Sarah Palin Defamation (Sort of) Dismissed

The bar for defaming public officials is too high.

The judge in Sarah Palin’s defamation suit against the New York Times got the law right in dismissing her case. It’s the law that’s wrong.

WaPo (“Sarah Palin judge will dismiss her libel case, finding no malice by New York Times“):

A judge on Monday said he will dismiss Sarah Palin’s libel case against the New York Times, saying she had not met the legal standard showing that the newspaper acted with “actual malice” in publishing a 2017 editorial that included an inaccurate claim about her.

Judge Jed S. Rakoff told the lawyers involved in the case that he will formally issue his ruling after a jury that has been deliberating since Friday returns its decision.

Rakoff said that because the decision is likely to be appealed — a path that could upend long-standing legal protections for journalists who write about public figures — he wanted future courts to have both his decision and the jury’s to consider.

Rakoff did not spare the Times criticism for its error, a collection of phrases within a larger essay that inaccurately suggested a link of “incitement” between the crosshairs that her political action committee imprinted on a congressional map and a 2011 mass shooting in Tucson.

“This is an example of very unfortunate editorializing on the part of the Times,” he said, adding that he was “not at all happy to make this decision” in its favor.

However, he told the parties gathered in a courtroom in the U.S. District Court for the Southern District of New York in Manhattan that “the law sets a very high standard for actual malice, and in this case the court finds that that standard has not been met.”

While Palin’s attorneys argued that the paper’s then-editorial page editor, James Bennet, had acted recklessly in publishing assertions he should have known were false, a Times lawyer described a frantic rewriting session on deadline that resulted in “a mess-up … a goof” that Bennet regretted immediately and corrected as quickly as possible.

Ultimately, Rakoff concluded that Palin’s team did not prove that Bennet knew the statements were false nor even that he suspected they might be false and then recklessly disregarded that possibility.

For those who haven’t followed the case, here’s a rough summary:

Palin first filed suit in 2017, not long after the Times published its editorial, under the headline “America’s Lethal Politics.” Written in the hours after the June 2017 shooting attack of Republican lawmakers practicing baseball at an Alexandria, Va., field, the editorial decried rising levels of toxic political discourse and gun ownership. And it made a connection between the Alexandria shooting and a 2011 attack at a Tucson shopping center that left then-Rep. Gabrielle Giffords (D-Ariz.) gravely wounded and six other people dead.

“The link to political incitement was clear,” the editorial stated. “Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized crosshairs.”

In fact, investigators never found any indication that the mentally disturbed Tucson shooter was motivated by the Palin PAC’s map. The Times corrected the error the morning after it was published on the newspaper’s website.

Rakoff dismissed Palin’s suit not long after she filed it, stating it was doubtful that Palin could demonstrate that the Times had shown the “actual malice” that public figures must prove in a libel case.

“Negligence this may be,” he wrote, “but defamation of a public figure it plainly is not.”

But the case was sent back to him by an appellate court — a reversal that put many legal scholars on alert that a favorable climate for journalists may be changing.

WaPo media critic Eric Wemple (“Sarah Palin needed a smoking gun. She had boring emails.“):

Judge Jed S. Rakoff was impressed with an email from then-New York Times editorial page editor James Bennet on June 14, 2017. “I really reworked this one,” wrote Bennet to colleague Elizabeth Williamson that evening. “I hope you can see what I was trying to do. Please take a look.”

Those four words — “Please take a look” — impressed Rakoff to the point that he cited them in announcing on Monday that he will dismiss former Alaska governor Sarah Palin’s lawsuit against the Times regarding the editorial that Bennet had “reworked.” The ruling came as the jury in the case was still deliberating on its merits and responded to a Times motion under a federal rule that allows the judge to determine a case once a party has been “fully heard” on a complaint.

“I don’t mean to be misunderstood,” explained Rakoff. “I think this is an example of very unfortunate editorializing on the part of the Times.” Yet Palin and her attorneys, the judge determined, hadn’t put forth sufficient evidence to satisfy the demands of New York Times v. Sullivan, the 1964 Supreme Court ruling which established that public officials — and later, a wider group of “public figures” — could only claim defamation if the offending media outlet had knowingly published a falsehood or proceeding with “reckless disregard” of its truth or falsity.

As Rakoff said during discussion of the Times’s motion on Monday, “Certainly the case law is clear that mere failure to check is not enough to support ‘reckless disregard’ in the context of any libel claim. But … where the assertion is that someone incited murder: That is such a strong statement that even under a reckless disregard standard, it calls for more assiduous checking than would be normally the case.”

