The upcoming jury trial for Sarah Palin’s defamation lawsuit against The New York Times has nothing to do with sports. But its verdict could impact media coverage of athletes, coaches and owners. The case boils down to one question: Does a story correction shield a publication from “actual malice”?
There’s a long history of defamation cases involving sports and media companies.
In 2020, Washington Football Team owner Daniel Snyder sued Media Entertainment Arts WorldWide for falsely suggesting he had ties to infamous sex criminal Jeffrey Epstein. The litigation has ensnared former WFT officials. A decade earlier, NBA referee Bill Spooner sued the Associated Press over a reporter’s claim that Spooner had promised a coach that he would even out a bad call.
In the 2000s, Texas-El Paso football coach Mike Price sued Time Inc. for $20 million over a Sports Illustrated article that recounted Price’s alleged conduct with a waitress while drinking at a bar. Not to be outdone, Don King sued ESPN in 2005 for $2.5 billion (yes, billion) over reporting that King underpaid Muhammad Ali by $1.2 million and was tied to two killings. In 1995, Boston Celtics ownership threatened to sue The Wall Street Journal for $100 million for publishing a story suggesting that cocaine use played a role in the death of Reggie Lewis. Richard Jewell sued The Atlanta Journal-Constitution, CNN and others for portraying him as the likely bomber at the 1996 Summer Olympics.
Back to Palin, whose trial is set to start on Feb. 3. The former governor of Alaska and Sen. John McCain’s 2008 running mate is suing over an editorial published on June 14, 2017. The editorial, titled “America’s Lethal Politics,” was published hours after James Hodkinson opened fire at a practice for a congressional softball game. U.S. Rep. Steve Scalise (R-La.) and three others were wounded.
The editorial attempted to thematically link the shooting with a shooting in 2011, when Jared Loughner killed six people—including Christina Taylor Green, the 9-year-old granddaughter of former MLB manager Dallas Green—at a political rally. Loughner wounded 13 others, most notably U.S. Rep Gabby Giffords (D-Ariz.) The two shootings, the editorial argued, revealed the “vicious” state of contemporary American politics.
In trying to corroborate this claim, the editorial mistakenly expressed that Palin’s political action committee, SarahPAC, had “circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.” The editorial went on to claim, “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 of the right.”
Within 24 hours, NYT made several corrections. Passages connecting Palin and the 2011 shooting were deleted. NYT also acknowledged that SarahPAC’s map didn’t place crosshairs on members of Congress. The crosshairs were instead put on congressional districts. A correction was added. “An earlier version of this editorial,” the NYT admitted, “incorrectly stated that a link existed between political incitement and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established.”
Palin sued the NYT for defamation, meaning a false assertion of fact (as opposed to opinion) that causes reputational harm. Public figures must also prove actual malice, that is, the libelous statement was made with: (1) knowledge of being false or (2) reckless disregard as to whether it was true or false.
Editorial author James Bennet testified he had researched and checked facts but was unaware of articles finding no link between Palin, her PAC and the shooting. Judge Jed Rakoff of the Southern District of New York believed Bennet’s “behavior is much more plausibly consistent with making an unintended mistake and then correcting it than with acting with actual malice.” Finding an absence of actual malice, Rakoff dismissed the case.
A three-judge panel on the U.S. Court of Appeals for the Second Circuit unanimously disagreed. They vacated the dismissal and remanded the case back to Rakoff, whom the panel reasoned had mistakenly drawn conclusive opinions from Bennet’s testimony.
“Bennet,” Judge John Walker suggested in the panel’s opinion, “could have published the editorial knowing—or recklessly disregarding—the falsity of the claim, and then decided later that the false allegation was not worth defending.”
Walker added it is “plausible that the correction was issued after a calculus that standing by the editorial was not worth the cost of the public backlash.” Also potentially meaningful: Bennet’s brother is U.S. Senator Michael Bennet (D-Colo.), a gun control advocate “whose districts had been targeted by the SarahPAC map.” This familial tie, Walker wrote, “could indicate more than sheer political bias—they arguably show that Bennet had a personal connection to a potential shooting that animated his hostility to pro-gun positions at the time of the Loughner shooting in 2011.”
A jury will now consider these issues. The trial was scheduled to start last week, but Palin, 57, tested positive for COVID-19, thus necessitating a delay.
Other media companies have voiced support for the Times. The Associated Press, Bloomberg, CNN, Buzzfeed, Gannett, Vice Media and other media companies authored an amicus brief urging the Second Circuit to side against Palin. They insisted that precedent interpreting the First Amendment favors NYT.
But precedent doesn’t always make for accurate predictions. Many legal commentators, drawing on First Amendment precedent, expected Gawker to defeat Hulk Hogan in his privacy lawsuit over a sex tape. Jurors in Florida saw it differently, awarding Hogan a whopping $140 million in damages.
Some media companies have shied away from taking their chances with jurors. The Washington Post and other newsrooms settled with Nicholas Sandman, who in one complaint maintained “the Post wrongfully targeted and bullied Nicholas because he was the white, Catholic student wearing a red ‘Make America Great Again’ souvenir cap on a school field trip to the January 18 March for Life in Washington, D.C.” As of this writing, NYT and Palin haven’t settled.
Palin winning wouldn’t end the litigation. The NYT would likely appeal to the Second Circuit. It’s possible the U.S Supreme Court eventually hears the case.
More than ever, the media need to be careful they have the facts right before they hit “publish.”