Why dark money in the Sarah Palin libel case could distort justice

Peter Thiel. Photo (cc) 2012 by Hubert Burda Media.

Jack Shafer asks an important question: Who is funding Sarah Palin’s legal battle against The New York Times? As Shafer observes in his new Politico Magazine piece, Palin’s legal team overlaps with the lawyers who represented Hulk Hogan in his lawsuit against Gawker. That effort turned out to be funded by Facebook billionaire Peter Thiel, who was aggrieved at having been outed by a Gawker-owned website. Shafer writes:

Nobody can criticize Palin for passing the hat to finance her case — if that’s what she did. Lawsuits are expensive and crowdfunding them without naming the funders is a time-honored practice — civil liberties groups do it routinely — and the practice is especially praiseworthy when the litigation is of the “impact” variety, designed to change the law and protect rights. But as the Gawker case demonstrated, such lawsuits can also be seen as punitive exercises, financed by a third party as payback.

The problem is that when lawsuits are funded by vast sums of dark money, they can have a distorting effect. Hogan’s invasion-of-privacy suit after Gawker published video of him having sex without his permission was certainly worthy of pursuing. But in the ordinary course of such matters, it would have been settled and life would have gone on. Instead, Hogan’s lawyers used secret Thiel money to push the suit all the way to its conclusion, with Gawker ultimately going bankrupt and shutting down. (The site has since been relaunched under new ownership.)

Unlike Hogan’s case, Palin’s libel suit against the Times is entirely lacking in merit. The Times published an editorial falsely tying Palin’s rhetoric to the 2011 shooting of then-congresswoman Gabby Giffords and the killings of six others. But there was zero evidence that the Times acted with “actual malice” (knowing falsehood or reckless disregard for the truth), which is the standard for public officials and public figures.

Palin’s suit shouldn’t have gotten as far as it did, and the devastating defeat she suffered this week ought to put an end to it. But if she’s backed by an endless stream of screw-you money, she can keep pushing, and perhaps get her case eventually heard by the U.S. Supreme Court — where Justices Clarence Thomas and Neil Gorsuch have indicated they’re prepared to overturn or pare back the libel standards that have protected the press since the landmark 1964 Times v. Sullivan decision.

A resounding double defeat for Sarah Palin may make it difficult to undo libel protections for the press

Sarah Palin. Photo (cc) 2017 by Gage Skidmore.

Previously published at GBH News.

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.

Could Sarah Palin, of all people, be the catalyst who tears down libel protections for the press?

Sarah Palin. Photo (cc) 2021 by Gage Skidmore.

Previously published at GBH News.

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.

Bari Weiss, James Bennet and the selective omission of relevant facts

I had a chance on Monday to listen to Brian Stelter’s CNN podcast with Bari Weiss, the semi-conservative journalist who left The New York Times over what she perceived as an overabundance of left-wing groupthink.

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.

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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.

Three quick thoughts about the Republican race

Flag of the Cayman Islands

Three quick observations about the state of the Republican presidential campaign:

• It’s been a very bad week for Mitt Romney. First came his peevish debate performance Monday night. Then came his admission that his tax rate is half that of ordinary Americans, followed by the revelation that he parks a great deal of his wealth in the Cayman Islands.

But one thing the media are unlikely to back down on is their insistence that he’s “two for two” going into Saturday’s South Carolina primary, even though we’ve known since Jan. 6 that Rick Santorum may have beaten him in the Iowa caucuses.

Now the Des Moines Register reports that the best numbers we’re ever going to get show Santorum ahead of Romney by 34 votes. Apparently the votes from eight precincts have been lost, so we’ll never know exactly who won.

Still, the media’s insistence that Romney had “won” Iowa by eight votes was never based on anything more than a provisional count that crumbled within hours. If it was all right to report that Romney won Iowa then, it’s certainly all right to say Santorum won Iowa now.