Rakoff said it wasn’t surprising that Palin, the 2008 Republican vice-presidential nominee, filed her complaint.

That’s different from proving the case, however. Over six days of testimony and documents produced in discovery, Palin’s lawyers exposed an editorial process that was hurried and disjointed — typical of a news organization seeking to hustle on the day’s biggest story. They showed that Bennet, Williamson and others pursued two themes for the editorial — one on gun control and the other on the “rhetoric of demonization.” When the two themes merged uncomfortably in Williamson’s draft, another editor apprised Bennet of the problem. He launched into the copy, inserting the false claims.

What was missing from the whole production was any indication that Bennet was out to smear Palin. And here’s where his email to Williamson comes into play: No matter what you believe about Bennet or his colleagues, he’d be foolish to ask for Williamson’s review of the draft if he’d been committed to planting damaging falsehoods in it. “The allegation that he published with ‘actual malice’ is also undermined, in the court’s view, by the actions he undertook after finishing his revisions of Ms. Williamson’s draft,” said Rakoff, highlighting the email seeking Williamson’s review.

Translation: Palin needed evidence — preferably in email form — that Bennet was eager to nail Palin with something he knew was false: an “actual malice” smoking gun. Instead, she offered only emails outlining another day at the Times.

Palin faced a “very high burden,” acknowledged Rakoff, stressing that First Amendment law is designed to allow a “very robust debate involving especially people in power and that the whole point of the First Amendment as applied in that context would be undercut if the standard for libel and defamation were not as high as the Supreme Court decreed.”

So, again, Rakoff got it right here. There’s no evidence Bennet was acting with “actual malice,” the legal standard established by the Supreme Court for claims of defamation of public figures. But the notion that Palin should have to prove that Bennet not only knew the claim was false but published it with intent to do her harm to succeed is just nuts.

I’m far from a Palin fan. Even though I supported John McCain throughout the 2008 presidential primaries and ultimately voted for the McCain-Palin ticket, I immediately excoriated him for choosing the unseasoned Palin as his running mate, noting that “Palin undercuts McCain’s entire campaign theme. She’s got less political experience and less foreign policy experience than Obama.” As more information came to light, I lost quite a few Republican leaders by doubling down on my assertion that she was an ignoramus. And she hasn’t exactly covered herself in glory in the years since.

Still, if the Newspaper of Record is going to use the prestige of its platform to claim that someone incited mass murder, they should make damn sure they have their facts straight first. And, rather obviously, the fact that Bennet was eager to tie Palin to the shooting was a function of political bias.

Were Palin not a public figure, mere “negligence” —which Bennet clearly admits to—would be the standard of proof. How much damage Palin actually suffered from a quickly-retracted smear is another question entirely, but one that should be for the jury to determine.

Wemple’s defense of the current standard is weak, indeed:

Through its process-heavy tedium, the trial brought into relief just the sort of journalism that deserves protection from crippling litigation. Here was a one-off claim in a hurried editorial that slimed a public figure. Granted, it perpetrated a gobsmacking falsehood for which the Times and Bennet are appropriately ashamed. But everyone who feeds off unsparing coverage of politicians and celebrities — a pretty healthy American plurality, we’d submit — should applaud the ruling. It’s a principle, after all, that props up your favorite media outlet, too.

I’m much more sympathetic to this argument:

Times spokeswoman Danielle Rhoades Ha said the ruling reaffirmed “a fundamental tenet of American law: public figures should not be permitted to use libel suits to punish or intimidate news organizations that make, acknowledge and swiftly correct unintentional errors.”

We absolutely want to avoid casting a chilling effect on those seeking to report on and criticize politicians and others engaged in the political fray. (I’m less sure of why, say, Kim Kardashian, should be more subject to falsehoods than an ordinary citizen.) We don’t want the press afraid to report and comment. At the same time, it shouldn’t be a free-for-all.

Furthermore, this was gross negligence on the part of the Times. The matter of the “target” ad had been widely commented upon six years before the editorial in question. And, while, as Steven Taylor noted at the time, it looked bad—and as the late Doug Mataconis noted, the Palin team’s claim that it was a “surveyor’s symbol” was risible—the fact of the matter is that “targeting” was a trope with a long, bipartisan history in American politics. And one didn’t have to be a regular OTB reader to have that knowledge; a Washington Post fact check concurred. Again: this was all in 2011, six years before Bennet’s claim.

