Tangle - Sarah Palin vs. The New York Times

Episode Date: February 16, 2022

The former governor of Alaska and 2008 Republican vice presidential candidate (running alongside John McCain) had sued The New York Times for libel over a 2017 editorial that erroneously linked her political rhetoric to the 2011 mass shooting where Gabby Giffords, then-Democratic congresswoman from Arizona, was shot in the head, and six others were killed.You can read today's podcast here.You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our podcast is written by Isaac Saul and produced by Trevor Eichhorn. Music for the podcast was produced by Diet 75.Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, a place where you get views from across the political spectrum, some independent thinking without all that hysterical nonsense you find everywhere else. I am your host, Isaac Saul, and on today's episode, we are going to be talking about Sarah Palin and her libel lawsuit against the New York Times, what it means for the First Amendment, what it means for the future of the freedom of the press, and how it all went down. As always though, before we start off, we're gonna jump in with some quick

hits. Number one, the families of the Sandy Hook school shooting victims reached a $73 million settlement with Remington, the maker of the gun used in the 2012 mass shooting. Number two, the National Oceanic and Atmospheric Administration projected that the U.S. would experience 10 to 12 inches of sea level rise over the next 30 years. That's the same level of rise we saw in the last 100 years. years. That's the same level of rise we saw in the last 100 years. Number three, President Biden rejected former President Trump's executive privilege claim, which Trump used in an attempt to prevent the release of visitor logs from the days leading up to the January 6th riots. Number four, both Democrat Stacey Abrams and Republican David Perdue, each attempting to oust Governor Brian Kemp, are criticizing Georgia lawmakers'

proposal to ban fundraising while the legislator is in session. Number five, retail sales grew up to 3.8 percent last month, even as inflation surged to a 40-year high. Breaking news. A jury has rejected Sarah Palin's libel claim against The New York Times, saying there was insufficient evidence to prove that The Times defamed her in a 2017 editorial. Sarah Palin lost her libel suit against The New York Times twice in as many days. The jury returned a verdict in favor of the paper yesterday, finding the Times did not intentionally damage the former Alaska governor's reputation.

A jury has ruled against former Alaska Governor Sarah Palin in her defamation lawsuit against the New York Times. The verdict comes one day after the judges said Palin failed to prove the Times acted with actual malice in regards to a 2017 editorial that incorrectly linked Palin to the 2011 shooting of Congresswoman Gabrielle Giffords. The former governor of Alaska and 2008 Republican vice presidential candidate who ran alongside John McCain had sued the New York Times for libel over a 27 editorial that erroneously linked her political rhetoric to the 2011 mass shooting where Gabby Giffords, then Democratic congresswoman from Arizona, was shot in the head. Six others were killed in the shooting. In the piece, which was written shortly after the 2017 congressional baseball shooting where Representative Steve Scalise,

the Republican from Louisiana, was shot, the Times referenced the 2011 shooting and suggested an ad circulated by Palin's Political Action Committee had incited the shooting. Here is the offending paragraph from the story. Was this attack evidence of how vicious American politics have become? Probably. In 2011, when Jared Lee Loeffner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a nine-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin's Political Action Committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized crosshairs.

other Democrats under stylized crosshairs. Conservatives and right-wing media were quick on Wednesday to demand forceful condemnation of hate speech and crimes by the anti-Trump liberals. They're right. Though there's no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask for of the right. So that is what the Times wrote at the time. The ad they referenced was a map with crosshairs that identified congressional districts where Democrats have voted for Obamacare as potential pickup opportunities for Republicans. There's an image of the map in today's Tangled newsletter. No evidence ever surfaced to support the claim that Loeffner, the shooter, had ever seen the ad, let alone acted because of it. The Times realized their mistake and corrected and removed the incitement claim the next morning. Times editorial page editor James Bennett had picked up the piece from editorial board member

Elizabeth Williamson and rewritten it, but after publication and criticism, he emailed a colleague and said, I don't know what the truth is here. The Times apologized after removing the piece, but Palin sued them two weeks later anyway. Palin's lawyers have portrayed the Times as a newspaper that regularly uses its power against conservatives, while the Times had said Palin was using a mistake the paper made and corrected to attempt to erode necessary legal protections for a free press. necessary legal protections for a free press. According to the Wall Street Journal, the Times lawyer David Axelrod argued freedom of the press and freedom of speech are fragile things, and the liability for honest mistakes would lead to an onslaught of litigation creating a chilling effect for newspapers like the Times. Throughout the trial, Times editors and staff, as well as Palin, took the stand. It became one of the most transparent looks into the fact-checking

