Sarah Palin is back. She’s no longer a vice presidential candidate, or a governor, or a TV host, or a TV news contributor or a Trump surrogate (that last role lasted one hour).
But she remains as desperate as ever to be relevant, so now she’s suing the New York Times.
In a Tuesday filing at the federal District Court in New York City, Palin’s attorneys accuse the Times of injuring her in a June 14 editorial. That editorial suggested a link between Palin, political incitement, and the January 2011 shooting in Arizona that wounded former Rep. Gabby Giffords and killed six others. It also suggested that Palin’s political action committee published a map showing Giffords under crosshairs. In fact, the crosshairs were on congressional districts, not individuals, and no political incitement link has been verified as motivating the shooter. It should also be added that Palin’s obscure PAC was not the only organization to put crosshairs on “targeted” districts — the DCCC used the same symbolism on its website at the time of the shooting.
The New York Times retracted its ridiculous claims and apologized, but Palin contends that remedy was insufficient and insincere. As a matter of law, her case is very weak.
I suspect Palin knows this, but isn’t focused on legal remedy. Instead, I believe Palin sees this lawsuit as a way to regain lost relevance. Supporters such as Mike Huckabee, the former diabetes snake oil huckster, lend credence to this theory. On Wednesday, Huckabee tweeted his hope that Palin “ends up owning the rag.”
Palin’s lawsuit is attracting a lot of media attention, and is coming at a time when “the media” is under fire. It’s a clever way to get back on the conservative relevance circuit.
Still, as I said, Palin is on very weak legal grounds. First off, her allegation of having suffered harm is rather silly. Her filing alleges the following:
“In light of Mrs. Palin’s standing in the community, the nature of the statements made about her, the extent to which those statements were circulated … the defamatory statements in the Palin Article have directly and proximately caused Mrs. Palin to suffer significant damages, including damage to her reputation, humiliation, embarrassment, mental suffering, shame and emotional distress.”
The problem? The Times article, even as first published, did not alter Palin’s standing with the public. Her standing, after all, is already well defined in the public eye. Liberals regard Palin with disdain. Moderates and some conservatives perceive Palin to be an inarticulate polemicist. Others on the right view Palin as a crusader for truth. Regardless, the editorial does not alter these viewpoints. They were formed long ago. More problematic for Palin, she has cultivated a divisive public persona. Whatever we think of Palin, the vast majority of us would agree that she is a partisan populist known for her combative comments.
It’s her brand.
Another indication of Palin’s weak case is its claim that previous New York Times reporting cost her a Fox News contributor position. We are asked to take this suggestion at face value without any associated evidence. And that’s because there is no evidence. In reality, Palin’s firing was likely down to her unwillingness to research topics prior to relevant interviews.
Most importantly, however, Palin will not be able to prove the Times acted with “actual malice.” That standard for defamation applies to cases involving plaintiffs who are public figures (which Palin most certainly is). It requires Palin to prove that the Times either A) knew its statements were false, or B) entertained serious doubts as to the veracity of its statements. Palin will not be able to show this.
Responding to Palin’s first contention: that it libelously linked her political incitement to the Arizona shooting, the Times’ lawyers will likely respond by stating the claim was opinion. Seeing as the article was published to the editorial (opinion) page, that’s a compelling argument. Moreover, to find liability here, the court would have to define “political incitement.” And that would necessarily require the court to restrain the Times’ freedom to write on issues of public interest. Existing case law is very clear here: Political speech is given the highest possible deference and protection under law. The court will say that the Times can define political incitement as it wishes.
Palin’s second contention is even weaker. Because the court will not share Palin’s understanding that there is a substantial difference between crosshairs on particular representatives and crosshairs on their congressional districts. Both apply to the political field (as I note, entitled to the highest-protection under federal speech law). Additionally, while Palin’s super PAC published crosshairs over Giffords’ congressional district and not Gifford per se, the map did identify Giffords’ name. The degree of separation is not so great as Palin claims.
All this explains why I believe Palin is playing games. Her lawyers are aware of the above reality but they get a paycheck regardless.