This was irresponsible journalism on the part of the Times. I’m persuadable that a quick correction and an apology are sufficient punishment. But it should be a justiciable issue.

FILED UNDER: Law and the Courts, Media, Sarah Palin
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Beth says:

    Sure, let’s annihilate the First Amendment to protect the feelings of Republicans. You realize the greatest beneficiaries of the elimination of NYT v. Sullivan would be the Clintons (and probably the Obamas) who would within days be able to sue Fox News, the Murdoch’s and the sundry circus over there in to oblivion? I mean, we’d lose just about all political reporting and quite a few other news outlets, but at least Fox would be gone.

    Also, I’d say this blog would be dead as well. It would be too much of a risk to but any sort of commentary or comments out into the open.

    Not for nothing, at least here in IL, it’s virtually impossible for anyone to succeed in a defamation case. Even if you’re a literal nobody.

    26
  2. Neil Hudelson says:

    Also, I’d say this blog would be dead as well. It would be too much of a risk to but any sort of commentary or comments out into the open.

    Yeah, but you’re gonna look pretty silly trying to serve papers to “Messers OzarkHillbilly and Jax.”

    I’m fairly certain even if this judge were to have ruled more in Palin’s favor, a slippery-slope argument that blogs will get shut down due to the comment section is still fallacious.

    9
  3. Stormy Dragon says:

    The use of SLAAP lawsuits by moneyed interests to stifle legitimate criticism, and I consider that a much worse problem then things like this. So even if I find this argument persuasive in isolation, the damage lowering the libel bar would have on the SLAAP front is not worth the gains here.

    12
  4. Stormy Dragon says:

    @Neil Hudelson:

    Yeah, but you’re gonna look pretty silly trying to serve papers to “Messers OzarkHillbilly and Jax.”

    And so you don’t: you subpoena Joyner and Taylor to get their IP addresses and then their ISP’s to get the names behind the pseudonyms.

    8
  5. Beth says:

    @Stormy Dragon:

    You don’t even have to go that far, why do all that work. Sue Drs. Joyner and Talyor as the publishers of the defamatory content itself (or re-publishers depending on how you want to do it). I can’t imagine either of them wants to hear a lawyer ask for a 10k retainer just to get started. Would this blog survive even that?

    6
  6. Stormy Dragon says:

    @Beth:

    You don’t even have to go that far, why do all that work. Sue Drs. Joyner and Talyor as the publishers of the defamatory content itself (or re-publishers depending on how you want to do it).

    While admitting they probably don’t want to fight it out, from a purely legal standpoint, Section 230 would shield them from any liability for what’s going on in the comments, even if it was libelous.

    1
  7. Sleeping Dog says:

    @James, Hunter Biden will agree with you.

    Sullivan sets a high bar, in part because there is no clear lower bar. The UK has a lower bar for libel and far too often critics that have reasonable, accurate criticisms, backed by evidence are sued and often lose in UK courts.

    Sullivan may cause discomfort for politicians and others, deemed public figures, but to offer succor to these privileged is folly.

    8
  8. Beth says:

    Agreed, for as long as section 230 sticks around. But even then, how long does any blog survive 1 lawsuit. Right now NYT v. Sullivan (and section 230) act as a deterrent for most lawyers to even bring the suit. Why bother unless you’re dealing with the richest of right wing cranks or lunatics desperate to cling on to any sort of relevance (and also have deep pockets).

    The larger point is that we have a committed (amorphous and amoral) group of rich right-wing buttplugs who are desperate to 1. not have ANYONE EVER tell them what to do, 2. be able to tell everyone else what to do, and 3. never under any circumstances, ever ever ever be criticized for 1 & 2. Without robust protections and the cultural support for them, it won’t be people like Palin (or say, Dave Chappell or Joe Rogan) that suffer, it’ll be people like Drs. Joyner and Taylor (and us that get hammered.

    11
  9. KM says:

    But the notion that Palin should have to prove that Bennet not only knew the claim was false but published it with intent to do her harm to succeed is just nuts.

    Yeah, the entire conservative ecosphere is doomed if “intent to do harm” is taken out of the whole “allowed to publish false claims under 1A” thing. FOX would be IMMEDIATELY buried in lawsuits and folks like Rogan, Tucker and Hannity will find their livelihoods go up in smoke.