Does it matter? No. But it was the media that told us relentlessly and breathlessly for many months that it did matter. So surely it matters that Romney apparently came in a narrow second, eh?

• Will Fox News allow Sarah Palin to take part in its post-debate spin tonight now that she has essentially endorsed Newt Gingrich for president? Tune in and see.

• I thought it was crystal-clear that Gingrich was being racially provocative when he got into his food-stamp exchange with Juan Williams on Monday night, and I’m amazed by those who refuse to see it that way. So I was delighted to see this report from the road in today’s New York Times, which ends:

“I want to thank you, Mr. Speaker, for putting Mr. Juan Williams in his place,’’ she said.

The audience burst into sustained applause.

Any questions? And don’t miss Charles Pierce: “What Newt Gingrich is doing down here is running a campaign that is pure George Corley Wallace, straight out of 1968 and 1972.”

Times lets Palin aide lie about gunsight map

The New York Times today fails to call a Sarah Palin spokeswoman on what has all the appearances of a flat-out lie.

In a story on the political fallout of the weekend carnage in Tucson that claimed the lives of six people and left U.S. Rep. Gabrielle Giffords gravely injured, Times reporters Jeff Zeleny and Jim Rutenberg tell us that Palin adviser Rebecca Mansour denied that those were gunsights on Palin’s infamous map identifying House Democrats she had targeted for defeat. Zeleny and Rutenberg write of Mansour’s appearance on a conservative radio talk show:

Ms. Mansour said that the cross hairs, in fact, were not meant to be an allusion to guns, and agreed with her interviewer’s reference to them as “surveyors symbols.” Aides to Ms. Palin did not respond to interview requests on Sunday.

Yet we already knew otherwise on Sunday, as a Talking Points Memo reader dug up a tweet purportedly written by Palin herself referring to the map symbols in explicitly gun-oriented terms. Palin or her designated tweeter wrote:

Remember months ago “bullseye” icon used 2 target the 20 Obamacare-lovin’ incumbent seats? We won 18 of 20 (90% success rate;T’aint bad)

And let’s not forget that those symbols turned red whenever one of the targeted Democrats went down — just like surveyors symbols, eh?

Few people are blaming Palin for the actions of Jared Lee Loughner, who has been charged with the Saturday shootings. Loughner appears to have been motivated by mental illness rather than politics. Still, Palin’s map was mind-blowingly irresponsible, as Giffords herself said some months ago. This should mark the end of Palin’s public career as anything other than a sideshow freak, much as Ann Coulter all but disappeared after she mocked 9/11 widows. Are the media really going to let Palin and her minions get away with this?

Traditional journalism is incredibly uncomfortable when given proof that someone is flat-out lying. But that’s no excuse for the Times’ ignoring the fact that there was already proof Mansour was lying — or, at best, was incredibly uninformed about her boss’ intentions.

Murder, politics and mental illness

Gabrielle Giffords

One day in 1993, when I was managing editor of the Boston Phoenix, I received a letter from a man named David Taber, who claimed that the CIA and his father had conspired to implant a computer chip in his brain so they could monitor his thoughts. Such letters are not as unusual as you might suppose; what made this one stand out was that it was well-written enough that it took me a couple of pages to realize the writer was mentally ill.

Not long after that, Taber showed up at the Phoenix, looking for me, in order to discuss when we might publish his letter. I couldn’t be found, and didn’t know about his visit until after a colleague had talked him into leaving.

And then, within a few weeks, Taber walked into an elementary school in the Southeastern Massachusetts town of Acushnet, took hostages and murdered the school nurse.* Unfortunately, I had discarded his letter.

It’s because of that experience — and, frankly, because of common sense — that I’m put off by those who are trying to politicize yesterday’s carnage in Arizona, which included the attempted murder of U.S. Rep. Gabrielle Giffords and the murder of federal judge John Roll and a 9-year-old girl, Christina Green.

