An intriguing defamation case gets underway today: former Alaska governor and Vice Presidential candidate Sarah Palin v. The New York Times.
To catch you up, Palin sued the Times in 2017 over an editorial that wrongly linked the 2011 shooting of Arizona Congresswoman Gabby Giffords to a map circulated by Palin’s PAC that showed certain electoral districts under the crosshairs. The Times immediately corrected and apologized for the error. But now the federal courts will hear the case.
At the heart of this matter is the landmark 1964 case of The New York Times v. Sullivan. That decision ruled that not only must public officials prove defamation, but that the news outlet did it with “actual malice.”
So that’s what Palin must prove: that the Times not only defamed her, but they knew what they wrote was false or that they recklessly disregarded whether the claims were true or not. The Times’ defense was that it was an honest mistake and that they immediately fixed it. As The Washington Post’s Erik Wemple wrote, “the case will help demarcate the line between really bad journalism and libelous journalism.”
Most legal experts agree that Palin’s chances of winning the case are pretty low. That’s partly because The New York Times v. Sullivan makes it extremely difficult for any public official to prove malice.
But an expected ruling in the Times’ favor likely will not be the end of it, but just the beginning of what could be a major change in the law. Emphasis on “could.”) Palin and her legal team already suggested that if they lose, they will take their case to the Supreme Court in hopes of challenging the Sullivan ruling. And Supreme Court Justices Clarence Thomas and Neil Gorsuch have suggested they would revisit the standard set by The New York Times v. Sullivan.
Would Palin have a chance with the Supreme Court?
First Amendment attorney Ted Boutrous told CNN’s Oliver Darcy, “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.”
But it’s not completely out of the question.
Meanwhile, it will be curious to see how conservative outlets, such as Fox News, treat the case. On one hand, you have Palin, a favorite of conservatives, in a legal battle against the so-called “liberal” New York Times. But would Fox News and its prime-time pundits really want to see public officials have an easier time suing (and winning) lawsuits for defamation? Remember that right now, Fox News is being sued by voting technology companies Dominion and Smartmatic.
CNN chief legal analyst Jeffrey Toobin told Darcy, “Fox needs those protections more than The New York Times at the moment. 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.”
Still might be rough
So while it’s unlikely that the Times will lose this case against Palin, the Times likely won’t feel like winners.
Wemple wrote, “Even if the Times prevails at trial, the proceedings are likely to produce more bad news for the newspaper. There will be testimony, after all, about an editing process that has already been exposed as shoddy, not to mention an editor (former editor of editorials James Bennet) who has already given court testimony casting doubt on his preparedness to take on the issue before him. (Bennet declined to comment.) Based on years of legal precedent, the Times is conceding that this was an ‘honest mistake,’ though not a defamatory one.”
Toobin told Darcy, “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. 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.”
The Palin-Times case won’t deal with the broader constitutional issues, but only with the specifics of this case. As Jeremy W. Peters wrote for The New York Times, “The jury will weigh testimony and evidence that is expected to offer a rare, under-the-hood glimpse at the often messy process of how daily journalism is produced.”
Veteran sports broadcaster Bob Costas had some harsh words talking about the upcoming Winter Olympics, which start Feb. 4 in Beijing. During an appearance on CNN’s “Reliable Sources” on Sunday, Costas laid into the International Olympic Committee for awarding the Games to China.
“We should preface this by saying that no one could have anticipated COVID, no matter what the venue is,” Costas said. “But the IOC deserves all of the disdain and disgust that comes their way for going back to China yet again. They were in Beijing in 2008. They go to Sochi in 2014. They’re shameless about this stuff. And so, this takes place not only amid COVID, as did the Tokyo Games of a year ago. But as you mention, the restrictions on press freedom and the sense that everyone there is being monitored in some way.”
NBC Sports already has announced that, because of COVID-19, it will not be sending announcers to Beijing. Broadcasters, instead, will call the events remotely from Stamford, Connecticut. Host Mike Tirico is expected to be in Beijing for the opening ceremony, but will return to the United States after a few days. The “Today” show and the “NBC Nightly News,” which would normally broadcast from the Olympics, are not expected to attend this year.
So how much will NBC address the human rights concerns involving China? Costas no longer works at NBC, but has hosted 12 Olympics for the network.
