Sarah Palin sued the New York Times yesterday over its editorial claiming that SarahPAC’s advertisements resulted in former Rep. Gabrielle Giffords (D-Ariz) getting shot in 2011. The editorial was so absurd that the Times retracted it the following day:
We got an important fact wrong, incorrectly linking political incitement and the 2011 shooting of Giffords. No link was ever established.
— NYT Opinion (@nytopinion) June 15, 2017
Nevertheless, the Times will have the upper hand in court. This is partly because Palin is a public figure for purposes of defamation law and therefore has a higher evidentiary burden to meet than would a private citizen. And partly because New York judges and juries detest Alaska’s former governor even more than they do Donald Trump, somebody they consider to be one of their own despite his vulgarity (or, perhaps, because of it). There might be other potential defenses, too.
The Times’ legal ace in the hole, however, is the absurdity of its editorial. A successful libel suit requires a false statement. But courts have held that “rhetorical hyperbole which no reasonable reader would believe” is not actionable.
Thus, counterintuitive as it may seem, a false statement about a plaintiff can actually be too false for her to win a libel suit if no reasonable person would take the statement seriously. This describes perfectly the Times’ editorial about Palin:
Was this attack evidence of how vicious American politics has become? Probably. 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. 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 Times has a viable defense against Palin’s libel suit because no reasonable reader would have been stupid enough to believe the paper’s assertion that Palin caused Gifford to be shot.
Defenses in any kind of case, however, can have collateral consequences. For example, testifying that you were with your gay lover during the evening your business partner got whacked might enable you to beat a murder rap. But you’ll be doing some explaining later on when you get home to the missus.
The Times faces a similar quandary. An absurdity defense offered by “America’s paper of record” would likely defeat Palin’s libel suit. But the Times would then have to explain to its readers why it puts absurd claims on its editorial pages.
Palin’s star has dimmed since the halcyon days of the 2008 convention. And she’ll likely lose this suit. But beating Palin might require the New York Times to acknowledge in court that its editorial is more absurd than she is. If the case turns on that issue, then (1) Palin will have performed a great service to the public and (2) the Times will richly deserve to win the case.