As both Ariel Sharon and Gen. William Westmoreland found out, it’s almost impossible for a public figure — especially a controversial public figure — to win a defamation lawsuit against the media. For this, you can thank the Supreme Court’s landmark 1964 Sullivan decision, which established the “actual malice / reckless disregard” standard. Thereafter, it was not enough for a printed or broadcast statement to be factually false; the media had to know, or should have known, that the statement was false and then went ahead and published it anyway, either from animus or malignant carelessness.
The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan’s case collapsed.
And that’s the problem for the plaintiffs: who knows what went on inside the minds of the writers and editors? As it happens, I lived through the Sharon v. Time Inc. $50 million libel lawsuit in 1984, when I was writing for the newsweekly as its classical music critic. Although the suit involved the front of the book, specifically the World section, all of us on the staff followed the proceedings very closely.
The key to the suit was a paragraph in the Time story — stop me if this sounds familiar — based on a “secret appendix” in an Israeli government report investigating mass killings at two Palestinian refugee camps:
The publication, he says, grievously harmed his reputation by stating that he encouraged the Christian Phalangists in their massacre of hundreds of Palestinians in the Sabra and Shatila refugee camps in the Beirut area in September 1982. Time, which says it based its dispatch on a secret appendix to a report by the Israeli commission investigating the killings, denied Mr. Sharon’s charges.
In the end, Sharon lost on the narrow grounds of “absence of malice,” although Time later paid a handsome settlement:
In January 1985, a jury in Federal District Court in Manhattan ruled in a libel case filed there by Mr. Sharon that the article — although it contained a false and defamatory paragraph — did not libel Mr. Sharon because Time had not published it with ”serious doubts as to its truth.”
Last Sept. 26, the Tel Aviv District Judge, Eliahu Vinogradov, ruled that his court would accept the assessment of the New York jury that Time had defamed Mr. Sharon and printed false material about him. The judge was in the process of determining whether this would constitute libel under Israeli law when the two sides announced a settlement in the suit.
In return for Mr. Sharon’s dropping his libel action, Time stated to the Tel Aviv District Court today that the reference in the article to Mr. Sharon’s supposed conversations in Beirut was ”erroneous.” In addition, Time agreed to pay part of the Israeli minister’s legal fees. The settlement appeared to offer a wider admission of error on the part of Time than had previously been made.
Which brings us to Sarah Palin and her defamation suit against the Times. (Copy of the suit at the link.) Here’s the paragraph in question:
— Jeff B/DDHQ (@EsotericCD) June 15, 2017
If “actual malice” is the hurdle over which the former Alaska governor and vice-presidential candidate has to jump, that would seem to be a relatively low bar when it comes to the media. Few public figures have been as vilified as Mrs. Palin. After she electrified the convention crowd with her acceptance speech in 2008, a stunned media quickly regrouped and set out to destroy her. Until Donald Trump came along, she was the most hated political figure in America by the institutional, academic and media Left.
Malice? They had it in spades.
Further, the Times knew almost instantly that they’d stepped over the line, quickly issuing “corrections” that — when looked at in the proper light — only emphasized how much they hate Palin. But don’t take it from me, take it from Eric Wemple at the Washington Post:
The complaint, submitted by law firms in New York and Tampa, takes direct aim at the state of knowledge at the New York Times editorial board: “At the time of publication,” it reads, “The Times knew and had published pieces acknowledging that there was no connection between Mrs. Palin and Loughner’s 2011 shooting. Moreover, The Times’ false statements about the link between Mrs. Palin and the Loughner shooting stood in stark contrast to how The Times treated speculation about political motives behind Hodgkinson’s rampage: The Times concluded that there was not a connection between Hodgkinson and his professed penchant for Democratic stances sufficient to warrant implicating Democrats or the Bernie Sanders campaign as inciting factors for Hodgkinson’s attack.”
Nor did the editorial board’s response to all the debunking please Palin and her lawyers. On June 15, the paper appended a correction that read, “An earlier version of this editorial incorrectly stated that a link existed between political incitement and and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established.”
Lame, cries the complaint. That correction didn’t even mention Palin by name, so it failed to exonerate her directly. “Given that the entire premise of the Palin Article was the ‘disturbing pattern’ of politically incited violence emanating from a non-existent link between Mrs. Palin and Loughner’s 2011 crime, which The Times conceded did not exist, the entire Palin Article should have been retracted — not minimally and inadequately corrected — and The Times should have apologized to Mrs. Palin.”
Apologize to Sarah Palin? The lefties on the editorial board would rather sit down to a meal of rusty nails and lizard intestines, hosted by Satan, than apologize to Palin. And, in fact, in a second correction, the Times again failed to mention Palin.
Again, what’s up with the failure to cite Palin in the corrective language? “The Times did not issue a full and fair retraction of its defamatory Palin Article, nor did it issue a public apology to Mrs. Palin for stating that she incited murder and was the centerpiece of a ‘sickening’ pattern of politically motivated shootings,” says the complaint.
In other words, by its non-apology apologies, the newspaper has only dug itself deeper into its apparently bottomless pit of Palin-hatred. And to the objections that the First Amendment protects all opinion, that is simply untrue in a case like this; the verdict will turn on the factual (or non-factual) assertion that Palin was somehow responsible for the Loughner murders. But that is an article of faith on the Left, and one it apparently refuses to be disabused of, no matter how many times the facts are pointed out, even in its own news pages.
So can Sarah win? Most experts say no, but it all depends on how far she is willing to pursue the case, and whether the Times cries uncle before the suit gets to, say, the Supreme Court. President Trump has been muttering for a year about “taking a look at” the libel laws and, as Mr. Dooley famously said, the Supreme Court follows the election returns. The malice/disregard standard is a tough one, but there’s a first time for everything, and this just might be it.
Meanwhile, in related news, the Times is about to fire half its copy editors. The timing couldn’t be worse, or the need for a secondary layer of responsible eyes greater. But inflamed first by Palin and now by Trump, the media seems hell-bent on destroying itself out of sheer spite. It couldn’t happen to a nicer group of people.
Addendum: for the two Kahane Klassics I got out of the Palin veep nomination — and the Left’s head-exploding overreaction — “I Hate You, Sarah Palin” and “I Still Hate You, Sarah Palin,” go here and here.
Follow me on Twitter @dkahanerules