    This is one of those owning the libs things that will spectacularly backfire if the dog ever did catch the car. If the NYT can’t get a pass claiming Palin incited mass murder with her words and actions, then all the crap spouted about Fauci alone means FOX is going under from all the legal losses. They don’t want the bar lowered since it protects them – they just wanted the liberal NYT to lose just for being liberal.

    14
  10. James Joyner says:

    @Beth: It’s not about Palin, much less “the feelings of Republicans,” so much as a centuries-old principle of the common law that people have a right not to be defamed.

    @Sleeping Dog: For the entire history of the common law, except for the last half century, public figures had a right to the same sort of care from the press as ordinary citizens. I think this case demonstrates why raising the bar was problematic.

    @Sleeping Dog: Even aside from NYT v Sullivan, American law has recognized since colonial days that truth is an absolute defense against defamation charges.

    @Beth: Again, it’s a mistake to limit this to Palin and others of her ideology. There are longstanding exceptions for opinion. Had Bennet written an op-ed arguing that Palin contributed to an environment that made shooting politicians more likely, Palin would have had no case. Saying she incited a particular killing, on the other hand, is a factual statement and a libelous one.

    8
  11. Stormy Dragon says:

    @James Joyner:

    Even aside from NYT v Sullivan, American law has recognized since colonial days that truth is an absolute defense against defamation charges.

    Who gets to define what the truth is?

    7
  12. a country lawyer says:

    @Beth: 10k retainer? This isn’t 1950. I believe you’re shy by at least four zeros. I expect the legal fees on each side of the Palin v NY Times suit will be in high six figures or more.

    2
  13. R. Dave says:

    Larger issues aside, I don’t think the facts of this case, at least as laid out in the OP, would even constitute defamation under an ordinary negligence standard. “The link to political incitement is clear,” strikes me as a clear opinion statement, not a factual claim. If some Trump fan goes out and shoots up a Democratic political event tomorrow, it would be completely fair game to opine that there’s a link to Trump’s (or Tucker’s, or random nobody Twitter commenters) violent political rhetoric because all that rhetoric has created a general context/mood of violence. There’s no factual claim being made that Trump, or Tucker, or @AngryMomInTexas101 made some specific statement that directly prompted the shooter to act.

    8
  14. Beth says:

    @James Joyner:

    Except the ancient common law really isn’t an issue here. Sleeping Dog pointed out there is a difference between the US and UK when it comes to libel and that’s the 1st Amendment. All defamation cases in the US butt up against this in ways that they don’t in the UK. So, looking at the entire history of the common law is useless when it comes to this. What matters is everything after the 1st amendment.

    And I’m not limiting this to Palin and her ilk. Chappell basically said that he’s for Trans people to be excluded from public life and worse (“I’m team TERF.”) Joe Rogan has said terrible shit about Trans people. Both of them get to continue with their garbage basically unfettered. I can guarantee you we have some rich cranks of our own that would take great pleasure in suing the crap out of people that are mean to us.

    @a country lawyer:

    Eh, I wasn’t thinking so much of Palin and NYT’s attorneys. I was thinking more in line with someone that the Drs. would hire to defend themselves. They can probably answer for themselves, but I doubt they’d go to the same places as Palin or NYT. That’s also one of the things I hate about being a litigator. I have to take a low retainer to get any work, but then I get stiffed on the back end.

    5
  15. Jen says:

    I cannot imagine how clogged the courts would become, chock-a-block full of thin-skinned celebrities/public figures were this standard to be loosened.

    I can think of at least one litigation-happy former elected official who would love for this bar to be lowered, just as he’s lowered practically every other societal bar or norm.

    10
  16. CSK says:

    @Jen:
    Gee, who might that be? 😀

    4
  17. SC_Birdflyte says:

    James, if you are indeed correct that the bar is too high for defamation of public figures, what should we do about TFG. Scarcely a day during those four years went by that he, speaking as the President, defamed someone who had hurt his fee-fees. If we’re going to change laws on libel and slander, there should be a provision that public figures who gratuitously ridicule others should be subject to legal penalties.

    5
  18. Kathy says:

    @Jen:

    On the other hand, wouldn’t this nameless orange Benito be inundated with libel and defamation lawsuits himself?

    4
  19. CSK says:

    @SC_Birdflyte:
    Trump has called Nancy Pelosi “crazy” in print and in speech numerous times, most recently in his coffee table book. Now granted there’s a high bar for defaming a public figure, but my understanding of libel and slander law is that the two worst things you can accuse someone of being are mentally ill or criminal. Does Pelosi have a case?

