The reason that Sarah Palin lost her libel suit against The New York Times was that the Times’ extraordinarily sloppy editorial page editor, James Bennet, was extraordinarily sloppy. (In an unrelated matter, Bennet left the paper after it was revealed that he hadn’t even bothered to read an op-ed piece by Sen. Tom Cotton suggesting that violent protesters be gunned down in the streets.)
Under the Supreme Court’s 1964 Times v. Sullivan standard, a public figure such as Palin can’t win a libel suit unless she can show that false, defamatory information about her was published with “actual malice” — that is, it was published in the full knowledge that it was false, or that the publication strongly suspected it was false.
That’s what makes the latest revelations in Dominion Voting Systems’ libel suit against Fox News so mind-boggling. As The New York Times reports, internal communications show that Fox stars such as Tucker Carlson, Sean Hannity and Laura Ingraham were fully aware that Donald Trump was lying about his claims that the 2020 election had been stolen. Yet they boosted those lies anyway, whose voting machines were a principal target of Trump and his allies. Dominion claims that Fox damaged its reputation and harmed its business.
As the Times story notes, Fox doubled down on the Trump camp’s claims after initially accepting his defeat — a move that resulted in many of its viewers shifting to even farther-right cable outlets like Newsmax and One America News. Fox wanted those viewers back, damn it. In a particularly revealing passage, we learn that Carlson wanted a Fox News journalist fired for tweeting the truth because it might harm Fox’s ratings:
On Nov. 12, in a text chain with Ms. Ingraham and Mr. Hannity, Mr. Carlson pointed to a tweet in which a Fox reporter, Jacqui Heinrich, fact-checked a tweet from Mr. Trump referring to Fox broadcasts and said there was no evidence of voter fraud from Dominion.
“Please get her fired,” Mr. Carlson said. He added: “It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.” Ms. Heinrich had deleted her tweet by the next morning.
Ironically, right-wing figures such as Trump, Florida Gov. Ron DeSantis and Supreme Court Justices Clarence Thomas and Neil Gorsuch have all suggested that it might be time to get rid of the actual malice standard, which erects a nearly impossible barrier for public officials and public figures who want to sue media companies.
Erik Wemple of The Washington Post comes to the defense (free link) of former New York Times editorial page editor James Bennet, and says he should have done so two years ago. In a remarkable mea culpa, Wemple writes:
Although the hollowness of the internal uproar against Bennet was immediately apparent, we responded with an evenhanded critique of the Times’s flip-flop, not the unapologetic defense of journalism that the situation required.
Wemple is someone I hold in extremely high regard. That said, I don’t think he gives sufficient weight to Bennet’s full record, including putting the Times at risk because of his sloppiness in handling an editorial about Sarah Palin and helping columnist Bret Stephens evade accountability for a column in which he more or less endorsed eugenics. I wrote all about that recently.
Absent those factors, I think Bennet would have survived the uproar over an op-ed by U.S. Sen Tom Cotton urging the use of military force against violent Black Lives Matter protesters. For that matter, Bennet might have kept his job despite everything had he not offered a full-throated defense of the Cotton piece and then admitted he hadn’t read it before publication.
Still, Wemple makes some strong arguments on Bennet’s behalf.
The ossification of James Bennet’s departure from The New York Times into a simple morality tale of wokeness run amok is now complete.
In an interview with Ben Smith for the debut of Smith’s new project, Semafor, Bennet is overflowing with self-pity over the way his tenure as the Times’ editorial page editor came to an end. You may recall that Bennet was forced out in June 2020 after running an op-ed piece by Sen. Tom Cotton in which Cotton wrote that Black Lives Matter protests should be met with military force. Bennet tells Smith that his only regret was running an editor’s note after the fact.
“My mistake there was trying to mollify people,” Bennet said. He added that publisher A.G. Sulzberger showed no regard for Bennet’s 19-year career at the Times, which included putting himself in harm’s way while reporting from the West Bank and Gaza. “None of that mattered, and none of it mattered to A.G.,” Bennet said. “When push came to shove at the end, he set me on fire and threw me in the garbage and used my reverence for the institution against me. This is why I was so bewildered for so long after I had what felt like all my colleagues treating me like an incompetent fascist.”
