July 10th, 2017

The NY Times claims it made an “honest mistake” about Palin

Sarah Palin has sued the NY Times for defamation based on an editorial in the paper shortly after the Scalise shooting. In it, the Times had made this false claim:

In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-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 cross hairs.

It was false in two ways. The first was that, in the Giffords shooting, there actually was no link to political incitement at all. This has been known for many years, and anyone familiar with the story ought to have been well aware of it.

The second is that Palin’s PAC had not published a map that fit that description; the cross-hairs were on the districts, not the people (the actual map can be found here).

The Times’ later “correction” of the story—published after a large public hue and cry had ensued—corrected the second fact but not the first, which was no longer stated so overtly but was nevertheless still implied as a possibility. Here is the correction:

Was this attack [the Scalise shooting] evidence of how vicious American politics has become? Probably. In 2011, Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl. At the time, we and others were sharply critical of the heated political rhetoric on the right. Before the shooting, Sarah Palin’s political action committee circulated a map that showed the targeted electoral districts of Ms. Giffords and 19 other Democrats under stylized cross hairs. But in that case no connection to the shooting was ever established.

The standard of proof for defamation in a lawsuit against a newspaper, [clarification/correction added: or against anyone else, in a suit brought by a public figure, is higher than if it were brought by a citizen]. It is necessary to prove “actual malice,” but that doesn’t mean what people often think it means. It’s not required that one have a recording of the Times editors saying that they hate Palin’s guts. A showing that they published their editorial with “reckless disregard” for its truth or falsehood would suffice.

Now it is being reported in the NY Post that the Times’ lawyer has made the following claim in the newspaper’s defense:

“There was an honest mistake in posting the editorial,” lawyer David Schultz told Manhattan federal Judge Jed Rakoff…

On Friday, Palin’s lawyers argued that the Times knew the story was false.

“It was literally acknowledged the same day in another story in their paper,” said Kenneth Turkel.

Which brings us to my question: if the Times (or any other newspaper) claims it made an “honest mistake” in a story, shouldn’t its mistake be based on—you know—-something? Or can it be an honest mistake to just make s*** up?

If I had made the same statement about Palin the day after that Times editorial, and she had sued me for defamation, I might cite the Times as the authority on which I mistakenly had made my claim. But what authority can the Times cite? Its own editorial, in circular fashion?

Or perhaps Kathy Griffin, who tweeted in January of 2011, shortly after the Giffords shooting: “Watching the news? Congresswoman in AZ,who is ON Sarah Palin’s crosshairs map was SHOT in the head 2day. Happy now Sarah?”

I doubt that’s the authority on which the Times wishes to rely at this point. But beggars can’t always be choosers.

The sort of connection cited by Griffin was corrected time and again over the years in MSM stories across the land, including those in the Times itself. Even the Times’ fellow the WaPo pointed out the following, in a recent article about the Times editorial:

[Loughner’s] focus on Giffords began as early as 2007, long before the map was published. He became fixated on her since he met her at a constituent event in 2007, and decided he was unsatisfied by her answer to his question: “If words could not be understood, then what does government mean?”

Three days after the shooting, authorities filed criminal charges against Loughner after finding items in his home that showed he had plotted her assassination. They found in his safe a 2007 letter from Giffords thanking him for attending the constituent event, and an envelope stating “I planned ahead,” and the words “assassination” and “Giffords,” along with his signature.

Loughner had no clear political views. Instead, he was a troubled man who abused alcohol and drugs, and whose mental illness was apparent to his classmates and family even before he was diagnosed as schizophrenic during his court trial.

The Times wants the protection from constant defamation suits that is afforded by current law, based on the landmark 1964 case New York Times Co. v Sullivan that established the high standard of proof necessary to win such a suit [clarification/correction added: by a public figure]] against a newspaper. But aren’t newspapers supposed to meet some minimal standards of due diligence before publishing something? How low can that standard go?

In other words, for a mistake by a newspaper to be “honest,” must the paper not make some small effort to ascertain the truth? Is it not assumed to know the basic facts of something that’s been in the news for many years? And recall, this wasn’t an error by some cub reporter, it was by the full editorial board of the Times. And even after it published its correction—with all the benefits of hindsight and much published criticism in other media—it wasn’t all that much of a correction.

The Times’ motto has long been “All the news that’s fit to print.” This was neither news, nor fit to print. But after all, the Times never said “Only the news that’s fit to print.”

38 Responses to “The NY Times claims it made an “honest mistake” about Palin”

  1. Sam L. Says:

    An “honest” mistake? I think not. No way, no how.

