Former 'New York Times' editor testifies on Sarah Palin editorial: 'This is my fault'

[DKW 86 7,440]

Former 'New York Times' editor testifies on Sarah Palin editorial: 'This is my fault'

NEW YORK — James Bennet said he had “a million other things going on” when a fellow editor stopped by his office at the New York Times to tell him about weaknesses in a draft of an editorial they were rushing to publish on a June evening in 2017.

 

Then the chief of the paper’s editorial page, Bennet read the piece and agreed it wasn’t quite working. But while he generally preferred to let his writers revise their work, Bennet told a jury Wednesday he was concerned about the paper’s looming deadline for the night — and so took it upon himself to rewrite it.

In the course of rapidly reworking the piece, Bennet inserted an inaccurate sentence — notable for his use of the word “incitement” — that led to the Times getting sued for defamation by former Alaska governor Sarah Palin. But on Day 5 of the blockbuster trial in Manhattan’s U.S. District Court, Bennet spent hours on the stand describing his on-the-job failures that the newspaper’s lawyers tried to present as stemming from honest mistakes — and not the “actual malice” Palin must prove to show she has been libeled.

 

“I have regretted this pretty much every day since,” Bennet said, describing his remorse over the word choices.

Palin herself made a brief appearance on the stand, perhaps the only day of the trial when the two most high-profile witnesses would both testify — and her hand-holding arrival and departure with retired NHL forward Ron Duguay mesmerized a flock of photographers at the courthouse. But her testimony Wednesday started in the final moments of the day’s proceedings and remained limited to details about her personal and professional biography.

Arguments in the first libel suit against the Times in the U.S. to make it to trial in nearly 20 years are expected to conclude this week. It’s a case that could upend legal precedents that for decades have offered broad protections to media organizations when writing about public figures

 

The crux of the testimony Wednesday came from Bennet, who left the Times in 2020, and provided a window into the inner workings of its prestigious opinion section.

 

Sarah Palin’s libel case against New York Times opens in Manhattan courtroom, a culture clash with lasting legal potential

The editorial in question, written in the hours after a shooting attack on a group of congressional Republicans at a baseball practice in Virginia, lamented the state of political discourse and the effect of vitriolic rhetoric on a country awash in guns. The early draft, by another Times writer, drew a comparison with a 2011 mass shooting in Tucson that injured then-Rep. Gabby Giffords (D-Ariz.) and killed six people — and noted that before that tragedy, Palin’s political action committee had circulated a stylized U.S. map that placed crosshairs on Giffords’s district and several other Democratic-held seats.

In the course of editing the story, Bennet added a sentence about the Tucson shooting: “The link to political incitement was clear,” he wrote.

 

It was only after the editorial was published that night on the Times’s website that Bennet got an email from Ross Douthat, a conservative opinion columnist for the Times, expressing his “utter bafflement” that the essay claimed such a link.

Douthat also testified Wednesday, saying that he became aware that night of widespread criticism of the editorial online — investigators never established that the mentally ill shooter was motivated by Palin’s map. Douthat, who had closely followed the shooting’s aftermath in 2011, said he realized that “if there was a correction that needed to be made, the sooner the better.”

But Bennet’s late-night email asking Elizabeth Williamson, the original writer, for clarity on the matter arrived after she had gone to sleep.

 

Bennet testified that the piece had been read by some of the newspaper’s most experienced copy editors in addition to others, and no one had caught the error. “That’s why I was shocked,” he said, and stayed up all night.

“It’s just a terrible thing to make a mistake,” he said. “I have edited, written hundreds of pieces on deadline, probably thousands of pieces overall, and I will say I have made very few mistakes, at least ones that I know of, but I made one that night and it’s terrible.”

The next morning, he asked Williamson and a fact-checker to figure out whether they had the details wrong. The Times later issued two corrections.

“We were being really, really harshly criticized for muddying the record, and I understood now why people like Ross were reading the editorial the way they did,” Bennet said Wednesday. “And I thought it was urgent to correct the piece as forthrightly as possible to acknowledge our mistake. This is basic practice. This is the right thing to do.”

 

When asked why he didn’t research the question himself while rewriting the editorial, Bennet explained that he was functioning as the “editor, not the reporter, on the piece” — but also that he never thought that the Palin map caused the Tucson shooter to act WTF?!, and “I don’t think we were saying that, therefore it wouldn’t have entered my mind to research that question.”

 

Bennet had previously tried to explain that he didn’t see his reference to “political incitement” as meaning a direct cause of violence but rather as a charged environment.

The testimony also revealed that Bennet, in replying to a scramble of media inquiries about the error, had issued an apology of sorts to Palin but that it was never made public

“I’m not aware that Sarah Palin has asked for an apology,” Bennet relayed to a Times spokesman, in response to a question from CNN, “but, yes, I, James Bennet, do apologize to her for this mistake.”

