The New York Times on Trial

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

History, we like to say, has a way of playing tricks on all of us. Just as Mayor Ted Wheeler of Portland was blaming President Trump for the murder of a right wing protester in Oregon’s leading city, the New York Times was preparing to stand trial in federal court on a libel complaint brought by — wait for it — Sarah Palin. It could prove illuminating for all those who are recklessly accusing their foes of being a party to violence.

Mrs. Palin, the former governor of Alaska, sued the Times for an editorial suggesting that advertisement put out by a Palin political committee and featuring “stylized crosshairs” had a direct role in the shooting that gravely injured Congresswoman Gabrielle Gifford. It was a shocking — reckless — suggestion. The Times tried to avoid trial by hiding behind a precedent that makes it especially difficult for public figures to sue for libel.

That precedent was handed down by a unanimous Supreme Court in 1964 in a case called Times v. Sullivan. The high bar it set for a public figure — like, say, Mrs. Palin or, say, Mr. Trump — to win a libel case is that they would have to prove “actual malice.” What actual malice meant was either lying or acting with reckless disregard for the truth. All of us newspapers have these past 56 years sheltered in the lee of that landmark.

Governor Palin filed her case against the Times in June 2017. After a good bit of wrangling, a United States judge, Jed Rakoff, of the district court in Manhattan, tossed out the case. The Second Circuit, however, reversed Judge Rakoff and sent the matter back down to the district court. There was yet more wrangling, until Friday, when Judge Rakoff ordered the trial to start — “pandemic permitting” — on February 1.

We don’t have a strong view of which side is likely to prevail in Palin v. Times. We do have a long record of suggesting that the left has a habit of underestimating Mrs. Palin. We were struck with the bluntness with which Judge Rakoff, no right-winger, eventually suggested that the behavior of the Times editorial page editor at the time, James Bennet, “could support the inference that he was purposely avoiding the truth.”

Which brings us back to Mayor Wheeler of Portland. The analogy is broad, at best, between the Times accusation against Mr. Palin and Mr. Wheeler’s against Mr. Trump. We’ve already learned a good bit about the process, such as it was, that the Times went through before leveling its charge against Mrs. Palin. What process, if any, did Mr. Wheeler go through before uttering his inchoate slander of the President?

It’s not our intention to suggest that Mr. Trump should sue, even if the mayor used reckless language in suggesting, in the wake of the fatal shooting of a right wing protester in Portland, that Mr. Trump who is responsible for the violence in our cities. Our guess is that Mayor Wheeler is having a hard time facing up to his own failure to keep the peace in Portland. No wonder it provoked an intemperate reply from Mr. Trump.

We are, though, suggesting that the pending trial of the New York Times in Sarah Palin’s libel case is something to watch in these parlous times. A defeat of the Times would be a major event, particularly in a season when millions of Americans believe the press itself has become part of the problem. And how fitting that the moment has been forced by a gritty woman who was treated shamefully as she reached for glory.

The New York Sun

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