  2. Cornhead Says:

    If that’s the best defense the top legal minds in NYC could come up with, then start writing a check. Liability is a lock. Only a question now of how much.

  3. neo-neocon Says:

    Cornhead:

    They can’t come up with other evidence because there is none.

    What I predict they will do, however (if there’s no settlement), is to plead that their language was a lot more vague in its implications than it actually was, and to also claim that their retraction sufficed to show their lack of malice.

  4. Breadcrumbs in the Labyrinth - American Digest Says:

    […] The NY Times claims it made an —honest mistake” about Palin: If the Times (or any other newspaper) claims it made an “honest mistake” in a story, shouldn’t its mistake be based on—you know—-something? Or can it be an honest mistake to just make s*** up? […]

  5. AMartel Says:

    NYT Motto: All The News that Fits Our Agenda, Including Honestly Mistaken Lies.

  6. T Says:

    AMartel,

    That would be: “All the news that fits we print.”

  7. eeyore Says:

    It’s an honest mistake since they honestly believe Loughner was honestly targetting Giffords based on the map. They honestly feel Palin meant physical violence against those indicated on the map. They honestly despise Palin and honestly believe all political violence is instigated and promoted by conservative talk radio, web sites and politicians.

    They honestly believe antifa and BLM violence is only a reaction to violence perpetrated on them by police and alt-right groups. They honestly believe their political opponents should be arrested for this incitement against them.

    They honestly believe they are the sole arbiters of truth and their only real honest mistake was to print what they honestly believe, regardless of any actual evidence.

  8. CapnRusty Says:

    CNN, NYTimes, WaPo.
    Two down, one to go.

  9. Dave Says:

    Why were these “honest mistakes” always a one way ticket where conservatives got portrayed negatively? When are the MSM ever going to make a honest mistake in which a conservative get praised or a democrat get criticized?

  10. huxley Says:

    One of the Powerline guys pointed out that while the Palin’s case is strong, her legal team may have erred trying the case in New York where the jury may return a partisan, unjust verdict.

    Forget it, Jake, it’s New York.

  11. Rich Vail Says:

    It wasn’t a “story” it was an editorial. There’s a YUUUUGE difference there. NYTimes screwed up & knows it. They’re hoping to wriggle out of it, 1st by trying to get the suit dissmissed, and failing that, by offering a large payout. Palin’s already hinting that she won’t do anything less than a trial.

    Discovery will be amazingly funny…

  12. Neo Says:

    The Tucson Witch Hunt, Charles M. Blow JAN. 14, 2011
    http://www.nytimes.com/2011/01/15/opinion/15blow.html

  13. Sarah Rolph Says:

    What eeyore said. Willful blindness.

  14. Herb Says:

    @Dave: Because by honest mistake in these cases they were honest about what they think (of conservatives) and it turns out being honest at this juncture was a mistake.

  15. Eric Oden Says:

    The standard of proof for defamation isn’t higher for a newspaper. It’s higher when someone is making a statement about a public figure (functionally similar, since newspapers rarely write about non-public figures).

    I just wanted to clear that one thing up. Newspapers don’t have special rights or higher burdens of proof. The first amendment protects everyone (in theory).

  16. y81 Says:

    I’m afraid neo is misrembering what she learned in law school. It’s not that the standard is higher for defamation suits against a newspaper than a private citizen; it’s that the standard for defamation suits by a public figure is higher than for suits by a private citizen. Public figures must prove malice, which is a term of art meaning, in this context, knowledge of the falsity of the statement or reckless disregard for its truth or falsity. Some may recall that Time magazine defeated a suit by Ariel Sharon some years ago, since the jury found that Time had been negligent but not reckless.

  17. parker Says:

    Here’s hoping the Barracuda takes a big check to the bank. But it is unlikely. She should have sued the rag in Alaska.

  18. Doctor Lecter Says:

    “Actual Malice” is a much better book title than “Honest Mistake”. On those grounds I endorse the former.

  19. Dave Says:

    There is a term for someone having a set predetermined fixed ideas on a group of people – its called Prejudice. A “Honest Mistake” based of your prejudice against someone regardless of whether there was existence of any other more meticulous reasons like intentionally try to damage the republican brand by tying the shooter to conservatives knowing he was crazy is defamation.

  20. Tuvea Says:

    Doesn’t the MSM disparage bloggers because they just make things up while the old-line media has ‘layers and layers’ of “fact checkers”? How’s that working out?

  21. neo-neocon Says:

    y81; Eric Oden:

    Correct, of course. My bad; I forget to add “by a public figure” against a newspaper—or actually, against anyone, (although almost all such legal disputes have involved newspapers, and Sullivan certainly did). Thanks; I’ll fix it.