Bennet testified that he assumed his words of apology were sent to CNN and shared publicly; only days later, he realized that they had been trimmed from the statement due to a Times policy about not apologizing for mistakes — because offering a “we regret the error” message on every correction would render apologies meaningless, he explained.

He said he did not send a personal apology directly to Palin because she was suing the Times. “If I were her under those conditions, I wouldn’t think an apology was being made in good faith, that it would look like an effort to get out of a lawsuit.”

[DKW 86 7,440]

Judge to dismiss Sarah Palin's defamation suit against 'New York Times'

A federal judge announced Monday afternoon that he would dismiss former Alaska Gov. Sarah Palin's defamation lawsuit against The New York Times, saying her legal team had failed to reach the high standards required for public figures to make their case.

The case centered on a June 2017 Times editorial that Palin's attorneys argued accused her of inciting murder six years earlier in a mass shooting in Tucson, Ariz. that gravely wounded then-Rep. Gabby Giffords.

The New York Times' legal team argued Palin had not shown that the paper or its former editorial page editor, James Bennet, had been motivated by "actual malice," in which he would have had to have known that his characterization was false or he would have known the probability of it being false was so great as to mean that he was acting with reckless indifference to the facts.

And with evident reluctance, U.S. District Judge Jed Rakoff embraced that reasoning, saying Palin's lawyers failed to present any such evidence against Bennet, who had inserted the problematic language in the article.

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The Times' attorneys filed their motion before Rakoff turned the trial over to the jury, which began deliberations Monday. The judge said he would wait to formally dismiss the case until after the jury's verdict so an appellate court could consider its findings, in full knowledge Palin would appeal his ruling.

"Ms. Palin was subjected to an ultimately unsupported and very serious allegation that Mr. Bennet chose to revisit seven years or so after the underlying events," Rakoff said. "So I don't mean to be misunderstood. I think this is an example of very unfortunate editorializing on the part of The Times."

 

MEDIA

Sarah Palin testifies she felt powerless to fight 'New York Times' over editorial

But, he said, his role was not to evaluate.

"My job is to apply the law," Rakoff continued. "The law here sets a very high standard for 'actual malice,' and to this case, the court finds that that standard has not been met." Rakoff had initially dismissed Palin's suit, but it was reinstated by an appeals court that directed him to reconsider. The four-and-a-half year process led to the trial that wrapped up closing arguments on Friday.

 

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Former 'New York Times' editor testifies on Sarah Palin editorial: 'This is my fault'

Palin's attorneys could not be reached immediately for comment.

Rakoff repeatedly admonished the jury not to consume any media coverage or social media commentary of the case, and not to speak to anyone about the case outside the jury's meeting room. They broke off their deliberations late Monday afternoon and were to pick back up Tuesday morning unaware.

The judge's decision, however, made headlines around the world.

First Amendment attorneys hail the judge's decision

"The ruling is reassuring," says Eve Burton, the chief legal officer for the Hearst Corp. The judiciary branch, she says, "is predictably and accurately playing the critical role needed in protecting the press in everyday reporting of the news, even when we get some things wrong accidentally."

 

She adds that Rakoff "took the political out of the case and put the letter of the law back in the center of the analysis. Welcome news."

Jonathan Peters, a professor of media law at the University of Georgia, called Rakoff's decision unusual.

"I'm not aware of another libel case in which a trial judge effectively and publicly granted a motion for a directed verdict while the jury continued to deliberate to reach a verdict," he tweeted Monday afternoon. A directed verdict is one in which the judge says there's only one verdict to reach.

Procedure aside, Peters wrote, "Palin failed by a wide margin to prove actual malice."

The trial represented a dramatic confrontation between the self-professed hockey mom from Wasilla, Alaska, and one of the nation's most august news outlets. When she broke onto the national political scene in 2008 as Republican presidential candidate John McCain's running mate, Palin routinely derided the press as the "lamestream media." Her routine folksy attacks on the media helped pave the way for Donald Trump's candidacy.

Hanging over the case were questions of language, intent and the lapses that occurred under deadline pressure. The editorial was written in a rush the night a leftist opened fire on conservative members of Congress at baseball practice outside of Washington, D.C. Republican Congressman Steve Scalise of Louisiana was among those wounded in the attack.

Bennet sought a swift denouncement of both the ready availability of guns and inflammatory political rhetoric. Before going to print, he inserted a passage in the editorial invoking the deadly mass shooting in 2011 that wounded Giffords. He wrote, "the link to political incitement was clear" between that shooting and an ad the year before from Palin's political action committee showing stylized gun crosshairs over the congressional districts of Democrats, including Giffords.

No proof was ever found suggesting Giffords' shooter was motivated by, or even knew about, the Palin ad.