The suspected shooter, Jared Lee Loughner, appears to be very mentally ill. If you haven’t seen this video yet, take a look. I was especially struck by this Loughner statement: “I’m able to control every belief and religion by being the mind controller!” That kind of says it all, doesn’t it?

Now, by no means do I want to let anyone off the hook. I was appalled to learn that Giffords’ district was among those targeted on Sarah Palin’s truly demented gunsight map. I hope yesterday will bring the whole Palin phenomenon to a long-overdue end. And I scarcely know where to begin with this piece of incendiary garbage.

As Tucson Sheriff Clarence Dupnik said, careless rhetoric can have consequences. But that rhetoric did not create Jared Loughner. If he hadn’t gone after Congresswoman Giffords, he might have gunned down a school nurse instead.

*After posting this earlier today, I searched the Boston Globe’s archives and found a story published on April 17, 1993, that reported the details of Taber’s rampage in Acushnet. I’ve updated this post to include what I learned in that article.

Photo via Wikimedia Commons.

Right complaint, wrong picture

palin_doll_20091119A number of critics, including Sarah Palin herself, are going after Newsweek for running a cover shot of her in a sexy running outfit. Palin calls it “sexist.”

I can’t get too worked up about it. Palin, after all, posed for the shot, which was originally intended for Runner’s World. (At Beat the Press, Ralph Ranalli writes that Newsweek may have violated Runner’s World’s exclusivity deal with the freelance photographer.)

But Palin and other critics have a legitimate complaint about Newsweek’s inside photos. I haven’t picked up a Newsweek in many months, but Media Matters has the pictures — a back-to image of Palin’s shapely legs, something she most definitely did not pose for; and a photo of what Media Matters accurately describes as a “Sarah Palin-as-a-slutty-schoolgirl doll.” The latter was used to illustrate a piece by Christopher Hitchens, who is almost as overexposed as Palin herself.

The treatment is further evidence of Newsweek’s plunge into irrelevance. The New York Times this week described the magazine as repositioning itself for a smaller, more intelligent news audience.

But with garbage like this, and with recent cover headlines like “Is Your Baby Racist?”, the only thing editor Jon Meacham seems to be repositioning his magazine for is rack space next to People and Us.

Sarah Palin quote of the day

From Sarah Palin’s Facebook page:

How sad that Washington and the media will never understand; it’s about country.

Uh, huh. No doubt folks from the pro-American parts of the country will understand.

Another good day for Mitt Romney

Now that South Carolina Gov. Mark Sanford’s national ambitions are a thing of the past — left behind on the extreme southern stretch of the Appalachian Trail — it’s interesting to think about the number of up-and-coming Republican stars who’ve been taken off the board in the past year. Five (including Sanford) come quickly to mind.

Two — Alaska Gov. Sarah Palin and Louisiana Gov. Bobby Jindal — were damaged by their own party, pushed in front of the public long before they were ready. Hype-versus-reality questions aside, Palin and Jindal were routinely described as rising stars until, suddenly, they weren’t.

Jindal can certainly recover from his poor performance in delivering the Republican response to President Obama’s national address last February. All he has to do is not act like a dork the next time. But the arc of Palin’s post-running-mate political career has already been determined: hero to the right wing of her party; pariah to everyone else.

Sanford’s finished. So is Nevada Sen. John Ensign, although at least his sexual indiscretions do not include a secretive flight to Argentina. I must confess I’d barely heard of Ensign before learning that (1) he’d been unfaithful in his marriage and (2) he was a possible presidential candidate.

Finally, there is former Utah governor Jon Huntsman, chosen by Obama as his ambassador to China. Huntsman hasn’t been tainted (except possibly in the eyes of a few partisan Republicans), but he’s not going to challenge Obama in 2012.

As Rich Lowry observes at National Review (via Talking Points Memo), Mitt Romney may be the last candidate standing by the time the ’12 campaign rolls around in earnest.