Professor: Here's why Palin could face uphill battle

New York (CNN Business)A version of this article first appeared in the “Reliable Sources” newsletter. You can sign up for free right here.

The next two weeks will not be very enjoyable for The New York Times.
Monday marks the start of jury selection for a trial over Sarah Palin’s defamation lawsuit against the newspaper. A quick recap: Palin sued the paper in 2017 over an editorial that incorrectly linked the 2011 shooting of Rep. Gabby Giffords to a map circulated by Palin’s PAC that showed certain electoral districts under crosshairs. The Times corrected the error and apologized for it, and a judge initially dismissed the case. But a federal appeals court revived it and, as a result, a trial will now take place.

    The case is, at its heart, about the limits of First Amendment protections and the standard set in the landmark New York Times vs. Sullivan case. Specifically, the standard that a public figure must prove an outlet operated with “actual malice” when it published defamatory information. Palin has argued The Times did, and The Times has said it made an honest error.

      “At issue is the elasticity of the protections that allow news organizations to present tough coverage of public figures,” Washington Post’s Erik Wemple wrote on Friday. “Or, to put things a bit more sharply, the case will help demarcate the line between really bad journalism and libelous journalism.”

      Palin’s lawyers aren’t commenting ahead of the trial, but The Times is. A spokesperson for the paper told me on Friday that it hopes to “reaffirm a foundational principle of American law: public figures should not be permitted to use libel suits to punish unintentional errors by news organizations.”
      “We published an editorial about an important topic that contained an inaccuracy. We set the record straight with a correction,” the spokesperson told me. “We are deeply committed to fairness and accuracy in our journalism, and when we fall short, we correct our errors publicly, as we did in this case.”

      Palin’s odds

      I reached out to renowned First Amendment attorney Ted Boutrous (full disclosure: Boutrous has represented CNN in previous cases) to ask him for his legal opinion of the case. He told me that he believes Palin “faces an enormously steep uphill battle” and “is likely to lose.”
      Boutrous summarized his reading of the case like this: “I don’t think she can possibly prove that the newspaper or its journalists acted with actual malice or that she suffered any harm from the original version of the editorial, which was quickly clarified and corrected. This lawsuit has always seemed to me to be part of a disturbing trend in recent years of high-profile political figures misusing libel suits as political stunts intended to chill speech on matters of public concern — exactly what the First Amendment forbids.”

      ‘An excruciating experience’

      Jeffrey Toobin, CNN’s chief legal analyst, also agreed that Palin is likely to lose in trial. But he stressed that doesn’t mean it’s going to be rainbows and unicorns for The Times in court. “Even though I expect The Times will ultimately win this case, the trial is likely to be an excruciating experience for everyone associated with it at The Times,” Toobin told me. “Because the simple fact is the story was wrong. And no journalist wants to be in a position of defending a story that was wrong.”
      Who will be in that position for The Times? A spokesperson told me the newspaper intends to call former editorial page editor James Bennet and editorial board member Elizabeth Williamson, who wrote the draft of the Palin editorial, as its principal witnesses. “We anticipate that others from The Times will be called as well,” the spokesperson added.
      Toobin cautioned that a settlement at the eleven o’clock hour should not be ruled out. “Cases settle on the eve of the trial all the time,” he pointed out. When I asked The Times if a settlement was on the table, the spokesperson replied, “We intend to take the case to verdict.” Which is, of course, what one would say — just until a settlement is struck.

      To the Supreme Court?

      If Palin loses in district court, she can attempt to take her case all the way up to the Supreme Court. Diminishing press protections by overturning New York Times vs. Sullivan, after all, has been a stated goal for many on the right for some time. And, as Toobin pointed out, “Palin is the perfect plaintiff and The New York Times is the perfect defendant for the right to mobilize against First Amendment protections for the press.”
      Whether it would ever make its way to the court, and whether it would side with Palin, is another story. “It very much remains to be seen whether the current judiciary is ready to cut back on First Amendment protections,” Toobin told me.
      Boutrous said if Palin loses her case in district court and attempts to get the Supreme Court to “use her case as a vehicle for overturning” the landmark case, she’ll still likely fail: “I don’t think the Court will do that because the Times decision is such a cornerstone of First Amendment jurisprudence and it has been endorsed over and over again by Justices across the political spectrum for many years, even though two Justices recently urged that it be revisited.”

      A potential to backfire against the right

        The reporting from mainstream news sources tends to be a lot more buttoned up than reporting in right-wing media. Fox, for instance, is wrapping itself in the First Amendment as it defends itself from lawsuits against voting technology companies Dominion and Smartmatic.
        Which is to say that the attempts to reduce press freedom on the right could backfire in enormous ways. “Fox needs those protections more than The New York Times at the moment,” Toobin pointed out. “The New York Times made a single mistake and behaved responsibly. Fox was the gateway for a torrent of lies that nearly destroyed these companies and has never appropriately apologized.”
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