Then, in a post-interview text to Smith, Bennet added: “One more thing that sometimes gets misreported: I never apologized for publishing the piece and still don’t.”
This is pretty entertaining stuff, but Bennet — and Smith — leave out a lot. Let’s start with the Cotton op-ed, an ugly little screed that he defended vociferously and then later admitted he hadn’t even read it before publication. This is sheer dereliction of duty. I don’t doubt that he couldn’t read everything that was published in the Times opinion section, but this was an incendiary piece about a fraught topic. And he knew it was coming, since it was a piece he had solicited.
But let’s get right to the heart of the matter. It was only a few months ago that the Times won a libel suit brought by Sarah Palin over a 2017 editorial tying her violent rhetoric to the 2011 shooting of then-congresswoman Gabrielle Giffords — a crime that also claimed the lives of six people. Bennet had inserted that falsehood while editing the editorial, and Palin’s lawsuit was factually correct. The Times won not because Palin was wrong but because, as public figure, she had to prove that Bennet’s actions were deliberate rather than negligent, and Bennet had little trouble proving his negligence during a cringe-worthy turn on the witness stand. It should be noted that at the time of the Cotton affair, Palin had already filed her lawsuit — something that had to enter into Sulzberger’s thinking.
Then there’s the matter of Times columnist Bret Stephens, who, in 2019, wrote a column saying that maybe Ashkenazi Jews really are genetically more intelligent and backed up his assertion by linking to an article co-authored by a white supremacist. Stephens was let off with a fairly mild editor’s note and a re-edit that toned down his toxic views. But it remains a source of astonishment that a Jewish columnist could write something that has been used to persecute Jews throughout history and that no one — least of all Bennet — caught it beforehand.
It’s no surprise that Bennet landed on his feet; he’s currently a columnist for The Economist. Of course, it suits his agenda to make his demise at the Times sound like a simple matter of being hounded out by the woke mob. That’s not what happened, or at least that’s not all that happened. Smith, who was the Times media columnist when Bennet finally slipped on his last banana peel, knows that as well as anyone.
The day after The Boston Globe was named a Pulitzer finalist in editorial writing, the paper has announced that it’s hired a new editorial page editor — James Dao, a senior editor at The New York Times. The announcement, reported in the Globe this afternoon, was made by chief executive Linda Henry.
Dao replaces Bina Venkataraman, who stepped down several months ago and is now a Globe editor at large. Venkataraman was involved in the launch of The Emancipator, the racial-justice website the Globe publishes jointly with Boston University.
I don’t know much about Dao except that, according to the Globe, he had a role in the Times’ decision to publish an op-ed piece by Sen. Tom Cotton in 2020 arguing that military force should be used against violent Black Lives Matter protesters. The episode led to the departure of editorial page editor James Bennet after it was revealed he had not read the Cotton op-ed before it was published. Dao stepped down as deputy opinion editor and took a high-ranking editing job in the newsroom.
Also of significance is that Dao is 64. I’m not saying that’s old (hey, he’s younger than I am), but he’s at an age where he probably wouldn’t be seeking to settle in for a lengthy stint. Perhaps Henry is hoping that he’ll identify and mentor a possible replacement. Henry’s full statement, forwarded to me by a trusted source, follows.
I am thrilled to announce that James Dao will be the Globe’s next editorial page editor, effective on July 5.
Jim brings great perspective to the Globe from his vast leadership experience across three decades and multiple news desks at The New York Times. Most recently, as the Metro editor, he oversaw coverage of one of the most consequential mayoral races in New York City’s history while leading a team of over 60 journalists in covering the ongoing challenges of the pandemic on the nation’s largest city. Previously, he oversaw the paper’s Op-Ed section and has served roles in leadership and in the trenches as an editor on the National desk, as the Times’s Albany bureau chief, a Washington correspondent, national correspondent and military affairs writer.
