… after two weeks of testimony and nearly three days of deliberation, a jury decided Tuesday that the Times did not libel her in a faulty 2017 editorial — echoing a decision by the judge, who a day earlier said that he would dismiss her case regardless of its decision.
The jury’s decision conformed with that of U.S. District Court Judge Jed S. Rakoff, who said on Monday — while the jury was still deliberating and unaware of his comments — that the former Alaska governor had not demonstrated that the Times acted with “actual malice,” the high legal standard that public figures must demonstrate to claim libel.
The editorial in question inaccurately tied Palin’s political action committee to a mass shooting in 2011, an error the Times corrected within eight hours of publication. Palin brought suit against the paper anyway, even though she would have to prove the paper acted with reckless disregard for the truth, a barrier neither the judge nor the jury believed the paper breached.
In picking through the coverage of the outcome, what struck me was the voluminous nature of comments and posts from readers who were outraged that the Times “got away with” an attack on Palin. Consider a few comments from just one article that I could repost without violating the “unnecessary cursing” edict I operate under:
“What is the purpose of a Free Press if they can abuse their libel and slander protections to the benefit of their preferred politicians?”
“She will take to the SCOTUS if she loses here. We know Roberts will vote with the wrong side again, but Palin should win 5-4 – and hopefully start the flow of lawsuits against the legacy MSM.”
“I’m amazed that there hasn’t been more outrage that Clinton-appointed judge, who already had one of his Stalinist rulings against Palin thrown out last year by the appeals court, was allowed to pull another Stalin last night. This is not the US anymore.”
“So they can print totally false information that smears the name of a politician who is running for public office, admit they lied and still get off scot-free. Just saying “Oops” the next day seems to be the magic word. Never mind that it has already planted the seed. Never mind that this gives them free rein to smear anyone they want with impunity as long as they say “Oops” the next day. How comforting.”
In these and other responses across the digital universe, a common theme of “hang ’em high” seems to have emerged among a particularly angry sect of folks. The argument is that the best answer to published mistakes is to smack the media publishers as hard as possible so they get the message.
Well, keyboard warriors, here’s the problem with that: You are publishers. You are the media.
And if this case, or any of its progeny, gets any closer to opening up those libel laws, as one politician famously requested, it isn’t the New York Times that will be in the most trouble.
It’ll be you.
In teaching students the basics of writing, I’m a beast about accuracy, punishing fact errors with the stiffest of penalties all throughout the semester. I’m a pain in the rear end about making sure opinions are properly attributed and that the students are sure to be sure about any information they include in a piece. They grumble and grump about my overreactions to these seemingly minor concerns, wondering why being a journalism professor seemingly equates to being a reactionary jerk.
When we get to the end of the term, I outline the concepts of libel, defamation, slander and so forth. They see how these things have led to lawsuits, the loss of careers and other painful things, and they admit, this is all terrible. Still, they seem to be oddly detached from these stories, especially since they’re not working for a major newspaper or TV station.
I then ask, “How many of you are on social media?”
Everyone of them raises a hand.
“Great,” I explain. “You are all publishers. Anything you have written that meets the standards we outlined here could get you sued for defamation.”
It hits them kind of like this:
The responses I have heard over the years are priceless:
“But I wrote that just for my friends. It was supposed to be just a private thing…”
You put it on the WORLD WIDE WEB. What part of “world wide” don’t you get?
“I’m not a professional journalist, so that shouldn’t count!”
We don’t license journalists in this country. Everyone enjoys the same rights and everyone gets the same kick in the pants when they libel somebody.
“It was just on Twitter!”
You can libel someone on a gum wrapper if you put your mind to it, so your digital dissemination that has the potential to go viral isn’t immune to libel laws.
“I didn’t really think about it before I posted it.”
That’s a great answer. “Your Honor, I’m just a sloppy dimwit. Sorry about that.”
When the excuses are exhausted and the reality sets in, the students start to get why I am the way I am about facts and accuracy and keeping stupid stuff out of the public eye. They also start taking those apps on their phones a little more seriously.
Which brings us back to why basically everyone is so much better off that Palin lost this case.
The Times, the Washington Post, CNN, ABC and every other major media outlet out there have operated in a world for quite some time in which libel was a real threat. These outlets have trained professionals who know what can and can’t get them in trouble. The publications also have lawyers and experts who can vet content prior to publication, just in case someone is a little too close to producing defamatory content. In short, these folks know the game and they play it carefully.
In comparison, here are just a handful of cases that have made it to court involving “regular citizens” who published content online:
A blogger lost a multimillion dollar defamation suit after accusing Cardi B of having “contracted herpes, was a prostitute, cheated on her husband, took hard drugs, would give birth to a child with intellectual disabilities and had engaged in lewd acts with beer bottles, among other assertions.”
Now let’s imagine a world in which Palin won, in which the bar to prove libel was much lower. Who is likely going to end up in deeper trouble? The major media outlets with trained reporters and experienced legal teams or randomly enraged citizens with no legal training, no verbal filter and who are the reason silica packets have to bear the phrase “DO NOT EAT” on them?
So, as great as it would seem to some folks if the Times “got what was coming to them,” I’d argue we all probably better off that it remains just a little bit harder to libel someone.