    But to Eric Oden: an interesting element of the law here is that the vast majority of the cases (including Sullivan itself) involve public figures vis a vis newspapers and other media—in other words, the press. And yet the rule is not limited to them. I think the legal focus in the cases has always been on the press, however, and a lot of the reasoning in Sullivan to justify the ruling referred to the need to protect freedom of the press.

    See this:

    It is important to note that while Court decisions regarding this rule have primarily addressed issues related to freedom of the press, the rule applies to any statement, whether made in a newspaper or to an acquaintance on the street. Hutchinson v. Proxmire, 443 U.S. 111, 133 n. 16, 99 S.Ct. 2675, 2687, 61 L.Ed.2d 411 (1979).

  22. expat Says:

    If Palin wins will they change the name of Times Square to Palin Square?

  23. Gringo Says:

    I am reminded of the “fool or knave” argument. Consider first the “fool” argument. That was an honest mistake for an ignoramus. Those of us who keep up with current events knew 6 years ago that the Palin “crosshairs” connection with the Gifford shooting was entirely bogus. Perhaps this says something about how little reporters know these days. Recall what Ben Rhodes Obama’s “deputy national security adviser for strategic communications” (That is a job title straight out of “Yes, Prime Minister) said: White House official on some reporters’ overseas expertise: ‘They literally know nothing.’

    All these newspapers used to have foreign bureaus. Now they don’t. They call us to explain to them what’s happening in Moscow and Cairo. Most of the outlets are reporting on world events from Washington. The average reporter we talk to is 27 years old, and their only reporting experience consists of being around political campaigns. That’s a sea change. They literally know nothing.

    What Ben Rhodes said about reporters on foreign affairs apparently can be said about reporters on domestic affairs.
    If the NYT employs fools for reporters, the NYT should suffer the consequences of employing fools: libel suits.

    A high school classmate of my brother has worked for the NYT. He is neither ignorant nor stupid. Which is why I doubt the NYT person involved was an ignorant fool.

    I find the “knave” argument more compelling. I find it very hard to believe that a NYT reporter or editor was unaware that the Palin “crosshairs” connection with the Gifford shooting has been debunked for years. After all, I don’t keep up with current events to the degree that a NYT reporter would, and I knew years ago that the “crosshairs” connection was debunked. My take is that some ideologue at the NYT put in the Palin “crosshairs” connection deliberately, and a wiser editor took it out several hours later.

  24. JeffreyL Says:

    It will settle or die. If the judge allows the suit to go forward and tells the parties to begin prepping for discovery, the NYT will immediately settle at any cost. I heavily doubt they would submit themselves to the ability of the attorneys for Palin to request all of their e-mails going back to 2008 in regards to her. Most likely, the leaks of those e-mails would be incredibly damaging to the paper, and they would of course expect those e-mails to leak.

  25. Robert Sendler Says:

    Just as an aside the “crosshairs” were in fact not crosshairs…they are surveyor symbols that the mapping software they used to make the map used as a default symbol.

    And no…it wasn’t an honest mistake.

  26. neo-neocon Says:

    JeffreyL:

    It takes two to settle.

    What if Palin doesn’t want the money, no matter how much? I can’t read her mind and I don’t know what she intends, but it is at least a possibility that no matter how much they offer, she’d rather go through with a trial.

  27. MONGO! Says:

    Have they ever made a mistake where they accidentally said something nice about Sarah Palin or any non-liberal?

    If every ‘mistake’ they make about conservatives is always a negative then who would believe they are mistakes?

  28. Lizzy Says:

    IIRC, the ‘Palin inspired the shooter’ story was one of those coordinated fake stories used to score political points off of a crime (“Never let a crisis go to waste!” – Rahm Emanuel). Wasn’t this the one where the Democrats printed up T-shirts for memorial service attendees, they were so gleeful about the opportunity to politicize it?

    Who started it, who coordinated it, one can only imagine. Well, it’s a lot easier to imagine after the DNC & Podesta email leaks, and Ben Rhodes bragging about how easy it was to spin the media. This media/Democrat narrative collusion has been going on for so long it would not surprise me if the pliant, ignorant press is now actively believing their own bull. How many believe Palin said “I can see Russia from my house?” How may believe GW Bush had a fake turkey in Afghanistan, that GHW Bush had never seen a grocery store scanner, etc.? This is what happens when an institutions signs on to spread propaganda. Not that this makes what the NYT did “honest” or a “mistake.”

