SCOTT SIMON, HOST:
It's now up to jurors to decide whether The New York Times and a former top editor are guilty of defaming Sarah Palin. This week, jurors heard testimony from journalists at The Times and the former Republican vice presidential candidate about a reference to her in a 2017 editorial that the paper got wrong. NPR's David Folkenflik has been covering the trial. David, thanks for being with us.
DAVID FOLKENFLIK, BYLINE: Pleasure.
SIMON: And remind us, please, about the editorial that kicked off this case.
FOLKENFLIK: The story really starts back in 2010. Sarah Palin's political action committee runs an ad that places these kind of stylized crosshairs over 18 congressional districts of Democrats that they were targeting for defeat. Palin took some flak from that. Among the people she took flak from that was one of the Congresspeople targeted. That is Representative Gabby Giffords of Arizona. The next year, Giffords is among those shot, critically wounded at a mass shooting that takes the lives of six people. Palin takes more criticism at that time. She dismisses it. Six years later, 2017, a conservative Republican congressman, Steve Scalise, is among those shot and badly wounded. And then a New York Times article sweeping that together with the shooting of Giffords in 2011 to make a case about overheated political rhetoric gets something very wrong. It says there was a clear link between the political action committee ad from Sarah Palin and the shooting of Gabby Giffords. And no evidence actually was ever found that there was any link between the two.
SIMON: What did the jurors hear this week?
FOLKENFLIK: They learned a lot about the inner workings of the august New York Times. In some ways, it came off as an extremely serious institution. And in many ways, it came off as, at times, seriously flawed. They learned about the intensity of James Bennet. He was, at the time, the newspaper's editorial page editor. He'd been told to disrupt how the staid editorial section operated. Bennet sped up the pace of the place. He brought in podcasts and videos. And he moved, in this case, to do a same-day editorial. And in his words, he just moved too fast.
The newspaper's attorneys kept saying it was an honest mistake corrected in less than a day. But they heard from the real-life political celebrity that this editorial's passage that was so wrong was about and how she testified about the decline of her political stardom - and yet unable to convey much real emotional harm, much about her interior journey as a result of this or any tangible professional harm or any real connection, to be honest, between the diminishment of her star with the editorial itself.
SIMON: What case do the two sides try to make?
FOLKENFLIK: Well, Palin's attorney went after what he called the arrogance and the sense of power of The New York Times, went after Bennet about the rushing, about wanting a broad sweep in that editorial to combine fault on the left and the right on a day when it had been a leftist shooter that had attempted to take the life of this conservative, pro-Trump Republican.
The New York Times' legal team - well, they hammered home the point there's got to be room for human error in journalism. It is a human endeavor that's actually protected by the First Amendment. And yes, Palin proved that Bennet got the phrasing wrong. Let's be clear. James Bennet himself, the editorial page editor, inserted the passage that was wrong into the editorial. But they argued she didn't prove that the editorial was defamatory, that it slurred her name or that The Times should be held legally liable for it.
SIMON: And in the end, the jury has to consider not just if the editorial was wrong but if it was defamatory and, if so, if there are damages.
FOLKENFLIK: That's right. It's, in very broad terms, got to figure out, did it say something harmful or negative about her? Was it wrong? Did it inflict harm upon her? And the judge has made clear he thinks that's a really high bar to the point where he won't let the jury consider punitive damages. And did they act with what's called actual malice under a case that involved The New York Times from the 1960s? Either The Times has to be shown to have acted to intentionally try to hurt her knowing it was untrue or with such reckless disregard for the facts in front of them that they should have known. That's also a high bar to do.
And I want to say also this is part of a larger conservative push against media outlets in courthouses in the Trump years. And since Trump has left office, media lawyers who are following this say if Palin prevails, it may scare or inhibit certain news outlets from giving tough scrutiny of public officials, knowing they can be punished simply for making what they consider to be honest mistakes.
SIMON: NPR media correspondent David Folkenflik, thanks so much.
FOLKENFLIK: You bet. Transcript provided by NPR, Copyright NPR.
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