By tying the case so directly to partisan politics, Turkel seemed to be taking a big risk with a jury that seemed likely to lean liberal. Almost 87% of Manhattan voters who cast ballots in Nov. 2020 favored Joe Biden, while only about 12% backed President Donald Trump. The vote tallies in other areas the jury is drawn from were nearly as lopsided.
Palin’s lawyer said there was deep irony in the editorial in question, titled “America’s Lethal Politics,” which argued that extreme political rhetoric can fuel real-world violence. He said the then editor of the opinion section, James Bennet, and his colleagues were so intent on claiming such a link that they casually accused Palin of complicity in murder.
“It’s absurd. In so many respects, they perpetuate everything they sit there and condemn,” Turkel said.
Palin has remained a continuing — if diminishing — presence on cable news and various other media outlets in the years since her unsuccessful 2008 outing as the GOP vice presidential nominee and her abrupt resignation as governor the following year, but on the witness stand Thursday she described her suit against the mighty Times as a David v. Goliath battle. Her attorney echoed that claim Friday.
“What this dispute is about in its simplest form is really power and lack of power,” Turkel said. “An entity as large as The New York Times Company controls every aspect of this dialogue …. At the click of a button, someone’s accused of inciting murder.”
The editorial which led to Palin’s suit referenced the 2011 shooting in Tucson where Rep. Gabby Giffords (D-Ariz.) was gravely wounded and six other people were killed, including a nine-year-old girl and a federal judge. The shooting spree came about nine months after Palin’s political action committee released a political targeting map that showed Giffords’ district and those of 19 other Democrats with what appeared to be rifle sights superimposed on them.
No link was ever established between that map and the mentally-ill man who pleaded guilty to the assault, Jared Loughner, but Bennet’s edits to the editorial implied such a link when he declared that the facts of the GOP baseball field shooting showed “no sign of incitement as direct as in the Giffords attack.”
The Times corrected the editorial within hours, largely at Bennet’s instigation, but Palin filed suit two weeks later.
In his closing argument to the jury after six days of testimony, Times Attorney David Axelrod ridiculed the suggestion that the editorial’s reference to Palin’s political action committee was the product of political animus directed at the former governor. He said that would have required a conspiracy among as many as nine people to trash Palin.
“The First Amendment provides legal protection to journalists and newspapers, like Mr. Bennet, like the New York Times, who make an honest mistake when they write about a person like Sarah Palin,” said Axelrod. “That’s all this was, is an honest mistake …. A mistake happened here, but there’s no grand conspiracy …. No one’s hiding the ball.”
Bennet testified earlier this week that one of his goals after taking over the editorial page in 2016 was to correct perceptions that it dealt with Republicans unfairly.
Axelrod also noted that the editorial at issue in the suit sought to call out both sides of the political spectrum for their overheated statements and even included praise for Trump’s comments reacting to the baseball field shooting.
“It wasn’t a political hit piece,” said the Times attorney.
One of the newspaper’s more strained arguments is that the editorial’s mention of “Sarah Palin’s political action committee” should not be read as personally referring to her.
“Sarah Palin’s name was in there as a descriptive measure,” Axelrod said. “It is a stretch to read that editorial in good faith and see that it calls Gov. Palin herself a murderer.”
Outside the presence of the jury Friday, Judge Jed Rakoff dismissed that as “a very weak argument.”
“It’s almost impossible for a reasonable person to read the statements that are being challenged here in the editorial without seeing them as clearly directed at Sarah Palin,” said the judge, an appointee of President Bill Clinton.
Axelrod also sought to evoke sympathy for Bennet by highlighting his contrition, urging jurors not to compound what Bennet described as a painful, searing episode for him. “The evidence does not support branding Mr. Bennet with the ‘Scarlet D’ for defamation for the rest of his life,” the Times attorney said.
Palin’s team have acknowledged they face an uphill battle in the case, not only because of preexisting political sentiments in New York, but also because of the “actual malice” standard for libel cases brought by public figures. Under that rule, Palin must show by clear and convincing evidence that the Times or Bennet knew that the allegedly defamatory statements in the editorial were false or that they were made in reckless disregard of information strongly suggesting that they were untrue.
Palin’s attorneys appear to have sought to use the suit to mount a challenge to the “actual malice” standard the Supreme Court established more than half a century ago, but it no longer seems like a good vehicle for such a challenge because in 2020 New York state independently adopted the “actual malice” rule.
Axelrod said there was no way for Palin to meet that high burden in a case that was clearly stemmed from language that was the product of an error.
“Should someone have caught it? Yeah,” the Times attorney said. “This is a mess up. It was a goof and, yeah it stinks, but because we value the First Amendment we tolerate it.”
Axelrod insisted that, while there were foul-ups in handling the editorial, they didn’t amount to intentionally ignoring the truth about the 2011 shooting and the lack of evidence that Palin’s political committee had anything to do with it.
“There’s no evidence of reckless disregard. There’s no evidence that James Bennet put his head in the sand,” the Times lawyer argued. “There’s simply no evidence that Mr. Bennet blinded himself to the truth.”
However, Palin’s attorney noted that on the day the editorial was published Bennet received articles that debunked the notion of any tie between Palin’s group. He then sent a couple of those on to a colleague by email. Bennet acknowledged on the stand that he must have looked at those stories, Turkel noted.
Just before the case went to the jury, Turkel pointed to that as the centerpiece of the former governor’s case. He called that fact “the one thing that wasn’t addressed — the one thing that wasn’t reconciled” by the newspaper’s arguments.
Turkel also noted that he’d never accused the Times or its employees of a conspiracy. Instead, he faulted something more akin to liberal groupthink. “This bias that they have, it doesn’t make people villains necessarily, it’s just how they think,” the Palin attorney said.
Perceptions that the suit is aimed at something broader than financial compensation were fueled by the Palin team’s decision to pass up its chance to prove financial damages and to decline to put any specific value on the alleged damage to Palin’s reputation or on the humiliation and emotional harm she says she suffered.
In fact, Turkel said Friday that Palin’s side would consider a verdict in her favor of just a dollar as a victory.
“I’m not going to put a number on the board. I’m not going to say this is worth, whatever. …You can discuss amongst yourselves what value you want to put on what it did,” the Palin lawyer told jurors. “Maybe it’s worth some, but if you don’t think it is, maybe put a dollar here. But recognize what they did here, recognize that they crossed that line.”
But the Times attorney said Palin’s side had produced no evidence at all of damage to her reputation, beyond a vague claim from Palin that she felt some people and some political figures shied away from her after the editorial. The only witnesses called in the case were current or former Times employees, Palin and the former executive director of her PAC.
“If there were any of those witnesses, don’t you think they would have tested to you?” Axelrod said. “The facts show that, after this happened, Gov. Palin was out on the campaign trail.”
Axelrod also made several references to Palin’s paid appearance in 2020 on the Fox television show “The Masked Singer,” where she wore a multicolored bear costume and rapped the song “Baby Got Back” by Sir Mix-a-Lot.
The Times attorney said it was absurd to think that such an entertainment show would welcome Palin if people thought she had a role in a murder.
“’The Masked Singer,’ do they put on inciters of violence? Do they put on people who are accused of inciting the violence against a nine-year-old girl?” Axelrod asked. “Come on. Nobody believed it.”
Jurors deliberated for a little more than two hours Friday before quitting with plans to return to the courthouse Monday morning.