By Rich Moniak
At the start of her defamation lawsuit against New York Times, Sarah Palin said she was seeking justice “for people who expect the truth in the media.” It’s a case in which she rightfully exposed an embarrassing blunder by America’s second largest newspaper and still ended up on the losing side.
It’s likely she’ll appeal the verdict. But even a U.S. Supreme Court ruling in her favor would be too narrowly focused to serve the altruistic purpose she claimed.
In 2017, the Times published an editorial that wrongly connected a six-year-old post by Palin’s political action committee to an Arizona shooting that killed six people and gravely wounded congresswoman Gabby Giffords. Two days after the article was published online, the Times annotated it with a correction that didn’t even mention Palin or her PAC.
At best, the editorial amounted to sloppy journalism. The Times’ political bias made it worse.
But because Palin is a public figure, she had to overcome the high bar established by a unanimous 1964 Supreme Court ruling. Proof was needed that the offending statements were “made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
I’d argue the Times failed the reckless disregard part of that principal. Because there was ample available evidence showing there was no connection between the Arizona shooting and the post by Palin’s PAC.
As a commentator with Fox News, Palin failed the same test. In 2014, she authored an opinion that stated Texas Gov. Rick Perry was indicted by a grand jury convened by the Travis County D.A.’s office headed by Rosemary Lehmberg, “a hardcore Democrat in a hardcore-Democrat county.” She correctly pointed out the obvious conflict of interest Lemberg had in the case, but not the fact that Lehmberg had recused herself and her office from investigating it. Palin’s bias-based, factually wrong opinion hasn’t been removed from the web or annotated with a correction.
But this isn’t about which biased publisher has a worse track record. The reckless disregard for the truth is a problem much bigger than any dispute that might test the doctrine.
In his dissent on a recent defamation case, U.S. Supreme Court Justice Neil Gorsuch argued that in today’s media environment “the deck seems stacked against those with traditional (and expensive) journalistic standards — and in favor of those who can disseminate the most sensational information as efficiently as possible without any particular concern for truth. What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
I read that as a reference to the web-based media outfits that entirely ignore the responsibility of verifying their sources and checking the facts. To make matters worse, social media quickly spreads stories of widely read but disreputable outfits like Occupy Democrats and Gateway Pundit.
One of the most abusive publishers out there is Alex Jones. He has a syndicated radio show that’s broadcast on 100 stations and a website with about two million subscribers. Among the flagrantly false stories he told for years is that no one was killed in the 2012 Sandy Hook school shooting in Newtown, Conn. He infamously claimed it was a government staged hoax aimed at increasing gun control.
After Jones was sued for defamation by 10 of the Sandy Hook families, he argued there was “no clear and specific evidence of actual malice” on his part. He may have lost the case, but not until he caused a lot of unnecessary pain to families who had already suffered unimaginable grief. And the verdict won’t end the wider scourge of false reporting.
“I do not profess any sure answers” Gorsuch concluded after stating it’s time to revisit the doctrine for defamation cases. “I am not even certain of all the questions we should be asking.”
Palin’s lawsuit won’t get ask the right questions or deliver any answers. And as long as she maintains her own minimally staffed website that’s heavily tilted to the political right, she’ll never be a champion for unbiased truthful reporting.
• Rich Moniak is a Juneau resident and retired civil engineer with more than 25 years of experience working in the public sector. Columns, My Turns and Letters to the Editor represent the view of the author, not the view of the Juneau Empire. Have something to say? Here’s how to submit a My Turn or letter.
