The Deeper Questions Underlying The Sarah Palin Defamation Trial

“What’s really strange is not that we don’t see more trials like [the Palin trial], but that we saw one at all," one free speech expert said.

When New York Times writer Elizabeth Williamson took the witness stand earlier this month as part of Sarah Palin’s failed defamation lawsuit against the newspaper, she testified that when she first began drafting the 2017 editorial that would become the center of the case, she wanted to address two themes: overheated political rhetoric in the US and the country’s easy access to guns.

“We need to take the tone down across the political spectrum and stop demonizing political opponents and stop using violent rhetoric and gun imagery to describe what are essentially political disagreements,” said Williamson, a veteran reporter who was then part of the Times editorial board.

As an example of someone working to restore political comity and civility, Williamson pointed to David Rubenstein, the billionaire private investment firm cofounder who has hosted regular bipartisan dinners so members of Congress can break bread with one another and, hopefully, see each other as human beings.

That immediately piqued the interest of US District Court Judge Jed Rakoff, who was presiding over the trial.

“Does he notify the fire department in advance?” Rakoff joked.

On its surface, the Palin trial was about questions of law and fact. The court had to decide whether the editorial defamed the former Alaska governor by falsely asserting a clear and direct link of “incitement” between her political action committee’s infamous map of crosshairs and the 2011 shooting of Rep. Gabby Giffords. Did the paper act with “actual malice” — the high standard required for libel of public figures like Palin — by publishing the claim when no link was ever established? Both the judge and jury ultimately found it did not.

But there were also deeper questions that bubbled up time and again during the seven days of evidence presented at the trial. Who, if anyone, bears responsibility for the actions of those who might be spurred to violence against representatives of Congress — or even the Capitol itself? Was the Times editorial board, and the media at large, out of touch in its instinctive reliance on “both sides” political journalism? And how did American politics become, as the editorial’s headline lamented, so lethal?

While the jurors didn’t have to directly answer those grander questions, they did have to grapple with the media’s attempts to grapple with them. The Palin trial was a rare instance in which the fiery political atmosphere the judge joked about came under the microscope in a courtroom.

“It’s a rare sight to see the rough and tumble of American politics being placed in front of a jury,” said Ben Wizner, director of the ACLU’s Speech, Privacy, and Technology Project. “The reason for that is the First Amendment is designed to give a huge amount of breathing room for politics, for rowdy politics, for exaggerated politics, for insulting politics.”

He added, “The point is that political rhetoric should not come before a jury.”

It’s so rare for a jury to hear evidence of politics in a courtroom because public officials have to clear an exceedingly high bar to bring a libel case, said Leslie Levin, a University of Connecticut professor who studies media law.

“Defamation trials are just not that common. Really, they don’t happen. It’s so hard to get past the first motion to dismiss, and then summary judgment, that usually these cases are resolved at that point,” Levin said. “So those kinds of arguments, to a jury, at least, are really unusual because juries don’t really hear these cases.”

Another conservative politician seeking to sue media outlets, Devin Nunes, continues to run into hurdles. Earlier this month, the former California Republican member of Congress turned Trump acolyte had a lawsuit against MSNBC returned to the same federal district in New York in which Palin sued. But a federal judge there last year tossed out another libel lawsuit from Nunes against CNN. He has also had lawsuits against the Washington Post and Twitter dismissed, but he continues to pursue several others.

Jurors may soon hear evidence of political speech (and political lies) in other cases. Two voting machine companies, Dominion and Smartmatic, have launched a suite of lawsuits against figures like Rudy Giuliani and Mike Lindell who spread lies about them. But those cases involve plaintiffs who argue they were nonpublic figures defamed by the powerful — not the other way around.

“What’s really strange is not that we don’t see more trials like [the Palin trial], but that we saw one at all,” Wizner said.

Gautam Hans, director of Vanderbilt Law’s Stanton Foundation First Amendment Clinic, said he suspected Palin, Nunes, and other conservatives were motivated in filing hard-to-win defamation lawsuits in part by a desire to have one ultimately land before the Supreme Court, where at least two conservative justices have shown a desire to revisit the actual malice standard set in the 1964 Supreme Court case involving the same newspaper, New York Times Co. v. Sullivan. Hans compared these libel suits to other long-standing precedents suddenly up for reconsideration at a Supreme Court whose balance has shifted firmly to the right. Suddenly, he said, public officials with a grudge against the press don’t seem so hesitant to file a case.

