When Sarah Palin filed her libel complaint against the New York Times back in 2017, the former governor of Alaska was a serious underdog. The Times hasn’t lost a libel suit on American soil in more than half a century. Even getting to a trial was against the odds—courts tend to dismiss cases like hers long before a jury ever sees them.
Now, more than four years later, a trial has somewhat improbably begun. And, doggone it, Palin appears to have a puncher’s chance of winning. Grab your popcorn, fight fans: It’s the Gray Lady versus the self-proclaimed “Caribou Barbie”—with a few intriguing and slightly unnerving First Amendment battles filling out the undercard.
If you’re just tuning in, a quick primer on how we got here might be useful: On June 14, 2017, a left-wing activist fired a hail of bullets at Republican politicians who were playing baseball on a field in Virginia (wounding, among others, Louisiana Rep. Steve Scalise).* Later that same day, the Times posted an editorial about the incident on its website. The essay condemned—as the headline put it—“America’s Lethal Politics.” The piece ran in the print edition the following morning, and contained these passages:
Was this attack 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 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.
Less than two weeks later, Palin launched her legal action, arguing that these passages were libelous. By that time, the Times itself had acknowledged they were problematic.
The truth was, no evidence existed showing that Jared Lee Loughner had been incited by that map put out by Palin’s PAC. The “link” was far from “clear.” This was a serious error, and before Palin filed her suit, the paper had already changed the text in the online version of the editorial and issued two corrections, both relating to Palin:
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.
A district judge in New York dismissed Palin’s libel claim one month after she filed it, concluding that the case wasn’t strong enough to proceed. But two years later, in 2019, an appeals court reversed him. Now, after much COVID-related delay, the same judge—Jed S. Rakoff (who seems to have a knack for attracting the spotlight)—is presiding over Palin v. the New York Times Company. And within a week or so, if all goes to plan, a jury of ordinary New Yorkers will render a verdict.
I went to the federal courthouse in lower Manhattan today because I wanted a ringside seat.
Could the Times actually lose a libel case for the first time in more than 50 years? And could the trial have repercussions that reach beyond these particular parties?
Prognostication-wise, I wouldn’t bet on a Palin victory. But there are certainly some bad facts here for the paper of record. And once a jury gets involved, you just neeeeeever know. I’d at least wager there are a few chewed cuticles over at 620 Eighth Avenue.
To win her case, Palin will need to prove four things. 1) That what the Times wrote was false. (Given that the Times issued corrections, this isn’t in dispute.) 2) That what the Times wrote referred specifically to her. 3) That what the Times wrote was defamatory—meaning it exposed Palin to contempt, ridicule, disgrace, that sort of thing. 4) That the Times published these falsehoods even though it knew them to be false, or that in publishing them it showed a reckless disregard for the truth. This is the question of so-called “malice,” and it seems likely the trial’s outcome will mostly hinge on it.
The “malice” requirement famously arose from an earlier libel suit against the same newspaper. Since 1964, the Supreme Court’s ruling in New York Times v. Sullivan has granted American journalists covering public figures some of the strongest press protections in the world. Lately, though, a couple of conservative Supreme Court justices have been eyeing the ruling, and hinting that they might like to tinker with it. A certain media-hating former president has also said he wants to “open up” our libel laws. No outcome in this courtroom will immediately change anything, constitutionally. But a win for Palin could be another log on the fire, weakening the press’s freedom to write fearlessly about the famous and powerful.
Even if it doesn’t change any laws, this case might herald a new wave of lawsuits designed to harm media outlets. One of Palin’s lawyers, Kenneth Turkel, previously represented Terry Bollea (aka Hulk Hogan) in the $140 million lawsuit that bankrupted Gawker. Now he’s looking to take a financial bite out of the Times. It’s unclear what sort of damages Palin might be awarded if she wins, and whatever the dollar figure, it won’t be sufficient to ruin the 170-year-old institution. But a big number could have a further chilling effect on less venerable journalistic outlets.