In addition, the editorial misrepresented the ad as placing the crosshairs over images of Democratic lawmakers, rather than their districts.

The Times corrected the errors within a day. Bennet testified he did not check those assertions before publication.

The newspaper's lawyers say the wrong passages represented "an honest mistake." No convincing evidence surfaced during the trial to suggest Bennet acted in bad faith or harbored animus toward Palin, despite efforts by her lawyers to make that case. Palin's attorney's also argued that Bennet's failure to research those claims explicitly should not get him or the Times off the hook.

Bennet and others testified that the Times did not apologize directly to Palin because its policy was not to do more than issue corrections.

Her team called them "purported corrections," saying they were obviously inadequate, and accused the paper of political bias against Palin.

Bennet testified that standards editors believed to apologize routinely would cheapen the nature of an apology, though he seemed personally to disagree: he tweeted out an apology from the Times opinion section's account the next morning, although he did not use Palin's name. Bennet also sought to offer her an apology through CNN reporter Oliver Darcy, although it was never conveyed to Darcy as the paper's public relations staffers withheld it due to the paper's policy on apologies.

Palin's attorneys had represented Hulk Hogan against Gawker

As the end of the trial neared, Palin's attorneys, Shane Vogt and Kenneth Turkel, increasingly ramped up the severity of their claims against the newspaper, saying it accused her of inciting murder. The duo formed the core of the trial team that took down the digital news and gossip site Gawker on behalf of the former professional wrestler Terry Bollea, who performed under the name Hulk Hogan. That case was financed by the Silicon Valley investor Peter Thiel, who had his own beef with the site.

It is not known if Palin's lawsuit has been similarly subsidized by an outside figure. But it is in keeping, media lawyers say, with a raft of lawsuits against major news sites, including NPR, many of which carry an ideological element. Palin's lawyers asked jurors throughout the trial to send a message to the Times, arguing that a clear line had been crossed and that Palin could take it no more.

The two sides clashed over what had become of Palin's life after she faded from the national political scene. Was she, as she and her attorneys conveyed, a quiet recluse in Wasilla or seeking star turns on Fox News, at conservative conferences, and even on the game show "The Masked Singer?"

As the jury deliberated Monday, Rakoff spent hours wading through arguments from the two sides' attorneys over the newspaper's motion to dismiss the case before a verdict arrived. The Times argued Palin had not met the standards for actual malice.

Under a 1964 U.S. Supreme Court ruling that also involved the Times, Palin's attorneys had to show that Bennet and the newspaper either knew that what they published was false, or had acted with reckless disregard of the possibility that it was - that is, he should have known. It was under that standard that Rakoff revealed his surprise ruling known later Monday afternoon.

[DKW 86 7,440]

I am as far a FA supporter as you will find anywhere. But today, we have to rewrite the laws around libel and slander. The NYT obviously failed any due diligence at any level. They printed a story with literally zero fact checks and then left it out there for a whole day before doing a half assed correction. there was no link between Palin and Giffords Shooting. That shooting was done by a young man plainly crazy on several levels. His home, pc, friends etc could not link him in any way to Palin or her PAC. 

6 years later, after no link have been shown to the world, the NYT publishes a hit piece claiming that there was a link and blaming Palin for "inciting violence." 

I no longer support the libel laws. If you print something formally and cant back it up, then you should be civilly liable for damages, and I mean something like 100X Actuals. We need to reform the laws in the face of a media that almost doesnt care if it gets a story completely wrong, even for 4+ years or more. 

Edited February 17, 2022 by DKW 86

[AU9377 5,035]

The jury has now also found NYT not liable.  Total win for the defense.  The key is that they corrected the story the next day.  It is hard to show malice and reckless disregard for the truth when a correction is made 24 hours later.  I agree that news outlets should be more careful, but if cases like this were allowed against all outlets, they would all go out of business.

[DKW 86 7,440]

On 2/15/2022 at 1:46 PM, AU9377 said:

The jury has now also found NYT not liable.  Total win for the defense.  The key is that they corrected the story the next day.  It is hard to show malice and reckless disregard for the truth when a correction is made 24 hours later.  I agree that news outlets should be more careful, but if cases like this were allowed against all outlets, they would all go out of business.

They knew the bit about the Map on her website was not true. They left it up on their website and published it knowing it was a lie. The article was barely finished when their own people were blowing it up, AND they still left it on the website and printed it the next morning.

Edited February 17, 2022 by DKW 86

[DKW 86 7,440]

20 hours ago, AU9377 said:

The jury has now also found NYT not liable.  Total win for the defense.  The key is that they corrected the story the next day.  It is hard to show malice and reckless disregard for the truth when a correction is made 24 hours later.  I agree that news outlets should be more careful, but if cases like this were allowed against all outlets, they would all go out of business.

WTF? How about they just do their due diligence? Going out of business? That is plain crazy talk.