Judge Tosses Sarah Palin's Defamation Suit Against The New York Times, Says No Actual Malice

from the more-speech-still-better-than-shutting-people-up dept

On June 14th, the New York Times published an editorial concerning violent rhetoric being deployed during political races. In it, the author made an incredibly bad claim:

Was this attack [by Hodgkinson] 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.

This just simply wasn't true. To begin with, Palin's map contained only political districts under stylized crosshairs, not faces of legislators. Not only that, but there's been no conclusive link between Palin's crosshair map and Loughner's shooting. This was noted in two corrections published by the New York Times the next day, which also excised the two false statements.

Sarah Palin sued the New York Times for defamation a few weeks later because it apparently just wasn't enough to catch a "fake news" purveyor making some truly laughable assertions in an op-ed. The defamation suit has died a quick death, although Palin's claims were investigated with a bit more thoroughness than usual once the parties had entered their motions.

An examination of the run-up to the publication of the erroneous op-ed showed there was no actual malice in the New York Times' assertions -- just some really bad op-edmanship. The statements were provably false, which is key to defamation claims, but there also has to actual malice. And while many people think they know what's meant by actual malice, it's probably not what you think. In the legal context, actual malice requires "knowledge" of falsity before publication or reckless disregard. It doesn't just mean that you were trying to be mean (indeed, you could argue that "actual malice" doesn't require any... um... actual... malice). In this case, the court just can't find any knowledge of falsity -- and thus, no actual malice. [PDF link]

[E]ven then, a defamation complaint by a public figure must allege sufficient particularized facts to support a claim of actual malice by clear and convincing evidence, or the complaint must be dismissed.

Here, as already mentioned, the complaint fails on its face to adequately allege actual malice, because it fails to identify any individual who possessed the requisite knowledge and intent and, instead, attributes it to the Times in general. This will not suffice.

The court also points to the proactive measures taken by the Times to correct the misstatements after they were brought to its attention as evidence of a lack of actual malice. The corrections weren't prompted by a lawsuit or threats of a lawsuit, but rather by readers displeased the Times would make a connection between Palin and Loughner that had never been established.

Even if the Times hadn't made these immediate efforts, the court still would likely have cut the paper as much slack as it could, given the First Amendment implications of the lawsuit.

Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States. In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others. Responsible journals will promptly correct their errors; others will not. But if 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.

To entertain the theory the press can be held civilly responsible for swiftly-corrected errors would chill reporting on pretty much anything. To take the press to court is to take the First Amendment to court. A higher standard must be met by plaintiffs.


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  1. icon
    Stephen T. Stone (profile), 29 Aug 2017 @ 4:09pm

    Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States. In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others. Responsible journals will promptly correct their errors; others will not. But if 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.

    Whoever does the web design at Techdirt should put this paragraph at the top of any page under the “free speech” tag.

    reply to this | link to this | view in thread ]

  2. icon
    Gorshkov (profile), 29 Aug 2017 @ 4:49pm

    Stylised Crosshairs ?

    The worst part of all this is that what was on the map were NOT crosshairs of any sort - it was a compass rose (that little round thingie on allmost all maps that show you where north, south, east & west are).

    Kinda like saying that giving somebody the middle finger is a threat because you've got a stylised gun.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 29 Aug 2017 @ 5:18pm

    Re: Stylised Crosshairs ?

    Technically, you are correct. However the reality is that relatively few people, particularly very few people below age ~30 or so, actually recognize it as such. Most younger people haven't ever really looked at a physical map, or used a compass, and even older people who have may confuse it with a crosshairs. Particularly since on many maps said compass rose is highly stylized, so it's a tossup whether they would see this as a stylized crosshairs or a simplified compass rose.

    reply to this | link to this | view in thread ]

  4. icon
    Roger Strong (profile), 29 Aug 2017 @ 5:20pm

    Re: Stylised Crosshairs ?

    The worst part of all this is that what was on the map were NOT crosshairs of any sort - it was a compass rose

    No. Not when the ad is accompanied with the text "We'll aim for these races and many others. This is just the first salvo in a fight..."

