After COVID delay, Sarah Palin’s lawsuit against the New York Times is set to begin

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NEW YORK — Sarah Palin and the New York Times are due on trial Thursday as the 2008 Republican U.S. vice presidential nominee and former governor of Alaska seeks to hold the newspaper accountable for defamation.

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Palin sued The Times and former editorial page editor James Bennet in 2017 over an op-ed that wrongly linked her political rhetoric to a 2011 mass shooting in Arizona that left six people dead and U.S. Representative Gabby Giffords seriously injured.

The Times later corrected the editorial.

Jury selection was scheduled for Jan. 24 but was delayed because Palin tested positive for coronavirus.

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After receiving medical clearance, Palin is expected to appear and testify in person at the trial before U.S. District Judge Jed Rakoff in Manhattan.

Rarely does a major media company like the Times have to defend its editorial practices in front of a jury.

The lawsuit comes as some legal scholars recommend revisiting the landmark 1964 U.S. Supreme Court decision in New York Times v. Sullivan who made it difficult for officials to prove defamation.

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To win, Palin, 57, must offer clear and convincing evidence that the Times acted with “genuine malice”, meaning he either knew the editorial was false or had a reckless disregard for the truth.

“The key will be to show how the editorial came together,” said Timothy Zick, professor and First Amendment scholar at William & Mary Law School. “Essentially, did the Times do its homework before publishing?”

Titled “America’s Lethal Politics,” the disputed June 14, 2017 op-ed was published after a shooting in Alexandria, Virginia, in which U.S. Representative Steve Scalise, a member of the Republican leadership of the House of Representatives, was hurt.

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The editorial questioned whether the shooting reflected how vicious American politics had become.

He then said the “link to political incitement was clear” when Jared Lee Loughner opened fire in the 2011 shooting after Palin’s political action committee circulated a card putting 20 Democrats, including Giffords, under “a stylized reticule”.

Bennet had added this language to a draft prepared by a Times colleague. The Times later said his quick correction deleting those words reflected his lack of actual malice.

But Palin said the added language matched Bennet’s “preconceived narrative,” including opposition to gun rights advocacy. Bennet said he had no intention of blaming Palin.

The trial is expected to last five days.

Palin is seeking unspecified damages, saying the op-ed damaged her reputation. She signaled that she would challenge the Sullivan precedent on appeal if she lost.

Two conservative Supreme Court justices, Clarence Thomas and Neil Gorsuch, have called for Sullivan to be reconsidered.

Thomas said there was little historical evidence to suggest the standard of actual malice stemmed from the original meaning of the First and 14th Amendments to the US Constitution.

Gorsuch said the standard offered a “bulletproof subsidy for publishing lies” in an increasingly crowded landscape of news outlets capable of spreading sensational news without caring about the truth.

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