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Scrolling through the comment sections under news stories about Sarah Palin’s defamation lawsuit against the New York Times — dismissed by a judge while a non-sequestered jury was still deliberating and no doubt next heading to an appeals court — provides ample evidence of the dismal state of political tribalization in this country. With few exceptions, all conservatives wanted to see her prevail against a media outlet they revile, while liberals who care neither for her politics nor her style argued that she deserves to lose because she helped contribute to the rhetorical toxicity in which they themselves are unwittingly participating.

Politics is personal. But the personal shouldn’t obscure policy.

If they stopped to think about it, lefties ought to sympathize with Palin. Declaring herself “powerless,” Palin testified: “I was in Wasilla, up against those who buy ink by the barrel and I had my No. 2 pencil on my kitchen table.”

She’s not wrong. Having been a few million votes away from being a heartbeat away from the presidency 14 years ago may well make her something of a historical immortal, but that past doesn’t alter the present truth. Palin is now a private citizen, a relative David challenging a \$7 billion Goliath with iconic cultural clout and the deepest of establishment ties, backed by decades of case law that protects media defendants to the extent that most aggrieved would-be plaintiffs never dare to sue. The New York Times, on the other hand, is hardly a sympathetic defendant. As progressives recall, the Times allowed reporter Judith Miller to propagandize in favor of invading Iraq, to run interference for Hillary Clinton against Bernie Sanders and to studiously stifle ideological expression to the left of the corporatist wing of the Democratic Party.

Without Palin’s proto-Trumpism, from a team-politics mindset, she’d be the left’s inherent favorite.

I am impervious to her charms. As I said in 2008, I voted for Barack Obama in large part because I worried that John McCain’s age and health increased the likelihood that the kooky Alaska governor would wind up in control of nuclear launch codes. I will always have contempt for anyone who thinks it’s cool to shoot wolves from a helicopter. But none of that matters in her lawsuit, which comes down to an important question: Our society and democracy rely on robust freedoms of the press, but must the First Amendment remain a license to defame and an inducement to journalistic laziness, as has become the case since New York Times v. Sullivan?

Defenders of free expression have often found themselves legally allied with controversial and disreputable figures. In 1978, the American Civil Liberties Union supported a neo-Nazi group’s application to march through the streets of Skokie, Illinois, a Chicago suburb where many survivors of the Holocaust lived. Hustler magazine publisher Larry Flynt received support from high-profile celebrities in his 1977 obscenity trial in Cincinnati as well as his 1983 legal defense against Moral Majority founder Jerry Falwell; the Association of American Editorial Cartoonists, of which I am a member and a former president, supplied an amicus brief in the Falwell case. The ACLU has consistently opposed attempts to ban the burning of the American flag at political protests.

The fact that these legal battles involved fascists, a notorious pornographer and profound disrespect of a revered national symbol is neither ironic nor bizarre; censors rarely target milquetoast or middlebrow expression.

Several aspects of Palin v. New York Times ought to concern liberals and progressives.

First and foremost, journalists who don’t check their facts and then print outrageous falsehoods about a person, even a public figure like Palin, ought to risk legal exposure. If it can happen to her, it can happen to you. Yet Federal Judge Jed Rakoff, 78, a liberal appointed by Bill Clinton, stated in his dismissal ruling: “Certainly the case law is clear that mere failure to check is not enough to support ‘reckless disregard’ in the context of any libel claim.” If he’s right, “reckless disregard for the truth” is a phrase without meaning — and that needs to change.

Evidence favorable to Palin’s “actual malice” argument was brushed off in media coverage and, apparently, by the judge. “What was missing from the whole production was any indication that Bennet was out to smear Palin,” wrote Erik Wemple of The Washington Post. Maybe there wasn’t a “smoking gun,” as Wemple noted. But what about motivation? What about conflict of interest? Former Times editorial page editor James Bennet — responsible for smearing Palin — has a brother, Michael Bennet. Michael happens to be a United States senator from Colorado — and Palin endorsed his Republican opponent. Michael despises Palin, calling her an “extremist.” Maybe James, a Democrat from a family of Democrats, doesn’t share his brother’s opinion of Palin. But I wouldn’t bet on it.

Rakoff didn’t allow the jury to hear that tidbit.

Ex post facto (retroactively applied) laws are specifically prohibited under the Constitution. Palin sued in 2017, yet Rakoff ruled that her case was subject to the state’s newly amended “anti-SLAPP” law enacted in 2021 and so requires her to meet the high bar set by Sullivan for public figures to prevail in libel and defamation claims. Do we want to live in a country where the rules change after the game has started?

Every plaintiff and defendant should enjoy an equal playing field, but that doesn’t appear to be the case here. The Times was permitted to make the distracting, spurious argument that Palin’s reputation wasn’t harmed. “The Masked Singer. Do they put on inciters of violence?” David Axelrod asked during closing arguments. Under straight defamation, Palin would have to show she had lost income or opportunities. But she sued for defamation per se, a finding that what the Times said about her was so over-the-top that she deserves punitive damages without having to prove actual damages.

There are other indications that the judge harbored animus against Palin. “She is, of course, unvaccinated,” Rakoff remarked on Jan. 24 after she tested positive for COVID-19. Of course, vaccinated people get the virus, too. I did.

