A now-corrected editorial by The New York Times erroneously linking former vice presidential candidate Sarah Palin to a 2011 mass shooting may have bordered on negligence, but did not constitute actual malice, a federal judge in Manhattan said in an order dismissing her defamation suit.
In a 26-page ruling issued on Tuesday, U.S. District Judge Jed Rakoff of the Southern District of New York said the June 14 editorial written in the immediate aftermath of a shooting in Virginia at a practice session for charity baseball game featuring Republican members of Congress contained a “few factual inaccuracies” that were “very rapidly corrected.”
“Negligence this may be,” Rakoff said. “But defamation of a public figure it is plainly not.”
Rakoff dismissed Palin’s suit for failing to prove actual malice on the part of the Times, generally a high hurdle for public figures to clear to bring defamation claims against media companies.
“Nowhere is political journalism so free, so robust or perhaps so rowdy as in the United States,” Rakoff said. “In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others.”
Palin claimed the editorial in question, called “America’s Lethal Politics,” linked her to a 2011 shooting at a political event in Tucson, Arizona, at the hands of Jared Loughner. Six people were killed and U.S. Rep. Gabrielle Giffords, D-Arizona, was shot in the head but survived.
Prior to the shooting in Tucson, a political action committee controlled by Palin distributed a flier showing the geographic location of Giffords’ district and those of other elected officials under stylized crosshairs.
In the first published version of “America’s Lethal Politics,” the editorial erroneously stated the PAC’s flier featured crosshairs over the faces of Democratic lawmakers and that the “link to political incitement was clear” with regard to the shooting in Tucson.
The Times’ own reporting, and an ABC News story hyperlinked to the editorial, stated there was no link between the political literature and Loughner’s actions. The Times twice corrected the editorial.
At an evidentiary hearing held earlier this month, James Bennet, editor of the Times’ editorial board, explained editorial writer Elizabeth Williamson prepared the original draft of the editorial, but that he essentially re-wrote the piece.
In her complaint, Palin said attacks against her “inflame passions and thereby drive viewership and web clicks to media companies.”
Rakoff noted that it “goes without saying” that the Times’ editorial board is “not a fan” of Palin, but said there’s no evidence economic considerations entered Bennet’s mind when he rewrote it. If that were the case, Rakoff said, he would have taken steps like invoking Palin’s name additional times in the piece and promoting it on social media.
Jay Brown, Lee Levine, David Schulz and Michael Sullivan of Levine Sullivan Koch & Schulz appeared for the Times.
In a statement, a Times spokesperson said the company regrets the error but said Rakoff’s decision was a reminder of “our country’s deep commitment to a free press.”
“In the words of the court, ‘if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited’ to cases where there is something more than an honest mistake,” the statement reads.
Palin was represented by Kenneth Turkel and Shane Vogt of Tampa, Florida-based Bajo Cuva Cohen & Turkel, as well as Shawn Ricardo of Golenbock Eiseman Assor Bell & Peskoe.
For Turkel and Vogt, who did not respond to a request for comment, the suit was another legal attack on a well-known media company. They were part of the legal team representing pro wrestling star Hulk Hogan—whose real name is Terry Bollea—in a famous invasion of privacy suit against now defunct Gawker.
George Freeman, executive director of the Media Law Resource Center, said the outcome of the case was a victory for the U.S. Supreme Court’s 1964 holding in New York Times v. Sullivan, 376 U.S. 254, which provides the foundation for the actual malice test.
He said he saw some similarities in the fact patterns for Sullivan and Palin’s suit. Sullivan concerned a full-page ad in the Times that contained factual errors.
“It’s clear that a bad mistake was made, but it’s equally clear that it was not made maliciously or, as the Supreme Court held, with serious doubts about the authenticity of the article,” Freeman said.