Former Alaska governor and Republican vice-presidential nominee Sarah Palin filed a defamation lawsuit against the New York Times on Tuesday, after it claimed in a June 14 editorial that she had incited Jared Loughner to shoot Rep. Gabrielle Giffords (D-AZ) and kill six other people in January 2011.

(The editorial was published online on June 14, the day several Republicans were wounded in a mass shooting, but appeared in print the following day.)

It would normally be very difficult for Palin to win a defamation lawsuit simply because of a factual error. As a celebrity and a political leader, she falls under the tough standard first established by the Supreme Court (ironically) in New York Times Company v. Sullivan(1964), which is “actual malice.” In this context, “malice” does not refer to an emotion but to “reckless disregard for the truth” — that is, knowing something is false but printing it anyway.

In this case, the Times is indicted by its own reporting. Just days after Loughner’s shooting spree, the Times reported that he was mentally ill and had been focused on Giffords since 2007 — well before Palin became a national figure:

What the cacophony of facts do suggest is that Mr. Loughner is struggling with a profound mental illness (most likely paranoid schizophrenia, many psychiatrists say); that his recent years have been marked by stinging rejection — from his country’s military, his community college, his girlfriends and, perhaps, his father; that he, in turn, rejected American society, including its government, its currency, its language, even its math. Mr. Loughner once declared to his professor that the number 6 could be called 18.

He also may have felt rejected by the American government in general, and by Ms. Giffords in particular, with whom he had a brief — and, to him, unsatisfactory — encounter in 2007.

Therefore, the Times had reason to know that what it claimed in its editorial — that “the link to political incitement was clear” — was false. It went on to explain that Palin was responsible because her political action committee had circulated “a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.” In fact — as the Times had to know, because it linked to an article by ABC News about the map — the “cross hairs” were above districts, not individual politicians. All of that likely amounts to actual malice under Sullivan.


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