    Just musing.

    9
  20. Sleeping Dog says:

    @James Joyner:

    What @Beth: said. In addition, US jurisprudence is based on and draws greatly from the English common law tradition, but we’ve moved past that tradition through our Constitution and Bill of Rights. Further through judicial ruling and legislation we have established legal principles that are at variance to common law.

    2
  21. Kylopod says:

    For a sense of how these laws can go too far in the other direction, see the Deborah Lipstadt case. Basically a British Holocaust denier took her to court for accurately claiming he was a dishonest actor and a racist. She won, but it took several years, because in the UK’s legal system the burden of proof in libel cases is on the defendant. I think that’s insane.

    I’m open to the argument that the standard in America for proving libel is too narrow. Another case I remember came when Will Smith some years back made a (rather clumsy in my opinion) statement in which he said basically that Hitler didn’t see himself as evil, and a British paper ran a headline suggesting Smith had claimed that “Hitler was a good person.” Smith managed to collect damages from the paper. I’m not sure that would have been possible in the US.

    2
  22. Stormy Dragon says:

    @SC_Birdflyte:

    Scarcely a day during those four years went by that he, speaking as the President, defamed someone who had hurt his fee-fees.

    The particular irony here if people like TFG and several news speakers have successfully argued in court that, since they so constantly defame people, it no longer counts as defamation anymore because no “reasonable person” would ever take anything they say as truth.

    1
  23. CSK says:

    Back in 2017, Melania Trump successfully sued the U.S. and U.K. Daily Mail and a Maryland blogger for repeating allegations that she had been a paid escort in New York.

  24. gVOR08 says:

    And, rather obviously, the fact that Bennet was eager to tie Palin to the shooting was a function of political bias.

    Right up at the top of the column in question it says,

    Opinion
    EDITORIAL
    America’s Lethal Politics
    By The Editorial Board

    Some one expressed political bias in an editorial. Fetch me my pearls. If you have a point, this is a poor case to use as an example. Once upon a time, like when selling the war in Iraq, the elite MSM saw their role as explaining and selling to the proles the policies of their betters. Less of that and more of making fun of clowns like Palin, albeit way too late, please.

    7
  25. Just Another Ex-Republican says:

    Freedom of speech is absolutely fundamental to a functioning democracy. Propaganda is absolutely poisonous to it. The tension between allowing one and stopping the other will never go away.

    This country has a long history of strongly defaulting in favor of the former, which is fantastic and something Americans can genuinely be proud of. But I’d be lying if I haven’t wondered that if in today’s Internet rocket-fueled environment if we don’t need to take some SMALL steps the other direction.

    5
  26. Mu Yixiao says:

    I would like to add one thing:

    Even without the heightened scrutiny, every indication is that Palin has failed to show that she was harmed. In questioning from the NYT lawyers, she answered “no” to every question of “were you hurt in X way?”

    5
  27. Kurtz says:

    @Neil Hudelson:

    Yeah, but you’re gonna look pretty silly trying to serve papers to “Messers OzarkHillbilly and Jax.”

    I dare the errand boy sent by grocery clerks to serve papers to me.

  28. gVOR08 says:

    In local news of suits being tossed, a judge has dismissed George Zimmermann’s suit against Trayvon Martin’s family (FFS) and a publisher. He sued for “defamation and conspiracy”. The judge said he’d failed to provide credible evidence of any fraudulent statement.

    One suspects that both he and Palin tried to get a little more mileage out of their fading grifts by finding a lawyer willing to take a shot on contingency at another few bucks through the courts. They might have to get jobs. I hear McDonalds is hiring.

    3
  29. OzarkHillbilly says:

    @Neil Hudelson: Yeah, but you’re gonna look pretty silly trying to serve papers to “Messers OzarkHillbilly and Jax.”

    Especially since I’m just a figment of all y’alls imaginations.

    4
  30. gVOR08 says:

    @OzarkHillbilly: What? I thought you were a Romanian troll farm.

  31. @Kurtz: I just use a clever disguise.

  32. just nutha says:

    @CSK: Gotta be Pence. Lots of people are saying that he’s quick to threaten to sue anybody for anything. Bigly.

  33. CSK says:

    @just nutha:
    Oh, yeah. Gotta be Pence. Bigly, as you say.

    Trump once said that he particularly enjoyed suing writers “because it bankrupts them and costs me only a few dollars.”

