When the U.S. Supreme Court unanimously overturned a judgment against The New York Times almost 60 years ago and established a higher standard of proof for public officials in libel cases, it did so because it recognized the importance of having “uninhibited, robust and wide-open” debate on issues of public concern.
L.B. Sullivan, a Montgomery, Alabama commissioner, claimed he was defamed by errors in an advertisement by civil rights activists that the Times printed in 1960. But erroneous statements are “inevitable in free debate” and worthy of First Amendment protections, the court said. And at the time, there was probably no issue that demanded uninhibited scrutiny more than state-sanctioned violence against peaceful protestors standing up against bigotry and segregation in the South. Sullivan, who helped oversee Montgomery’s police force, was a part of that.
Today, as the U.S. continues to reel from last year’s deadly insurrection at the Capitol aimed at overturning a presidential election, there may be no issue that demands robust scrutiny more than the threats to democracy posed by political violence and extremism. The United States needs a bold press that is not afraid to speak truth to power and call out irresponsible rhetoric by political leaders that inflames polarization and nods at violence.
That’s exactly what was at stake in Sarah Palin’s libel lawsuit against The New York Times, which a jury rejected in February.
Palin, the 2008 Republican vice presidential nominee known for her gun-toting right-wing invective, is now asking for a new trial in the case that hinges on an error in a 2017 Times editorial, “America’s Lethal Politics.” The piece, which bemoaned the viciousness of political discourse and pondered links to acts of violence, was published after a man who had supported Sen. Bernie Sanders opened fire at congressional Republicans’ baseball practice, injuring House Majority Whip Steve Scalise.
The Times editorial noted that Palin’s political action committee published a campaign map in 2010 that used a graphic resembling the crosshairs of a rifle’s scope to mark targeted districts. It incorrectly drew a link between the map and the shooting of Rep. Gabrielle Giffords, the Democratic incumbent in one of those districts, while she was at a constituent event in a grocery store parking lot in Tucson less than a year later.
I was a political reporter in Arizona at the time, and I remember how Giffords herself had warned that the map could incite violence. “We’re on Sarah Palin’s targeted list,” she said in a 2010 interview, according to The Washington Post, “but the thing is that the way that she has it depicted has the crosshairs of a gun sight over our district, and when people do that, they’ve got to realize there are consequences to that action.”
In the wake of the mass shooting in Tucson, some officials and members of the media suggested that political rhetoric, including Palin’s, may be to blame. In fact, no link between the campaign map and the shooting was ever established. As the judge said, the shooter’s own mental illness was to blame. That is where the Times blundered. An editor inserted language that said, “the link to political incitement was clear.” (The Times promptly issued a correction.) This was an egregious mistake and the product of sloppy journalism, but both the judge and the jury agreed that it was not done with actual malice or reckless disregard for the truth. That’s the standard that a public figure like Palin must meet because of the precedent set in the Sullivan case and subsequent decisions.
Even if Palin is granted a new trial and loses again, she is likely to appeal. Her lawsuit is part of a concerted effort by critics of the “lamestream media,” including former President Donald Trump, to change the libel standard to make it easier for political figures to sue journalists and win judgments for unintentional mistakes. They want to inhibit free debate and make it harder for journalists to hold them accountable.
Even after mobs of Trump supporters violently attacked police officers, ransacked the U.S. Capitol building, and threatened to hang the vice president, right-wing politicians have continued to employ political messaging accessorized with weaponry and violence.
There have been two recent examples just in Giffords’ home state of Arizona. In November, Republican Rep. Paul Gosar, shared an altered anime cartoon that showed him attacking President Joe Biden and killing Democratic Rep. Alexandria Ocasio-Cortez. (Ocasio-Cortez has been the target of death threats and has said that she feared for her life when insurrectionists stormed the Capitol last year.) Then, in February, a Republican candidate who was one of Trump’s phony electors in Arizona released a campaign ad depicting him firing a gun at Biden, House Speaker Nancy Pelosi, and Sen. Mark Kelly in an Old West-style shoot out. Kelly is married to Giffords, who will never fully recover from her injuries.
This kind of political rhetoric in a deeply polarized country plagued by gun violence is not just tasteless. It is potentially dangerous. That’s what Giffords warned less than a year before she was shot. It’s what the Times warned about after the shooting in 2017. And it is what journalists need to call out today. The protections afforded by the Sullivan case help us to do that.
No, Palin didn’t cause the mass shooting in Tucson in 2011. But she may be partially to blame for the increased vitriol of American politics. That, of course, is just my opinion — protected under the First Amendment.