Law

Gregg Jarrett: Sarah Palin vs. the New York Times -- Five reasons why ex-governor might just win her case

Gregg Jarrett

Sarah Palin is suing the New York Times, the once-storied newspaper that still brags it publishes “all the news that’s fit to print.”  It does not. 

Palin correctly accuses the Times of defamation by blaming her in an editorial for the shooting of Rep. Gabrielle Giffords and the murder of six people.  Specifically, editorialists claimed Palin’s political action committee incited the violence.  The Times asserted the cause or link was “clear” and “direct.” 

Such a link has never been established, and all known evidence confirms the opposite.  Which may suggest that the editorial page of the Times is populated by well-educated fools.

Here is a legal look at the merits of the Palin lawsuit.      

1.) WAIT… DON’T GROAN!

I always groan when a celebrity or politician sues for defamation.  Good luck with that.  Ever since the landmark case of New York Times v. Sullivan, it has been nearly impossible for public figures to win, even though their good names have been roundly trashed by certain mendacious news organizations (which, I realize, is redundant).   

But Palin’s lawsuit is different.  Why?  Because the newspaper’s own published stories demonstrate that the editorial it ran was false.  A reasonable journalist would know it was false.  You’d have to be a complete idiot not to know it.

Hence, the Times’ only defense to the Palin defamation case is to argue, “we’re idiots, we’re morons, we don’t read our own newspaper… so we never knew that what we were publishing was an obviously false and defamatory editorial.  Again, we’re idiots.”  

2.) PRIMER ON THE LAW OF DEFAMTION

Defamation is a false statement that damages someone’s good name and reputation.   

However, opinion is normally protected speech under the 1st Amendment and, as such, is not defamation.  Except, when the opinion also asserts as “fact” any matter that is undeniably false.  

This is precisely what the Times editorial did.  The editors offered their opinion based on demonstrably false facts.  Indeed, the editors repeated those false facts within the editorial itself.  Therefore, the otherwise protected opinion is no longer protected under defamation law.

3.) PALIN IS A PUBLIC FIGURE   

Clearly, Sarah Palin is a public figure.  So, under the law, she has a higher burden of proof.  She has to show what is called “actual malice.”  That is, the New York Times either knew its editorial was based on false facts or it recklessly disregarded the truth (in other words, the editors probably knew their statements were false).

Here is where the newspaper’s own reporting defeats the normal defense.  The Times reported extensively that Palin’s PAC did not cause the shooting of Rep. Gabby Giffords and that such claims by some to the contrary were mistaken.  Yet, the editorial blamed Palin for the shooting and recited, as proof, the false facts. 

This would appear to be the definition of a knowingly false statement or recklessly disregarding of the truth

4.) THE NY TIMES SCREWED UP THEIR CORRECTION

The law on defamation allows a defendant to vitiate any damages if the publisher makes a prompt, full and fair correction.  Yet again, the Times managed to screw it up.  Yes, the correction was almost immediate.  But it was neither full nor fair.  The newspaper admitted making false statements, but never bothered to mention Palin by name.  Nor did it apologize to Palin.   It seems the paper wanted to admit its mistake without taking any responsibility. 

Under the law, the correction is meaningless. 

5.) KEEP READING THE NEW YORK TIMES

I wake up every morning to the New York Times.  Wouldn’t miss it.  I need a good laugh to start off my day.  The Times never disappoints. 

And by the way, my above-stated reference to idiots and morons is not defamatory.  Because truth is a defense to defamation.

Gregg Jarrett is a Fox News Anchor and former defense attorney.