The Morning Dispatch: Palin Comes Up Short

Happy Wednesday! A big thank you to the more than 1,000 of you who joined us last night for Dispatch Live! If you weren’t able to tune in, don’t worry: We’ll post a link to the discussion for members later today, and we’ll be hosting another one next Tuesday!

Quick Hits: Today’s Top Stories

• Although Russia’s Defense Ministry claimed early Tuesday morning that some troops currently deployed near the Ukrainian border would return to their bases, NATO Secretary General Jens Stoltenberg said yesterday the military alliance had not seen “any signs of reduced Russian military presence on the borders of Ukraine,” and President Joe Biden told reporters an invasion “remains distinctly possible,” as his administration had “not yet verified” any de-escalation. Following a meeting with German Chancellor Olaf Scholz, Russian President Vladimir Putin said he does not “want war in Europe,” and that he’s “willing to continue the discussion process.”

• The Bureau of Labor Statistics reported Tuesday the Producer Price Index—a measure of what suppliers and wholesalers are charging their customers—increased 1 percent in January on a seasonally adjusted basis, the fastest rise since last May. On an annual basis, PPI inflation remained near record highs at 9.7 percent.

• The Census Bureau’s latest Business Formation Report found Americans are founding companies at an unprecedented rate, with the number of applications to start new businesses jumping 53 percent in 2021 from pre-pandemic levels.

• The families of nine victims in the Sandy Hook Elementary School shooting announced Tuesday they had reached a $73 million settlement with Remington Outdoor Company, the now-defunct manufacturer of the Bushmaster gun used to kill 26 children and teachers in 2012. The families had sued Remington years ago, arguing the weapon shouldn’t have been sold—and more specifically, marketed—to the public.

• The Senate voted 50-46 on Tuesday to confirm Dr. Robert Califf as commissioner of the Food and Drug Administration, a position he first held in the final year of the Obama administration. Five Democrats voted against President Biden’s nominee due to concerns about the opioid epidemic and his ties to the pharmaceutical industry, but six Republicans crossed the aisle to support him.

• The January 6 Select Committee on Tuesday subpoenaed six individuals—including Arizona GOP Chair Kelli Ward and Pennsylvania State Sen. Doug Mastriano—who it claimed had knowledge of or participated in efforts to send false slates of electors for former President Donald Trump to Congress for certification.

• Rep. Kathleen Rice of New York announced Tuesday she will not seek reelection in 2022, becoming the 30th House Democrat to do so this cycle. By comparison, just 13 Republican representatives have done the same.

Palin’s Defamation Case Against New York Times Sputters

For the second time in as many days, former Alaska Gov. Sarah Palin was reminded on Tuesday that the bar for establishing defamation against a public figure in the United States is very, very high. Less than 24 hours after U.S. District Court Judge Jed Rakoff announced he would dismiss Palin’s lawsuit against The New York Times regardless of the verdict returned by the still-deliberating Manhattan jury, those jurors on Tuesday sided unanimously with the Gray Lady.

“You decided the facts. I decided the law,” Rakoff told the jury. “It turns out they were both in agreement, in this case.”

A spokeswoman for The Times lauded the verdict as a “reaffirmation of a fundamental tenet of American law”—and it was. But it could very well end up a Pyrrhic victory, as the trial was deeply embarrassing for the newspaper, and there’s a nonzero chance it leads to a re-examination of that “fundamental tenet” in the near future.

At the heart of Palin’s complaint was an unsigned New York Times editorial published on June 14, 2017—the day a deranged Bernie Sanders supporter shot up a congressional Republican baseball practice and nearly killed Rep. Steve Scalise. “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 Times’ piece read. “Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.”

The problem? The “link to political incitement” was not at all clear: The map, published on Palin’s Facebook page in 2010, put Giffords and other Democrats’ districts under stylized crosshairs, not the politicians themselves. And there’s no evidence the political ad contributed to Loughner’s massacre, as his hostility toward Giffords reportedly began years before the map was even published. On June 16—one day after the editorial ran in print—the Times issued a correction, admitting “no such link was established.” Palin filed a defamation lawsuit two weeks later.

