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Friday, August 25, 2017

Journalist aghast at Times libel defense

James Freeman of the Wall Street Journal wrote, "Is the New York Times botching its legal defense against Sarah Palin’s libel claim?"

Seems plausible.

From what little I know of newspapers and their lawyers, I would say the legal defense matches in competence the effort that went into publishing an editorial that tried to deflect attention to Sarah Palin after a Democratic Party activist gunning down a Republican congressman in cold blood.

Had the editorial played it straight, the incident would have been over and liberals would have patted themselves on the back for denouncing their own violence.

But liberals are so damned smart.

The Times went for moral equivalence.

Now the Times is in court scrambling to defend the indefensible: falsely accusing a woman of inciting a mass murder.

Federal Judge Jed Rakoff held a hearing to see if he should dismiss the case. The bar for libel is nearly impossibly high for a public figure.

Freeman of the Journal thinks Palin passed the test.

Judging by press accounts, the fellow responsible for the libel in the editorial --  James Bennet -- is making an excellent witness for Palin.

Thus far, he has admitted he wrote first, and researched later. He falsely connected Palin to a psychotic's shooting spree in which he killed six people, including a federal judge, and wounded a congresswoman.

James Freeman quoted the Times own report of Bennet's testimony:
The editor of The New York Times editorial page testified on Wednesday that he did not intend in an editorial to blame the former vice-presidential candidate Sarah Palin for a 2011 mass shooting, but was instead trying to make a point about the heated political environment. The editorial is the focus of a defamation lawsuit brought by Ms. Palin against the news organization.
The editor, James Bennet, said he had wanted to draw a link between charged political rhetoric and an atmosphere of political incitement after a gunman opened fired in June on a baseball field where Republican congressmen were practicing, injuring several people including Representative Steve Scalise of Louisiana. But Mr. Bennet said he was not trying to make a direct connection between a map of targeted electoral districts that Ms. Palin’s political action committee had circulated and the 2011 shooting in Arizona by Jared Loughner that severely injured Representative Gabby Giffords.
“I did not intend and was not thinking of it as a causal link to the crime,” Mr. Bennet said. During cross-examination, he said he did not know if Mr. Loughner had seen the map and “did not know if the map incited him to his conduct.”

Then why bring it up?

It happened six years earlier, and as I said.

And as I also said, Palin had nothing to do with the rampage.

Freeman's response to that quoted passage:
This is going well beyond claims that factual errors happen in the rush to publish a daily newspaper or that pages clearly marked “Opinion” have wide latitude to interpret public events. Mr. Bennet is not saying that he was simply misinformed about the facts of the case. He’s arguing that he didn’t intend to write what his editorial clearly stated.
The words Freeman is searching for are: Bennet is lying.

I figured deposition would be difficult for the editorial staff because they lead sheltered lives. No one questions the Times world view. Now, under oath, Benet faces a hostile and experienced litigator who happened to have helped destroy Gawker literally when it invaded Hulk Hogan's privacy.

This is not a game. Neither Palin nor her lawyers give a whit about settling out of court. She has the company in the palm of her hand. In fact, she has The Times is the crown jewel of a corrupt and incorrigible media.

Palin's legal team mocked the Times defense:
If a defendant could avoid liability simply by claiming the equivalent of “oops … that’s not what I meant,” it would “erect a logically impossible test which by its practical application would inevitably result in no defamation case ever qualifying for jury resolution.”
Freeman fears the Oops Defense won't work:
The Times defense strategy could be particularly dangerous given that the case is being heard by federal Judge Jed Rakoff, who has an independent streak and a famous unwillingness to rubber-stamp settlements between big government and big banks. If he is equally skeptical of big media, this case could go on for a while.
In evaluating Mr. Bennet’s testimony, the judge may also consider the events that followed the publication of the flawed editorial. Even after the correction, the Times continued to smear Mrs. Palin. The updated editorial on the news organization’s website is not libelous, but to this day it includes her in a story about “heated political rhetoric” and political shootings even after acknowledging she had no connection to the violence. And according to the Associated Press, Mr. Bennet testified that the Times has never apologized to Mrs. Palin.
Judge Rakoff is expected to decide by the end of this month whether to allow the case to proceed. In the meantime, this column is trying to imagine why someone who accidentally accused an innocent party of inciting murder would not apologize.
Here’s hoping the Times makes a more gracious effort to restore Mrs. Palin’s reputation before tempting the federal judiciary to limit rights that we all enjoy and on which our free society depends.

Don't even think of the Times being gracious.

This case goes to the heart of the divide in America.

She went to five colleges in Alaska, Hawaii and Idaho to graduate.

Bennet went to Yale. He thinks he's better than she is. That's why he got the job. He has the Times 'tude.

We trusted the elite to protect us.

They botched it.