and publishing processes at the paper of record, and a high-stakes court case tied directly to freedom of the press. It is very rare for a libel suit to go to trial, and this case has become one of the major tests in recent memory of what kinds of things news outlets can print without repercussions. Thanks to a 1964 Supreme Court ruling in the New York Times v. Sullivan, in order for a liable suit to succeed when the alleged defamation involves a well-known public figure, the complainant, in this case Palin, needs to demonstrate actual malice and prove that the Times knowingly published a false statement or showed a reckless disregard for the truth. On Monday, Judge Jed Rakoff, the presiding judge in the case, said he would dismiss

the lawsuit regardless of the jury's decision, because Palin had not demonstrated that the Times acted with the level of recklessness and ill intent that public figures need to demonstrate in the defamation lawsuit. But the judge allowed the jury to proceed for the public record and in case of an appeal, and on Tuesday the jury came to the same conclusion as Judge Rakoff. Palin is expected to appeal, and some think the case could land before the Supreme Court. Below, we'll take a look at some arguments about the case from the right and the left, and then my take. First up, we'll start with what the right is saying. The right says Palin had a strong case, even if she did not prevail.

Some say it's clear the Times should be held accountable, even if it was an error, for reckless disregard of the truth. Others are happy Palin lost, but view the lawsuit as a success for highlighting the Times' biases. Kyle Smith said Palin had a case against the New York Times. Did Gifford's shooter ever see the map? No, not that we know of. Moreover, he had no clear political views. Instead, he simply harbored an obsessive hate for Gifford specifically, which was documented back to three years before the map's existence. Three days after the shooting, Washington Post fact checker Glenn Kessler wrote, the charge that Palin's map had anything to do with the shooting is bogus. Yet six years later, after a far-left Bernie Sanders loving terrorist shot and nearly killed Republican Congressman Steve Scalise on a Virginia baseball

field, the Times tried to change the subject back to the Giffords shooting to deflect blame from the left. American libel law strongly favors the press rather than the people we write about, and for excellent reason. Opinions, even extremely nasty ones, are protected. Hurrah! What a dim, gray, Soviet-scented discourse we'd have in this country if it were otherwise. Also, the media can be forgiven for honest mistakes. Believe it or not, we're too dumb to know what we said was false is a legit defense. It's pretty hard to lose a libel case, but the Times has put itself in a dicey spot. In National Review, Kevin Williamson said the Times should be writing an apology and a check. For a claim to be libelous, it must check three boxes once it has been established that the claim was published and the subject identified. One, the claim has to be false,

which this one was. Two, it has to be defamatory, which there is no real question this one was. Not only is the claim defamatory on its face, it was obviously meant to be defamatory in that the entire point of linking Palin to the shooting was to demean and discredit her. And three, when the claim involves a public figure such as Palin, it has to have been published with actual malice or reckless disregard for the truth. There's a pretty good case to be made for actual malice. Palin had nothing at all to do with the story, and the only point of dragging her name into it was to damage her reputation and her political prospects. But, even if you think actual malice is a coin toss, can

anybody seriously argue that the Times' performance in this matter was anything other than reckless and its disregard for the truth? The Times' reckless attack on Palin was not a matter of opinion, even though it appeared in the opinion pages. The Times asserted a supposed fact falsely, defaming her with utter disregard for the truth. The Wall Street Journal editorial board said Palin won, even in defeat. Ms. Palin couldn't get over the high legal bar of proving actual malice to a jury, Ms. Palin couldn't get over the high legal bar of proving actual malice to a jury, but the case exposed slipshod editing and how a left-wing narrative skewed the publication's commentary against an easy political target, the board wrote. This was no heroic stand for a free press against a government censor or powerful figure. The case was a purely defensive effort to show

that the falsehoods published about Ms. Palin in a 2017 editorial were unfortunate mistakes. The Times' defense is that it was merely incompetent, not malicious. We all make mistakes, and journalists working under deadline pressure live in dread of misstating a fact or making an unchecked assumption, the board wrote. The malice standard established in the 1964 landmark New York Times v. Sullivan protects everyone in the press from many frivolous, harassing lawsuits. We are grateful for it, even if it too often gives license to partisans who don't care about the truth. But the evidence produced at trial showed that the Times' mistake was more than a misstated factor, too.

The narrative that the right is uniquely responsible for political violence continues on the left, and the false Palin linkage lived on at the times. All right, so that is what the right is saying, which brings us to the left's take. The left says Palin didn't make her case strongly enough. They express relief that she lost and fear that this case may land before the Supreme Court. Some say her own testimony is what ultimately cost her a trial. In the Washington Post, media critic Eric Wemple said Palin didn't have the goods. Judge Jed Rakoff was impressed with an email from then-New York Times editorial page editor James Bennett on June 14, 2017. I really reworked this one, wrote Bennett to a colleague, Elizabeth

Williamson, that evening. I hope you can see what I was trying to do. Please take a look. Over six days of testimony and documents produced in Discovery, Palin's lawyers exposed an editorial process that was hurried and disjointed, typical of a news organization seeking to hustle on the day's biggest story. They showed that Bennett, Williamson, and others pursued two themes for the editorial, one on gun control and the other on their rhetoric and demonization. When the two themes merged uncomfortably in Williamson's draft, another editor apprised Bennett of the problem. He launched into the copy, inserting the false claims. What was missing from the whole production was any indication that Bennett was out to smear Palin. And here's where his email to Williamson comes into play.