The case was always a longshot—even the former vice presidential nominee’s own lawyer acknowledged as much earlier this month, conceding in the courtroom he was “keenly aware” his team was fighting an “uphill battle.” Libel law in the United States is guided by New York Times v. Sullivan, a 1964 Supreme Court decision that established as precedent an extremely high bar to prove defamation against public officials (and later, public figures more broadly). Sparked by a full-page advertisement criticizing Alabama police officers’ treatment of civil rights protesters that contained several factual inaccuracies, Justice William Brennan wrote for the Supreme Court’s majority that a plaintiff must demonstrate the defendant acted with “actual malice”—knowledge that his or her statements are false or “reckless” with respect to the truth.

“[Plaintiffs] can’t prevail unless they can show that the defendant is either lying, or [that they] acted in reckless disregard of the possibility of falsehood,” said Eugene Volokh, a UCLA law professor who focuses on the First Amendment. “[They must show] the defendant knew the statement was likely false and just barreled on despite that.”

Proving someone’s state of mind in a court of law is always tricky, and Palin’s legal team struggled to make the case as James Bennet—The Times editor responsible for inserting the erroneous language into the piece—sought to portray the errors as the result of incompetence rather than animus. “I realized how late in the day it was getting and I was concerned about getting the piece done in time,” Bennet testified, trying to explain why he added sentences to another writer’s first draft without doing much research of his own. “I have regretted this pretty much every day since.” 

The Times’ defense team pointed to the paper’s two corrections to the story—which came a few hours after Ross Douthat, a conservative columnist at The Times, emailed Bennet that night bringing the mistakes to his attention—as evidence they did not intend to print false statements.

It’s possible—likely, even—that Bennet’s ideological predispositions contributed to his decision to insert the debunked linkage between Palin’s ad and the Giffords shooting. Another editor who worked on the piece, Linda Cohn, testified to a concern about being seen as drawing “false equivalences” between Democrats and Republicans. Shane Vogt, one of Palin’s lawyers, argued Bennet—who has since resigned from The Times for unrelated reasons—simply “had a narrative and he stuck to it.”

But bias alone is not sufficient grounds for a successful defamation case. “It’s certainly possible that [Bennet] might have at one point read a contrary story, but didn’t remember it,” Volokh told The Dispatch. “And it may be that he didn’t remember it because of the human tendency to remember things through the filter of our ideological preferences. But it’s very unlikely that he actually knew the statement was false, was conscious of it, or even conscious of the likelihood it was false and just published despite that.”

Rakoff, a Bill Clinton appointee, agreed. “I don’t think a reasonable juror could conclude that Mr. Bennet either knew the statements were false or that he thought the statements were false and he recklessly disregarded that high probability,” the judge said Monday. “I think this is an example of very unfortunate editorializing on the part of The Times but, having said that, that’s not the issue before this court.”

Rakoff’s decision to enter a judgment notwithstanding verdict (JNOV) on Monday prior to the jury reaching its own conclusion raised some eyebrows, as the move likely provided additional fodder for Palin’s inevitable appeal of the ruling. “I certainly considered the possibility that I should wait until after the jury had rendered its verdict in this case,” Rakoff said. “But the more I thought about it over the weekend, the more I thought that was unfair to both sides. We’ve had very full argument on this; I know where I’m coming out.” He claimed jurors would not learn of his conclusion before they came to their own because he had repeatedly told them not to look at media coverage about the case. If Palin’s team can prove a juror did hear about it, it’d strengthen her case for an appeal.

It’s unlikely much changes in an appeal to the Second Circuit—Rakoff originally dismissed the case in 2017, and an appellate court reinstatement led, years later, to the second dismissal this week—but for Palin, that’s likely not the point. “From her perspective, this is now about the Supreme Court,” Noah Feldman, a constitutional scholar at Harvard Law School, told The Dispatch. “The Court of Appeals, no matter who the judges are, are bound to apply New York Times v. Sullivan, and they’re not going to make up new law. The Supreme Court, on the other hand, they can make up new law—if there are five votes to do so.”

The Supreme Court’s unanimous New York Times v. Sullivan framework has been widely credited with helping maintain the United States’ press freedom in the decades since it was created—legal scholars routinely list the decision as among the Court’s best of the 20th century. But the idea that it may need to be revisited has gained traction among some conservatives in the judiciary in recent years.

“New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Clarence Thomas wrote in 2019. “If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.”

Justice Neil Gorsuch’s critique from last July focused on the ways in which the media landscape has changed since 1964. “Large numbers of newspapers and periodicals have failed,” he wrote. “Network news has lost most of its viewers. With their fall has come the rise of 24-hour cable news and online media platforms that ‘monetize anything that garners clicks.’ … 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.”

