Sarah Palin has filed a defamation lawsuit against The New York Times over an editorial that the newspaper published earlier this month in the wake of the shooting in a suburban Virginia park where a group of Republican Congressmen was practicing for the annual Congressional Baseball Game:

Former Alaska governor and vice presidential candidate Sarah Palin filed a defamation lawsuit Tuesday against the New York Times, claiming the newspaper falsely linked her to the 2011 mass shooting in Arizona that wounded then-Rep. Gabrielle Giffords.

The lawsuit, filed in federal court in New York, says a Times editorial earlier this month ”falsely stated as a matter of fact” that Palin had incited the attack, in which a gunman shot 19 people, killing six of them.

The Times published the editorial on June 14, shortly after a gunman opened fire on Republican lawmakers at a baseball field in Alexandria, injuring Rep. Steve Scalise (R-La.) and several others. Drawing a parallel to the Arizona shooting, the newspaper’s editorial board wrote that both attacks fit a “sickeningly familiar pattern” and that the “link to political incitement was clear.”

“Before the shooting,” it read, “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 description was inaccurate. The map had put crosshairs over targeted electoral districts but not Democratic politicians. Following a wave of backlash on social media, the Times issued an apology and corrected the editorial, saying no connection between political incitement and the Arizona shooting was ever established.

The Washington Post’s Fact Checker found that the Times had relied on a thoroughly debunked talking point in its description of the map and noted that the Arizona gunman, Jared Lee Loughner, had no clear political views.

A Times spokeswoman said in a statement Tuesday: “We have not reviewed the claim yet but will defend against any claim vigorously.”

Palin’s lawsuit alleges the Times “violated the law and its own policies” in the editorial and criticizes the newspaper for not mentioning Palin by name in its correction.

“Given that the entire premise of the Palin Article was the ‘disturbing pattern’ of politically incited violence emanating from a non-existent link between Mrs. Palin and Loughner’s 2011 crime, which The Times conceded did not exist, the entire Palin Article should have been retracted — not minimally and inadequately corrected — and The Times should have apologized to Mrs. Palin,” the complaint reads.

Palin’s lawyers allege the Times knew when it published the editorial that there was no connection between Palin’s political activities and the mass shooting in Arizona. The complaint lists several Times articles indicating that Loughner’s attack had no basis in politics, including a January 2011 commentary in which columnist Charles M. Blow argued there was “no evidence then, and even now, that overheated rhetoric from the right had anything to do with the shooting.”

The Times reported regularly on Loughner’s criminal case, which did not turn up any evidence that his actions were politically motivated, the complaint says. There was also nothing to suggest he saw a map of the targeted districts that the editorial mentioned, it says.

The lawsuit also says the Times’s statements linking Palin to Loughner’s crimes “stood in stark contrast” to how it covered the motives of James Hodgkinson, the gunman who fired on the lawmakers in Alexandria before being fatally shot by police.

“The Times concluded that there was not a connection between Hodgkinson and his professed penchant for Democratic stances sufficient to warrant implicating Democrats or the Bernie Sanders campaign as inciting factors for Hodgkinson’s attack,” the complaint reads.

The roots of this case are, of course, well-known. Within hours after Congresswoman Gabby Giffords was shot and seriously injured in an incident that killed six people and injured thirteen, people began trying to assign blame, mostly without having any real evidence to base it upon. One of the first things that people jumped on was a map that had been produced by Sarah Palin’s Political Action Committee SarahPAC that had spent the time before the 2010 midterms raising money for Republicans challenging Democrats in vulnerable districts, including Giffords. As part of that project, they published and mailed to supporters a map of the United States that included twenty districts across the nation they were concentrating on with targets over the general map location map location of those districts. Giffords’ district was one of those districts, and the PAC apparently did give some money to the Republican who unsuccessfully challenged her in November 2010.