    1
  34. Scott F. says:

    @Mu Yixiao:
    Not only was she not harmed within the legal definitions, but since she appeared on The Masked Singer after the editorial in question was published, it clearly didn’t diminish her capacity to monetize her notoriety.

    Also too, for some of her fan-base, the accusation would have been seen as a badge of honor.

    2
  35. Mister Bluster says:

    @Just Another Ex-Republican:..But I’d be lying if I haven’t wondered that if in today’s Internet rocket-fueled environment if we don’t need to take some SMALL steps the other direction.

    I am curious about what SMALL steps you have in mind.

    2
  36. HarvardLaw92 says:

    @Beth:

    No need to add a single word further to your commentary. Well done, counselor 🙂

    9
  37. Joe says:

    Even without the heightened scrutiny, every indication is that Palin has failed to show that she was harmed.

    This, Mu Yixiao, would be a jury question, though I agree with you and Scott F. about the probable outcome.

    I was kind of hoping for a verdict for the plaintiff with a damage award of $1.00 (or perhaps the NYT should have counterclaimed for the value the “libel” provided her).

  38. Jen says:

    NYT was just found not liable by the jury. All nine/unanimous.

    9
  39. CSK says:

    @Jen:
    Will Palin still try to take it to the Supreme Court?

    1
  40. Gustopher says:

    @Beth:

    Sure, let’s annihilate the First Amendment to protect the feelings of Republicans. You realize the greatest beneficiaries of the elimination of NYT v. Sullivan would be the Clintons (and probably the Obamas) who would within days be able to sue Fox News, the Murdoch’s and the sundry circus over there in to oblivion?

    I would want it to be possible to show Fox’s malice towards Clintons and the Obamas though the repeated number of lies and continued negligent disregard of truth. A high bar, but one that can be met without anyone being required to utter the phrase “I am acting with actual malice” or whatever the current unmeetable standard is.

    There’s a difference between being wrong (we should protect the press’s right to make a best effort and be wrong) and being a mendacious troll.

    3
  41. Kathy says:

    @CSK:

    Isn’t that where the illustrious Rudy says evidence gets really heard?

  42. Blue Galangal says:

    Evidently the jury has jusy found the NYT not guilty as well.

    1
  43. CSK says:

    @Kathy:
    Funny thing for a former prosecutor to say.

  44. Kylopod says:

    I’m almost surprised Dersh isn’t a part of this, but then I realized it’s too credible for his tastes.

    1
  45. Joe says:

    @CSK: Palin could contend that the jury instructions embodied any incorrect standard of proof, so she could still appeal. But the questions of fact pretty much got shut down by the jury verdict.

    2
  46. CSK says:

    @Joe:
    That’s what I was thinking.

  47. Stormy Dragon says:

    @Gustopher:

    I would want it to be possible to show Fox’s malice towards Clintons and the Obamas though the repeated number of lies and continued negligent disregard of truth. A high bar, but one that can be met without anyone being required to utter the phrase “I am acting with actual malice” or whatever the current unmeetable standard is.

    As mentioned earlier, Fox has already gotten out of defamation claims by basically arguing that the lie so frequently that nothing they say can be defamation because no reasonable person would believe them to begin with:

    You Literally Can’t Believe The Facts Tucker Carlson Tells You. So Say Fox’s Lawyers

    Just read U.S. District Judge Mary Kay Vyskocil’s opinion, leaning heavily on the arguments of Fox’s lawyers: The “‘general tenor’ of the show should then inform a viewer that [Carlson] is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.’ ”

    She wrote: “Fox persuasively argues, that given Mr. Carlson’s reputation, any reasonable viewer ‘arrive[s] with an appropriate amount of skepticism’ about the statement he makes.”

  48. KM says:

    @CSK:
    I’m wondering how many GOP members are contacting her to inform her what a stupid idea that would be. Putting the SC – something they’re actively trying to make a GOP assets- in such a position only hurt them.

    Deny her?
    Biased against True Conservatives and siding with the Liberal Media!!! Cowards are afraid of the Truth!!!

    Let case go through and she loses?
    The SC is full of RINO who hate 1A and side with defaming libs for money!!! What’s the point of a majority on the Court if you can’t get wha you want?!

    Let the case go through and she wins?
    Whoops, now they need to extremely narrowly define it so it just punishes the NYT and doesn’t screw over the conservatives ecosphere. She’s got zero proof of harm so they’ll have to be extra acrobatic to make it happen and not ruining the grift.