ORDER IT NOW

Then there was the judge’s unusual decision to dismiss her case while the jury was deliberating. Under anti-SLAPP, she will be ordered to pay the Times’ attorneys’ fees. Palin didn’t get justice but rather a brutalist simulacrum of due process. She was teased with the possibility of victory, both sides’ attorneys’ fees mounting at her expense, only to have it snatched away at the whim of one man rather than the judgement of 12 peers. And we were deprived of a clear jury verdict on a matter of public importance.

Experts believed Palin’s right-wing politics might hurt her with her jury in New York, one of the most liberal cities in the country. “In this case, you have a very prominent plaintiff who is suing in a city that I would say would not be her favorite place to be judged,” First Amendment attorney Floyd Abrams, who sides with the Times, told Politico.

It didn’t help her with the judge. And it’s disgusting. Whatever Palin has done to the body politic or to wolves in Alaska, she is the victim here. No one, including the Times, disputes that the newspaper unfairly characterized her as being partly responsible for a fatal mass shooting when there was no evidence that that was true.

Palin’s personality and politics are irrelevant. The question here was not whether or not you like Sarah Palin. It was whether James Bennet engaged in “reckless disregard for the truth,” part of the standard of “actual malice” under Sullivan that Palin’s attorneys need to clear, or the paper got to walk away without paying her — indeed, she has to pay them — because it issued a correction after it discovered it was wrong.

It still is.

Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, co-hosts the weekly DMZ America podcast with conservative fellow cartoonist Scott Stantis.

 
• Category: Ideology • Tags: American Media, Judicial System, Sarah Palin 
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  1. meamjojo says:

    If there is something that everyone should be concerned about it is the wanton censorship of any info that is not in step with any Covid info that the CDC/Fauci pronounces true by Twitter, YouTube, Facebook, LinkedIn, Google (in their search results), Microsoft, the NYT, LAT, etc., etc.

    I don’t give a crap about Palin. However, I would be happy to see her in a gulag cell next to Trump.

    • Troll: Wade Hampton
  2. If we are talking about McStain, Obummer and Palin, Sarah is definitely a rose among the thorns.

  3. Dumbo says:

    I haven’t heard from Palin in a long while and have no idea what’s going on. But I wonder how her slutty daughter is doing now, has she been impregnated by a black man yet? So much for family values.

    • Replies: @Rich
  4. Sean says:

    Yet Federal Judge Jed Rakoff, 78, a liberal appointed by Bill Clinton, stated in his dismissal ruling: “Certainly the case law is clear that mere failure to check is not enough to support ‘reckless disregard’ in the context of any libel claim.” If he’s right, “reckless disregard for the truth” is a phrase without meaning — and that needs to change.

    Agreed.

    • Agree: PJ London
  5. Did not read it all, Ted, but I can see that your heart is in the right place: the injustice in the current set up applies to us all, no matter our political or other opinions.

    Good on you for understanding and acknowledging that.

    • Agree: Bro43rd
  6. Hi Sarah,
    Welcome to the world of David Irving.

  7. Rich says:

    Sullivan is a license to lie for the msm. It should be overturned.

    • Agree: anarchyst
  8. Rich says:
    @Dumbo

    Where are you from? Young, unmarried girls have been getting pregnant since the beginning of time. It happens. It’s part of life. But this young lady, in the spotlight as a governor’s daughter, still had the courage to go through with her pregnancy. In this day and age that makes her better than a long list of other women. Just because you have a twisted fantasy about interracial relationships doesn’t mean normal people do.

    • Replies: @Dumbo
  9. Dumbo says:
    @Rich

    One slip can be forgiven, but I’ve read now that she had two other children out of wedlock, with someone else she was not married too at first, then married and divorced after only two years. Not a very healthy personal life. Then of course all those participations in “reality shows” which cannot be good for mental health. Whatever. People make mistakes, it’s true, but she doesn’t strike me as a very thoughtful or even smart person. Then again, I can’t blame her mother for that.

  10. anarchyst says:

    Sarah Palin is much more astute than most people realize. She is not the “airhead” that the mainstream media labeled her as…
    That being said…
    When oil leases were being held without activity, Palin told them to “use them or lose them”. When they threatened court action, she remarked: “see you at the courthouse”.
    Palin’s family life is quite tame, especially when you compare it with democRATS, who are almost all mentally ill child molesters, homosexuals and “transgenders”…

    • Replies: @Dr. Charles Fhandrich
  11. Rall you need to understand that you have cast your political lot with people that could not care less about the facts. You have often ignored facts yourself in forming your political opinions over the years. This column is out of character for you. It is well written and too the point and actually deals with the facts.

    There were many aspects of the trial that are completely out of line. Retractions, for example, printed deep in the paper are not really retractions. A retraction would be published with the same visibility as the original article. The Slimes doesn’t do that because they’d have to fill their front page with things that make them look like the fools they are.

  12. @anarchyst

    I couldn’t agree more with you. Much of Palin’s reputation has been fabricated by the worthless U.S. establishment media and democratic party.(same thing) The narrative on Mrs. Palin goes somewhat like this,” Palin is a an airhead and generally stupid person. To this charge, I ask, “Compared to who”!!!—Kamala Harris, Maxine Waters, Elizabeth Warren, or dozens of other women in the democrat party. Just what do they have going for them, that Palin doesn’t? McCain, hated and disrespected the woman and he was no friend of the average American worker. In other ways, Mrs. Palin can hunt game, skin it and probably has the ability to survive on her own, unlike all the soy boys and dainty women in the establishment press and democratic party!!!

    • Thanks: anarchyst
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