You may recall this media faceplant from 2017. The NY Times published an editorial which claimed Sarah Palin’s district targeting map was a direct incitement for deranged Tucson shooter Jared Loughner. The NY Times issued a lengthy correction to the editorial but Palin filed a defamation lawsuit. In August of 2017, Judge Jed Rakoff dismissed the case, finding that the Times had been ignorant of the facts but had not displayed actual malice toward Palin. That seemed to be the end of it until today when an Appeals Court reinstated Palin’s case.
A federal appeals court ruled Tuesday that a lower court was wrong to dismiss former Alaska Gov. Sarah Palin’s defamation lawsuit against The New York Times over an editorial linking her to a 2011 mass shooting.
A three-judge panel of the 2nd U.S. Circuit Court of Appeals sent the case back to a lower court, saying her case against the newspaper “plausibly states a claim for defamation and may proceed to full discovery.”…
“This case is ultimately about the First Amendment, but the subject matter implicated in this appeal is far less dramatic: rules of procedure and pleading standards,” the judges wrote.
They said the lower court used an “unusual” procedure to assess the validity of arguments put forth by Palin’s legal team. It held a special hearing and then used facts from that hearing to dismiss the case. That was a mistake, the appeals court said.
Even beyond the procedural irregularity, the opinion said, Palin’s case against the Times “states a plausible claim for relief.”
In case you’ve forgotten what all of this was about, the Times wrote an editorial about the shooting of Republicans including Rep. Steve Scalise at a baseball field in Alexandria. The point the author wanted to make was that, unlike the Tucson shooting where the political incitement was clear, it wasn’t so clear what had led to James Hodgkinson to kill. Here’s the key portion:
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.
Just one problem. Everything the editorial said about the Tucson attack is false. There was no link between Loughner and Sarah Palin, despite the desperate desire of many on the left to find one. In fact, the NY Times itself eventually reported there was no known connection. The Times later issued a correction to the editorial noting the error:
Correction: June 15, 2017 An earlier version of this editorial incorrectly stated that a link existed between political incitement and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established.
Eventually, we learned that the editorial was written by Elizabeth Williamson but the part about Palin was added by editorial page editor James Bennet. Judge Rakoff held a special hearing with Bennet to get his side of the story (that’s apparently the unusual procedure the Appeals Court didn’t like). At the hearing, Bennet testified that he hadn’t intended to link Palin to the Tucson shooting.
“What I wasn’t trying to say was that there was a direct causal link between this map and the shooting,” Bennet said. “What I was concerned about was the overall climate of political incitement.”
He continued: “I didn’t mean to suggest that Loughner wasn’t responsible. … I did not think that Jared Loughner was acting because of this map.”
Bennet testified that he had not, in advance of publication, read specific pieces of reporting in the Times about a potential connection between the PAC ad and the shooting, and said he did not know at the time of publication whether Loughner had seen the map. He also said that he had not personally seen the map. “I was not reporting the editorial, your honor, I was editing it,” Bennet said.
Deadline has more of Bennet denying that he meant to say what he said:
“I was looking for a very strong word about our political climate to get readers’ attention,” Bennet said. Incitement, he added, was a word that harkened to his days on the Israel-Palestinian conflict beat, conjuring notions of “summonses and orders for political attacks.”
But Bennet insisted that the phrasing was meant to connect the current political climate and its rhetoric to the victims of violence, and not to say that any particular “political piece” incited “a maniac” like the shooter.
You may have noticed that none of this makes any sense. Bennet wrote, “the link to political incitement was clear.” He then went on to specify exactly one thing: Palin’s map. That’s not a reference to a general “political climate” it’s a direct connection to the map created by Palin’s PAC. But Bennet’s only plausible defense was claiming ignorance, so that’s what he did. It sounds like this case is still going to be an uphill battle for Palin, but if nothing else, it will be satisfying to force Bennet to once again proclaim his ignorance in court.