    There’s no way to actually win on her escalating this. In fact, this is the best case scenario for them as they can blame the judge and jury (damn libs!) in an unfriendly venue for her loss instead of the bad case. If she pushes for her own gain, she’s putting them all at risk so I wouldn’t be surprised if her phone isn’t getting blown up telling her to let it go and grift off the result as best she can.

    4
  49. Dude Kembro says:

    @Stormy Dragon: Russian trolls are in meltdown right now because the media won’t chase Fox News’s latest libelous anti-Hillary lie, that she paid a technology firm to spy on the Trump White House.

    I’d say Hillary should sue if Palin wins her appeals, but why elevate nonsense?

  50. dazedandconfused says:

    @Kathy: I think it’s now reached the point where Rudy calls for trial by combat.

    1
  51. Kathy says:

    @dazedandconfused:

    Oh, if only he would! I’d gladly take him on, provided it’s a fight to the death.

    On the pother hand, if he can convince Benito to undertake a trial by ordeal… Well, it’s a barbaric practice that has no place in modern society.

    But I wouldn’t say no.

    1
  52. Kathy says:

    @Stormy Dragon:

    Ok, can someone sue FOX “News” so they require a disclaimer before, after, and during Tucker’s show stating clearly it’s all false? A chyron running the disclaimer would be fine.

    1
  53. Kylopod says:

    @Kathy: Tucker has become quite skilled at playing the insinuation game. It’s kind of like the mafioso types who learn to talk in code and never say anything truly incriminating.

  54. Jen says:
  55. Kylopod says:

    @Jen: I love it. And that almost brings up the issue of the rights of parody (basically resolved in the Hustler v. Jerry Falwell case in the ’80s).

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  56. Gustopher says:

    @Stormy Dragon: There is more to Fox News than Tucker Carlson.

    Further, the lawyers in that case didn’t really push back on Fox’s claims — the claims essentially boil down to a No True Scotsman defense that only works if you accept broad swaths of the public are not Scots or Reasonable Persons.

    No “Reasonable Person” would have believed Orson Welles’ “War Of The World” broadcast was actual events happening, and yet, people did (exact numbers are up for debate, as boosting the reported numbers became key to building the myth of Orson Welles).

    No “Reasonable Person” would treat themselves with horse dewormer.

    No “Reasonable Person” would eat broken glass, either, but that doesn’t mean you have no liability when you serve the broken glass burrito.

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  57. Just Another Ex-Republican says:

    Just brainstorming some ideas here, Mister Bluster.

    1 – Default gag order on court cases. Enough of lawyers arguing in public to push a narrative. Even today a judge can impose a gag order if they feel it necessary. I would flip that to a default gag order a judge can remove if petitioned to do so and they agree.

    2 – There have been some infamous instances of a broadcaster such as FOX arguing in court filings (and probably courtrooms) that they can’t be held liable for something Tucker Carlson or some other personality said because no reasonable person would have believed it anyway (I see Stormy Dragon beat me to this). I say broadcasters (radio and TV) and other carriers (print media, Facebook, etc) should be given a choice: they can slap a warning label on their content, OR they cannot use that defense later. Example: chyron running under Carlson’s face the whole broadcast saying “This is an opinion show. Information presented may be misleading, incomplete, or inaccurate.” If they gave that sort of warning, they can legally plead they aren’t responsible for what he says. If they don’t say that, they can’t hide behind a BS defense of “no one should have believed him anyways.” How to make that work outside of TV (particularly radio and stories shared over social media) I have no clue.

    3 – Related to the above, a news organization does not have to give a warning and can protect themselves from claims IF a retraction is just as prominent as the original mistake. Say something wrong on a breaking story on page 1 with a banner headline and splashed across the top of your website for an hour? The retraction needs to be page 1 with a banner headline and splashed across the top of the website for the same amount of time. Enough with small paragraph retractions hiding on page 23.

    4 – Revisit some standards that have been left behind in the last 50 years. Equal time? More draconian restrictions on medical and legal advertising?

    5 – Fact checking has to be integrated into political campaigns somehow. For example, not allowed on the ballot unless an approved fact checking organization is used. Ads must be pre-submitted to the agreed organization for ranking like films. Except instead of MA, R, or PG-13 they get True, Speculative, Incomplete/Misleading, or Pinocchio. If the ad then runs anywhere the rating it is assigned must be prominently included. Yeah, ok, this isn’t a SMALL change. Neither are the next two.

