Sarah Palin vs The New York Times

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Darrell Castle reports on the lawsuit filed by Sarah Palin against The New York Times for libel.

Transcript Notes

Sarah Palin vs The New York Times

Hello this is Darrell Castle with today’s Castle Report. Today is Friday August 4, 2017 and on today’s Report I will be talking about a lawsuit that was filed on June 27, 2017 by Sarah Palin against The New York Times for libel. The case was filed in the Southern District of New York and assigned to Judge Jed Rakoff who has been on the Federal Bench since he was appointed by Bill Clinton in 1996.

The New York Times, the gray lady, I have always thought of it as the best newspaper in the world and I have had home delivery for many years. The masthead of the Times says everything. “All the news that’s fit to print” right on the upper left column of the paper, has been synonymous with the Times since the beginning.  But according to Mrs. Palin and her legal  team, and by the Times own admission, as we will see, this time they printed something that was not fit to print.

The June 14 2017 edition of the Times carried an editorial on its opinion pages entitled America’s Lethal Politics. The point of the article was to put forward the argument that political rhetoric from certain people was responsible for inciting political violence such as the violence that wounded Representative Gabby Giffords and killed six people in 2011. The article was written shortly after the attack on a Congressional baseball game that wounded Representative Steve Scalise.

A quote from the Times editorial provoked Mrs. Palin to action: “Was this attack evidence of how vicious American politics has become? Probably. In 2011, 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. At the time, we and others were sharply critical of the heated political rhetoric on the right. Before the shooting, Sarah Palin’s political action committee circulated a map that showed the targeted electoral districts of Ms. Giffords and 19 other Democrats under stylized cross hairs. But in that case no connection to the shooting was ever established.”

So, with one brief paragraph the world’s best newspaper basically accused Mrs. Palin of inciting mass murder. Well, it turned out that no connection to the shooting was ever established because there was no connection to the shooting. Mrs. Palin’s electoral map had nothing to do with the shooting and the Times apparently knew that. Jared  Loughner was apparently a very disturbed man who had a personal fascination with representative Giffords which was not even connected to her political views.  The times quickly figured out that they had published something that they apparently knew to be false because two days later on June 16 they published the following “correction”:

“An editorial on Thursday about the shooting of Representative Steve Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs”.

The correction was too little too late for Mrs. Palin who apparently decided that enough was enough. She contacted her lawyer in Tampa Florida who together with a New York firm filed suit on June 27, alleging libel and slander,  but Mrs. Palin is obviously a public figure and the law holds that in order to recover for such offenses a public figure must prove actual malice. What is actual malice? According to Black’s Law Dictionary it is “the deliberate intent to commit an injury, as evidenced by external circumstances.” So the defendant or the one who defames has what could be termed a qualified privilege to defame public figures. The public figure, on the other hand, must overcome that privilege by proving actual malice defined as the intent to cause harm. Mrs. Palin then must prove not only that the Times’ statement was false; that the Times knew it was false, but also that the Times, by making the statement, actually intended to harm her.

Her complaint alleged that she suffered extensive harm in her personal and professional life.  It led to the end of her position as a Fox News Political Commentator, influenced her decision not to run for President of the United States, and tainted her personal and professional image. It will take her years to overcome the allegation that she had influenced someone to commit mass murder. The complaint states that she was a convenient target for the Times’ attacks against conservative policies and a subject likely to spark readership interest.

The real case involves the discovery process. Does the evidence of her allegations exist within the minds of Times employees and in their internal documents, and will Judge Radoff allow her to “discover” this evidence if it exists? It is highly likely that she can only prove actual malice by discovering information revealed by times employees by word of mouth and through internal documents. To that purpose then, her lawyers filed a discovery request for the deposition of 23 Times reporters, editors, and employees. In addition they asked for every document that had mentioned her since the incident in 2011. The Times’ lawyer, in response to the request, told the judge that the statement was “an honest mistake which was quickly corrected”. A motion to dismiss the complaint was filed at the same time as the opposition to discovery requests.

Mrs. Palin is obviously trying to prove more through discovery than that these Times’ people didn’t like her as the Times alleged. That’s right the Times’ lawyer said she didn’t like them.  She is trying to prove that they intended to harm her and through doing so she would establish the basis for recovery, i.e. actual malice, but more importantly she would prove to the world once and for all what the New York Times really thinks about all those rubes out there in flyover country. In Mrs. Palin’s mind, there is more at stake than herself in this lawsuit. For those reasons discovery is vital and probably fatal if not allowed.

My prediction all along has been that the judge would allow the depositions and then decide one by one if the testimony was relevant and should go to the jury under the age old rule that the law favors more information not less, however, I was wrong in that prediction. Judge Rakoff blocked the discovery and said that he would decide by the end of this month whether or not to dismiss the complaint. Appeals from the Southern District of New York go the Second Circuit Court of Appeals which also sits in New York City.

The Times argued for dismissal stating that she has no case because she cannot prove malice. The plaintiff’s lawyers argued that the Times knew the information was false but did it anyway to drive web traffic to their on line services using Mrs., Palin’s reputation to do it. In other words, they acted with reckless disregard of whether or not they injured her.

This could have been and still might be one of the most important cases in a long time. If only we could learn what is in those internal documents and what all those reporters, who are so very hostile to her and her views really have to say about her. The world needs to know but Judge Rakoff says no. Anyway, who would ever believe the New York Times, the world’s best newspaper would accuse someone of inciting mass murder just to sell their on line division and to further their brand of politics? Who indeed?

In conclusion, we will see if the judge dismisses Mrs. Palin’s complaint and if the block on discovery is appealed. If so, it will be a long process. I look forward to the journey.

At least that’s the way I see it.

Until next time folks,

This is Darrell Castle.

Thanks for listening.