He is an award-winning journalist and has a passion for pushing the envelope on multimedia storytelling, an area in which we too, are deeply investing in as we aim to reach new audiences and amplify our powerful journalism in new media. Jim’s 2011 multimedia series, “A Year at War,” about the yearlong deployment of an Army battalion in Afghanistan, won numerous awards — including an Emmy — and he also was executive producer on the Netflix documentary, “Father Solider [sic] Son,” which was based on the life of an Amy sergeant first profiled in his series.
I’ve had the great honor of diving deep into conversation with Jim, and in that time, he has shared that his priorities in this role are bringing new approaches — from newsletters to podcasts — to an already outstanding opinion report. He plans for our editorial page to be at the forefront of sharing the groundbreaking ideas and innovation unfolding in our region, while continuing to hold our leaders accountable to the high standards that we expect.
As a proud Editorial Board member, I see first-hand the thoughtful dedication and passion our board has for the work that it does each day and the impact it has all across our region. In the last two years alone, Globe Opinion writers Alan Wirzbicki & Shelly Cohen and Abdallah Fayyad have been recognized as Pulitzer Prize finalists in Editorial Writing – truly remarkable accomplishments, and a testament to the talent and incredible contributions at all levels on this team.
I am grateful to Bina Venkataraman for her bold approach and leadership in this role over the last two years. Globe Opinion has grown and strengthened the editorial board, launched The Emancipator with BU, and has drawn national attention to further the impact of our content and voices. Thank you to the entire team for their commitment and patience while we conducted this thoughtful process to find the next leader who will steer Globe Opinion forward in new and exciting ways. Everyone stepped up, but I would like to particularly thank Marjorie Pritchard and Alan Wirzbicki for their leadership and extra effort to keep Opinion sharp and relevant.
Jim will now lead the charge in this exciting new chapter for the board, and we are so excited to have him get started in early July. He is copied on this note, so please join me in welcoming him to the Globe; he would welcome local bike route suggestions.
Whenever The New York Times takes on as large and amorphous an idea as freedom of expression, it quickly escalates into a war of words about the Times itself. That was certainly the case with a nearly 3,000-word editorial it posted last Friday under the headline “America Has a Free Speech Problem.”
The piece launched a thousand hot takes, many of them dripping with mockery and sarcasm. I certainly don’t agree with everything in the editorial, and I find a lot of what the critics are complaining about — especially the paper’s patented “both-sides-ism” — to be right on target. But in the spirit of contrarianism, and in recognition that this is a Major Statement by our leading newspaper, I’m at least going to take it seriously.
To the extent that fading right-wing icon Sarah Palin had any strategy in pursuing her deeply flawed libel suit against The New York Times, it was this: to force a reconsideration of protections for the press that had stood for nearly 60 years, thus exacting vengeance against her tormenters in what she once infamously labeled “the lamestream media.”
It’s at least theoretically possible that could still happen. But the devastating manner in which she lost has made it less likely, not more, that the U.S. Supreme Court will eventually take her up on her invitation to weaken or overturn its landmark New York Times v. Sullivan decision.
First came U.S. District Judge Jed Rakoff’s move on Monday to throw out the case and rule in the Times’ favor.
Rakoff was troubled by the 2017 Times editorial at the heart of the case, which claimed — falsely — that Jared Loughner, who shot then-U.S. Rep. Gabby Giffords and killed six others in 2011, had been incited by a map put together by Palin’s political action committee that depicted gunsights over Giffords’ district and those of 19 other Democrats.
“I don’t mean to be misunderstood,” Rakoff said. “I think this is an example of very unfortunate editorializing on the part of the Times.” But Palin’s lawyers did not present any evidence that the error was anything other than a sloppy mistake by then-editorial page editor James Bennet, who was contrite and apologetic during his testimony.
Rakoff did not inform the jurors of his ruling, instead allowing them to move ahead with their deliberations in order to assemble a more complete record for the inevitable appeals. That only added to Palin’s humiliation, as all nine jurors voted against her when they announced their verdict on Tuesday.
“Your job was to decide the facts, my job is to decide the law,” Rakoff said. “As it turns out, they were in agreement in this case.”
Press advocates had worried that the case could substantially weaken Times v. Sullivan, a 1964 court ruling that public officials cannot win a libel suit unless they are able to show that a false, defamatory story about them was published or broadcast with “actual malice” — that is, with the knowledge that it was false, or with reckless disregard for the truth. That protection was later extended to public figures.
