Sarah Palin vs. NY Times

Power Line:
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The Times said that Palin’s “incitement,” which it described wrongly, had a “clear” and “direct” connection to the murder of six people and wounding of several more. That is obviously a very serious charge. And yet, as the Times now admits, there is not a shred of evidence to support it. In fact, we don’t know whether the murderer, Jared Loughner, had ever heard of Sarah Palin. There is zero reason to think that he ever saw her political action committee’s map of “targeted” districts.

So, how can accusing a person of having a “clear” and “direct” causal connection to six murders, without a shred of evidence, possibly be an “honest mistake”? Isn’t it a textbook case of reckless disregard?

Ms. Palin can make a strong argument that the Times editorialists knew that their smear was a lie, based on reporting done by the Times itself. (The editorialists’ defense likely will have to be that they don’t read their own newspaper.) But at a minimum, it seems that the Times editorial was published with reckless disregard for whether it was true or not. It was a product of sheer hatred toward Palin.

The “actual malice” standard that applies to defamation cases brought by public figures is often considered to be impossibly high. It has little to do with the usual meaning of the word “malice.” Rather, it requires that a defendant publish a statement that he knows to be false, or about which he has no idea whether it is true or not, and publishes it anyway (“reckless disregard”). Sarah Palin’s lawsuit against the Times is the rare case where it is hard to see how the paper will be able to mount a defense.
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The Times is left with the argument that it was just incompetent with a pure heart.  But I question the pureness of their heart in this case.  What they were really trying to do was make a false equivalence argument to try to lessen the impact of a Democrat operative who set out to murder Republican Congress members and seriously wounded Steve Scalise.  Their first instincts appear to be to defend the indefensible by claiming moral equivalence without any evidence to even support that argument.

The result could be to weaken the shield given the media by NY Times v. Sullivan.

Meanwhile, The Washington Post attempted to link the shooter with a rightwing talk radio show near his home.  The shooter, by the way, was a huge fan of MSNBC.  His rants tended to track Rachel Maddow and not any conservative talk radio show.


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