August 14, 2022

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“Recognize what they did here,” said Turkel, referring to the Times’s journalists. “Recognize that they...

“Recognize what they did here,” said Turkel, referring to the Times’s journalists. “Recognize that they crossed that line from just a ‘vigorous discourse’ and ‘political rhetoric’ and ‘demonization’ and all these terms they throw around.

“All they had to do is care the slightest bit. All they had to do is dislike her a little less — and we’re not sitting here today.”

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Anyone who has watched national politics over recent decades will recognize the intellectual heritage of this argument: That the Times acted with animus toward a conservative political actor. In this case, argued Turkel, the Times’s conduct outstripped the generous protections afforded to media organizations in their coverage of public figures. The “actual malice” standard — established under the 1964 Supreme Court case New York Times v. Sullivan — requires such plaintiffs to prove that the media knowingly published a falsehood or acted with “reckless disregard” of truth or falsity.

That’s a sturdy shield, and David Axelrod, an attorney representing the Times, made repeated references to the evidentiary challenges facing Palin. He argued that the Times committed an “honest mistake,” a shortcoming that falls far shy of the sort of misconduct required to trigger liability under “actual malice.” Mere negligence isn’t sufficient.

At issue here is “America’s Lethal Politics,” an editorial published on June 14, 2017, the day that James Hodgkinson opened fire on an Alexandria baseball field where Republican lawmakers were practicing for a game. He wounded several people, including Rep. Steve Scalise (R-La.). Scrambling for an angle on the day’s news, the Times’s editorial board spotted a possible parallel with the January 2011 shooting by Jared Lee Loughner in Arizona, which killed six people and wounded Rep. Gabby Giffords (D), among others. Then-editorial page editor James Bennet, in edits to the draft, inserted a false link between a map circulated by Palin’s political action committee (SarahPAC) and the Loughner shooting.

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The proceedings in Palin v. New York Times furnished a look at the quotidian anatomy of deadline journalism. Much of the testimony boiled down to this:

Lawyer: What did you do next? Times journalist: I sent an email.

All the minutiae yielded diametrically-opposed conclusions between the parties. Times attorney Axelrod said that the deliberations about the editorial were on email — not in hallway whispers consistent with animus toward Palin. He said that Palin was inserted into the original draft not by Bennet but by Elizabeth Williamson, who wrote it; he noted that Bennet was pulled into the editing process by a colleague, Linda Cohn, who raised concerns. Axelrod also highlighted the fact that Bennet sent the draft back to Williamson for a post-edit check; he cited testimony from Bennet indicating that he couldn’t sleep after learning of the falsity of the link; he pointed to the swiftness of the correction published the morning after.

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Such considerations, among others, militated against any notion of a “conspiracy” against Palin, argued Axelrod.

Except Palin’s attorneys didn’t mount a conspiracy case, as Turkel noted in his 15-minute rebuttal. “I never used the word conspiracy once in my closing,” says Turkel, who wondered aloud where the word had come from. This was an important distinction: In questioning of Bennet’s colleagues, Palin attorney Shane Vogt betrayed no sense that he suspected these editorial staffers of anything untoward. Rather, he appeared focused on establishing what topics they were researching and what materials the effort had surfaced.

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With that information in hand, Turkel argued why the production of “America’s Lethal Politics” exceeded negligence. He explored the archival articles that the Times’s research turned up regarding whether there was any link between SarahPAC and the Loughner shooting. One of them was an editorial published in the aftermath of the shooting, under the headline “Bloodshed and Invective in Arizona.” An excerpt: “Jared Loughner … appears to be mentally ill. His paranoid Internet ravings about government mind control place him well beyond usual ideological categories.”

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In all, contended Turkel, Times staffers supplied “seven links to content that’s supposed to educate him about what they’re writing here.”

This wasn’t an “honest mistake,” argued Turkel. It was a “reckless mistake.”

The back-and-forth between top-flight lawyers debating the case of a prominent national politician provided a rare, real-life look at how the “actual malice” standard — most commonly discussed by media and legal elites in rarefied spaces — might just play out before a jury.

The arguments reflected the malleability of this part of First Amendment law: Axelrod cited a link in “America’s Lethal Politics” to a 2011 ABC News report indicating that “No connection has been made between this graphic and the Arizona shooting.” Said Axelrod: “If James Bennet had intended to defame Gov. Palin and suggest to readers that she had incited a mass murder — and the killing of a 9-year-old girl; serious charges — why would he have allowed a link to be published in that editorial that says there’s no connection to support that charge. It doesn’t make any sense.”

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Well, Turkel found the same link to ABC News as supporting his version of events. “It just begs attention when they link an article to the article that includes a falsity about my client, and the hyperlinked article literally refutes what they’re putting in there about my client,” he said.

The jury now has the luxury of choosing between these two arguments. The case is straightforward enough — a single editorial, a false and easily understood claim — that the verdict should offer insight into the level of protection that news outlets can count on under “actual malice” here in 2022.

 

Opinion | Closing arguments reveal what’s at stake in Palin v. New York Times appeared first on maserietv.com.