The New York Times’ editorial page editor James Bennet took the stand in federal court on Wednesday to dispute allegations that the paper defamed former Alaska governor Sarah Palin.
Palin is suing over a June editorial published after a gunman opened fire on Republican members of Congress and others practicing for a baseball game in Alexandria, Virginia. In discussing the state of American politics, the editorial referenced a 2011 mass shooting that injured former congresswoman Gabby Giffords, and incorrectly drew a link between the shooter and a map circulated by a pro–Palin political action committee that used crosshairs to highlight the districts of certain Democrats who voted for the Affordable Care Act, including Giffords.
“Was this attack evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear,” the original version of the editorial read before a correction was added.
Bennet, who said he wrote the language at the heart of Palin’s lawsuit, testified on Wednesday that it was not his intention to suggest that the map was responsible for the 2011 shooting. Palin's lawyers have argued that the language implied that Palin herself was to blame. He said he used the phrase “political incitement” in discussing the 2011 shooting and the crosshairs map to refer broadly to political rhetoric that concerned someone who became a victim of violence — in this case, Giffords.
The stakes for the Times in Palin’s case go beyond any financial liability that the paper could face. At a time when President Trump has blasted the Times as “fake news,” a verdict in Palin’s favor would give a major boost to the paper’s critics on the right.
The case is far from a trial, but US District Judge Jed Rakoff in Manhattan ordered the editorial’s authors to testify as he weighs the Times’ motion to dismiss the case. Rakoff explained during Wednesday’s hearing that in considering whether Palin could show that the Times acted with “actual malice” — a standard that public figures have to clear in defamation cases — he wanted to better understand the context in which the editorial was written.
There is no evidence that Jared Loughner, the gunman who shot Giffords and others in 2011, saw or was influenced by the crosshairs map. In response to criticism about the editorial, the Times issued a correction and changed the text to reflect that. Bennet testified that when he was working on the editorial, he didn’t know whether or not Loughner had seen the map. He explained that another member of the Times’ editorial board, Elizabeth Williamson, wrote the first draft, and he then rewrote parts of it.
At the time the editorial was published, a lawyer for the Times asked Bennet, did you believe the statements in the editorial were false?
No, Bennet replied, “I believed them to be true.”
The gunman in the June shooting, James Hodgkinson, was a Bernie Sanders supporter who had criticized Trump on social media. The Times editorial noted that Hodgkinson, who was killed by police responding to the scene, wrote in one post, “Time to Destroy Trump & Co.” Bennet said that in writing the editorial, he was concerned about the general climate of American politics, and whether it gave permission for violence against elected officials.
“I did not intend to imply that [the map] was a causal link to this crime,” he said.
Bennet said he didn’t look at the crosshairs map as he worked on the editorial — he said he was editing the piece on a tight deadline, not doing the reporting for it — and wasn’t aware of other articles about the 2011 shooting that indicated there was no evidence that Loughner was influenced by the map.
The Times’ lawyers have raised several grounds for dismissal. The news outlet is arguing that the statements at issue in the editorial weren’t directly about Palin — they referenced an organization affiliated with her, the political action committee. As a result, the paper said, Palin failed to meet the test that the statement be "of and concerning" her. The Times is also arguing that there was no way to know for sure what may have influenced Loughner — he pleaded guilty, so there was no trial.
Finally, the Times contends that as a public figure, Palin had to show that whoever wrote the statement acted with "actual malice," and that there was no evidence of that.
Palin's lawyers — her team includes some of the same attorneys who represented wrestler Hulk Hogan, whose legal name is Terry Bollea, in the Gawker case — have countered that by referring to "Sarah Palin's political action committee," the editorial drew a connection to Palin herself. They said that public comments about the story showed that readers understood the statements to be about Palin.
Palin’s lawyers contend that it was likely that the editorial's authors knew the piece included false information and acted with malice against Palin.
Rakoff heard arguments on the Times' motion to dismiss on July 31, and said on Wednesday that he hoped to issue a ruling by the end of August.