Conventional opinion is that Sarah Palin must climb a steep hill in her fight with the New York Times. For a person of prominence to win a libel action against a big media company is so difficult that few are willing to try, and the nastiness of litigation discourages even the most intrepid, if they have any sense.
So why is she doing it? Perhaps out of personal pique, but those who admire Palin can think of more interesting explanations.
The concatenation of her unique public position and the bizarre facts of her case have served up a chance to strike a blow in the bitter contest between the Mainstream Media and the conservative movement by highlighting the extent to which the MSM has deliberately embraced a political and business strategy of fake news, and Palin is seizing it.
Current libel law doctrine might make it hard for her to win, but four additional factors make the case worth bringing.
First, Palin has a good shot at a quick win. The Times asserted that an ad by her political action committee that used the image of crosshairs was an incitement to violence. But the term crosshairs has become a cliché that means targeting in any sense, and does not imply violence. That the paper ascribed a defamatory meaning to her use of the term that it ascribes to no one else should be regarded as libel automatically, and effective defenses are hard to find.
Second, to beat her, the Times would be forced to publicly besmear itself as careless, cavalier about its own supposed journalistic standards, and biased against the former Alaska governor and Republican vice-presidential candidate. For Palin, this would be more fun than a personal payday.
Third, discovery into the Times journalistic practices might turn up gold. James O’Keefe’s recent Project Veritas videos of CNN show indifference to the truth, and conservatives certainly believe that Times staffers share this mind set.
Fourth, the legal defenses upon which the Times must rely have some weaknesses, and the case has the potential to lead to doctrinal reforms that would help curb an increasingly irresponsible press. This would be a big pay-off indeed.
The Legal Standard
The fundamentals of libel law are the province of the individual states, but with an important qualification. In the classic case New York Times v. Sullivan (1964), the U.S. Supreme Court ruled that the First Amendment limits a state’s ability to hold a media outlet liable for libel. A defamed plaintiff who is a “public figure” must show by clear and convincing evidence that the statement was not only false but that the media outlet either knew of the falsity or was recklessly indifferent.
The court named this standard “actual malice,” which has confused discussion for over 50 years. The test has nothing do with “malice” in the conventional sense of “ill-will”—it would be better named “knowledge.” However, malice as ill-will is highly relevant to state laws, because ill-will can be used as an element of proof that a defendant was motivated to ignore warning signals, and as a basis for punitive damages. As a further complication, a daring defendant could assert its own ill-will as a defense—the plaintiff was so loathsome that the defendant was ready believe anything, and therefore did not consider the possibility that information was false.
align=”right” An old joke among news reporters is that something could be “too good to check,” meaning that a story was so entertaining that the reporter would be disappointed if he was unable to confirm it. Once upon a time, this was indeed a joke. The reporters laughed, but checked—usually.
The Supreme Court’s definition of “reckless indifference” also fits poorly with common sense, and is more stringent than most people would expect. In cases after Sullivan, the court elaborated that a failure to meet accepted professional standards for reporting is not automatically reckless indifference, nor is a failure to investigate. The defendant must have some subjective reason to doubt the truth of the allegation. (St. Amant v. Thompson (1968); Harte-Hanks v. Connaughton (1989).)
An old joke among news reporters is that something could be “too good to check,” meaning that a story was so entertaining that the reporter would be disappointed if he was unable to confirm it. Once upon a time, this was indeed a joke. The reporters laughed, but checked—usually.
Now, under the relentless pressures of the need for Internet clicks, he who checks not only risks losing the race, but might uncover reason to doubt the story, which is a bad thing indeed because it would trigger a need for more checking.
The media have adopted too-good-to-check as standard practice, relying on Sullivan and its progeny as their constitutional shield. The question that must be answered sooner or later is how solid this constitutional shield will be when the Supreme Court takes up a really egregious case. The decisions saying that failure to comply with common journalistic practices or failure to fully investigate were not “reckless indifference” did not really test the question. In each, defendants had acted with some degree of responsibility.
In the end, the “too-good-to-check” standard will fail, as an affront to common sense. As a thought experiment, consider the odds that a defendant could win in the Supreme Court by testifying: “I got a tip from a political enemy that the plaintiff was a crook and did not check it out because I was afraid I would find out she lied, and the Supreme Court says I had no duty to investigate as long as no one has told me she lied. Besides, the plaintiff is so loathsome that any accusation is inherently believable.”
Good luck with that line of defense. And sure enough, comb the fine print of the Supreme Court reports, and you find St. Amant (1979), in which the justices affirmed the broad rule that the defendant is immune unless it can be shown to have “entertained serious doubts,” but then morphed this into a more general concept of “good faith”:
The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.
How, in practice, can one distinguish a duty to make a reasonable investigation from these factors listed in St. Amant as giving rise to “serious doubts”?