Now we turn to Sarah Palin, Kid Rock, Ted Nugent, and of course, President Trump.

You go with the army you have.

I hope she wins and shuts the paper down. She will make more money renting out its building. And do so in a more honorable way.

But whether the judge dismisses the case or not, Palin is making people who never had to sweat for a living perspire.

The only question as I watch this case unfold is whether I want Act II Popcorn or Orville Redenbacher.


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  1. If this case gets appealed it may end up giving SCOTUS a chance to fix NYT v. Sullivan.

  2. This is Rich. First the et tu NYT stabs it's Never Trump election ally in the back for now not criticising Trump with the the proper PC hate speech. Then the wounded neuveaux Trumphater retaliates with calling it's aristocrat genius cousin incompetent. The real twist of the knife is in the WSJ accusation that the media's newly discovered revenue stream, pouring pure from the DeLeon spring of endlessly rejuvenating lies as opinions, may be at risk. If this case goes for Palin the SC will definitely become involved.

  3. You can't go wrong with Orville.

  4. Do you think Sarah will take the entire Times building condo or will she rent out commercial space on the lower floors?

  5. Redenbacher. Definitely Redenbacher.

  6. A great story on many fronts. The escalating war between the NYT and WSJ is an added benefit.

  7. "Federal Judge Jed Rakoff held a hearing to see if he should dismiss the case. The bar for libel is nearly impossibly high for a public figure."

    Should Ms. Palin win her case, it would be one of the biggest accomplishments any any politician has made for the good of all of America - Republicans, Democrats, Independents, and non-political people.

    We no longer live in a civil society, and have not for decades. A large part of this is the media, feeling free to make any accusatory, demeaning, insulting comments about any public figure. That sets the bar and is picked up by viewers in their personal behavior towards one another. About time we tap the brakes some.

    Would also like to see a case in which the average Joe (male) is allowed to sue both his employer and co-workers for accusing him incorrectly of sexual harassment. That has been an epidemic for 25 years now. Too many men have had their careers literally ruined by accusations that were not true. Yet those making the charges win no matter what the company determines. It would be nice if national figures have an option to protect themselves. Now how about the same for the average American.

    Please continue to follow this case.

  8. Thank you for a clear update on Mrs. Palin's case against NYT.

    When it comes to reporting, I consider you a trustworthy reporter of the facts, Mr. Surber. Thank you again for doing the work that you do.

    Your writing often reminds me of the way Tom Wolfe writes; especially in this 1970 New York Magazine article:

  9. I like Uncle Willie's in a hot air popper and real melted butter. - Elric

  10. I am interested to see what "reckless disregard" will be in the era of computer searches. The standard for a public figure to be able to successfully sue for libel is set by the 1964 case (ironically New York Times vs Sullivan) The damaged person must show that the writer knew it was false or used "reckless disregard" as to truth or falsity.
    Back in 1964, checking facts involved pouring over microfilm. The microfilm may or may not be indexed. And it would be almost impossible to know of an article in the thousands of newspapers throughout the country that would relate to your article, there was no "google search" available to you.
    Fast forward to 2017. Was the truth of the Times' claim about Sarah Palin verifiable by a search of their own newspaper reporting? Is this a well-designed system? Is it available to New York Times employees for free? Was the truth just a few clicks away? Does the Times routinely check and verify facts before it asserts them, even in editorials? Does the Times have staffers who are routinely assigned to check and verify such facts? Did they simply not bother to check because after all, this is just Sarah Palin and we bash her all the time. Everybody does. Anyone see "actual malice" here?

  11. My Popcorn supplier is going to be buying a really big boat.

  12. I suggest a name change: Fake news to hate press!

  13. I'm having Jiffy know, going for the retro (like me) look!

  14. "I figured deposition would be difficult for the editorial staff because they lead sheltered lives."

    Like those War of the Worlds Martians. No resistance any more.

  15. I am not so sanguine about the judge's role in this as is the Journal's Mr. Freeman. The whole idea of basing a decision over whether or not to dismiss the suit on the testimony of the individual opinion page editor is fishy. Mrs. Palin is not suing an individual, she is suing the Times as a corporate entity--which includes the so-called "news" division that , however grudgingly, has long since debunked the substance of the editorial vis-à-vis Palin. The corporate entity known as the Times had knowledge that the editorial was factually false, whatever the state of knowledge of the individual writer or editor.

    1. Yep but if they dismiss there is hella foundation for an appeal. This ain't half over no matter what the judge rules.

  16. Having worked at a high-end law firm for many years I can tell you, these dorks indeed believe themselves to be anointed. Not by God, certainly, but they are better than YOU, whoever you are. In reality they parlay the toil of their intellectual betters who happen to be their subordinates. Fraternities and old school ties are the coin of the realm. Lawyering is subbed out. Fear them not for their 'skills' though their ruthlessness is formidable.