In a trial in New York, federal judge Jed S. Rakoff came up with a curious legal version of a palindrome in the defamation trial of former Alaska governor and vice presidential candidate Sarah Palin v. The New York Times. Rakoff was previously reversed by the federal court of appeals for dismissing the action. He then held a trial and sent the jury out to deliberate the merits. Once they began deliberating, Rakoff announced that, regardless of their verdict, he would again dismiss the case. The jury later ruled against Palin. Either way, in Rakoff’s courtroom it would read the same: no liability for the New York Times.
The case involves an editorial that suggested Palin inspired or incited Jared Loughner’s 2011 shooting of then-U.S. Rep. Gabrielle Giffords (D-Ariz.). It was outrageously and demonstrably untrue. The editorial was published in the wake of the shooting of Rep. Steve ScaliseStephen (Steve) Joseph ScaliseWebsite that raised millions for ‘Freedom Convoy’ protests goes offline after possible hack House Republicans launch probe into GoFundMe over ‘Freedom Convoy’ fundraiser Palin testifies it was ‘devastating’ to read New York Times editorial at center of trial MORE (R-La.) and other GOP members of Congress by James T. Hodgkinson, of Illinois, 66, a liberal activist and campaign supporter of Bernie SandersBernie SandersOvernight Health Care — Biden eyes additional COVID-19 funding Senate confirms Biden FDA nominee Biden’s FDA pick clears key Senate hurdle MORE (I-Vt.). It appears The Times wanted to shift the narrative back to right-wing violence; it stated that SarahPAC, Palin’s political action committee, had posted a graphic that put Giffords in crosshairs before she was shot, described it as direct incitement of violence and opined that while not as guilty as Palin, “liberals should of course hold themselves to the same standard of decency that they ask of the right.”
In reality, the map SarahPAC distributed put targets on various districts that were viewed as possible flip districts by Republicans, and the map was published long before the shooting.
Rakoff insisted that he was “not at all happy to make this decision” but that he was, again, forced to dismiss the case because the Supreme Court established “a very high standard for actual malice” for public figures in seeking recovery for defamation. He is referring to the New York Times v. Sullivan standard requiring a showing that a false statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”
Rakoff’s curious handling of the case seems intended to undermine any appellate challenge that would allow the court to revisit the “actual malice” standard.
The Times helped create this standard as the victim of a bias campaign. The status is far less obvious today. For critics, The Times has become the very thing that the original decision sought to combat: a threat to free speech. The Times, they argue, often uses this protection to shield false attacks on political opponents.
Over 50 years ago, The Times was being targeted by segregationists who wanted to deter media from publishing accounts of segregationists opposing the civil rights movement. This effort was creating such a threat that media had to choose between a type of self-censorship or insolvency. In his concurrence in New York Times v. Sullivan, Justice Hugo Black said that “state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials.”
Today it is too often the media targeting those with “unpopular views on public affairs” to deter dissent. Many in the media applauded as GoFundMe and some banks froze donations to protesting Canadian truckers, and some media figures denounced them as terrorists and insurrectionists. Even a teenage student visiting his nation’s capital can be victimized in this media mob mentality by false claims that he harassed an elderly Native American activist in front of the Lincoln Memorial.
Journalists and schools of journalism have embraced the model of “advocacy journalism.” Some writers and academics now reject the very concept of objectivity in journalism. For example, Stanford journalism professor Ted Glasser has explained that journalism needs to “free itself from this notion of objectivity to develop a sense of social justice.” He insists that “journalists need to be overt and candid advocates for social justice, and it’s hard to do that under the constraints of objectivity.”
This approach was captured recently and quite vividly by Lauren Wolfe, the fired freelance editor for the New York Times, who has not only gone public to defend a pro-Biden tweet but published a piece titled, “I’m a Biased Journalist and I’m Okay With That.”
With market pressures transforming media in the advocacy journalism model, defamation lawsuits could now be the vehicle to protect rather than destroy journalism. The Times and other media outlets have shown they are unwilling or unable to resist demands for unbiased coverage.
As sacrilegious as it may sound, a little liability may now be just what journalism needs.
Since many editors seemingly lack the courage to stand up to advocacy journalists, they may be able to summon a modicum of courage to state (however reluctantly) that “those damn lawyers” are forcing them to be more balanced and accurate in their reporting. This would not be the first time that liability served as a substitute for courage.
It may also be time to revisit the “actual malice standard” and its application to public figures. Some justices have already begun to raise questions over whether the court went too far after New York Times v. Sullivan.
That brings us back to the decision of Judge Rakoff. The fact is the jury verdict was most useful in vindicating the court, not The Times and certainly not Sarah Palin.
A dismissal by Rakoff could have laid the foundation for a serious challenge to the actual malice rule. Even if the Supreme Court is unwilling to change the rule (though Justice Sonia Sotomayor recently warned in an oral argument that such a change could be coming), Rakoff could have been reversed in his dismissal of the case.
By ruling against Palin, the jury gave her a tougher appeal, given the ruling on the merits. She will not be able to appeal Rakoff’s legal interpretation alone, and The Times can argue that Rakoff’s ruling on the standard was immaterial because the jury rejected the claim on the merits — even if Rakoff did not render his decision, the case would have still ended.
While the win for The Times is ordinarily a cause for celebration in the interests of journalism, even Judge Rakoff expressed mixed feelings about the dismissal in light of the conduct of the editors. The Times ultimately prevailed on the basis of the higher standard that it helped create decades ago, but it may also have made the case for a reexamination of that standard in this or other cases. Indeed, it leaves open the question of whether a little more liability might go a long way in reinforcing journalistic values.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.
George is Digismak’s reported cum editor with 13 years of experience in Journalism