Within hours, if not minutes, after news of the shooting broke on Twitter that day in January 2011, various media pundits and others, mostly on the left, were posting the map and essentially trying to link the shooting to the map. As James Joyner and others pointed out at the time, though, the idea of a “target district” and the use of similar-looking map had been fairly common in political fundraising for a long time before Sarah Palin came along. Additionally, at the time the meme began circulating there was no evidence that the shooter had any political motive behind the shooting or that he had ever even seen the map prior to the shooting. In fact, as we learned in the days after the shooting, the shooter Jared Loughner had political views that were a bizarre mixture of far left, far right, and conspiracy theories. There’s was also anecdotal evidence that he was mentally disturbed, something that was confirmed as the case against him unfolded. Finally, it became clear that Loughner had an obsession with Giffords that existed long before anyone outside of Alaska ever heard the name Sarah Palin. In other words, there was simply no evidence to support the idea that there was any connection at all between Loughner, the shooting, and the map produced by SarahPAC. As I said a few days after the shooting, “Sarah Palin is not responsible for what happened in Tuscon on Saturday, she neither pulled the trigger nor said anything that comes even close to incitement to violence.”

Despite the fact that there was never a link established between the SarahPAC map and the Giffords shooting, the controversy over the map is one that continued to follow Palin around. Most recently that happened in the New York Times Editorial that is at issue in this case. While it has since been changed to reflect corrections that the Times made in the wake of criticism of the editorial, including a Washington Post fact check, the original version read like this:

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.

Conservatives and right-wing media were quick on Wednesday to demand forceful condemnation of hate speech and crimes by anti-Trump liberals. They’re right. Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask for of the right.

(Emphasis mine)

In it’s corrected version, the editorial adds this sentence to the end of the first paragraph “But in that case no connection to the shooting was ever established.” It also changed the final sentence of the second paragraph to read “Liberals should, of course, be held to the same standard of decency that they ask of the right.” In both paragraphs, any inference of a link between Palin and the map was removed. A correction posted later on the same day as the editorial acknowledged the lack of any link between the Giffords shooting and either the map, but did not meaningfully change the text of the editorial. However, a subsequent correction posted the day after the editorial was posted on the Times website now accompanies the Editorial and reads as follows:

An editorial on Thursday about the shooting of Representative Steve Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs.

It’s also worth noting that the day before the editorial was published, the Times published an article about the Virginia shooting titled “Shooting Is Latest Eruption in a Grim Ritual of Rage and Blame” which stated in relevant part:

In 2011, the shooting of Ms. Giffords by a mentally ill assailant came during a convulsive political period, when a bitter debate over health care yielded a wave of threats against lawmakers. Sarah Palin, the former vice-presidential candidate, drew sharp criticism for having posted a graphic online that showed cross hairs over the districts of several members of Congress, including Ms. Giffords — though no connection to the crime was established.

In addition, and as Palin notes in her Complaint, Times columnist Charles Blow wrote an Op-Ed piece in the days after the Giffords shooting in which he called out the effort to falsely link Palin to the shooting, and the Times itself published an article that detailed the history of Giffords shooter Jared Lee Loughner that made clear both his apparent mental illness and lack of any discernible political motive. Finally, on the same day as the Editorial, the Times published an Op-Ed piece by columnist Bret Stephens that spoke about the 2011 allegations regarding a link between the Giffords shooting and the SarahPAC map and made clear that the claims of such a link were debunked.

In her Complaint, Palin alleges that even the second correction was insufficient since it failed to acknowledge that the editorial in its original form had sought link not just “a Political Action Committee,” but Palin specifically to the Giffords shooting. Instead, the Complaint alleges, the Times should have retracted the entire Editorial and apologized to Palin. Palin’s Complaint then goes on to allege that the Editorial in its original form constituted defamation against Palin, that the Times knew or should have known at the time the Editorial was published that the claims about a direct link between Palin and the Giffords shooting were false and that it acted with “actual malice” against Palin in publishing the original Editorial. As a result, Palin is seeking compensatory and punitive damages, an order against future publication of the original Editorial, attorneys fees and court costs, and other damages.