He told “Reliable Sources” host Brian Stelter, “I would anticipate … (NBC) will acknowledge the issues at the beginning and then address them only if something specific that cannot be ignored happens during the course of the Games.”
That’s not surprising. After all, NBC Universal paid $7.75 billion in 2014 for broadcast rights to the Olympic Games through 2032.
Costas said, “It isn’t just NBC. Any network that broadcasts big sports events is simultaneously in a position, it’s quasi-journalistic at best. You’re reporting a news event and what surrounds it in the case of the Olympics isn’t just what’s confined to one game in a stadium, you’re reporting an event, but you’re also promoting the event.”
As CNN’s Ramishah Maruf noted, Molly Solomon, an NBC executive producer and president of NBC Olympics production, said in a presentation last week, “We are going to be focusing on telling the stories of Team USA and covering the competition. But the world, as we all know, is a really complicated place right now. And we understand that there’s some difficult issues regarding the host nation.”
Meanwhile, The Washington Post’s Paul Farhi has this piece: “‘China will be China’: Why journalists are taking burner phones to the Beijing Olympics.”
Farhi wrote, “The reason: Reporters are concerned that any devices they use there could become infected with tracking software, enabling Chinese authorities to spy on their contents. Hence, the use of ‘burner’ phones and computers. The better-safe-than-sorry measure highlights the wariness among some of the thousands of journalists who are expecting chilly working conditions in the Chinese capital, and not just because of the subfreezing temperatures on the ski slopes.”
Don’t miss the Jan. 31 deadline to enter this year’s Collier Prize for State Government Accountability. The $25,000 annual prize honors the year’s best investigative and political reporting of state government. The award is available to any news organization on any platform. Click here to enter.
Way off the mark
Wow, what in the world has happened to former NBA great John Stockton? One of the greatest point guards in NBA history, Stockton was a 10-time All-Star while playing for the Utah Jazz from 1984 to 2003. He was inducted into the Basketball Hall of Fame in 2009.
Stockton, 59, played his college basketball at Gonzaga, which announced last week that it has suspended Stockton’s season tickets because of his refusal to wear a mask at games per the school’s COVID-19 policies. Stockton has been very public in his stance against vaccines, masks and shutdown measures.
But check out what he told reporter Theo Lawson from The Spokesman-Review in Spokane, Washington, in the story about his season tickets being suspended. Stockton claimed, falsely, that tens of thousands — perhaps millions — have died from vaccines.
He then said, “I think it’s highly recorded now, there’s 150 I believe now, it’s over 100 professional athletes dead — professional athletes — the prime of their life, dropping dead that are vaccinated, right on the pitch, right on the field, right on the court.”
That is not true. And Lawson did a good job pointing that out — something journalists need to do in situations like this.
Lawson wrote, “Such claims are dubious and not backed by science, nor are they deemed credible by medical professionals, according to FactCheck.org, a project of The Annenberg Public Policy Center, and research reported by PolitiFact, which is run by the Poynter Institute.”
San Francisco Chronicle sports columnist Ann Killion tweeted, “So add John Stockton to the list of people who have lost their minds.”
Keith Olbermann tweeted, “It’s past time that we can simply look at paranoid, delusional conspiracy theorists like John Stockton as risks to the community in the time of Covid. We need to address their inability to act or think rationally, and for their sake and ours, compel them to get help.”
Happy birthday to Politico
Politico turned 15 years old on Saturday. It marked the anniversary with this series, including “An Oral History of When Politico Came to Capitol Hill.”
The introduction included this passage:
With its relentless pace and radically different standard for what constituted news, Politico at turns confused, thrilled and maddened its audience in the nation’s capital. It was both serious and mischievous, high and low, in print and on the web, substantive and fun, with a twist of tabloid. It was fast and aggressive. It frustrated press secretaries and offended the at-times tender sensibilities of the 200-year-old institution that is Congress, demystifying the protocols and personalities that made Capitol Hill run. While it turned deadlines upside down — days and hours transformed into minutes and seconds — it also satisfied a “thirstiness” for community among Washington professionals wanting to see and be “seen” in Playbook. It was ambitious — and it ran its own reporters absolutely ragged.
Founding editor John F. Harris wrote a column titled, “I Led the Revolution Against Journalistic Institutions. Now I Think We Need to Build Them Back Up.”