    Giffords' election opponent didn't help by running ads like "Get on Target for Victory in November. Help remove Gabrielle Giffords from office. Shoot a fully automatic M16 with Jesse Kelly."

    reply to this | link to this | view in thread ]

  5. icon
    John Snape (profile), 29 Aug 2017 @ 5:22pm

    My main problem with news corrections is that, while the false statement is in large type on the front page above the fold, the correction is a tiny box at the bottom of page A20.

    If they put as much emphasis on the correction as they do the original false statement, I'd believe they weren't acting deliberately to smear people.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 29 Aug 2017 @ 5:37pm

    Re:

    Well, it's a good thing that the law doesn't care about what you believe.

    reply to this | link to this | view in thread ]

  7. icon
    John Snape (profile), 29 Aug 2017 @ 5:40pm

    Re: Re:

    And yet you believe so little in your own convictions that you post anonymously on websites. I'm not surprised.

    reply to this | link to this | view in thread ]

  8. identicon
    Thad, 29 Aug 2017 @ 5:55pm

    Re:

    My main problem with news corrections is that, while the false statement is in large type on the front page above the fold, the correction is a tiny box at the bottom of page A20.

    That's a fair complaint about corrections in general, but it's not accurate in this case. Here's the Times article in question; the false accusation about Palin is made in the back half of the fifth paragraph. It's in regular-size font, "below the fold" in the online version, and according to the note at the bottom appeared on page A24 of the print edition.

    I'm not sure where they put the correction in the print edition, but it's at the bottom of the article in the online edition. It would probably be better to put it at the top, though I suspect that most people who read halfway through the article are probably going to read to the end.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 29 Aug 2017 @ 6:00pm

    Re: Re: Re:

    Wow, good one!

    reply to this | link to this | view in thread ]

  10. identicon
    JEDIDIAH, 29 Aug 2017 @ 6:05pm

    Aim shotgun at foot.

    > Well, it's a good thing that the law doesn't care about what you believe.

    No it isn't. This kind of nonsense undermines trust in journalism far worse than the screechings of the Orange One.

    This is another good case of people (or rather entire industries) that don't really know what's good for them. They think they do but they are woefully mistaken.

    reply to this | link to this | view in thread ]

  11. identicon
    Thad, 29 Aug 2017 @ 6:47pm

    Re: Aim shotgun at foot.

    It's exactly one sentence in an op-ed from page A24, with a retraction issued almost immediately. As mistakes go, this was a minor one that was quickly corrected; you can't reasonably ask for any better.

    reply to this | link to this | view in thread ]

  12. icon
    John Snape (profile), 29 Aug 2017 @ 6:51pm

    Re: Re:

    I didn't say this particular item and correction brought my disdain. It is, though, a general trend to blare out false statements, while whispering the correction.

    reply to this | link to this | view in thread ]

  13. icon
    JoeCool (profile), 29 Aug 2017 @ 7:19pm

    Re: Re: Stylised Crosshairs ?

    No, he's not even technically correct. IF it were a single one in a corner of the map, then yes, he'd be correct. You do NOT put a compass rose over every point of interest on a single map.

    reply to this | link to this | view in thread ]

  14. icon
    Gorshkov (profile), 29 Aug 2017 @ 7:24pm

    Re: Re: Stylised Crosshairs ?

    If I run a story containing a big picture of a cow while the accompanying text talks about unicorns, the cow does not automagically become a unicorn.

    Now - given the point made by AC about people under 30 just before your comment - if you want to argue that whoever did that graphic *thought* they were crosshairs and used it accordingly ..... you might have a point.

    But it doesn't change the fact that a rose is a rose is a rose.

    reply to this | link to this | view in thread ]

  15. icon
    stderric (profile), 29 Aug 2017 @ 7:47pm

    Re: Stylised Crosshairs ?

    Kinda like saying that giving somebody the middle finger is a threat because you've got a stylised gun.

    Apparently you're not familiar with the US school system's 'zero tolerance' policy,

    reply to this | link to this | view in thread ]

  16. This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 29 Aug 2017 @ 7:49pm

    Behind the Techdirt Iron Curtain

    Here, as already mentioned, the complaint fails on its face to adequately allege actual malice, because it fails to identify any individual who possessed the requisite knowledge and intent and, instead, attributes it to the Times in general. This will not suffice.

