Federal judge Jed S. Rakoff has dismissed Sarah Palin’s defamation lawsuit against The New York Times, ruling that she had failed to show that the Times defamed her in its June editorial stating that she was responsible in part for the Tucson shooting of Rep. Gabrielle Giffords and others by the deranged Jared Loughner. Rakoff’s ruling argued that the statements in the Times editorial were ambiguous (where have I heard this before?), and thus did not qualify as “provably false,” resulting in insufficient evidence that the Times had written the story with “actual malice.”
“[I]f political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity,” Rakoff wrote.
Right. Except that to write what it did, the New York Times Editors had to be unaware of what the Times itself had reported regarding Palin’s alleged culpability for the shooting. The Times reported, in great detail at the time, that the claim that Palin’s website had inspired Loughner was completely without merit.
A newspaper’s editors impugning a public figure by blaming her for multiple murders and the attempted assassination of a Congresswoman without checking its own reporting doesn’t qualify as “reckless disregard of its falsity”? If that isn’t reckless disregard, what is?
Actual malice, the standard that Palin, as a public figure, needed to show for a newspaper like the Times to be found liable for defaming her, demands that they did so “with knowledge it was false or with reckless disregard of its falsity.” This is the result of the famous 1964 Supreme Court case in involving the Times.
It seems clear to me that Judge Rakoff doesn’t have the fortitude to open the Constitutional can of worms that would result if he found for Palin, though she had a strong case. The Times’s anti-conservative, anti-Republican bias has edged into irrationality, and this episode was a prime example. It, like most of its fellow news sources, is increasingly unprofessional, biased, careless and incompetent. New York Times Co. v. Sullivan was announced at a time when the news media was far more trustworthy, and SCOTUS girding its First Amendment privileges with a high bar for defamation suits was prudent and wise. Now the news media is abusing its special status, and endangering Freedom of the Press through that abuse.
I think Rakoff made a disingenuous ruling, not to save the Times, but to protect that freedom from the furious assault that he knew would follow once a figure like Palin won a defamation suit against the New York Times. Of course, maybe he just hates Palin as much as the Times does; I’m giving him the benefit of the doubt.
Clarence Darrow wrote that “In order to have enough freedom, it is necessary that we have too much.” This is a perfect example of why he was correct. Even though it is currently in the control of people unworthy of it, freedom of the press is a core part of the foundation of our democracy. This is no time to weaken it, when the press itself is doing so by undermining the public’s support.
The Rakoff ruling is a dishonest decision, but a necessary one. Ann Althouse concludes her commentary on the case by ruefully writing,
Freedom of speech. It gives even the NYT the right to be sloppy and embarrassing in a completely politically slanted way.
How will you exercise your freedom today?
12 thoughts on “First Parmesan Cheese, An Now This: A Judge Bends Over Backwards To Let The New York Times Escape Its Abuse of Journalism Rights”
I read your piece, then followed the link to Althouse, then to Politico, and none of you quoted the actual NYT statement at heart of this. I then Google and read three other articles, none of which provided the exact quote. Finally, I found it in a PDF of the actual lawsuit:
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 antiTrump
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 for of the right.
I had initially thought the Times’ piece had drawn a more vague link between Palin’s actions and Laughner’s, and was prepared to argue that the lawsuit should have been thrown out, as the Times did not directly accuse her of inciting Laughner. But wow–the Times directly accused her of inciting Laughner. You’re right; this was a strong case, and I think it should have been argued in court rather than being dismissed.
It was in the print Times that way, but excised online by the afternoon.
I think that juries today are inclined to be distrustful of the press, with some justification. The Judge was protecting the Grey lady.
I would like to assume that this will be appealed. Rakoff will, of course, be reversed, even if it tkes SCOTUS to do it.
Nice analysis Jack. Very helpful. I had no idea what to make of the dismissal and the opinion. I just assumed The Times got a nice serving of home cooking. What’s the Second Circuit likely to do? Jack? Steve?
Very admirable, Chris.
This reminds me of the movie “Absence of Malice”. When the newspaper lawyer tells the reporter about how to CYA:
“That as a matter of law, the truth is irrelevant. We have no knowledge the story is false, therefore we’re absent malice. We’ve been both reasonable and prudent, therefore we’re not negligent. We can say what we like about him; he can’t do us harm. Democracy is served.”
“a dishonest decision, but a necessary one”
I really can’t accept the idea that a dishonest judicial decision is ever necessary. When judicial dishonesty is accepted, civilisation is lost. The Romans said ‘fiat justicia ut ruat coelam’ (let justice be done even though the sky falls) and I think they were right.
However, I have another problem with this decision. I can see how the editor as an individual can try to shrug off responsibility by saying he does not read the paper he edits, but can the NYT as a corporate body really claim ignorance of what it has previously published?
As to the latter, it can accept responsibility while still claiming to have made “a mistake.” The judge is essentially endorsing Hanlon’s Razor: don’t presume malice when incompetence is an option.
As for the judge, check out the Ethics Incompleteness Principe discussed here often. There are no absolutes. Your statement is correct 99.999% of the time, but a judge who realizes—oops, this decision will lead to a disaster!—should have the courage to conclude that long term considerations argue for finding a way to avoid it. Many feel that this is exactly what John Roberts did to save Obamacare.
Where was the defamation? The Times suggests that Laughner was motivated to shoot people based on Sarah Palin’s map; This is probably false, but also unknowable.
More to the point, do reasonable people think any more or less of Palin based on whether some nut case was motivated by looking at this map? Do people think less of Jodie Foster for what Hinckley did?
1. As you know, defamation is “Any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.” Surely alleging that an individual’s website or statements were in any way responsible for a mass shooting qualifies, no? The two conservatives targeted by this accusations were Palin and Rush, both beta noirs of the left: the intention was to smear them as well as to silence them. It’s personal destruction by cognitive dissonance.
2. No, the Times said that the shooting WAS motivated in part by the map. That statement is false. If they had written that it might have been a factor, there would be no defamation.
3. The defamation tort does not require that reasonable people are the only ones affected.
The Times didn’t suggest that Laughner was motivated to shoot people based on the map. The times said two times that the map incited Laughner to act. “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.” and “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 for of the right.” This is saying that Palin directly encouraged the unlawful behavior.
If I publish something, I cannot be held responsible for the myriad ways someone might interpret it and be motivated by it. People read all kinds of strange meanings into things. But if I publish something with the deliberate intent to encourage someone to engage in unlawful behavior such as shooting my opponents, incitement, then I am responsible. This is what the Times said Palin did. I am not a lawyer, but I think directly accusing someone of committing the crime of inciting violence is defamatory unless they actually did that. But in this case, the same paper had already clearly stated that she did not. Luckily for the Times, they are seen as so incompetent that Hanlon’s razor could be applied.
Sorry Jack. I posted without going back and looking at new comments.