Palin is all of the above — a former Alaska governor and Republican vice presidential candidate who transformed herself into an all-purpose celebrity. A ruling in her favor would have rendered the actual-malice standard meaningless.
There are, of course, those who have railed against Times v. Sullivan for years. As a presidential candidate in 2016, Donald Trump vowed he would “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”
And as I’ve written previously, two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have said they would like to revisit Times v. Sullivan. But though Thomas appears ready to overturn the decision in its entirety and return libel law to the states, Gorsuch has indicated he would take a more subtle approach. Because the Palin verdicts are so clear-cut, it may be difficult for the justices to use them as a reason to sink their fangs into the Sullivan decision.
Rakoff’s unusual two-part approach presents an additional obstacle to Palin’s hopes for winning on appeal. As David Folkenflik reported for NPR, if an appeals court were to set aside Rakoff’s verdict, the jury’s verdict would still be in effect.
Finally, the case helped demonstrate the importance of First Amendment protections even for bad journalism — which the Times’ editorial surely was. Bennet inserted language into an editorial — “the link to political incitement was clear” — that was patently false and defamatory. There was no connection between Palin’s map and the shooting of Gabby Giffords and others. (Although it would not be surprising to learn that the jury considered the fact that Palin really did publish that grossly irresponsible map.)
But the media must have the freedom to report on matters of public importance without being subjected to crippling lawsuits because of inadvertent mistakes. As Justice William Brennan wrote in the Sullivan decision, “erroneous statement is inevitable in free debate, and … it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive.’”
So Times v. Sullivan lives — for now. Whether Palin’s lawyers will somehow be able to transform their resounding defeat into a winner on appeal remains to be seen. But a federal judge and a jury of Palin’s peers saw through her bogus complaint. For now, that’s enough.
For the past several years, a few conservative judges have been saying they’re ready to do what was once unthinkable: reverse the libel protections that the press has enjoyed since the 1964 New York Times v. Sullivan decision.
The threat began with Supreme Court Justice Clarence Thomas, who wrote in 2019 that he believed it was time to return libel jurisdiction to the states. It accelerated in early 2021, when Laurence Silberman, an influential judge on the U.S. Court of Appeals for the District of Columbia, called Times v. Sullivan “a profound mistake.” And it reached a crescendo of sorts last fall, when Supreme Court Justice Neil Gorsuch said that he, too, thought the time had come to revisit what has been settled law for nearly 60 years.
Soon an opportunity may arrive for Thomas and Gorsuch to act on their words — and it comes in the unlikely person of Sarah Palin, the former Alaska governor and Republican vice presidential candidate whose caustic attacks on “the lamestream media” presaged the Age of Trump.
Palin is suing The New York Times for libel, claiming that a 2017 editorial tying her incendiary rhetoric to the 2011 shooting of then-congresswoman Gabrielle Giffords — a crime that also claimed the lives of six people — was false and defamatory. Jury selection in the long-delayed trial had been set to begin this past Monday in U.S. District Court. Then we learned that Palin had tested positive for COVID-19. “She is of course unvaccinated,” said Judge Jed Rakoff. Yes, of course. And the proceedings have been delayed until Feb. 3.
There is no question that there were mistakes in the Times editorial, published after a gunman shot and injured several members of Congress, including U.S. Rep. Stephen Scalise. The Times compared the event to the Giffords shootings and noted that Palin’s political action committee had published a map on Facebook with gunsights over the districts of several members of Congress it hoped to defeat — including Giffords.
After that, things went awry. First, the editorial originally stated that the map targeted “electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.” In fact, the map targeted only the districts, not the members themselves. More consequentially, the editorial tied the map to the shootings, stating: “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.” (You can read the original Times editorial here, at the Internet Archive; the revised and corrected version is here. You can see the map here.)
There’s an old saying that bad cases make bad law, and this may prove to be a bad case. Palin may be an unsympathetic figure, but the Times is the epitome of an arrogant, out-of-touch institution — the very symbol of the liberal establishment. Worse, its editorial really did falsely claim that the Palin map led directly to the Giffords shootings. In fact, there is no evidence that Loughner, the mentally ill gunman, ever even knew about Palin’s ad.
