The editorial also maintained Palin’s PAC sparked “political incitement” but there was never a connection to Jared Loughner’s shooting of 18 people.
The Judge is the defamation case has set a hearing on a Motion to Dismiss on July 31st. If it is not dismissed, the trial date is Dec. 11.
The article was a commentary on the recent shooting of Louisiana Congressman Steve Scalise. In the editorial, the Times wrote that before the shooting of Giffords, Palin’s political action committee circulated a map of targeted electoral districts that put Giffords and 19 other Democrats under stylized cross hairs.
The Times revised the online version of the editorial the following morning to remove those references and to make clear that the crosshair on the map appeared over Giffords’ district rather than over her name or image. The Times also stated: “We’re sorry about this and we appreciate that our readers called us on the mistake.”
The Judge will likely grant the Motion to Dismiss for several reasons:
- “It is well established that defamatory words directed at a corporation or other entity simply do not give rise to a claim by the individuals associated with it,” the lawyers wrote. The editorial was commenting of the publication by SarahPAC, and thus not aimed at Sarah Palin individually.
- The article was an editorial, and thus clearly opinion. Under the First Amendment, the Times is allowed to publish an opinion even if it is incorrect.
- A defamation suit requires a Plaintiff to show damage or harm to a person’s reputation. Sarah Palin had already damaged her own reputation so badly that it would be impossible for her to establish any damage, beyond that which she herself caused.
4. A Plaintiff in a defamation suit must prove actual “malice” in publishing the “defamatory statement.” An honest mistake is a defense to a defamation suit. Thus Palin’s attorney must show that the editorial board intentionally published inaccurate information with the intent to cause her harm. In this case any disparagement of Palin is by implication only. Based on the wording of the column itself and the retraction, it should be easy to show that the intent to cause harm is lacking.
The U.S. Supreme Court’s 1964 decision in New York Times v. Sullivan has restricted defamation claims, limited by the First Amendment concerns. Thus, for instance, public officials and public figures (people who are famous) must show that statements were made with actual malice to recover in an action for defamation.
Actual malice means that a statement was made with knowledge that it was false or with reckless disregard of whether or not it was false. In addition, a plaintiff must show actual malice by “clear and convincing” evidence rather than the usual burden of proof in a civil case, preponderance of the evidence. In this case the timing of the editorial, hours after the shooting of Scalise and four others, is an indication that the editorial board was acting with haste …not malice.
5. Perhaps the most compelling argument is that the Times included a link in it’s editorial. The article linked expressly clarified the two points of contention in the Palin suit. Palin argues that the editorial was incorrect because she didn’t target Giffords personally, but her district. That was explained in the linked article:
“Crosshairs is a political phrase that emerged from Palin’s political action committee SarahPac that targeted congressional districts for the Tea Party campaign in the last election, including the district of Rep. Gabrielle Giffords.”
The second argument is that there was never a connection established between the crosshairs and the shooting. In other words, Loughner didn’t see and wasn’t inspired by the crosshairs. However the linked article says:
Further by including a link to this article, the Times has shown beyond a reasonable doubt that there was no false statement, and that there was no malice, or they would not have included a link to an article with the true facts.
Palin will, in all likelihood, lose the Motion to Dismiss. However she may have accomplished her goal of generating “clickbait.”