There is also, let’s be honest, another reason you and I are here. The Palin of it all. She is a figure equal parts comical and abominable. Consider that this trial was meant to begin in January, but was delayed because Palin had tested positive for COVID—which didn’t stop her from eating at a New York City restaurant. As Rakoff observed from the bench on the day the trial was postponed: “She is, of course, unvaccinated.”
When a masked Palin walked past me into the courtroom this morning, she was clad in her trademark eyeglasses, high ponytail, and large-radius hoop earrings. She’d also broken out a pair of knee-high leather boots with heels like stilts. All eyes were drawn to her as she took her seat at the plaintiff’s table.
But the morning wasn’t really about her. It was about picking a jury. Based on some simple biographical information about the prospective jurors (where they live, what they do, what their partners do), the two sides battled to shape a favorable panel. The resulting group included, among others: an early childhood educator, a receptionist at a fertility clinic, and a hedge fund dude.
Once voir dire was over and the jury was seated, Palin’s attorney Shane Vogt began his opening statement. “We’re not trying to win your votes for Gov. Palin or any of her policies,” he said, asserting that this trial isn’t about politics but instead is about the “horrific statements” the Times published. He then ran through the major planks of Palin’s case, focusing on the actions of James Bennet—the now-former Times journalist who wrote the allegedly defamatory passages back in 2017. Vogt said Bennet exhibited “recklessness” and claimed “the reason he didn’t check these facts is simple. He didn’t care.”
Vogt had begun his statement by positioning Palin as a David: “We are keenly aware of the fact that we are fighting an uphill battle.” He ended by positioning the Times as a Goliath, and a remorseless one at that: “They think they can do whatever they want. They’re the New York Times.”
David Axelrod (not that one) then rose, representing Bennet and the Times. He tried to poke holes in every facet of Palin’s argument, but he focused most intently on that key question of “malice.” While acknowledging the Times had erred, Axelrod claimed that “this mistake was in no way intentional” and that no one at the paper “harbored any ill will” toward Palin. He described a distraught, contrite Bennet who “barely slept” the night of the screw-up and “immediately began the correction process.” Axelrod also suggested that Palin had suffered no actual harm as a result of the editorial, and that in fact her career had continued to thrive in its wake.
With opening statements out of the way, Palin’s team called its first witness, Elizabeth Williamson, the Times writer who penned the first draft of the infamous editorial (before Bennet revised it). Upon seeing the news about the Scalise shooting early that morning, Williamson had wondered whether there was an editorial to write about it. She started pinging ideas back and forth with Bennet and other editors in the Times’ opinion section.
All of this discussion happened over email, and those subpoenaed emails were displayed on the courtroom’s screens. The time stamps on the emails offered a ticktock glimpse at the way the editorial developed. Williamson began her draft around noon, fielding suggestions from various colleagues along the way. She eventually turned things over to Bennet around 5 p.m., and Bennet raced to get a final draft in before the 8 p.m. deadline for the next morning’s print edition.
It was a fascinating peek into how the Times editorial sausage gets made. But it also provided some clues as to how this whole mishegas occurred. The central problem: The opinion team felt they needed to weigh in on this major news—but no one knew exactly what to say. “Can’t see it yet,” wrote editor Robert Semple. Semple thought maybe the angle could be gun control, and how the wide availability of firearms enabled tragedies like this. But Bennet had a different idea.
In an email to Williamson, Bennet suggested they could tie in the “rhetoric of demonization” and “whether it incites people to this kind of violence.” On the stand today, Williamson said she wasn’t quite sure, at the time, what Bennet was getting at. But she gamely attempted to meld the disparate ideas flying at her. When she turned in her draft, it was apparently a bit of a muddle, and Bennet wasn’t satisfied. He tried to sharpen it. And this is when he introduced the offending sentences.
The trial adjourned for the day with Williamson still on the stand. Tomorrow, she’ll continue to answer questions about what happened. But the outline of her story is already clear, and for anyone who’s ever worked in the media, it’s an eminently relatable disaster. This case is—at its heart—about a journalist on deadline, desperately searching for a hot take.
Correction, Feb. 4, 2022: This piece originally said members of Congress were playing softball on the day of the 2017 shooting. They were playing baseball.