As a general rule, a Plaintiff seeking to establish defamation, whether in the form of spoken slander or written libel, must prove several key elements. First, they must prove that the statement was false. Second, they must prove that the statement caused the Defendant some measurable harm, although a Plaintiff need not allege or prove actual monetary loss due to defamation but instead claim reputational damage, leaving it to the finder of fact to determine the compensatory value of that damage. Finally, a Plaintiff must establish that the Defendant made the statement without conducting sufficient research to determine whether or not the statement was true. There’s also a final requirement in cases such as the one Palin has filed. In New York Times v. Sullivan, the Supreme Court ruled that a party that the First Amendment requires that individuals who are considered “public figures” must allege and establish that the defamatory statement was made with what the Court called “actual malice.” In the relevant section of its opinion in that 1964 case, the Court put it this way:

A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount — leads to a comparable “self-censorship.” Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. See, e.g., Post Publishing Co. v. Hallam, 59 F. 530, 540 (C.A. 6th Cir. 1893); see also Noel, Defamation of Public Officers and Candidates, 49 Col.L.Rev. 875, 892 (1949). Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which “steer far wider of the unlawful zone.” Speiser v. Randall, supra, 357 U.S. at 526. The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

Palin’s Complaint makes all of the allegations necessary to establish a case of defamation, including the allegation of actual malice. The question is whether the fact of the case support those allegations and, if they do, what damages Palin might be entitled to. These would ultimately be up to a Judge or jury to determine, assuming the matter got that far.

With only a Complaint filed to date, it’s far too early to say what the ultimate fate of this lawsuit might be. However, I find myself agreeing with Washington Post media critic Erik Wemple that Palin has put forward what seems like a convicing case of defamation. Thanks to the actual malice requirements of Sullivan and the cases that have followed in this area of the law, defamation lawsuits by public figures such as Palin have proven to be exceedingly difficult to prove and have often ended either in settlement or a victory for the defendant. That being said, it does seem from the allegations in the Complaint that Palin has a good case here, and that the Times may want to consider settling this matter rather than letting it drag through the Courts. First of all, it’s clear that the original Editorial made the attempt to link Palin to the Giffords shooting through the “target” map, a link that we now know to be false to the extent that there was ultimately no link between the map and Loughner’s motivation, which was largely due to document mental illness that was initially so severe that he was deemed incompetent to stand trial. Second, the fact that the Times itself had published multiple Op-Ed and news articles both at the time of the Giffords shooting and afterward that debunked the idea of a link between Loughner, so it’s clear that even a modicum of research at the time the original Editorial was written would have established that the effort to link the two was without merit.

Addressing one issue that may come up in this case, the fact that this lawsuit is made with regard to an opinion piece rather than a straight news article doesn’t necessarily bar Palin from recovering. While there’s a general exception in defamation cases that differentiates between something that is expressed as an opinion rather than fact, in this case the allegation of a link between Palin and the Giffords shooting is stated as a matter of fact not as an opinion of the Editorial Board. Because of this, it seems clear to me that the ‘opinion v. fact’ distinction would not apply in this case because the Times makes what any reasonable person would likely see as a factual allegation regarding Palin and the events of January 8, 2011.

That leaves the issues of damages and actual malice.

As I said, the issue of damages would be one that would be left to a trier of fact to determine. It’s not necessary, though, that Palin or any Plaintiff introduce evidence of actual monetary damages, although that would certainly help the case. Instead, a Plaintiff can allege that the defamatory statements damaged their reputation and/or caused some non-quantifiable psychic damages that they are entitled to seek compensation for. Additionally, the trier of fact would have to determine if what the Times did was egregious enough to justify punitive damages in some amount sufficient to both punish the paper and send a message to others regarding the potential consequences of disregarding the truth.

As far as actual malice goes, that too would be a question of fact for the trier of fact. Based on the facts alleged in the Complaint, though, it seems rather apparent that the Times either knew or should have known that the allegations in its original Editorial regarding a link between Palin and the Giffords shooting were simply not true. Not only had the lack of any such connection been uncovered by multiple press reports in the six and a half years that have elapsed since the Giffords shooting, but multiple reports and opinion pieces in the Times itself acknowledged the lack of any such link. Given this, it’s entirely conceivable that a Judge or jury could find that the Times either knew that its efforts to link Palin to the shooting were false, or acted in reckless disgreed for whether the allegation was true or not. In any case, it will be interesting to follow this case through the Court system.

Here’s the Complaint:

Palin v. New York Times by Doug Mataconis on Scribd