Sarah Palin Libel Suit Against NY Times Based On Op-Ed Referencing 2011 Tucson Shooting Moves To Jury Trial

Published: Wednesday, September 2, 2020 - 12:56pm
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MARK BRODIE: A federal judge has decided a libel lawsuit brought by former Alaska Gov. Sarah Palin against The New York Times will go to a jury trial. This comes after the same judge had initially thrown out the case after an expedited hearing. Palin appealed that ruling and the 2nd Circuit Court of Appeals said the sped up process was not authorized and that the former GOP vice presidential nominee was entitled to have the case go through the regular process. The suit stems from an op-ed the Times published that referenced the 2011 shooting of former Congresswoman Gabby Giffords and others in Tucson. The jury trial could get underway as early as February. With me to talk more about what's happening here is Josh Gerstein, senior legal affairs contributor for Politico. And Josh, can you first off sort of walk me through the background? What exactly does this libel case entail?

JOSH GERSTEIN: So this case derives from an editorial that The New York Times wrote back in 2017 after an incident that took place just outside Washington, D.C., where there was a shooting at a congressional baseball game. And the editorial basically discussed ways in which political rhetoric had contributed to real world violence and gun violence, in particular, in recent years. And one of the examples discussed in the editorial was the Tucson shooting rampage from 2011 in which Rep. Gabby Giffords was seriously wounded and six other people were killed. And at least in the eyes of many, the editorial appeared to say that former Gov. Sarah Palin was partially responsible for that episode because her political action committee at one point had published a map that showed Giffords' district and mentioned Giffords and showed her district with a crosshairs over it, and that that had contributed to the shooting.

BRODIE: Was there any evidence to suggest that that kind of graphic did, in fact play any role in the Tucson shooting or really any other shooting?

GERSTEIN: Well, no. I mean, it is a fact that that graphic was released, but no evidence really linking the actual violence to that has ever been established that I'm aware of. Suspect Jared Loughner was taken into custody rather quickly and then pleaded guilty, I think in a plea deal. He had some rather severe mental issues and ended up being sentenced to life in prison. And I don't think there's ever been any real indication that he was even aware of that graphic, whether it was ill-advised or not. A factual link there has never really been made.

BRODIE: So then the libel case that Gov. Palin was making essentially boils down to the Times making the argument that that graphic led to the shootings when — in her mind, anyway — the Times knew that that was not the case. Is that right?

GERSTEIN: Right. So if this were an average person off the street, you might be able to sue the Times and say, "This was just a false claim about me and I want damages." Of course, Sarah Palin is not just a public figure, but a very public figure, having been at one point the Republican vice presidential nominee — almost a household name, at least at one juncture. And so under oath, about a half-century old Supreme Court precedent, she has to show that The New York Times either knew that what they published about her was false and intentionally published it anyway, or was totally reckless, you know, had completely inaccurate information from an unreliable source and went ahead and published it without the slightest bit of thought or verification to it. And that's basically what she claimed in her lawsuit.

BRODIE: What was the Times' defense? I mean, did they just say it was honest mistake?

GERSTEIN: Well, the Times has presented, you know, I would say several different legal defenses. The first one is mainly that it was an honest oversight that was quickly corrected by the paper — within a few hours, one of the op-ed writers that the paper emailed and said, "Look, I think this isn't right and you need to check on it." They began to do so. And I think within half a day or so they published a correction that, you know, said that no link had been established. The Times has also put forward what I would call some more legalistic defenses, saying that, you know, they weren't directly asserting a factual link between the Palin graphic and the shootings, that you could also read the editorial as simply decrying that sort of rhetoric and that sort of imagery and maybe not directly asserting that that, that was responsible or directly contributed to what took place in Arizona.

BRODIE: What is the significance of this case moving to a jury trial now?

GERSTEIN: Well, it basically means that the court system was unable to resolve the issues here based on the testimony that's been given so far and other evidence, documents and so forth that have been gathered. It's pretty unusual for one of these libel cases to go to a jury trial. Most of them, frankly, are knocked out against the person filing them soon after they're brought. So it'll be an interesting courtroom test for The New York Times.

BRODIE: Well, and depending on how a jury finds in this case, how much or how little precedent might it set for future libel cases? I mean, the president, for example, has talked about changing libel laws. And it seems like this is an issue that is kind of in the forefront right now.

GERSTEIN: Right. I mean, I don't think a jury is going to be able to change libel law very much on their own. And certainly, I think Sarah Palin would face an uphill battle with what would be primarily a New York City jury, but her side and her legal supporters in this case are among those who basically think that the press has gotten too much in the way of protection from the legal system in the last half century. There was an opinion not long ago that was written by Justice Clarence Thomas, the very conservative Supreme Court justice, basically questioning that whole notion that you should have to prove actual malice as a public figure when you're suing for libel, and saying that that was basically made up by judges and it basically has no place in the law. And that's something that President [Donald] Trump has also said — that it's too easy for the media to lie about people and they have no recourse in the courts. And Sarah Palin's suit could well turn out to be a test case for that little proposition. You know, if she can make it past a jury, which I think is a pretty big if.

BRODIE: All right. That is Josh Gerstein, senior legal affairs contributor for Politico. Josh, thanks for your time. I appreciate it.

GERSTEIN: Hey, Mark, happy to do it.

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