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--:-- Sean Rameswaram: Sarah Palin is back in the news. For those of you too young to remember, she used to be the governor of Alaska. She ran against Obama and Biden with the late Arizona Senator John McCain. and more recently she rapped Baby Got Back on the masked singer in costume as some kind of, like, Technicolor teddy bear. A lot of people like to credit Sarah Palin as being some kind of pre-Trumpy Trump. They share a lot of tics, including a real love-hate thing with the media. Social media and activists like those you're seeing today, they help render the lamestream media powerless. And the people then are empowered. They can do their own homework. And now she is suing the mainstream media for libel. She's saying the mainstream media made stuff up about her. And not just any mainstream media. Sarah Palin is going after the New York Times.
--:-- Sean Rameswaram: Trials of this sort almost never make it to a jury. Eric Wemple has been covering the trial for the Washington Post. This is a trial that involves the most storied landmark media protection in American history. It's the 1964 actual malice test, which requires a public figure like Palin to prove a hell of a lot if they're going to prevail in a lawsuit against any media organization. So this is an enormous, enormous case in the sense that we don't often see this standard tested before a jury. And if she wins, what kind of precedent could that set? If Palin were to win this case, I think it would probably encourage a lot of public figures, public officials, celebrities to come forth with suits, perhaps, because, you know, if she can do it, they can do it. I think if she loses, there is a chance for significant ramifications as well. And that is that they could possibly appeal the case and try to overturn or upend actual malice. That's something that the lawyers for Palin have signaled that they might do if they lose the case.
--:-- Eric Wemple: Before digging into this actual malice test, we figured we should dial it back to the beginning of the story with Palin and the NYT. This story begins on June 14, 2017. That was the day that James Hodgkinson, who was a leftist Trump hater, open fired on a baseball field in Alexandria where a number of Republican lawmakers were practicing for an upcoming baseball game. An all-out gun battle. As Capitol Hill police and Alexandria officers engaged a lone gunman among the first to be hit Republican whip Steve Scalise. It was the second attack on a congressional lawmaker in about six years, because in 2011, Jared Lee Loeffner attacked a bunch of people in the Tucson parking lot where Gabby Giffords, then congressional representative, was holding an event. Witnesses are reporting that they heard 15 to 20 gunshots at an event being held outside that supermarket. Of course, we do not know if any of the emotions that might have flooded over from the political midterms took any sort of play in this event. We do know that that race was a very hotly contested race. She won by, I believe, two percentage points or even less up against a Tea Party favorite. And the Times publishes an editorial about these shootings.
--:-- Eric Wemple: So what happened in this 2017 editorial was the Times was trying to make an argument, trying to fashion an argument about how political rhetoric had amped up the possibility that we would see political violence in this country. And they, citing that 2011 shooting, claimed that there was a quote-unquote political incitement link between a map that Sarah Palin's political action committee had circulated before the Loughner shooting, months before the Loughner shooting. In fact, as a lot of reporting indicated after that 2011 shooting, there was no link between that Sarah Pack map and the Jared Lee Loeffner shooting. But the Times said there was this political incitement link. What exactly did Palin take issue with in this editorial?
--:-- Eric Wemple: We're talking about two or three sentences that are in two paragraphs in this editorial. The main passage is... In 2011, when Jared Lee Loeffner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a nine-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 Mrs. Giffords and 19 other Democrats under stylized crosshairs. next paragraph, they basically compare the two shootings and they say, though there's no sign of incitement as direct as in the Giffords attack, liberals should, of course, hold them. So those are two instances there where they're really, really, you know, in their own factual territory, pretty much Was the Times within its sort of editorial guidelines to write this or was this you know objectively wrong
--:-- Eric Wemple: I think that in today media age opinion writers get more and more leeway to sort of do what they do And you know that always the commonly cited defense for what Fox News, Sean Hannity, Tucker Carlson, their opinion journalists, you know, their talk show hosts. But in this case, the answer would be no. The Times did not have the authority to say what it said because it was directly contradicted by objective facts that had already been reported. And the New York Times itself would acknowledge and does acknowledge that its opinions pieces need to be based on a commonly shared factual basis. And this was not anything close to that. And so they published the editorial and they learned pretty quickly from Twitter that they had problems.
