A year after Donald Trump promised to “loosen up” America’s libel laws, lawsuits for libel and defamation are becoming a popular way for public figures to respond to critical journalism. The practice now extends to opinion pieces.
This week Sarah Palin filed a defamation lawsuit against The New York Times over claims made about her in a piece published earlier this month, following the shooting of Rep. Steve Scalise (R-Louisiana).
In an editorial published on June 14, the NYT's editorial board repeated an old claim that a piece of campaign literature distributed by a political action committee associated with the former Alaskan governor had, in some way, helped prompt assailant Jared Loughner to shoot former U.S. Rep. Gabrielle Giffords in January 2011.
Six people died and Giffords was severely wounded in the attack.
The campaign literature in question had featured an image showing “a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized crosshairs,” as described by the NYT, indicating they were political targets in the upcoming election season.
At the time, many left-leaning pundits speculated that this and other instances of “violent” imagery and language had encouraged Loughner to commit actual violence.
However, as other observers pointed out then and subsequently, there was no evidence that Loughner ever saw Palin’s campaign literature (or any of the other supposedly inflammatory political content) before he attacked Giffords.
Further, over the following six years, no one has produced any evidence that Loughner acted for any recognizable political or ideological motives. Instead, by his own account, he was motivated by what he believed to be a personal slight from Giffords at a local public meeting some months before.
On that note, it was fairly clear early on, and later proven, that Loughner was suffering from mental illness. He was diagnosed with paranoid schizophrenia in 2013 and is currently incarcerated in the psychiatric wing of a federal medical center for prisoners.
The NYT was probably out of line for repeating an old debunked claim, based on little more than politically motivated speculation. The newspaper’s editors seemed to recognize this, as the newspaper ran a correction acknowledging there was no proof of a connection between the campaign literature and the event.
The editorial had also mischaracterized the image in the literature, which showed only electoral districts – not lawmakers’ faces – under crosshairs.
What makes the case interesting is that Palin is proceeding with the defamation lawsuit despite the correction, on the groundsthe editors knew the statement was false before they published it. Further, that the correction they later issued was insufficient.
In the lawsuit, Palin’s lawyers argue the correction “did not approach the degree of the retraction and apology necessary and warranted by The Times’ false assertion that Mrs. Palin incited murder.” In support of that argument, the lawsuit notes the correction didn’t even mention Palin, as the editorial had, thus failing to (literally) clear her name.The lawsuit obviously takes defamation and libel cases into some tricky legal territory.
Above all, it raises the question of when a false or unsupported statement is so damaging or offensive that even a correction or retraction isn’t enough to resolve the situation. That depends, too, on the context.
As Palin’s lawsuit notes, deliberately making a false statement with foreknowledge that it is false is clearly worse than an “honest mistake,” but this gets into the sticky problem of establishing “what they knew and when they knew it.”
Finally, it’s also about what might be termed the “art of the correction.” How many of the specific details of the original, erroneous statement should be included in a correction to ensure clarity, without actually making the damage even worse?
While all these questions are best left to legal experts, Palin’s lawsuit seems like a long shot, since it will be easy for the NYT’s lawyers to argue that the subject is a matter of opinion. Palin’s claim seems to require proving a negative: Although there is no evidence that Loughner saw the campaign literature, there is also no evidence that he didn’t.
But as is often the case nowadays, Palin’s goal may not be winning the lawsuit, but showing her followers that she rejects the claim and is hitting back. If it forces the NYT into a lengthy, costly legal proceeding, all the better. (That is, provided she has a wealthy backer paying her legal fees, another recent trend.)