On Thursday, a federal court judge in New York made what Eriq Gardner at the Hollywood Reporter called an "unusual move" in Sarah Palin's libel lawsuit against the New York Times.
It is indeed extraordinarily unusual, and would appear not to bode well for the Times — which likely explains why the paper's colleagues in the establishment press are, for the most part, either not reporting it at all or inadequately reporting it.
Gardner reports that Judge Jed Rakoff ordered "a hearing next Wednesday to hear from the editorial writer or writers under oath" who, in a June 15 Times editorial since "corrected," asserted as an undisputed historical fact that a map published by Palin and her political action committee in March 2010 was a "direct" and "clear" instance of "political incitement" which led Jared Lee Loughner to commit the January 2011 massacre in Arizona which killed six people and seriously injured Congresswoman Gabby Giffords.
Palin claims the newspaper published something it "knew to be false," which would constitute actual malice, a necessary element in defamation actions brought by public figures.
In a motion to dismiss, the Times is challenging whether Palin's complaint contains sufficient allegations of actual malice.
Rakoff writes in a short order Thursday that Palin's complaint "alleges that the allegedly false statements of fact that are the subject of the Complaint were contradicted by information already set forth in prior news stories published by the Times. However, these prior stories arguably would only evidence actual malice if the person(s) who wrote the editorial were aware of them."
And so, Rakoff now wants to convene a hearing next Wednesday to hear from the editorial writer or writers under oath. The paper must produce them for no more than 30 minutes of examination by the papers' lawyer to be followed by no more than 45 minutes of cross-examination by Palin's attorney. The Times then gets an additional 15 minutes for redirect.
Concludes Rakoff, "The Court also may question each such witness."
If the editorial writer insists he or she didn't know the truth when making a connection to the Giffords shooting, Palin's lawyer could question whether the witness really reads The New York Times.
The Times claims that the editorial was written by James Bennet, the paper's Editorial Page editor, apparently all by himself without any other person involved in any way (really?), and has agreed to make him available for Wednesday's proceeding.
In essentially admitting that he, as Gardner described it, "didn't know the truth when making a connection to the Giffords shooting," Bennet will not only have to admit that he doesn't read his current employer's newspaper. He'll also have to make a seemingly impossible claim that while he was Editor-in-Chief at the Atlantic, a position he held for a decade until March 2016 when he rejoined the Times, he was unaware of the substantial amount of attention the magazine and its website, all under his command, gave to the Giffords shooting in 2011.
That attention inevitably involved how correct and fair it was to blame anyone besides Jared Loughner for the attack. I was unable to find any Atlantic item claiming that Palin's map directly caused Loughner's actions.
To believe that James Bennet absolutely knew as a supposedly indisputable fact in June 2017 that Palin's map was in fact a "direct" and "clear" example of "political incitement," one would have to believe that he has no memory of at least the following related items published at the The Atlantic and its website on his watch — none of which directly blame Palin for Loughner's attack.
On January 8, 2011, shortly after the shooting, Atlantic writer James Fallows wrote that "It is legitimate to discuss whether there is a connection between that tone (the alleged tone of Palin's map) and actual outbursts of violence, whatever the motivations of this killer turn out to be." There's a long distance from a "legitimate topic" of discussion to Bennet's definitive June 2017 contention of direct linkage.
Then there's this far more comprehensive item from January 10, 2011, written by Max Fisher for the magazine's The Wire affiliate but which also appeared and is still present at its flagship website ("Did Sarah Palin's Target Map Play Role in Giffords Shooting?"):
... a number of commentators are asking, as The Atlantic's James Fallows put it, "whether there is a connection between" such "extreme, implicitly violent political rhetoric and imagery" as that published by Palin and "actual outbursts of violence, whatever the motivations of this killer turn out to be." In other words, did Palin's map cross the line famously described by Supreme Court Justice Oliver Wendell Holmes as "falsely shouting fire in a theater and causing a panic?" Here's the debate.
Fisher then presented excerpts from three commentators who claimed Palin was "at fault," followed by three who said she wasn't. Even the three items which attempted to assign some degree of blame to Palin came nowhere near the direct linkage Bennet's June 2017 Times editorial claimed:
- Andrew Sullivan wrote that "No one is saying Sarah Palin should be viewed as an accomplice to murder." Bennet essentially did that in the June editorial.
- At the New York Times, Matt Bai wrote that "it's hard not to think [Loughner] was at least partly influenced by a debate that often seems to conflate philosophical disagreement with some kind of political Armageddon." There's also a long distance from "partly influenced" to the direct link Bennet claimed in the original June editorial.
- Psychology Today neurologist David Weisman wrote that "The question is not 'did Sarah Palin's violent rhetoric cause this shooting?' The question is 'does inciting violence factor in a multi-factorial process?'" In June, Bennet, in claiming a "direct link," contended that Palin's alleged "violent rhetoric" did cause the shooting.
The three "Palin is not to blame" writers quoted were quite blunt in their assessments:
- Slate's Jack Shafer wrote that "to take our political conversation down a few notches might make sense if anybody had been calling for the assassination in the first place, which they hadn't."
- An intensely frustrated Howard Kurtz, then at the Daily Beast, insisted that "This isn't about a nearly year-old Sarah Palin map; it's about a lone nutjob who doesn't value human life."
- Glenn Reynolds, in a Wall Street Journal op-ed, wrote that "There's a climate of hate out there, all right, but it doesn't derive from the innocuous use of political clichés (like Palin's "targeting" of Democrat-held congressional seats)."
Also on January 10, 2011, in a separate item, Max Fisher wrote:
There's no shortage of media speculation as to why Jared Loughner chose to attack Rep. Gabrielle Giffords. Commentators have suggested possible roles for overheated political rhetoric, mental illness, and even Sarah Palin's controversial "crosshairs" map.
Fisher's "even Sarah Palin's controversial 'crosshairs' map" verbiage clearly betrays a high degree of doubt as to its relevance.
None of the items just cited communicate anything resembling the degree of certainty that would cause a reasonable person to definitively insist, as Bennet did in that June 2017 Times editorial, that Palin's map directly influenced Jared Loughner's actions.
It's one thing for Bennet to claim that, as the Editorial Page editor at the Times, he doesn't pay much attention to his paper's news stories. That's obviously embarrassing, but conceivably plausible. It's quite another for him to claim that he was unaware of what was published at The Atlantic and on its website while he was completely in charge of both. It's hard to imagine that a judge could possibly believe such claims if the Times editorialist tries to make them under cross-examination by Palin's legal team.
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A search at the Associated Press's main national site on Sarah Palin's last name returned no relevant results. There is a story at the wire service's APnews.com site by Larry Neumeister which was published Thursday morning and has been given moderate visibility at AP-subscribing outlets. The AP dispatch does not identify Bennet as the person who will be interviewed, as that was apparently revealed later in the day. The wire service has not updated the story for that new information, or issued any subsequent report identifying Bennet.
Otherwise, coverage of Thursday's developments in Palin's libel suit, with rare exceptions, has been limited to center-right outlets and blogs.
Cross-posted at BizzyBlog.com.