James Bennet, the former top editor of the New York Times’ opinion section, began testifying Tuesday about how he came to insert a line into an editorial that falsely suggested a connection between a deadly shooting and the political action committee of Sarah Palin — a line which prompted the former Alaska governor to sue the newspaper for libel.
Speaking before a judge and jury in a federal courtroom in downtown Manhattan, Bennet took responsibility for the erroneous language, but explained how he had been working against a tight print deadline. He also testified that the original writer did not check in great detail the revisions he had made when he sent her back the revised draft, known as a “playback.”
“This is my fault. I wrote those sentences, and I'm not looking to shift the blame to anyone else,” Bennet told the court, before adding, “But this is why we send playbacks to writers. They’re the ones who reported the story, reviewed the facts.”
Bennet, who had previously been editor-in-chief of the Atlantic, was one of the most powerful people in American media thanks to his prestigious role at the top of the Times' opinion section. But he resigned from his job in June 2020 amid controversy over the publication of an op-ed by Sen. Tom Cotton which called for the military to be deployed against anti–police brutality protesters. Bennet admitted he did not personally read the Cotton piece before it was published, and the Times said it fell short of their standards.
Bennet described to the court how on June 14, 2017, he had performed a “heavy edit” on the first draft of editorial board writer Elizabeth Williamson, who had been tasked with writing an editorial in response to the shooting attack on Republican members of Congress at a Virginia baseball field earlier that day. The piece, titled “America’s Lethal Politics,” had compared that shooting, which seriously injured Rep. Steve Scalise, to the 2011 attack in Arizona that wounded then-representative Gabby Giffords and killed six others.
“The link to political incitement was clear,” read the language Bennet added to the piece, referring to the Arizona shooting and a 2010 map produced by Palin’s PAC that featured gun crosshairs over the districts of vulnerable Democrats in Congress, including Giffords’. In fact, there was no established link between that map and the gunman in the Giffords shooting, who had a mental illness.
Bennet described how hours after the piece was first published online he received an email late that night from Times columnist Ross Douthat, complaining about the false link between the Palin PAC and the 2011 shooting.
Bennet said he felt Douthat was interpreting the piece to say something unintended, but he then checked Twitter and observed others making the same criticism. “That is not the message we intended to send,” Bennet said.
Palin attorney Shane Vogt asked Bennet why he didn’t immediately move to unpublish the piece, but Bennet said the newspaper has a policy against removing stories and that it had already been sent to the printers for the next day’s hard copy.
Instead, Bennet testified, he emailed Williamson and a fact-checker around 5 a.m. the next morning to begin researching the Arizona gunman’s motives and whether the map was involved in any way, so they could begin the process of correcting the piece if needed. “We were really scrambling to try to address this,” Bennet told the court.
The evidence previously shown to the jury included messages between Bennet and Williamson in which she apologized to him and wrote she “should have read those [paragraphs he had written] more closely and asked more questions.”
“No worries. I feel lousy about this one,” Bennet wrote. “I just moved too fast. I’m sorry.”
He also responded again to Douthat via email, telling the columnist he felt “lousy” about the error, which he wrote “reads like partisan scorekeeping.”
Under the law, for Palin to succeed in her case she must prove that Bennet and the newspaper acted with “actual malice,” meaning he acted either with knowledge of or reckless disregard for the statement’s falsity.
Gabe Rottman, the director of the Technology and Press Freedom Project with the Reporters Committee for Freedom of the Press, told BuzzFeed News that the so-called actual malice rule takes into consideration the idea that reporters may occasionally make unintentional mistakes when working against a deadline.
"I think the key thing is understanding the nature of news. It’s a competitive business and competitiveness is actually good for public discourse," Rottman said. "The free flow of information quickly is important for an informed electorate."
"If it were possible for an honest reporter who makes an honest mistake to face a lawsuit every time they do, then that will chill reporting. It will mean fewer stories and less investigative journalism," Rottman said. "That’s why the actual malice rule is there."
Bennet had been asked to look over the piece by Linda Cohn, another editor who first reviewed Williamson’s draft but felt it wasn’t up to scratch. Testifying before Bennet on Tuesday morning, Cohn told the jury she and her colleagues had felt “horrible” the next day for getting something wrong.
“Getting anything wrong…is just one of the worst feelings ever,” Cohn said. “You feel horrible. You never want to have anything in the paper you have to correct. It leads to many sleepless nights after.”
Bennet said he was never formally disciplined over the mistake, but did soon after attend a meeting of the newspaper’s board of directors in which he apologized and took responsibility for the error.
Bennet is the brother of Sen. Michael Bennet, the Colorado Democrat who made an unsuccessful run for his party’s nomination for president in the 2020 election. Palin’s lawyers had argued in filings that the editor was motivated in part by animus against Palin for endorsing his brother’s Republican opponent in the 2016 election. But prior to the jury entering the court on Tuesday, Judge Jed Rakoff barred Palin’s attorneys from asking Bennet about his brother, saying he was “skeptical this has any probative value.”
“It would be different if [Sen. Bennet] had made some comment about the brochure that was distributed by the Sarah Palin PAC, but there’s nothing in the evidence along those lines,” Rakoff said.
Bennet’s testimony, which will continue on Wednesday, came a day after Times fact-checker Eileen Lepping took the stand on Monday.
Facing the looming print deadline, Lepping testified that while she fact-checked names and dates in the editorial prior to publication, she did not check the point about incitement. She said she believed she did the best job she could have done with the time she had.
The jurors were also shown on Monday a video of the deposition of Tim Crawford, the former treasurer of Palin’s political action committee who was unable to give evidence in court. Crawford testified that Palin was not involved in the day-to-day operations of the PAC and that he believed she did not see or approve the crosshairs map prior to its distribution. He said the PAC received a huge influx of donations from supporters as a result of the map.
In a sign of the high-profile nature of the trial and its opposing parties, Times lawyer David Axelrod alerted the judge on Monday that he observed a member of the public approaching Palin at a court elevator during a recess and telling her he hated the newspaper and that he hoped she prevailed over the Times. He said members of the jury witnessed this.
At Axelrod’s request, the judge advised jurors on Tuesday morning to “totally disregard” anything they might hear about the case when they’re in the hallway or leaving the courtroom, calling it “irrelevant.”
“Your job is to decide this case solely and wholly on the evidence you hear in this courtroom,” he said.