--:-- Eric Wemple: Ross Douthat, who was a colleague and a conservative columnist at the Times, alerted the editorial page editor, James Bennett, via email to this problem. I would be remiss if I didn't express my bafflement at the editorial that we just ran on today's shootings and political violence. James was clearly starting to get unnerved. He later testified he didn't sleep that night and sent an email to his colleagues at 5.08 the next morning saying, we need to get to the bottom of this and perhaps run a correction. But, you know, we need to learn the truth, he said. How does that go? Well, I don't think it took them that long to figure it out because the editorial itself had linked to a story that debunked it. So, you know, right within the editorial itself was a link to an ABC News story saying, you know, that there's no link between the Sarah Pax map and what Jared Lee Loeffner had done. You know, and this is what made, I think, this suit somewhat plausible is that this was really widely debunked. And for them to just insert this and say it was fact, you could possibly think that it was evidence of reckless disregard or knowing falsehood. Yeah. Given that it had been anybody who followed this back then probably would have known.
--:-- Eric Wemple: So the Times corrects itself, but Sarah Palin still decides to sue? Yes, 100%. She says she was harmed, and obviously she has been a critic of the New York Times and the mainstream media for a really long time. You're seeing some idiots in the press. In this case, I think that she had a genuine gripe. And people who have dismissed her suit, when her suit initially came out, I put a headline on my piece saying it was a convincing lawsuit. And I took a lot of heat for that. And my response to those people who were upset with my original assessment is, well, you've probably never been accused by the New York Times of inciting a mass murder. So I think it was a pretty serious thing.
--:-- Eric Wemple: Heading into this trial, what exactly do Sarah Palin and her lawyers have to prove? What Sarah Palin and her lawyers have to prove is one of two things. Either the New York Times published this falsehood fully knowing that it was false, or they have to prove that the Times published it with reckless disregard as to its truth or falsity, which basically means they have to prove that the Times entertain serious doubts about its truthfulness. And that's a real tough thing to do because you can't just document that they defied industry standards or industry guidelines or best practices, as the wonks might say. They have to prove that James Bennett walked by, like, informational signposts telling him that this was wrong. This case is pretty close because it's proven that James Bennett didn't click on various things that were right in his vicinity that would have alerted him to this falsehood.
--:-- Eric Wemple: The trial after being delayed because Sarah Palin herself got the Rona started earlier this month. And James Bennett himself takes the stand at trial, right? What was his testimony like? You know, it was many hours. I found it kind of riveting. I think that he was tremendously measured, tremendously responsible, and tremendously contrite. I mean, he said, you know, this was my mistake. I own it. One of the lawyers asked him, did you send the editorial back to Elizabeth Williamson after you finished your revisions? And he said yes. And I think he sensed that answering the question might shift blame onto Elizabeth because maybe she didn't review it enough after he finished his edits. And he was like, I just want to be clear on something here. This was my fault. But it is true that after he put these edits in the story, that his other colleagues did not really scrutinize those edits.
--:-- Eric Wemple: One of the dynamics there is that James Bennett was a revered editor. He was the top editor. He was kind of a forceful editor. And I don't think that people were inclined necessarily to challenge his edits the way they would be inclined to challenge someone lower down on the organizational hierarchy, if you understand what I'm saying. Sure. Was Sarah Palin in the room for all of this? Sarah Palin was in the room, I believe, every day for the trial. Yeah. And she eventually takes the stand, too. She eventually takes the stand. She bombed. It was catastrophic in my view. She bombed, I think, at every juncture. You know, she came off as authentic, a family person, someone who believed in her politics. I think that when she was originally being questioned by her friendly counsel, her own attorney, she did pretty well. But once they got into the nitty-gritty of things, it just, it became a complete disaster, in my view.