So why does this matter? Under the Times v. Sullivan standard, Palin, as a public figure, can’t win her suit unless she is able to show that the Times acted with “actual malice” — that is, that it knew what it had published was false or strongly suspected it was false, a standard known as “reckless disregard for the truth.”
In fact, as Bill Grueskin wrote in an in-depth overview of the case for the Columbia Journalism Review last fall, there is more than ample evidence that the Times acted out of sloppiness, not venality. The then-editorial page editor, James Bennet, added the errors while he was editing the piece, apparently oblivious to the actual facts. (Bennet’s tenure came to an end in 2020 after he ran an op-ed by U.S. Sen. Tom Cotton calling for military force against Black Lives Matter protesters. It turned out that Bennet hadn’t even stirred himself to read Cotton’s screed before publication.)
The whole point of the Times v. Sullivan decision is to protect the media from libel actions brought by public officials and public figures on the basis of inadvertent or careless mistakes, which is what seems to be at issue in the Palin case. But will a jury see it that way?
A couple more points about the Palin case.
First, I haven’t seen much emphasis in pretrial coverage on the Times’ original description of the gunsights on Palin’s map as being over the members of Congress (suggesting that photos of them were used) rather than over their districts. It will be interesting to see how much Palin’s lawyers make of that once the trial begins.
Second, and more substantively, is that in order for a libel suit to succeed, the plaintiff must prove what was published about them was false and defamatory. And here’s where I find myself wondering how strong a case Palin actually has. The most significant falsehood in the Times editorial had nothing to do with anything that Palin or her PAC said or did; rather, it was the assertion that Loughner was incited to violence by the Palin map.
It remains an undeniable fact that Palin’s PAC published a map with gunsights over the districts of the 20 Democrats, accompanied by such belligerent rhetoric as: “We’ll aim for these races and many others. This is just the first salvo in a fight to elect people across the nation who will bring common sense to Washington. Please go to sarahpac.com and join me in the fight.”
Given that, how can Palin claim that the Times published anything false about her? What she did was mind-bogglingly irresponsible, and I’m not sure why it matters that her actions did not lead to any actual violence.
I put the question to a couple of First Amendment experts. One, Boston lawyer Harvey Silverglate, said that the Times’ (mostly) truthful description of Palin’s actions should cut against Palin’s libel claims. “Since the Times accurately described what Palin did,” Silverglate told me by email, “it would not matter whether it actually incited violence.
Taking a different view was Justin Silverman, a lawyer who is executive director of the New England First Amendment Coalition. “Just because Loughner didn’t use the map as motivation, [that] doesn’t mean that readers of the NYT weren’t told that he did — which arguably is the same as being told that Palin incited the violence and is responsible for that violence by publishing her map,” he said in an email. Silverman added: “By incorrectly saying that Loughner was motivated by the map, isn’t the NYT also incorrectly saying that Palin incited Loughner by publishing it?”
Nevertheless, Silverman said the Times should prevail if it is able to prove that its errors resulted from “sloppy journalism” rather than actual malice.
Which brings us back to where we started. Regardless of whether Palin wins her case, it seems likely that it will begin to wend its way through the appeals process — and perhaps to the Supreme Court.
Historically, conservative as well as liberal justices have supported strong First Amendment protections. But now we have two justices who appear ready to modify or overturn a vitally important precedent. And we are already seeing signs that the six conservative justices may be willing to overturn longstanding precedents such as Roe v. Wade, the 1972 case that guarantees the right to an abortion.
Powerful institutions are held to account by a powerful press. Without Times v. Sullivan, news organizations are likely to shy away from investigative reporting for fear of losing libel cases because of carelessness or unavoidable mistakes.
It would be a bitter irony if Sarah Palin, of all people, proves to be the vehicle through which the media are taken down.
It was an interesting conversation. I agreed with some of what Weiss had to say and disagreed with some of it. But I was put off by the revisionist history she espoused about the resignation of James Bennet as editorial-page editor of The New York Times. Stelter didn’t push back. I will.
