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District court holds reasonable jury could find The New York Times defamed former Alaska governor Sarah Palin in June 2017 editorial connecting Palin’s political ad showing rivals in crosshairs with 2011 Arizona shooting of Rep. Gabrielle Giffords, denying publication’s motion for summary judgment.
Former Alaska governor and vice-presidential candidate Sarah Palin sued The New York Times for defamation in June 2017, alleging that an editorial written by editor James Bennet and published in the Times earlier that same month falsely implied that an advertisement released by Palin’s political action committee that showed former Arizona congresswoman Gabrielle Giffords and 19 other Democrats in stylized crosshairs incited the subsequent armed attack on Giffords carried out by Jared Lee Loughner in 2011. Palin later amended her complaint to add Bennet as a defendant.
Published following James Hodgkinson’s armed attack on Louisiana congressman Steve Scalise and other members of Congress at a baseball field in Virginia, the editorial discussed a “familiar pattern” of politically motivated violence and identified the Loughner and Hodgkinson attacks as two examples of mass shootings “fuel[ed] by politics.” Describing Loughner’s 2011 attack, the editorial stated: “[T]he link to political incitement was clear. Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Gifford and 19 other Democrats under stylized crosshairs.” The editorial contrasted that incident with the Hodgkinson shooting, for which it said there was “no sign of incitement as direct as in the Giffords attack.”
After publication, Bennet received an email from Ross Douthat at the Times expressing concern over the editorial and explaining that there had been no evidence that Loughner had been incited by Palin’s ad. Bennet asked others at the Times to “get to the bottom of this as quickly as possible,” and the paper, having found no evidence of the “link” to which the editorial referred, promptly published a revised editorial. In it, the Times deleted the phrases “the link to political incitement was clear” and “[t]hough there’s no sign of incitement as direct as in the Giffords attack,” and added the sentence “But no connection to that crime was ever established.” The Times also published a series of corrections clarifying that no link between political rhetoric and the Giffords shooting had been demonstrated.
Following discovery, the Times and Bennet moved for summary judgment on the ground that no reasonable jury could find that the allegedly defamatory statements in the editorial were published with actual malice. As an initial matter, they argued, Palin could not prove that at the time Bennet wrote the editorial, he knew or was reckless with respect to whether readers would understand his words in the defamatory sense—namely, that the Palin ad had “directly caused Loughner to shoot his victims.” According to defendants, a person who believes and intends to say one thing is not guilty of actual malice merely because he or she chooses the wrong language to say it or because those who hear the statement reasonably believe it to mean something different.
Finding “no controlling precedent squarely on point” for this issue, the district court looked to decisions in the Ninth Circuit and California Supreme Court and held that where a plaintiff’s defamation case depends on a statement that is capable of both defamatory and innocuous meanings, the plaintiff must show that the defendant “either deliberately cast its statements in an equivocal fashion in the hope of insinuating a false import to the reader or that it knew and acted with reckless disregard of whether its words would be interpreted by the average reader as a false statement.” The purpose of this awareness requirement, the court held, is to ensure that liability is not imposed upon a defendant who acts without fault, and that failing to impose such a requirement “would create precisely the chilling effect on speech” that the actual malice rule was designed to avoid.
Here, the court held, Palin had adduced sufficient evidence that, taken in the light most favorable to her, could enable a reasonable jury to conclude that Bennet knew or was reckless not to know that his words would communicate that the Palin ad caused the Loughner attack. The court pointed to four pieces of evidence supporting this conclusion: (1) the language of the editorial itself, which referred to the Palin ad as a “direct” form of “incitement”; (2) Bennet’s admission at his deposition that he was aware the term “incitement” could mean a call to violence; (3) Bennet’s decision to substantially revise an earlier draft of the editorial written by staff, which did not contain the allegedly defamatory statements, to include stronger language regarding “political incitement”; and (4) the Times’ correction, which conceded that the editorial incorrectly linked the Palin ad to the Loughner attack and which the court concluded may be probative of a prior intent to assert the existence of such a link.
Defendants further argued that Palin could not show that the allegedly defamatory statements were made with knowledge of their falsity or reckless disregard for whether or not they were false. The court rejected this argument as well. It opined that evidence adduced regarding the drafting process for the editorial could support the conclusion that Bennet set out to link the Palin ad to Loughner’s attack and ignored information brought to his attention by staff that was inconsistent with this angle. For example, deposition testimony indicated that Bennet may have asked an editorial board member to research whether previously published articles connected the Palin ad to the shooting and that an initial draft of the editorial submitted to Bennet contained a hyperlink to an ABC news article flatly stating there was no such connection. Although Bennet claimed that he never clicked the hyperlink, a jury, the court opined, could discredit this testimony or consider it evidence of reckless disregard.
Finally, Palin also moved for partial summary judgment, arguing that the well-established actual malice standard should be overruled or, alternatively, not applied to her case because it “has run its course and should no longer govern our contemporary media landscape.” The court rejected this argument out of hand, noting, “Binding precedent does not . . . come with an expiration date.”
Summary prepared by Frank D’Angelo and Kyle Petersen