  29. y81 Says:

    Re: It takes two to settle. I guess Sarah Palin has a fair amount of money these days, but the NYT has a lot more, and litigation is very expensive. If the NYT offers a significant amount, plus a groveling apology, I think she will take it.

    As to whether we get there, Judge Rakoff is very liberal, but I have a hard time seeing this case disposed of on a motion to dismiss, and in that case there’s the potential for lots of very expensive discovery before anyone could move for summary judgment.

  30. AesopFan Says:

    Sam L. Says:
    July 10th, 2017 at 2:17 pm
    An “honest” mistake? I think not. No way, no how.

    Is that anything like “honest loyalty”?

  31. AesopFan Says:

    After seeing what happened in the Mann v. Steyn case this could drag on for years, which would actually I think be in Palin’s favor, as keeping the NYT’s lyin’ and spinnin’ in the news is fine with me.
    (Mann sued Steyn for defamation in an interesting obverse case, since in that instance we are rooting for the “press” over the “public figure”, but the case is in a DC court with a judge who knows that Mann will lose at trial and is deliberately dragging things out hoping Steyn will go away – IMO)

  32. AesopFan Says:

    Herb Says:
    July 10th, 2017 at 4:56 pm
    @Dave: Because by honest mistake in these cases they were honest about what they think (of conservatives) and it turns out being honest at this juncture was a mistake.

    * * *
    Isn’t that the definition of a gaffe?

  33. AesopFan Says:

    Tuvea Says:
    July 10th, 2017 at 6:21 pm
    Doesn’t the MSM disparage bloggers because they just make things up while the old-line media has ‘layers and layers’ of “fact checkers”? How’s that working out?
    * * *
    The WHCA is putting their thumb on the scales.
    http://thehill.com/homenews/media/341385-wh-correspondents-association-considering-change-to-bylaws-that-would-affect

    “The White House Correspondents Association is considering a change to its bylaws that would keep outlets like Breitbart News from attaining a higher level of membership within the group, preventing them from taking part in decision-making.”

  34. AesopFan Says:

    Lizzy Says:
    July 10th, 2017 at 8:37 pm

    This is what happens when an institutions signs on to spread propaganda. Not that this makes what the NYT did “honest” or a “mistake.”
    * * *
    It’s getting worse.

    http://www.theamericanconservative.com/dreher/why-people-hate-the-media-washington-post/

    (after describing a WaPo story I’m sure most of you have seen)
    That’s it. That’s all they have here. The only connection between the left-wing shooter and this repulsive right-wing lunatic who mouths off on a small radio station is the speculation of the host himself.

    The Washington Post built an entire story around this — a story that blames right-wing talk radio for a left-wing crackpot opening fire on a baseball field full of Republicans, because they are Republicans.

    Let that sink in: the Washington Post blames right-wing talk radio for a left-winger’s assassination attempt on Republican politicians.

    No wonder some leading lights in the national media class hears Donald Trump give an ordinary speech taking a few paragraphs to praise the good things about Western civilization, and declare it to really be a farrago of dog-whistling about white supremacy. Left-winger attempts mass murder of Republicans: it’s the fault of right-wing talk radio. Radical Muslim massacres gays and lesbians, and says in a phone call from the murder scene that he’s doing it for ISIS: it’s the fault of Republicans. So, I guess if you get right down to it, Steve Scalise pretty much shot himself — right, Washington Post? Better get a reporter right on that story. It shouldn’t be too hard to nail down, seeing as how you only need a single quote from somebody willing to speculate on the record.

    These people are so lost in their anti-conservative bigotry that they can’t tell up from down or right from wrong.

  35. Sarah Rolph Says:

    I’ll be surprised if Palin settles. I doubt she is doing this for the money. This is a high-profile case, with principle at stake, and a good chance of winning; it won’t be hard for her to find a good legal team willing to work pro bono.

  36. Glenn Says:

    It should be noted that the case the NYT relies on for protection from defamation suits — New York Times Company v. Sullivan, a case decided by the Supreme Court in 1964 — provides First Amendment protection to corporations (such as the “New York Times Company”) as well as individuals. Obama, the Times, etc., etc. to the contrary notwithstanding, the Citizens United case did not extend First Amendment rights to corporations for the first time.

  37. GRA Says:

    When it comes to subtly mocking or lambasting any conservative there is no “honest mistake” by the NYT. It’s deliberate.

  38. Ymar Sakar Says:

    I would have said that the Left was doing this intentionally… but apparently a lot of people are in the majority here jumping on the band wagon for the same point, so I don’t have to write it any more. Used to have to write that line every single time Hussein did something from 2008 to 2012.

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