Palin Lawsuit Shows How The Right Has Aced Defamation Class And Opinion Writing

The Times is getting slammed because it insists on fighting the last war.

(Photo by Spencer Platt/Getty Images)

Sarah Palin is suing the New York Times over one of its editorials, and it’s not a crazy case.

After Republican Congressmen Steve Scalise was shot (he’s doing fine, thankfully, thanks to competent health care and/or a fickle God who saves people based on how many prayers they can gin up, depending on who you talk to), the Times ran an editorial talking about violent acts and political rhetoric. The editorial brought up the shooting of Gabrielle Giffords by Jared Lee Loughner. 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.”

There are a couple of things wrong here. There’s no evidence that Loughner was influenced by the Palin PAC map. Instead, evidence suggests that Loughner was planning the attack for years, and was not influenced by politics. And the Times kind of got the map wrong. The crosshairs were not on the face of Giffords or any person, but rather on a map of districts.

Sarah Palin is a public figure, and in the grand scheme of things, these are minor errors, errors that the Times has corrected and apologized for. It’s a colorable claim, but not a slam-dunk case.

Not like that matters. Palin gets to sue in a way that isn’t facially spurious and play the victim, the Alt-Right gets to crow about “fake news,” and any number of stupid people who don’t read the New York Times anyway get to feel good about their self-imposed ignorance for another day.

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From the left, this kind of lawsuit can seem unfair. The Alt-Right seems to lie and mislead all the time. They get their facts wrong too often to count. The president lies almost every time he opens his Twitter app. The White House press secretary lies or obfuscates from the briefing room so often that he’s literally a national joke and the White House has tried to limit the number of times people are allowed to see him misinforming the public on television. None of these people seem to get sued. Yet the New York Times makes a few errors, and suddenly they’ve got to apologize and face legal action.

For people who don’t have legal training, it doesn’t seem right. But if you ask any defamation lawyer, they will tell you not to confuse passive writing with careful writing.

Trumpsters have basically mastered “carefully bombastic” communication. The mainstream media is still tripping over itself with “diligent citation of reasonable opinions.” For some reason, the MSM still thinks that their opinions are more valid if they’re sourced and couched and expressed in the language of intellectual elites. The Trump-esque forces have long ago figured out that “opinions” are things they are entitled to have, regardless of the facts on the ground.

The inability to distinguish “opinions” from “facts” is a plague upon our society, but writing opinions that are dressed up with facts doesn’t help anybody. It’s just likely to get you sued if one of your de-minimis facts is slightly off.

Take the instant case. The Times wrote an editorial, literally signed by the “Editorial board.” That should have been a big indication that they were about to write about some opinions. They could have said, “Violent rhetoric, on both the left and the right, creates the conditions under which people like Gabby Giffords and Steve Scalise get shot.” That’s an opinion, and a valid one (not that I necessarily agree with it). They could have said: “Sarah Palin is a f*cking monster and her bulls**t is dangerous too.” That’s also a valid opinion.

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That’s an opinion that doesn’t get you sued, or at least if it does, then having discovery on the question of whether Sarah Palin is factually a demon from another plane of existence seems like a good use of the New York Times’ extensive liability shield.

But writing in a clear, opinionated fashion about your opinions violates some kind of scared MSM style-guide. Apparently, only right-wingers are allowed to spout their (absolutely bats**t crazy) opinions with the benefit of righteousness. Liberals are supposed to drizzle a patina of facts on top of whatever they have to say, even if those facts are deployed to support an opinion they came up with while daydreaming in the shower.

I can illustrate this problem with an examination of the climate change “debate.”

Here’s every right-wing global warming op-ed: “[Weather report] [false equivalence] [pseudo-science book report] [second weather joke] [Jesus dog-whistle]. And even if everything I just said was total crap, [jobs] [Americans] [coal is magic] [owls are dumb] [completely idiotic opinion]. Sorry liberals, these are just the facts.”

Every lefty climate op-ed goes something like this: “[fact] [fact] [fact] [opinion on how to fix it] [fact] [fact] [fact]. Serious question: why are Republicans illiterate?”

If ANY of the liberal “facts” are wrong, or off, or just not stated with the requisite clarity, the entire article is “discredited,” the publication is printing retractions, and any aggrieved parties are threatening lawsuits. But in the right-wing article, the ENTIRE piece could be inaccurate and misleading, and there’s nothing anybody can do that is worth doing, because the author’s point was simply to slam his butt cheeks on the keyboard until it farted out an opinion that people will click on.

Fighting about “facts” is fighting the last war. The battle for objective reality has already been fought, and lost. The bad guys won. In the post-fact world, we are fighting over people’s opinions. If we’re going to win, or even just join that battle, we have to write in the language of opinions, and leave the safety of our factual bubble behind when we flip over to the opinions section. WE LIVE IN A TERRIBLE WORLD. IT IS ALL COVERED IN S**T. Mops are of no more use here. You need to be willing to get your hands a little dirty, pick up a handful, and start flinging it back.

The quicker the Times figures this out, the quicker they’ll stop getting sued. You can’t prove that Republican officials are Golems made of poop controlled by messages the NRA shoots up their asses. Stop trying. Start fighting.

[Ed note: Other than the reality that Palin objectively sued the New York Times, as reported by sources on both sides, no other “facts” were used in the production of this piece. I practice what I preach.]

Sarah Palin sues New York Times for defamation over editorial on mass shooting [Washington Post]


Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.