Palin’s lawyers will also find language in a concurrence by Chief Justice Earl Warren upholding a libel verdict in Curtis Publishing v. Butts (1967) that Sullivan is “not so restrictive that recovery is limited to situations where there is ‘knowing falsehood’. . . . ‘Reckless disregard’ for the truth or falsity, measured by the conduct of the publisher, will also expose him to liability.” He noted the magazine’s decision to boost circulation by “sophisticated muckraking” and its “slipshod and sketchy investigatory techniques employed to check the veracity of the source.”
Obviously, in this forthcoming battle in which lawyers lob Supreme Court quotations at each other like mortar shells, Palin has ammunition.
In the end, the First Amendment should and will be held to protect reports on public figures against sloppiness, sloth, and incompetence—but not against deliberate efforts to avoid learning the truth. More generally, it would not protect business models built upon a calculated effort to game the Sullivan protections by reducing an organization’s capacity to learn the truth.
The Palin Case
Immediately after the shooting of Rep. Steve Scalise (R-La.) and others, the Times said in an editorial, published online and in print:
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 circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.
align=”left” In short, the Times’s interpretation of Palin’s ad as an incitement to violence was a mischaracterization, and, given the ubiquity of the term in its own pages, a deliberate one.
The next paragraph referred to “incitement as direct as in the Giffords attack.”
Palin filed a complaint alleging libel.
The story presented several problems. The Palin ad showed a map with crosshairs on congressional districts, not people. More important, the term “in the crosshairs” is a cliché meaning “targeted” in any sense, not necessarily for violence. The Times itself likes the image: “Unions Come Into the Justices’ Cross Hairs, Again” (June 12, 2017); “Walmart, With Amazon in Its Cross Hairs, Posts E-Commerce Gains” (May 18, 2017); “Susan Rice, Ex-Obama Adviser, Is Back in Political Cross Hairs Over Surveillance” (April 4, 2017).
It seems doubtful that the Supreme Court or Walmart are loading their AR15s, and were violence inherent in the crosshairs image, the Times itself would be at risk because, “Climate Alarmists Put NYT in the Crosshairs” (Daily Caller, April 28, 2017); Jeff Zucker of CNN would need get a bodyguard: “CNN boss in crosshairs if AT&T-Time Warner merger approved” (New York Post, June 28, 2017); and telecom companies would go armed to visit the FCC: “Broadband’s future is in the crosshairs of the FCC’s ‘political spectrum’” (Washington Post, June 22, 2017).
In short, the Times’s interpretation of Palin’s ad as an incitement to violence was a mischaracterization, and, given the ubiquity of the term in its own pages, a deliberate one.
Palin’s complaint does not focus on the diluted common meaning of “crosshairs,” however. Instead, it emphasizes the lack of connection between the ad and the Giffords shooting, because immediately after that event it was established that the shooter was loony, not political, and that no links to any political action were involved.
Palin has a good case on this argument, even under a demanding application of Sullivan.
The defects in the story were soon brought to the attention of the Times, and a couple of grudging corrections followed. The final version, “America’s Lethal Politics,” acknowledges:
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 cross hairs.
The Sullivan defense depends on the knowledge of the defendant, and, more particularly, on the state of mind of the people actually responsible for the publication. So the fact that the Times itself had published articles denying a link between the ad and shooting is not crucial. But the editorial’s authors will have to convince a jury that they were so ignorant on the topic that they did not partake of this institutional memory and did not know that the original stories about the connection had been quickly debunked.
This will not be an easy sell, and if the standard of conduct is tweaked a bit in accord with language from St. Amant and Butts, it will prove to be an impossible one. An editorial about a past event written without looking at the paper’s own reporting would seem to meet Warren’s distaste for the “slipshod and sketchy,” or St. Amant’s “lack of good faith.”
align=”right” To falsely accuse someone of inciting political violence is clearly libelous, so what is the Times’s defense under Sullivan?
But the Times’s bigger problem concerns the editorial’s charge that the use of crosshairs was an incitement to violence. As noted, “in the crosshairs” is a tired image, used by many, especially Times headline writers, in many contexts. It took me about two minutes to find the links listed above, so imagine how many Palin’s lawyers will find when they really get to work.
To falsely accuse someone of inciting political violence is clearly libelous, so what is the Times’s defense under Sullivan? The paper singled out Palin, and made her look bad by giving her words an interpretation that it applied to no one else, such as the Supreme Court or Walmart, who can put people in the crosshairs as they choose.
How is this not malice, in the Sullivan sense of deliberate falsehood or in the St. Amant sense of lack of good faith? It is also malice in the common sense meaning of ill-will, which would give a jury reason to award punitive damages.
The smart money should be on Palin. Indeed, a sensible Times management would settle quickly, but this raises the question of how sensible the Times is, and of Palin’s objectives. The price could be steep, in money and in the abjectivity of a confession of error.