No matter what you believe about Bennett or his colleagues, he'd be foolish to ask for Williamson's review of the draft if he'd been committed to planting damaging falsehoods in it. The allegation that he published with actual malice is also undermined in the court's view by the actions he undertook after finishing his revisions of Ms. Williamson's draft, said Rakoff, highlighting the email seeking Williamson's review. Translation, Palin needed evidence, preferably an email form, that Bennett was eager to nail Palin with something he knew was false, an actual malice-smoking gun. Instead, she offered only emails outlining another day at the Times.

In Slate, Seth Stevenson said Sarah Palin wasn't the point. She didn't prove that the Times published something false despite knowing it was false, or that the Times recklessly disregarded the high probability it was publishing something false, or that the Times intended to defame her and took conscious, deliberate steps to do so, Stevenson said. What Palin instead showed was that Times journalists are, much like everyone else in the world, capable of making sloppy errors when they rush to meet a deadline. She also showed, and this didn't help her case, that those journalists really, really hate to make mistakes and try hard to correct them as quickly as possible.

Does the freedom to write fearlessly about the famous and powerful necessitate permitting even the gravest of errors? Or, as some on the right are suggesting, including a former president and two current Supreme Court justices, should we be taking another look at where we draw this line? I know two things for sure. One, if this line is going to be redrawn, I don't want Donald Trump or Neil Gorsuch and Clarence Thomas holding the pencil. Two, this is by no means the end of this battle. Palin will own testimony undercut her in hilarious Palinesque fashion. Whatever momentum she'd managed at the top of her testimony swiftly eluded her as it continued, he wrote. she'd managed at the top of her testimony swiftly eluded her as it continued, he wrote.

Under questioning from her own attorney, Palin alleged that the New York Times had libeled her in instances aside from the 2017 editorial. Specifically, Palin said those close to her knew that they would respond again to what the New York Times had lied about again. Pressed on that point, however, Palin came up short on providing concrete examples of wrongdoing. My view was the New York Times took a lot of liberties and wasn't always truthful, she said, adding, that's what I meant by again. Later, when a lawyer from the Times brought up the Masked Singer, the quasi-game show that she appeared on in 2020, Palin replied, objection. She drew a reminder from the judge that witnesses were not permitted to object, as well as titters from those assembled in the courtroom, Shepard wrote. That might have been the moment that doomed Palin's suit.

Palin's evidence-free assertions probably would have served her in good stead on the campaign trail or the debate stage, but in this setting, it was a self-inflicted wound. All right, so that is it for the right and the left's take. That brings us to my take. So it will probably come as no surprise that I'm glad Palin lost this lawsuit, though I'm also happy that it went to trial. The Times deserved to sweat for what it did. It's bananas, certifiably loathsome that the paper would take a 2017 shooting where Republican members of Congress were attacked and then try to tie it to a 2011 shooting and then try to tie that shooting back to a Republican politician who was basically a complete afterthought at the time. Palin, by 2017, remember, was a political nobody and the

paper record using its bully pulpit to go after her for an unrelated incident was lower than low brow. What should have happened in a healthy ecosystem is that James Bennett should have been fired for the mistake. He may not have tied Palin to the shooting out of some malicious vendetta against her, but he more likely tied her to it because other liberals had been doing that back in 2011 with no evidence, and he simply filed that assertion away as a fact and reprinted it six years later without checking. It's clear from Bennett's internet communications that he knew he screwed up and that he wanted to fix it, but that kind of care is supposed to be taken before publication, not after. As I've said before, the Times is a great newspaper,

one I read every day, and its original reporting on the news side drives most of the opinion-making and news recycling that happens across television and other online media outlets. It is the engine. But with such robust protections for the press in place, it is an absolute necessity that we police ourselves and each other with care. Bennett would eventually resign from his job at the Times in 2020 after publishing Republican Senator Tom Cotton's opinion piece calling for a military response to a civil unrest during the George Floyd protests. But the

false reference to Palin in this story is really what should have ended his career. The freedom to make mistakes is critical to a free press. Without the malice standard, news outlets, who already struggled to survive financially, would be drowned in lawsuits any time they made a mistake, and driving the press out of business would clearly leave us worse off as a society. But malice isn't the standard we should hold ourselves to, and the Times and Bennett deserve the public shaming they got for an inexcusable error, even if Palin didn't meet the burden of proof to win the lawsuit. All right, that is it for my take, which brings us to your questions