Weiss offered up as fact the notion that Bennet was forced out of the Times in 2020 solely because he published an op-ed piece by Sen. Tom Cotton, an Arkansas Republican, calling for military force to be used against Black Lives Matter protesters. She described a letter signed by Times staffers saying that Cotton’s op-ed put their lives in danger as “craziness.”
And yes, Bennet’s departure came shortly thereafter. But here are a few facts that neither Weiss nor Stelter brought up:
After Bennet defended Cotton’s op-ed, it was learned that he hadn’t even bothered to read it before it was published — an inexcusable dereliction of duty.
Shortly before the Times published Cotton’s op-ed, Cotton called for the government to give “no quarter” to looters. As The Bulwark, a conservative website pointed out, giving no quarter in military terms means to kill indiscriminately — a war crime. Cotton, a veteran, knows that. Unfortunately, neither Bennet nor any other Times editor asked Cotton to address that in his op-ed.
In late 2019, Times columnist Bret Stephens suggested that Ashkenazi Jews might be genetically more intelligent than other people. Bennet allowed him to clean it up unscathed, although Stephens did have to suffer the indignity of an Editor’s Note being appended to his column. As Politico media critic Jack Shafer wrote at the time, “The Times disavowal and re-edit (tellingly neither co-signed nor acknowledged by Stephens) was too little and too late — if you’re going to edit a piece, the smart move is to edit before it publishes.” That, ahem, would be Bennet’s job. Wonder if he read that one before it was published?
Sarah Palin has sued the Times for libel over a 2017 editorial in which Bennet personally added language suggesting that a map published by Palin’s PAC, festooned with crosshairs, incited the shooting that severely wounded then-U.S. Rep. Gabrielle Giffords and killed six others. There is no evidence — none — that the mentally ill shooter ever even saw the map. The lawsuit is still pending.
In other words, the mishandled Tom Cotton op-ed was merely the last in a series of banana peels that Bennet stepped on. It’s a wonder he lasted as long as he did.
After leaving the Times, Weiss moved to Substack and started the newsletter Common Sense. She is currently in the process of hiring a team of opinion writers to create what she told Stelter will be “the op-ed page that I want to read.”
Well, if the selective omission of relevant facts is what she wants to read — and wants to publish — then you can count me out.
I just want to put a “-30-” on this. The New York Times reported earlier today that disclosures will be added to David Brooks’ past columns in which he had a conflict of interest (background here). He’s resigned from his paid position at the Aspen Institute. Most important, I think, is this:
Mr. Brooks had received approval to take the paid position at Aspen in 2018, according to Eileen Murphy, a Times spokeswoman, but the current editors of the opinion section did not know about the arrangement.
Presumably this means that Brooks’ outside work was approved by former editorial-page editor James Bennet, who apparently saw nothing wrong with Brooks’ writing about Facebook and other Aspen funders without disclosing that to readers. Bennet is truly the gift that keeps on giving.
Brooks should have been more forthcoming than he was in his modified limited hangout on the “PBS NewsHour” Friday night. But barring any further disclosures, this story feels like it’s over.
And kudos to Craig Silverman and Ryan Mac of BuzzFeed News for their dogged reporting.
The New York Times posted David Brooks’ Friday column last night without any suggestion that something was amiss. Meanwhile, Paul Farhi’s report in The Washington Post raises the possibility that Brooks had let his superiors know he was drawing a salary from Weave, the civic-engagement project he’s affiliated with at the Aspen Institute, but that the new regime, led by opinion editor Kathleen Kingsbury, may have been unaware:
People at the Times said Brooks informed at least some of his previous bosses about the details of the Weave project. But last summer saw the departure of the Times’s top editorial-page editors, and Brooks’s current editors were unaware of the arrangement. Officially, the Times has declined to say whether it knew about Brooks’s outside employment.
Needless to say, it would be interesting to go back and see if he wrote any columns about Facebook and other organizations with which he had a financial relationship while James Bennet was the editorial-page editor. Bennet might have known, but those ties weren’t disclosed to readers. Which is, after all, what really matters.