“Voting rights, abortion, the press — these are all examples of things that you might have thought, ‘Let’s be prudent and cautious,’ but when you have the numbers [on the Supreme Court], you don’t need to be prudent and cautious in the same way,” he said. “If you’re a public official, what’s the point until now when you can sense more appetite on the court.”

But the political culture and rhetoric has also hardened, Hans said, which might help to explain why politics and the law are more often intersecting. He speculated that, after four years of a president who regularly made it his mission to attack the media as “the enemy of the people,” these conservatives may be relishing the fight.

“In the past, if you were a public official, you probably didn’t want to be seen as going after people who were criticizing you, but all sorts of political norms are out the window,” Hans said. “Things that were off the table are now on the table, and if you’re a public official, maybe it’s not so damaging to be suing the media.”

In finding itself in court, the Times was arguably a victim of the very overcharged political rhetoric it was seeking to condemn in the first place.

All of this played out in a wood-paneled courtroom in downtown Manhattan at a time when the temperature has arguably only risen since the map of crosshairs was first released more than 11 years ago. Since then, a slew of high-profile incidents of deadly violence wrapped up in politics have become known by their respective shorthands: Charlottesville, Rittenhouse, Jan. 6. Two groups that tend to seek out political violence, antifa and the Proud Boys, are household names. Six men have been charged with plotting to kidnap the governor of Michigan. A Bernie Sanders supporter opened fire on Republican members of Congress playing baseball in Virginia — the incident that prompted the Times editorial over which Palin sued.

The rhetoric is uglier too. In 2009, a Republican member of Congress generated weeks of controversy by shouting “You lie!” at Barack Obama during his State of the Union address. Now, it’s not uncommon for Republicans seeking office to say Joe Biden stole an election or for public health officials seeking to save lives in a pandemic to be called Nazis. School board members need security escorts when they leave meetings. Election workers get death threats. A House Republican was censured by just two members of his own party for posting an anime video of him killing Democratic Rep. Alexandria Ocasio-Cortez. There is a QAnon supporter in Congress.

Meanwhile, the number of Americans who believe it is justified to sometimes use violence against political enemies is in the millions. Johns Hopkins University political scientist Lilliana Mason told MSNBC last year that the manifestation of this violence may look different depending on a person’s party affiliation. For the left, it might often mean property damage. For the more armed right, it might mean something else.

“The place we’re in right now is super dangerous,” Mason said, “because we have people like that guy at one of the town halls, saying, ‘When do we get to use the guns?’ That means they’re not shooting yet, but they’re ready.”

Not everyone is ringing the alarm bells. Wizner, the ACLU lawyer, cautioned against assuming the country had reached some sort of new political extreme. Perhaps it just feels that way because we’re all more connected, and information — both the good and the bad — travels more freely.

“We all have a tendency to think we’re living in the ‘most whatever’ now,” Wizner said. “But in the 1860s, Americans killed 600,000 of each other. In the Jim Crow era, thousands were lynched and hung from trees. There was more political terrorism in the 1960s and ’70s than in the last 10 years. So I’m very skeptical of these ‘next civil war’ thinkpieces that have been coming out recently.”

He added, “I think people spend just a lot more time in front of computers now. Firing off a tweet is very different than firing off a weapon.”

Still, Nealin Parker, executive director of Common Ground USA, a group focused on combating political violence, said she and her group are still urging people to be vigilant, especially when it comes to the increasing prevalence of extreme partisan rhetoric.

“There is that kind of hallmark characteristic of toxic polarization, where you see people say, ‘I wish they weren’t part of this country. We’d be better off without them,’” Parker said. “Those are the kind of psychological steps you need to take to commit violence against each other.”

This political demonization was exactly what the Times was seeking to condemn with its 2017 editorial, according to James Bennet, the former top opinion editor who inserted the language into Williamson’s draft over which Palin later sued. He testified that while he deeply regretted his poor wording, he didn’t intend to say Palin had directly incited the Giffords shooting. Rather, Bennet argued, Palin was still connected to it through her rhetoric in the months before.

“It is political rhetoric that dramatically increases the heat of the political debate here, language in which we treat each other as enemies rather than political opponents — words like ‘traitor’ and ‘evil’ that have become fairly frequently used in our politics, and, by the way, in our media as well,” Bennet testified. “I think it’s bad for our politics in the first place, makes it harder to get anything done or to compromise, which is a requirement of our system, and I worry there’s a great risk it can lead to violence.”

