In 2017, the New York Times published an outrageous editorial that blamed Sarah Palin for a mass shooting in Arizona in 2011. The editorial, written by Times Editorial Director James Bennet, was obviously libelous. There is zero evidence that the murderer, Jared Loughner, had ever heard of Sarah Palin, let alone being influenced by a map that her political action committee had produced. But that didn’t matter to Bennet, who was out to smear Palin as viciously a possible.
On paper, Palin had the strongest possible libel case. The Times falsely, as everyone now agrees, accused her of being responsible for a mass murder. Of course, Palin, as a public figure, had to satisfy the high “actual malice” standard by showing, not that the Times hated her–that was never in doubt–but that Bennet knew that what he wrote was a lie, or thought it likely was a lie. In most cases that is hard to prove, for obvious reasons. But here, the Times’s own reporting negated its editorial’s claim. If that doesn’t prove actual malice, what would? Bennet eventually testified that he didn’t read, and wasn’t aware of, his own newspaper’s coverage of the Loughner story.
The Times, realizing that it was exposed to liability, corrected its editorial less than 24 hours after it was published. But the paper didn’t apologize to Palin; not, at least, until now, when Bennet cried on the witness stand and apologized to her as he was testifying. More than seven years after he recklessly smeared her.
Today, after a mere two hours of deliberation, which includes the time it took to elect a foreman, the jury rejected Palin’s claims and found in the Times’s favor. They found that the paper’s false editorial was not published with “actual malice.”
Based on the facts of the case, that may shock you. But it shouldn’t. Any trial lawyer will tell you that the most important factor in any case is, who decides it? That is why choice of venue is so important. We are seeing that now, as the Democratic Party relentlessly judge-shops in order to throw monkey wrenches into the Trump administration’s policies.
The same applies to juries. I have never understood why Palin’s lawyers brought her case against the Times in Manhattan. It is impossible to imagine a worse venue. The case could have been brought pretty much anywhere: in Alaska, in Arizona, where I believe Palin was living at the time. Anywhere except Manhattan. The New York Times is unpopular in most areas of the country, but not in Manhattan. Conversely, Sarah Palin is popular in many venues, but decidedly not in New York. Her lawsuit was decided, in effect, by the Democratic Party.
This case would have unfolded in a completely different manner if it had been brought in a friendly, rather than an unfriendly, jurisdiction. Maybe Palin’s lawyers had a good reason for suing in Manhattan, but I can’t imagine what that reason could be. It was entirely predictable that in such an unfriendly venue, her lawsuit would fail. In a mere two hours.
So, once again, our legal system falls short, and a malefactor skates. Which illustrates, for the millionth time, that it isn’t enough to be well-intentioned. You have to be smart.
