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Jurors begin deliberations on NY Times editorial that Palin calls libelous

Attorneys for the Alaskan ex-governor wrapped up their case against The New York Times on Friday by saying the paper’s handling of defamatory rhetoric is “indicative of an arrogance and a sense of power that’s uncontrolled.”

MANHATTAN (CN) — Urging a jury to hold The New York Times liable for libel, attorneys for the failed vice presidential candidate Sarah Palin rested their case Friday with an emphasis that the newspaper was more than careless in linking Palin to a mass shooting.

“The line had to be drawn at some point,” Palin’s lawyer Kenneth Turkel said during in his closing argument this afternoon. “We can disagree but you can’t say false things. That’s where the line gets drawn.”

Palin alleged in her 2017 lawsuit that the New York Times “exceeded the bounds of legality, decency and civility” by bringing her name into an editorial on the day that a gunman wounded six Republican members of Congress practicing for a charity baseball game.

The article titled “America’s Lethal Politics” complained that overheated political rhetoric was feeding American gun violence, and it used the former governor of Alaska as an example. Though opinion editor James Bennet would remove this language within 24 hours, the original piece said Palin directly incited a shooting that happened some years earlier in Tucson, Arizona.

Palin herself took the stand as her case against the Times got underway this week, testifying on Thursday that she was “mortified” upon reading the words of the editorial because she was “familiar with what the power of the pen could do."

Turkel, an attorney for Palin with the law firm Turkel Cuva Barrios in Tampa, Fla., told jurors Friday the trial is about Palin "drawing a line in her life as to when enough is enough.”

Despite what the attorney called Palin's “thick skin” when it came to fielding insults and jokes after Senator John McCain chose her as his running mate in the 2008 presidential race, Turkel said she was nearly powerless to fend off the article falsely linking her to a murderous mass shooting.

“She did not have the same platform in 2017 as she had in 2008 or even in 2011 when the Tucson massacre occurred,” he told jurors.

“For whatever reason … they saw fit to not only resurrect this false accusation,” Turkel said in his closing summation. “But then, when confronted with clear undisputed accusations about the fact that it was false, engaged in some meaningless corrections that don’t mention her name, never apologize, and then come in here and testify they didn’t print her name in the corrections because they thought it would be ‘gracious’ to not print her name in the same sentence as the tragedy again, when they left it in the article the entire time."

Turkel called the Times’ handling of the editorial “indicative of an arrogance and a sense of power that’s uncontrolled, and for which Governor Palin’s only remedy is to use our judicial system.”

Shortly after Jared Lee Loughner opened fire at the "Congress on Your Corner" event that the then-Congresswoman Gabrielle Giffords was holding in the parking lot of a Tucson supermarket, a political action for committee for Palin edited a map that it had disseminated to remove the crosshairs marking 20 election districts controlled by Democrats, one of which was Giffords.

Because there was never any evidence that Loughner saw the map, however, the Times corrected its article to say that "no such link was established.

Palin's attorney reminded jurors Friday that the correction came after a conservative opinion columnist for the paper, Ross Douthat, emailed Bennet about the piece.

“I would be remiss if I didn’t express my bafflement at the editorial we just ran,” Douthat wrote to the editor, words that he repeated on the stand in witness testimony this week and that Turkel quoted today.

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Turkel went on: “There was not, and continues to be so far as I can tell, no evidence that Jared Lee Loughner was incited by Sarah Palin or anyone else, given his extreme mental illness and lack of any tangential connection to that crosshair map."

At trial, the Times introduced a question about whether even Palin is connected to the crosshair map, since it was put out by her PAC. The argument drew derision from her attorney Friday “We don't call McDonald's Ray Kroc's Hamburger Shack,” Turkel quipped.

In 2016, along with Shane Vogt, his co-counsel in the Palin trial, Turkel obtained a massive $140 million judgment against the gossip website Gawker for publishing a video depicting famed wrestler Hulk Hogan having sex, in a privacy lawsuit that was bankrolled by Silicon Valley billionaire Peter Thiel.

Charles Harder, the Los Angeles-based media and entertainment lawyer dubbed the “Gawker Slayer” for his work with Turkel and Vogt in the trial that bankrupted Gawker, attended Friday’s closing arguments in-person in Manhattan federal court.

Palin has claimed that her alleged injury at the hands of the Times demands punitive damages, but U.S. District Judge Jed Rakoff took such relief off the table during a post-trial argument on Thursday afternoon, remarking that no reasonable juror could conclude the sole reason for libel was desire to harm Palin.

“Further, the evidence frankly that Mr. Bennett harbored ill will towards Ms. Palin is quite modest indeed,” the judge said after the jury had been dismissed on Thursday.

The New York Times called no defense witnesses.

In closings for the defense on Friday morning, New York Times outside counsel David Axelrod reiterated the paper’s argument that the case boils down to “an honest mistake that was corrected in less than 14 hours,” which he said is protected by the First Amendment protections for freedom of the press.

Echoing the judge’s ruling on punitive damages, Axelrod advised jurors that Palin’s lawyers had not met the burden to prove the Times or Bennet had indeed acted with “actual malice.”

“Let me very blunt, for Governor Palin to prevail in this case … they need to show you that this wasn’t just an honest mistake,” Axelrod, a partner at Ballard Spahr, told jurors on Friday. “They need to show you by clear and convincing evidence that Mr. Bennet and the Times intentionally meant to defame Gov. Palin.”

“Yeah, Governor Palin testified she was mortified,” Axelrod said later in his closing argument. “That doesn’t mean it’s defamatory.”

Palin’s lawsuit does not seek recovery of lost income, but claims she is entitled to at least $75,000 “for the cost of repairing her reputation and/or the cost of correcting the defamatory statement.”

The New York Times attorney explained to jurors that Palin needs to make an adequate pleading that the editorial exposed her “to public hatred, contempt, ridicule, or disgrace.”

“Nothing in the record supports it,” Axelrod said. “There’s no evidence of any lost opportunities or anybody refusing to associate with Governor Palin.”

 “If she had lost some big jobs, don’t you think she would have come here and said that,” he continued.

Jurors began their deliberations at around 3:45 pm on Friday. The verdict sheet contains one box for the jury to check: liable or not liable, with another box for damages, if applicable.

Even if the Times prevails, the possibility of an appeal reaching the Supreme Court with its super-majority conservative makeup is a daunting one for American media that has been largely insulated from defamation claims by public figures following the landmark 1964 ruling in New York Times v. Sullivan, which holds that the First Amendment protects statements about public figures, including false ones, unless officials can prove actual malice.

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