--:-- Eric Wemple: There was one point in which her attorney was questioning her about the editorial, and he asked her about her reaction to the editorial, and she starts talking about how everybody in her inner circle realized that she needed to respond again to the New York Times' lies. And so all of a sudden the judge said, well, again, what do you mean by again? Because it was pretty well established that this was a one-off, you know? This was a discreet error by the New York Times. And then she's like, yeah, well, you know, they did this before. And the judge was like, before the editorial was published, they did this same thing? and they go back and forth and the judge says, what specifics do you have? And she says, well, you know, the link that they established between me and political incitement. And of course I don't have the articles in front of me here. And to anybody who's listened to Sarah Palin for, you know, the past decade or so, you know that her broadsides against the media are these generic, broad brush, lamestream media things.
--:-- Eric Wemple: For these lamestream media characters to get all wee-weed up about that, first you have to ask yourself, have they ever ever attended a Sunday school class even Have they never heard this terminology before And she never really pushed to like state her case or build her case or, you know, cite supporting links and evidence. And so they were like, what are you talking about? And then this forced a huge sidebar where they had to leave the courtroom. I think their sidebars now are down the hall because of COVID. But they were in there for a good 10, 15 minutes trying to figure out this situation because they didn't want to poison the jury, having the jury think that the New York Times did this multiple times to Sarah Palin. Did she blow it bad enough to blow her case? I mean, geez, I don't know. I can't put myself in the jury box, but I felt it blew an enormous hole in the credibility of her case, if only because the Times put forth people who were real sober, detail-oriented, and they did not jump out of their own brief. You know what I mean? They never once went over the line factually. They never once really got the court to slip up and say, what are you talking about? They were just outstanding, you know, in the context of having made this huge mistake.
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--:-- Sean Rameswaram: Did you enjoy your week in New York City? You know, I did, Katie, and I wasn't sure I would at first. New York is, of course, home to the liberal media elite, but Todd and the kids had a great time going to the Central Park and the FAO Schwarz and that goofy Evolution Museum. Eric, it sounds like in your eyes, at least, Sarah Palin kind of blew her argument here at this trial. And she might be blowing, for her at least, a golden opportunity to sue the so-called mainstream media for libel and win. And why is it so hard to do that in the first place?
--:-- Sean Rameswaram: In 1964, the New York Times versus Sullivan case, the court decided that we need a robust political marketplace. We need a place where news organizations can feel emboldened to really, really criticize the people who make big decisions about our lives. And this was the Supreme Court. This is the Supreme Court, right. New York Times Company petitioner versus L.B. Sullivan. Mr. Wessler. Mr. Chief Justice. He plays the card. What were the details of that case? This is all in the context of civil rights. There were those who said that we would get here only over their dead body. Well, that's not. No, no. All the world today knows that we are here and we are standing before the forces of power in the state of Alabama saying we ain't going to let nobody turn us around.
--:-- Eric Wemple: This is all in the context of civil rights. There were those who said that we would get here only over their dead body. Well, that's not. No, no. All the world today knows that we are here and we are standing before the forces of power in the state of Alabama saying we ain't going to let nobody turn us around. So the New York Times was doing aggressive reporting in Alabama. This is where the case came from. Aggressive reporting on civil rights abuses in Alabama, on the oppression of African Americans in that state. One Negro was shot in the stomach. He is in critical condition. He says that he thinks the trooper has shot him. And so the New York Times ran an ad talking about police brutality or police mistreatment of civil rights protesters. And it didn't even name this guy, but it sort of insinuated that a man named L.B. Sullivan, who was a commissioner in Alabama who had jurisdiction over the police, that he had engaged in some sort of misconduct. He sued the New York Times. He won. And this was part of kind of a campaign by people who were opposing the civil rights movement in Alabama.
--:-- Eric Wemple: It was kind of a campaign to basically take the New York Times out of the game because there were other suits that were winning big, big, big decisions. I do believe that the New York Times pulled out of covering Alabama for a while because of this. And the Supreme Court said, look, no more of this. So this goes to the Supreme Court and the Supreme Court overturns the lower court's decision. Exactly, exactly. The writ calls for review a judgment of the Supreme Court of Alabama, which in our submission poses hazards for the freedom of the press not confronted since the early days of the republic.
--:-- Eric Wemple: So how does this Times versus Sullivan decision sort of set the standards for libel suits in the United States Basically it sends a signal that if you a public official or a public figure it sets the standard that listen don bother suing a news organization over you know just an error Like, if they screw up and it's just like an honest mistake, you are not going to get anywhere. It's going to get tossed immediately. It will be a waste of your time. It'll be a waste of your lawyer's time. It'll be a waste of your money. Don't even bother. And for whatever, 57, 58 years, my feeling is that an entire culture has grown up around this case.