Harris wrote, “This notion — that in the digital age institutions were losing much of their historic power to set an agenda while individual journalists were gaining it — was at the root of what became POLITICO. It is the same dynamic powering a rapidly growing list of news startups that have blossomed in the political and policy space in recent years (many of them with POLITICO veterans in leadership roles). It is the same dynamic powering the emergence of Substack and its growing roster of writers. It is even the same dynamic powering the remolding of legacy news organizations like the New York Times around star talent like Andrew Ross Sorkin or Maggie Haberman, another POLITICO alum. I was wrong about lots of small and even not-so-small matters over the course of the next 15 years. But I was right about this big thing.”
He added, “Let me mark the milestone of POLITICO turning 15, and the larger trend that made our success possible, with a comment about the next 15 years. It would be a very good thing if this next period of media history marks the slowing and even partial reversal of that trend. It is time for the pendulum to swing back in the direction of institutional power.”
Also check out Politico editorial cartoonist Matt Wuerker with “The Past 15 Years, in Political Cartoons.”
In a troubling development, a Turkish journalist has been jailed for “insulting” Turkish President Recep Tayyip Erdoğan. While appearing as a guest on a news show, Sedef Kabaş quoted a proverb while talking about Erdoğan. The proverb, which Kabaş also posted on Twitter, said, “When the ox goes to the palace, he does not become a king. But the palace becomes a barn.”
The Washington Post’s Kareem Fahim wrote, “Tens of thousands of people are investigated every year for insulting the president, under a long-standing section of the criminal code that Erdogan, in recent years, has vigorously enforced against political opponents as well as ordinary citizens. Figures by Turkey’s Justice Ministry showed that prosecutors pursued more than 31,000 cases of insulting the president in 2020. Nearly a third of those cases resulted in formal charges, it said.”
On Twitter, a spokesperson for Erdoğan called Kabaş a “so-called journalist” and said her comments had “no goal other than spreading hatred.” The spokesperson added, “The honor of the presidency is the honor of our nation.”
Reporters Without Borders told CNN’s Hande Atay Alam and Isil Sariyuce, “No less than 200 journalists were prosecuted, and 70 journalists were sentenced on similar charges since Erdogan was elected President in August 2014.”
During his two-hour press conference last week, President Joe Biden was asked about his agenda, and Biden said, “You guys have been trying to convince me that I am Bernie Sanders. I’m not. I like him, but I’m not Bernie Sanders. I’m not a socialist. I’m a mainstream Democrat, and I have been.”
Well, Sanders, the independent senator from Vermont, was asked about that quote during an interview on CNN’s “State of the Union” on Sunday. Sanders seemed ready, telling host Dana Bash, “Well, I’m not Joe Biden. I like him, but I’m not Joe Biden. I’m a progressive who believes that the Democratic Party should make it clear that we are prepared to take on powerful special interests, like the drug companies, like the insurance companies, like the fossil fuel industry, that we have to demand that the wealthy start paying their fair share of taxes. So, look, I think President Biden has done something quite unusual. He has taken a hard look at the problems facing the American people. He’s brought forth legislation to try to address that. And I respect that. But, obviously, we have our strong differences.”
Sanders also told Bash that he supported the Arizona Democratic Party’s decision to censure Sen. Kyrsten Sinema, D-Ariz., for voting against reforming filibuster rules to pass voting rights legislation. Sanders told Bash, “On that particular vote that she and Manchin cast, we were trying to address the reality that you have got 19 Republican states all over this country who are undermining the foundations of American democracy, trying to make it harder for people of color, young people, people with disabilities to vote, coming up with extreme gerrymandering, taking action against independent election officials. And it is so important that we protect American democracy, that we stand up to the big lie of Trump and his allies that he really won the election. And they undermined that effort. I think what the Arizona Democrats did was exactly right.”
- Two notable deaths over the weekend. Comedian and actor Louie Anderson is remembered by Vulture’s Matt Zoller Seitz in “Honoring his mother was Louie Anderson’s life work.” And …
- Singer Meat Loaf passed away. In The New York Times, Jeremy Gordon writes about a classic song in “How Meat Loaf Made a Cult Favorite: ‘Paradise by the Dashboard Light.’”
- This story created a buzz over the weekend: Politico’s Betsy Woodruff Swan with “Read the never-issued Trump order that would have seized voting machines.”
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