U.S. District Judge Jed Rakoff must decide whether to let Palin pursue defamation claims against the Times for its June 14 editorial, “America’s Lethal Politics.”
The article was published hours after a gunman shot Louisiana Republican Congressman Steve Scalise at a practice for an annual charity baseball game, an attack that reminded the Times editorial team of Arizona Congresswoman Gabrielle Giffords’ shooting in 2011.
Although Giffords recovered, Rakoff noted at the Monday hearing that “everyone seems to have forgotten” that six other people died — including Arizona’s former Chief U.S. District Judge John Roll.
Before the mass murders in Arizona, Palin’s political action committee SarahPac had placed Giffords’ district and 15 others in crosshairs in an advertisement opposing representatives who opposed the then-year-old Affordable Care Act.
No evidence emerged that gunman Jared Lee Loughner saw the ad, and Palin’s lawsuit claims that the Times libeled her by asserting that she had a “clear” and “direct” connection to the shooting.
The Times corrected the editorial within hours, and the paper’s attorney David Schulz described it as an “honest mistake” rather than “actual malice,” which is required for a public figure to establish defamation.
“Actual malice is something that is hard to prove at trial, and deliberately so,” said Schulz, a partner at New York-based Levine, Sullivan, Koch & Schulz.
On Monday, Palin’s attorney Shane Vogt, from Tampa, Florida-based Bajo Cuva Cohen Turkel, argued that the online version of the article shows the Times published a contention that it knew to be false.
“They even hyperlinked something that says the opposite,” Vogt said.
Pressing the Times about that argument, Rakoff said: “Here, we have their own hyperlink showing there is no evidence of any link.”
“No established link,” Schulz interrupted.
“Yet they are saying both directly and indirectly that there is such a link,” Rakoff added.
Schulz responded that the article had to be viewed in context.
Giffords had denounced Palin’s ad on cable news. Tensions had been high about Obamacare, and Palin fanned the flames on the day of its enactment with a tweet “Don’t Retreat, Instead — RELOAD!”
Palin’s alleged relationship to the shooting had been the top-trending topic on Facebook, Schulz said.
“Of course, we all know that Facebook is the standard for reasonableness,” Rakoff replied drolly.
Cutting both parties with his wit, Rakoff also skewered Palin’s attorney for the claim that the Times adopted a “conscious business strategy” to defame Palin, to make money by driving web traffic.
“Why isn’t the revenue argument patently implausible?” he asked.
For Schulz, forcing the Times into litigation over the error would threaten press freedom.
“This case raises issues that are of central concern to the First Amendment,” he said.
Yet Rakoff viewed the issues involved as straightforward.
“I’m just a simple barefoot district judge, and the law here seems to be very clear,” he said.
The barefoot judge is taking his time to digest the arguments, saying he will issue a ruling before the end of August.