answered. So this question is from Adam in Pittsburgh, Pennsylvania. It's actually a bit more of a feedback, but I want to address it anyway. He said, tangle issues on Rogan. With the space you have to write, I understand potential limitations, but I wanted to hear your thoughts on an occasional podcast or even longer issue with a reader where some of these more popular or highly contested issues might be more detailed and drawn out. So Adam, I don't blame you. The reader question is often one of the hardest sections for me to write or produce precisely because I dedicate fewer words and less time to it. I still love answering reader questions in the newsletter and the podcast, though, and I don't plan to stop. Reader submissions usually fall into three categories. They're straight-up questions

about politics, usually asking for some kind of prediction or explanation about something. Sometimes they're criticism that deserves a response, people criticizing writing and asking how I came to some conclusion. And the other kind are questions like these, questions about tangle, like the process we use to produce the newsletter or podcast, or how I go about working through certain issues. I think these are all super valuable things for me to address in the reader questions, but I have noticed, like you, that the reader questions sections often get the most critical feedback. Usually, it's feedback just like yours,

asking for more context or additional fleshing out of a reply. So it's actually funny that you bring this up because last night I had a meeting with Tangle's podcast editor, Trevor, and we discussed some ways to make the podcast more interesting and unique. One of the ideas that we had was to allow readers to submit voicemail questions, something other podcasts do, and then have mailbag type episodes that allow some more space for me to dive into these kinds of questions. I think it'd be a pretty unique audio offering and something that would give us more space to flesh out readers' questions. We've also done entire issues dedicated to one reader question or a few on a certain theme, and I will certainly continue doing that going forward. For now, I'll just say I'm going to try and keep that in mind and better elevate the nuance in the

reader questions and answer section. Going forward, though, you can expect some more opportunities, some new opportunities to interact with Tangle and the newsletter and the podcast and get some responses from us. All right, that brings us to our story that matters for the day. As regions across America battle for human capital, middle America appears to be making up ground from the coastal elites. A new report from the Arkansas-based Heartland Forward found that between 2010 and 2019, workers were migrating from the coast to the 20 central states in the heartland. That's according to Axios' Worth Sparkman. There are signals that shift accelerated during the pandemic, a period of time the research didn't even cover. The steady migration coupled with the rise of remote work

means that smaller and medium-sized heartland metros and rural areas can now attract more diverse talent, Sparkman wrote. An estimated 20 to 25 percent of full-time workers will be remote after the pandemic. All right, that brings us to our numbers section for the day. None of these actually really have to do with our main story, which is unusual, but you know, there's not a lot of numbers out there about libel lawsuits. 112.3 million is the estimated viewership of the Rams versus Bengals Super Bowl this year, the highest since 2015. 30 is the number of Democrats who have now announced their retirement from Congress after Representative Kathleen Rice, the New York Democrat, said she was stepping down. $30 billion

is the amount of new COVID-19 aid the Biden administration is asking for to increase testing vaccines and therapeutics, according to a report from The Washington Post. $350 billion is the rough estimates of how much federal money has already been spent on testing vaccines and treatments. 39% is the percentage of voters who approve of the job Biden is doing, according to a new Politico Morning Consult poll. 57% is the percentage of voters who disapprove. All right, and last but not least, our Have a Nice Day story. This one is one of the rare Have a Nice Day stories that I think many of you might have already heard. It's been a pretty huge story, so I wouldn't be surprised if you have, but it is a good news story nonetheless. a good news story nonetheless. A United States patient with leukemia has become the first woman and the third person to date to be cured of HIV after a stem cell transplant. The woman received

a stem cell transplant from someone who is naturally resistant to the virus that causes AIDS. Since receiving the treatment for her acute myeloid leukemia, the woman has been in remission and free of the virus for 14 months without the need for potent HIV therapy. The case is part of a larger US-backed study by Dr. Yvonne Bryson and Dr. Deborah Persuade of Johns Hopkins to follow people undergoing stem cell treatment

who are HIV positive to see how it impacts them. Reuters has the story and there is a link to it in today's newsletter. Reuters has the story and there is a link to it in today's newsletter. newsletter if you're subscribed. And remember, we need your support. I know we have an ad or two on this podcast, but reader supporters really are the engine that keeps us going. So if you want to take 30 seconds and click a link that's in the episode description, there are a ton of ways to support us there. You'll see. And if not, you know, I'll convince you later. All right. See you tomorrow. Peace.

Peace. for the podcast was produced by Diet 75. For more from Tangle, subscribe to our newsletter or check out our content archives at www.readtangle.com. We'll see you next time.