Common Ground USA would agree. It makes no secret that it senses “the early signs of danger” in American democracy. “We see in the United States a country that stands on the brink,” the group’s website states.

Inherent in the concept of the brink, though, is the ability to be able to turn back from it.

“People often talk about having to hit rock bottom before you turn around, but rock bottom isn’t a physical place. By definition, it’s the place you choose to turn around,” Parker said. “We are the authors of our future and we can choose our futures. But we have to make the decision to turn around.”

For de-escalation to happen, Parker said, voters need to reward politicians who not only denounce violence but all toxic politics.

In her testimony, Palin tried her best to paint herself as a politician who had been unfairly slandered as an inciter of violence. Some people might see her map as containing rifle crosshairs, she said, but others see innocent surveyor symbols. At one point, she called them “emojis.” She said that when she repeatedly told her supporters not to “retreat” but instead to “reload,” she had merely been quoting a motivational bumper sticker on her father’s truck. She gave the impression that her political career had long since faded and that she now rarely gets asked to stump for candidates. The Times was Goliath and she was David, she said, busy only “holding down the fort in Wasilla.”

While it was in the best interests of Palin’s legal strategy to minimize the jury’s impression of her as an influential and powerful public figure, there was a certain sad and ironic truth to the picture she was trying to paint as she now tried to take on the media.

“As the feisty, plain-talking Republican nominee for vice president in 2008, Palin foreshadowed the celebrification of politics and helped hone media-bashing into a key Republican strategy long before Donald Trump declared journalists the ‘enemy of the people,’” the Washington Post wrote in its coverage of her trial. “But she never managed to ride the style of politics she helped perfect to a position of power.”

If Palin has changed, though, so too has the country. As Kate Couric told me in 2019, it’s questionable whether the then-governor’s fumbling nonanswer to what newspapers and magazines she read would have the same political impact today.

“I’ve thought about that and have wondered, actually. … If now, in 2019, if someone didn't know the answer to that question, or didn’t know the answer to a lot of other questions, if it would matter,” Couric said. “I think there’s such a reverse snobbery about intellectuals that I think it would almost be seen as a badge of honor. I think that’s really concerning.”

It was somewhat ironic, then, that Palin then found herself facing off against the Times’ editorial board, a group as close as you can get to the self-appointed cultural and intellectual elite that exists in media. At times, Palin herself seemed to lean forward as she listened to their testimony as if she were getting a view behind enemy lines. These Times journalists explained to the jury that, unlike their colleagues on the news side, their job was to describe the world not as it is but as it should be. Yet they now found themselves in every journalist’s “worst nightmare scenario.” Each staffer described their utter horror at having made such a colossal error. Bennet said he barely slept that night and had thought about it almost every day since.

But ultimately, the very legal protection that protects a map with crosshairs on it also protected the Times in writing about it — even incorrectly. The First Amendment shields journalists from liability for their unintentional mistakes about public figures, including those errors that might bring character into disrepute. The high standard is based on something of a cost-benefit analysis the Supreme Court decided upon: Democracy is stronger when people’s speech about the powerful isn’t chilled.

By far the most junior Times staffer to be called to testify about the mistake was Phoebe Lett, a podcast producer who was serving as an editorial assistant and occasional fact-checker in 2017.

Lett told the jury how in her younger years she had wanted to get into political speechwriting after becoming obsessed as a high school student with The West Wing, a show now criticized in some quarters of the media as a “useless fairy tale” and a “telling relic of a bygone age.” As if fulfilling a Sorkinian vision of debate and cordiality, Lett now produces the Times’ podcast The Argument, which, as she described it, involved two people from different sides of an issue debating in good faith. “Disagreement can be something that is a good thing, can be enjoyable, even,” Lett said.

But even with that idealism, Lett struggled to recall details of how she and colleagues reacted to the shooting of Republican members of Congress at a baseball field. “I’m afraid that this day felt like another day,” Lett said. “It didn’t really stand out as something I should commit to memory.”

Bennet, the former top opinion editor, testified that he had greenlit the fateful editorial after another colleague wrote via email how amazed she was that such an attack no longer felt so shocking to her. He wanted the editorial to shake readers out of that numbness, to remind them that this sort of violence should not fade into the background of our lives. But here was Lett, Bennet’s own colleague, admitting it had done just that.

“It was a tragic day,” Lett said, “but unfortunately we’ve had a lot of those.” ●