    6 – It would require a Constitutional amendment at this point (but hey, you ASKED what I wanted 🙂 ) but the fallacies that money = speech and corporations = people need to be explicitly and permanently buried. Once that is done you can work on more reasonable campaign finance laws.

    7 – Much more long term, but we need to make identifying manipulation a core part of education in this country. Debate is a very old fashioned subject, but with the ever-increasing amount of BS flooding our senses I think educating the next generations about how slick speakers manipulate them is as crucial to a functional education in a democratic republic as reading, writing, and arithmetic. And not just a single one off course either. Doesn’t have to be a debate class (probably shouldn’t be, since it should cover some basic statistics and visual techniques as well), but as a society we badly need it.

    Again, this is just brainstorming. I don’t even know if some of these are feasible, let alone a good idea.

    3
  58. Just nutha ignint cracker says:

    @Just Another Ex-Republican: I would prefer a chyron scroll that reads “no reasonable person would believe this” to one noting that Tucker is mendacious or misleading or whatever.

    4
  59. dazedandconfused says:

    @Kathy:

    Btw, on the subject of duels I wish I could recommend “The Last Duel” but I can’t. The acting is splendid but Ridley Scott decided to play it as three different accounts reported it…so 90% of the movie is telling the same story three times. Tedious, and what was he thinking? Ridley has such a good record..

  60. Just nutha ignint cracker says:

    @Just Another Ex-Republican: Just in passing, I will note that the problem with “we should educate people about X” is that by grade 5 or 6, all educational topics tend to be material that people assimilate voluntarily. Additionally, for most skills, and particularly informational items, attrition happens fairly quickly. It’s still true that to really learn things, you need to see, hear, interact with, and continue to use the skills in question. Education does not make that happen, people need to decide to value the information.

  61. Kathy says:

    @dazedandconfused:

    Wasn’t that movie called Rashomon*?

    anyway, a duel is not trial by combat, though they are similar. A practice similar to trial by combat has been used, or alleged to have been used, in war to settle things, like the story of David vs Goliath.

    *I should see it someday. I know the differing points of view has become cliche by now.

  62. Mister Bluster says:

    @Just Another Ex-Republican:..(but hey, you ASKED what I wanted )

    I did ask. I won’t deny that.

    #3 At one time I read the daily paper. Since I traveled alot to work (300+ cities and towns in 14 states 1973-2009) there were several different papers. Over the years it seems that many of the rags did make an effort to print corrections and retractions on the same page so the reader could find the errors. Sometimes those items were on the Editorial/Opinion Page. It would be nice to see front page mistakes fixed on the front page.
    I have often wondered what the Chicago Tribune ran with in their next edition after this blunder.

  63. steve says:

    Watch Run Lola Run for another take on the Rashomon theme. Easier to watch I think.

    Steve

  64. Gustopher says:

    @Kathy: The Bible did it before Rashomon. Rashomon just did it better.

    1
  65. Flat Earth Luddite says:

    @Mister Bluster:

    Capital Hails Truman Today

  66. mister bluster says:

    @Flat Earth Luddite:..capitol hails Truman today…

    good find!

  67. Flat Earth Luddite says:

    @mister bluster:
    and Dyslexic Agnostics Against Dog Untie (aka, fat numb fingers can’t type, chemo brain can’t spell).

    Google-Fu working tonight (kinda) but finger/brain interface, not so much (sheepish shrug emoji)

  68. de stijl says:

    @Kurtz:

    They told me you had gone totally insane, and that your methods were unsound.

    (Your name is Kurtz.)

  69. de stijl says:

    @steve:

    The cool kids call it Lola Rennt.

    I love that movie.

  70. dazedandconfused says:

    @Kathy:
    No, it’s a new flic with Driver and Matt Damon. It was termed a duel but it was trail by combat to determine guilt of a crime. Special permission from the King was necessary as dueling had been made illegal and due to the social status of the people involved. Both were well-connected politically and both were serious bad-asses.

    I think Ridley was intrigued by the extremely well documented facts surrounding the event and the event itself. In the 14th century it was something of a Super Bowl, and it was one hell of a fight.

    It’s relevant to this topic in how people once had to be very very careful about slandering. Real violence was a possibility, and that may be responsible for the elaborately politeness of the writings and language of the time. Certainly would’ve affected Don Trump’s style. Of that I have no doubt.

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