validity of the former argument into question. Like even if the shooter did listen to Palin’s rhetoric, he still had the choice not to shoot anyone

  25. What I find interesting is that on a Libertarian Magazine comment board so many people actually care about the damage done to a Republican. I do not that Reason publishes quite a few articles from Authors who are VERY Progressive you sure would not see an comments like this on the MSNBC, VOX, or any other LIBERAL MEDIA site… They are vicious and could care less because she is not one of them…

  26. Who would hire an opinion writer that is that reckless? Who would keep such a dumb one on the payroll for ten years? Who thinks their readers are so stupid as to by his explanation? Sorry; Palin is right to sue the you-know-what out of him because he factually DID what he’s accusing her campaign of having done–inciting violence against someone by defaming her. If anyone is to blame, if anyone is actually inciting violence and defaming, it is not lone individuals making comments. It is the progressive media (who created the climate) and the even more progressive tech companies (who are filtering out other views) we all have to use to get “news” and for some of our social connections. We the public must demand fair and unbiased reporting and social media access if we want it. We the people need to recognize and call out this shameful and appalling behavior where we see it.

  27. It wasn’t a mistake at all. It was accurate. Sarah Palin has no case.

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