But even if Thomas and Gorsuch are able to persuade other justices to join them in their position on New York Times v. Sullivan, Palin’s case is likely not the best vehicle through which to adjust the framework, as New York codified the “actual malice” standard into state law two years ago. 

“It’s possible somebody might say, ‘Well, it’s not retroactive,’ but in this very case [Judge Rakoff] actually said it was retroactive,” Volokh noted. “[Palin] might petition the Supreme Court for review, but the Supreme Court will say, ‘Regardless of how we rule on New York Times v. Sullivan, the actual malice test would be applicable in this very case simply because of New York law.’”

Worth Your Time

• In The New York Times, Richard Pildes, a New York University law professor, makes the case that more states should follow Alaska’s lead and adopt a top-four primary and ranked-choice voting system. “In our era, one of the highest priorities in election reform must be reducing the influence of extremism in our politics,” he argues. “This reform aims to increase the likelihood that candidates with the broadest appeal to voters, rather than more factional candidates, will win the election. In a traditional primary, in which many candidates can split the vote, factional candidates can prevail by drawing, say, just 25 percent of the vote. … Incumbents in safe seats often embrace more extreme positions to avoid facing challengers in primaries. And some moderate incumbents who might have broad appeal in a general election are now retiring rather than competing in primaries they are likely to lose to ideological extremists.”

• P.J. O’Rourke, the renowned satirist and journalist, died on Tuesday at the age of 74. Take a minute to read one of his most memorable pieces for The Atlantic, a 2001 exploration of whether or not Bill Clinton was cool. “Was the whole saxophone thing just an affectation? And the Ray-Ban Wayfarers and the bluesman’s snap-brim fez too?” O’Rourke wrote. “Would Clinton really go out on the Truman Balcony and blow some bebop if things got rough during his White House sojourn? Or … was Clinton a band geek? Maybe he got the saxophone because the tuba was already taken. Even in the sixties there were such people—sycophantic mama’s boys who tended toward pudge and hung around the career counselor’s office asking ‘You got any of those Rhodes scholarship application things?’ These fellows tended to marry the girls who helped them with their law-school homework, move back to town, and turn out to be real operators.”

Presented Without Comment

Toeing the Company Line

• The U.S. Capitol campus has been closed to the public for much of the past two years, but momentum for a reopening is finally beginning to build. “House Speaker Nancy Pelosi hasn’t provided a clear timeframe for reopening the Capitol, but she has expressed some desire to do so,” Haley writes in Tuesday’s Uphill. “[But] the decision isn’t up to her, according to her spokesman: It will come from the sergeants-at-arms, in conjunction with the attending physician.”

• In this week’s Sweep, Sarah touches on secretary of state races and what happens to PAC money when a candidate dies. Then, she turns to Beto O’Rourke’s flailing gubernatorial bid. “[Texas Democrats] need a candidate who can speak to Dallas Democrats, Tejano Democrats, and everyone in between,” she writes. “That’s the 2018 Beto O’Rourke who lost to Ted Cruz in the closest U.S. Senate race in Texas since 1978. The problem is that O’Rourke then ran for president and online, small-dollar donors weren’t going to get excited about a moderate Democrat. So O’Rourke tried to be the candidate who could also speak to Manhattan Democrats and Silicon Valley Democrats.”

• “The old left and the new right are launching a vigorous anti-war movement in response to a potential Russian invasion of Ukraine when there is no pro-war movement,” David writes in Tuesday’s French Press (🔒). “There is not a single national leader who is arguing that the United States should deploy to Ukraine and fight the Russians. President Biden has ruled it out. The GOP isn’t demanding that the president send troops to Kyiv.”

• Repeat guest Tevi Troy joined Jonah on Tuesday’s Remnant for another conversation about the American presidency. Could the increased importance of the presidency to American life actually be a good thing? Why have our recent presidents failed to become figures of national unity?

Let Us Know

From Palin’s complaint against the New York Times to Smartmatic and Dominion Voting Systems’ lawsuits against a host of right-wing outlets spreading false claims about the 2020 election, there’s no shortage of defamation fodder out there right now. Do you think it would be healthy for the media environment—and the country as a whole—if it was easier for plaintiffs to win these cases? Are you worried about the unintended consequences of potentially loosening those standards?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Charlotte Lawson (@lawsonreports), Audrey Fahlberg (@AudreyFahlberg), Ryan Brown (@RyanP_Brown), Harvest Prude (@HarvestPrude), and Steve Hayes (@stephenfhayes).