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The New York Times did not defame Sarah Palin II

 




These are the facts behind the lawsuit that the jury heard, and decided so quickly, last week. 

In 2008 Sarah Palin, Governor of Alaska but largely unknown outside of that state, suddenly found herself catapulted into national prominence when the Republican nominee for President, John McCain, asked her to join his ticket. She agreed, and was on the ballot that November as a Vice Presidential nominee. 

The McCain-Palin ticket lost. After the election, though, Palin hoped to retain her national prominence and to that end she formed a political action committees, SarahPAC.

Only one fact about that PAC is really pertinent here, Its website at some point thereafter adopted a graphic image of a ballistic crosshair superimposed on the 8th congressional district of Arizona, then represented by Gabrielle Giffords. The image of course was intended to convey the general idea that Giffords should be a metaphorical "target" for Republican energies, so that a Republican could replace her as the US House's representative from the 8th district in Arizona. 

Giffords won that election. Soon thereafter, she became a victim of gun violence. On January 8, 2011, she was holding a constituency event outside a Safeway store when a 22 year old Tucson man took out a pistol and shot her through the head at point blank range, going on to shoot several other people, killing a judge and a staff member of Giffords' in the process.    

Quite early on, commentary focused on the PAC's image of Giffords' district in crosshairs. So that Palin doesn't sue me, let me say this clear: we do not know that the shooter, Loughlin, ever saw that image, much less that it was the cause of his rampage. 

Several years later (2017) and in response to another shooting, the New York Times ran an editorial drawing a connection between violent campaign rhetoric on the one hand and gun violence on the other. It cited the cross hairs image that the 2011 shooter/killer may or may not have seen as a case in point. 

The language in the editorial as it was originally published said that the PAC's image had put Giffords herself behind the cross hairs.  This was incorrect -- the congressional district was what was within the crosshairs. The Times apologized for this error the following day. [Palin's lawsuit treats the apology as too little too late, but as a matter of law such a rapid correction can work against the element of "actual malice" that a plaintiff in such a case need to prove.] 

Palin brought a lawsuit over the editorial. As I've indicated, she has lost in two successive trials.  The ending of the first trial was somewhat compromised, in that the judge said during the jury deliberations that he would dismiss the case HOWEVER those deliberations came out.  The appellate court said that he shouldn't have said that. And indeed he shouldn't have although the jurors seems to have been undaunted and to have gone about their deliberations seriously. 

At any rate, a second jury has now reached the same conclusion: there was no actual malice, thus no cognizable libel of a public figure.  


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  1. HenryApril 30, 2025 at 6:55 AM

    I infer that the judge in the first trial not only said during the jury deliberations that he would dismiss the case HOWEVER those deliberations came out, but said it to the jury. That raises the questions of how and why. How: Judges don't enter the room in which juries are deliberating, and they do not call juries back into court unless the jury sends him a question that he feels he must answer by speaking to the jury in person. Why: I can't think of a reason. The reason that the judge has the jury continue to deliberate even though he has decided to dismiss the case regardless of their verdict is that an acquittal would make his dismissal unnecessary. By telling the jury of his plans, he gives the jury an incentive to acquit, because the jury members realize that their verdict won't matter and they want to go home. Why would he possibly do that?

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    Replies
    1. ChristopherApril 30, 2025 at 9:29 AM

      My understanding, which is quite fallible, is this: the judge did not say it to the jury -- the jury discovered indirectly. SNAFU. The jurors had their smart phones with them as they were deliberating. Via a smart phone, one of the jurors received a text message that the judge had said, in court, in the course of hearing motions, that he intended to dismiss the case whatever the verdict. Here is a news report on the subject from January of this year, before the second trial. https://www.commerciallitigationupdate.com/the-second-circuit-revives-sarah-palins-defamation-suit-against-the-new-york-times

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