--:-- Eric Wemple: You know, Hillary Clinton, as many times as she was trashed by Fox News, Barack Obama trashed by Fox News with some racist coverage and so on and so forth. Those people, I think, they no longer even think about suing because they know what the rules are and they know that they have to go through and prove state of mind. and that it's just, this is the culture in our country, that if you're big and powerful and rich, you just basically, you've got to deal with your bad press.
--:-- Eric Wemple: How has this decision been viewed in the decades that followed? Is it sort of a beloved decision, a ridiculed decision? Which? New York Times versus Sullivan is a bedrock precedent for media organizations. It is as close to a Bible as we have, and it's constantly cited. You know, even the youngest reporters who don't know anything what they're talking about, they're like, oh, that's not actual ballots. Public figure, public figure. Even among people who don't know a damn thing about it, they will cite it. And it is something that the media relies on, as I say, consciously and just as a cultural matter.
--:-- Eric Wemple: One of the things that is critical in discussing it, though, is that some of the Supreme Court justices have started to express misgivings about it. Aha. Justice Thomas, for several years now, has hammered this particular precedent saying that it's impossible to win libel cases. The proliferation of falsehoods is and always has been a serious matter. Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires. And Gorsuch recently expressed a willingness to review it, although he didn't say, I will definitely undo it. So there is more of a receptivity at the Supreme Court level than we've had in a really long time.
--:-- Eric Wemple: And this is happening all the while Sarah Palin's case has been pending. Exactly. 100 percent. Over the five years. Yes, yes, yes. Has Sullivan come up directly in her trial? It has come up in her case in the sense that Palin's lawyers filed a document saying, we think you should overturn actual malice. That needs to happen here. They didn't think that the trial judge here in the federal court in New York State would overturn New York Times v. Sullivan. But what they were doing was preserving the opportunity to appeal it later.
--:-- Eric Wemple: I mean, if it did make it up to the Supreme Court and the Supreme Court decided if Gorsuch and Thomas, let's say, prevailed and they undid this precedent, if they overruled the precedent, what kind of impact would that have? Well, I mean, if they overruled this, I'm not sure exactly what would prevail in its place. But if you went to a default just negligence standard in media coverage of public figures, you would find a lot more careful. And I would say restrained coverage of American politics, local politics, regional politics, celebrities, business, everything. I think the media would be significantly deterred and chilled.
--:-- Eric Wemple: Who would it affect most, though? I think it would affect Fox News the most. I was going to say. Fox News would suffer the most. They, by far, litter the American discourse with more damaging falsehoods than any other news organization. This is legal welfare for Fox News. This is the Legal Welfare Act for Fox News. And people don't see it that way. Like, the people on the right are like, yeah, these mainstream media people, New York Times are Sullivan. They're, you know, feeding off of that. And it's like, no. I mean, right now, the Fox News is relying on this case, this precedent, this bedrock American media protection in defending itself against the lawsuits filed by Smartmatic and Dominion over the big lie.
--:-- Eric Wemple: Right, because you're saying that Sarah Palin, beloved Fox News commentator, talking head, in suing the New York Times for an actual error that the New York Times would admit that it made, might actually make it easier to sue Fox News. That could happen. It's kind of far off as a scenario, but that's within the realm of possibility. You're saying that Sarah Palin right here could be making the world. A better place. Well, that's not my view. I think media organizations thrive in this country because of New York Times v. Sullivan, and I am squarely in favor of it. And I know that I have a conflict of interest there because it protects me as well, but it protects you too. It's the greatest bipartisan constitutional bedrock right now that we have in this country, I think. And I think that it's important people realize that.
--:-- Sean Rameswaram: Eric Wemple is the media critic for The Washington Post, where you can read much more about this trial. Our show today was produced by Will Reed, edited by Matthew Collette, engineered by Afim Shapiro, and fact-checked by Richard Sima. and Laura Bullard. I'm Sean Rameswaram from It's Today Explained.