    Shiva's complaint is better, right? Mike and Leah had the requisite knowledge and intent, right? Their allegations will suffice, right?

    Goodbye for now, my little post. I hope to see you in the future, after Techdirt holds it for hours, days or forever.

    This is your friendly Shiva supporter, signing off for now, behind the iron curtain of Techdirt censorship.

    reply to this | link to this | view in thread ]

  17. icon
    Roger Strong (profile), 29 Aug 2017 @ 8:11pm

    Re: Re: Re: Stylised Crosshairs ?

    The picture has a bunch of sets of crosshairs, and the text is full of gun metaphors.

    You're the only one seeing unicorns.

    reply to this | link to this | view in thread ]

  18. icon
    Stephen T. Stone (profile), 29 Aug 2017 @ 8:13pm

    Re: Re: Re: Stylised Crosshairs ?

    In instances such as this one, we can go to what is known as “the moron in a hurry” test.

    Assume that the “moron” in question was given a brief look at the map and was told about the language only Sarah Palin used in connection with it. Now ask yourself whether the “moron” would think those symbols were crosshairs or stylised compass points.

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, 29 Aug 2017 @ 8:33pm

    These corporations want all the rights us humans enjoy, but go running for immunity from responsibility for the collective actions by their salaried employees. And the courts give it to them. What a hippocratic double standard bunk society we have here.

    reply to this | link to this | view in thread ]

  20. identicon
    Anonymous Coward, 29 Aug 2017 @ 8:44pm

    Re: Re: Re:

    That anonymous comment is a rightfully respected voice not for the comment but for that voice's right to choose anonymity because some are compelled to make the comment not believing the identity was neccessary. That's their choice.

    reply to this | link to this | view in thread ]

  21. icon
    Stephen T. Stone (profile), 29 Aug 2017 @ 8:48pm

    Re:

    …what

    reply to this | link to this | view in thread ]

  22. icon
    Toom1275 (profile), 29 Aug 2017 @ 9:27pm

    Re: Re:

    Yeah, the only hippocrats in this society I know of are doctors.

    Unless there's a new animal-mascot political party I hadn't heard about.

    reply to this | link to this | view in thread ]

  23. icon
    Stephen T. Stone (profile), 29 Aug 2017 @ 10:17pm

    Re: Re: Re:

    Furries lack the political clout to pull that off—and even if they could do it, you would never get them to agree on which animal to turn into the mascot.

    reply to this | link to this | view in thread ]

  24. icon
    orbitalinsertion (profile), 30 Aug 2017 @ 12:02am

    Re: Re: Re:

    They can go on thinking we live in a hippocracy, but we really live in a prepublic.

    reply to this | link to this | view in thread ]

  25. icon
    Narcissus (profile), 30 Aug 2017 @ 12:04am

    Re: Re: Re: Stylised Crosshairs ?

    No, those are crosshairs, not a compass.

    A compass rose would indicate 8 directions usually, not 4. Do a Google image search on compass rose. At the very least if they meant to put a compass rose there they went out of their way to find the most crosshair-like compass they could find and therefore, considering the language used, any misinterpretation is on them.

    Calling a cow a unicorn does not magically make it so.

    reply to this | link to this | view in thread ]

  26. icon
    PaulT (profile), 30 Aug 2017 @ 1:33am

    Re: Stylised Crosshairs ?

    In context, it was clearly something with violent rhetoric, and something that is very uncomfortable in light of the events that transpired. Whether or not it was a crosshair when you look really closely, it was obviously close enough for people to think that it was. Loughner may not have been directly inspired by the ad, but it is indicative of the type of action that the right-wing was calling for, whether or not you agree about the origin of the icon design.

