Sarah Palin tests positive for COVID, delaying trial against 'New York Times' A federal judge pushed back opening arguments to Feb. 3 in the former Alaska governor's case. A 2017 Times editorial wrongly connected an ad from her PAC to a lethal mass shooting in Arizona.

Sarah Palin tests positive for COVID, delaying trial against 'New York Times'

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A MARTÍNEZ, HOST:

Sarah Palin is about to get her day in court against what she used to call the lamestream media. The former Alaska governor and Republican vice presidential candidate's defamation suit against The New York Times is set to start jury selection today at a federal courthouse in downtown Manhattan.

NPR media correspondent David Folkenflik has followed the case.

David, so why is Sarah Palin suing The New York Times?

DAVID FOLKENFLIK, BYLINE: This is going to be a pretty theatrical trial in some ways, but the specifics are pretty clear. The Times wrote an editorial linking Sarah Palin's political action committee - a mailing from that committee - to a 2011 shooting of former Congresswoman Gabby Giffords. I want to be clear. No evidence was found that the shooter was motivated by that mailer. The Times also mischaracterized the mailer, which had drawn these crosshairs on specific congressional districts that conservatives wanted to take back for Republicans. The Times wrongly said it symbolically targeted the actual members of Congress. The Times wrote this in an editorial that ran six years after the Giffords shooting. It was published in 2017, hours after a Republican congressman was shot at a congressional baseball game. These errors were inserted into the editorial by a man named James Bennet. He was at the time the Times' top opinion editor. He wanted to make a bigger point about gun violence and about heated rhetoric.

MARTÍNEZ: All right. So The Times really got this wrong. What did the paper do, and how has it explained what happened?

FOLKENFLIK: Well, so the paper actually made public corrections within hours, as objections were raised both outside The Times and social media and inside the paper as well. Privately, you see these text messages that have been submitted as evidence showed that Bennet really was pretty contrite and felt pretty terrible about it. David McCraw is deputy general counsel for The Times. He has told The Washington Post a couple years back that The Times viewed that this was, quote, "an honest mistake; it was not an exhibit of actual malice." And, A, that phrase has meaning. That actual malice is the legal standard that Palin's attorneys will have to meet. That is that The New York Times either knew that what they were saying was wrong or showed reckless disregard for the facts. Given the ways in which our laws protect free speech, that's a pretty hard standard for any former public official to meet.

MARTÍNEZ: But in what ways could Sarah Palin's argument hold up?

FOLKENFLIK: Well, it could be hard for her to show actual harm has been done. You know, she hasn't pointed so far to specific jobs she lost as a result of this. The strongest element is that it had been widely known for years that no evidence showed that connection between the mailing from Palin's political action committee and the shooting in Tucson, Ariz., and that Bennet had edited the wrong material into someone else's draft of the editorial and that it was rushed out, as Bennet later acknowledged, on a deadline. The fact that it's part of the opinion section, which might seem like, oh, it's just one person's thoughts - that doesn't get The Times off the hook, both because in some ways it represents The Times' institutional voice and, more importantly, because the editorial is purportedly grounded in fact.

We reached out to The Times for comment. They declined. James Bennet and Palin's lawyers also did not respond to our request for comment.

MARTÍNEZ: What's at stake here for The New York Times?

FOLKENFLIK: Well, you know, I talked to lawyers. A jury verdict could reach in the millions or, theoretically, the tens of millions or, one media lawyer told me, in the hundreds of millions. Palin's attorneys want to introduce evidence about other journalistic lapses by Bennet at The Times as a way of showing that The Times was kind of slipshod. Bennet left in 2020 after other controversies involving decisions he made. The Times wants to narrow the focus for the jurors on this specific incident involving Palin, saying it's not a large argument about ethics but about the law, and that an honest mistake was made here and swiftly remedied. People tell me anything can happen once it's in front of the court and once it's in front of a jury. Her attorneys have asked the court to send the media a message.

MARTÍNEZ: That's NPR media correspondent David Folkenflik.

David, thanks.

FOLKENFLIK: You bet.

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