    Bravo on coming up with something other than the oft-used "surveyors marks" to try and brush away the implications of this ad. It does raise the question of why people are so desperate to pretend this wasn't what it was, rather than accept is was in bad taste and try to avoid the same mistake in future.

    reply to this | link to this | view in thread ]

  27. icon
    PaulT (profile), 30 Aug 2017 @ 1:37am

    Re:

    That's typical of a lot of "news" organisations, sadly. One used a lot by UK tabloids to push certain agendas - put out some almost completely made-up stories about immigrants/EU on the front page, then issue an apology the week after admitting it was made up, in a place nobody pays attention to. A few years of that, you have people believing the headlines and voting the country down a black hole because they believed the original headlines.

    reply to this | link to this | view in thread ]

  28. icon
    MyNameHere (profile), 30 Aug 2017 @ 5:55am

    "To take the press to court is to take the First Amendment to court. A higher standard must be met by plaintiffs"

    Since all citizens are also journalists now, why should there be a double standard?

    reply to this | link to this | view in thread ]

  29. This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 30 Aug 2017 @ 9:26am

    Re: Re: Re: Re: Stylised Crosshairs ?

    This screen name has made 64 comments since 29 Mar 2011.

    Unbelievable that any real person remains interested for so long, made an account, yet doesn't comment.

    reply to this | link to this | view in thread ]

  30. identicon
    Anonymous Coward, 30 Aug 2017 @ 9:47am

    Re: Re: Re: Stylised Crosshairs ?

    You do NOT put a compass rose over every point of interest on a single map.

    It doesn't cease to be a compass rose because someone uses it in a ridiculous way.

    reply to this | link to this | view in thread ]

  31. identicon
    Anonymous Coward, 30 Aug 2017 @ 11:03am

    Re: Re: Re: Stylised Crosshairs ?

    I'll bet you think Palin is a brilliant orator as well, and that her speeches are pure genius.

    Amirite?

    reply to this | link to this | view in thread ]

  32. identicon
    Reddog55, 30 Aug 2017 @ 11:53am

    Re: Stylised Crosshairs ?

    It ceases to be a just compass rose when the user uses it in a way that renders it to be something else. It was used as a symbol of a target or crosshair based on the presentation.

    Kinda like how a bat becomes a murder weapon when it is used to beat someone to death.

    And this:

    "The worst part of all this is that what was on the map were NOT crosshairs of any sort"

    Wow! That was the worst part, really, not that an empty headed politician MAY have incited some wacko to try to kill someone.

    reply to this | link to this | view in thread ]

  33. identicon
    Anonymous Coward, 30 Aug 2017 @ 12:13pm

    Re: Behind the Techdirt Iron Curtain

    In case you have not yet signed off PLEASE PLEASE do so and do not come back.

    Stop wasting everyone's time with ignorant comments.

    A truthful statement made in malice is not defamation.

    reply to this | link to this | view in thread ]

  34. identicon
    Anonymous Coward, 30 Aug 2017 @ 12:17pm

    Re: Re: Behind the Techdirt Iron Curtain

    Not that I think techdirt made truthful statements in malice. It easy for people who behave badly to think you have malice in your heart when you point out how badly they are behaving.

    reply to this | link to this | view in thread ]

  35. identicon
    Anonymous Coward, 30 Aug 2017 @ 2:52pm

    Re: Re: Re: Re: Stylised Crosshairs ?

    It does if you use it like a set of crosshairs.

    reply to this | link to this | view in thread ]

  36. icon
    Gorshkov (profile), 30 Aug 2017 @ 6:27pm

    Re: Re: Re: Re: Stylised Crosshairs ?

    I come from a country that can see Alaska from my back porch and is infested with Death Panels. So no, I don't think Palin is a brilliant orator.

    I'd call Plain a tool, but tools are useful.

    reply to this | link to this | view in thread ]

  37. identicon
    Anonymous Coward, 30 Aug 2017 @ 10:57pm

    Re:

    Aren't you supposed to be a fan of double standards anyway?

    reply to this | link to this | view in thread ]

  38. identicon
    Talmyr, 31 Aug 2017 @ 7:34am

    Re: Re: Re: Re: Stylised Crosshairs ?

    It really, really doesn't look like a compass rose. It looks a lot like target crosshairs (around a circular view). A compass rose uses very different and usually more ornate direction pointers.

    A compass rose would be nonsensical in this context, and if misused to be like a crosshair functionally becomes a crosshair.

    reply to this | link to this | view in thread ]

  39. identicon
    Anonymous Coward, 1 Sep 2017 @ 2:00am

    Re:

    New law:

    All corrections are to be placed in the same location, and use the same styling and font, as was used for the article being corrected.

    Problem solved.

    reply to this | link to this | view in thread ]


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