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Former New York Times Editor Whose ‘Incitement’ Editorial Sparked Sarah Palin’s Lawsuit Testifies He Worried About Appearance of ‘Partisan Scorekeeping’

Sarah Palin and the New York Times building

On the left, ex-Alaska Gov. Sarah Palin (R) enters into a Manhattan federal courthouse at 500 Pearl Street, where her lawsuit against the New York Times is taking place. The newspaper’s headquarters is on the right.

The former New York Times editor who wrote the opinion piece that sparked ex-Alaska Gov. Sarah Palin’s defamation lawsuit acknowledged during his testimony that he worried that it would be perceived as “partisan scorekeeping” in linking the erstwhile VP candidate to a massacre.

Former Times editor James Bennet testified that his actual intention was to decry overheated rhetoric in U.S. politics, but he understood why it would be viewed less charitably from the outside.

Bennet was the author of the editorial “America’s Lethal Politics,” a reaction to the 2017 congressional baseball shooting that injured Rep. Steve Scalise (R-La.). As details emerged about the shooter James Hodgkinson—whose social media posts indicated he supported Sen. Bernie Sanders (I-Vt.) and loathed then-President Donald Trump—the Times editorial board discussed how to respond to the incident with a piece about what they described as “vicious” political rhetoric and the ready availability of guns.

“It Wouldn’t Surprise Me”

The resulting editorial compared the Hodgkinson shooting with the 2011 massacre by Jared Lee Loughner, who killed six people and injured 13, including Rep. Gabrielle Giffords (D-Ariz.).

At least for some 12 hours, Bennet’s editorial argued that the “link to political incitement was clear” for Loughner’s rampage. He noted that Palin’s political action committee had circulated a map with stylized crosshairs over Giffords’s congressional district and those of 19 other Democrats. Half a day would pass before the Times would strike that quote and note that no link was ever established between the map and the shooting.

As Palin’s attorney Shane Vogt started his questioning on Tuesday, he asked Bennet whether he would be surprised if readers interpreted the word “incitement” to mean its dictionary definition.

“It wouldn’t surprise me,” Bennet replied.

When trial began last week, Palin’s lawsuit against the Times became the rare case against the paper to reach a jury. The Supreme Court’s precedent in Sullivan v. Times created a high bar for public figures to sue the press for defamation: the actual malice standard, holding that simply showing a published inaccuracy was not enough. One manner of establishing actual malice would be through demonstrating reckless disregard for the truth.

Palin’s legal team claims to be able to make this showing because an earlier draft of the article written by Times journalist Elizabeth Williamson did not have the offending language. Williamson, who testified earlier in the trial, never mentioned “incitement” and even included a hyperlink in the original draft to an ABC News article stating explicitly: “No connection has been made between [the Map] and the Arizona shooting.”

Williamson had alluded to the map in her original draft editorial, without explicitly assigning blame for it to Palin.

Bennet apparently had little independent conception of the map controversy during his own rewrite.

“You didn’t have a mental image of the map in your mind, did you?” Vogt asked him.

“No, I was relying on Elizabeth’s description of it in the piece,” he acknowledged.

Bennet acknowledged that he never faced disciplinary action over the editorial.

“I appeared before the board of directors to take responsibility for the mistake and apologized,” Bennet said, adding he wasn’t asked to do that.

He said he didn’t know whether that qualified as a reprimand, “but it felt like one.”

“Did you ever apologize to Gov. Palin?” Vogt asked.

“My hope is as a consequence of this process, now I have,” Bennet replied.

The Times editorial board had a policy against apologizing to the subject of news stories, according to Palin’s legal team.

“Question Everybody’s Assumptions”

A Yale graduate whose Times career included a stint as White House and Jerusalem correspondent, Bennet broke up with the Gray Lady for a time to become editor-in-chief of the Atlantic magazine. His former employer hired him back in May 2016, until he resigned some four years later amid controversy over his decision to run an editorial by Sen. Tom Cotton (R-Ark.).

Titled “Send in the Troops,” the senator’s op-ed called for deploying federal forces into U.S. cities in response to racial justice protests across the country. Bennet defended its publication, even as his own editorial board rebelled.

Quizzing the ex-Times editor of his journalistic philosophy, Vogt quoted Bennet as having said: “Nobody is 100% right. So a writer must listen carefully, must question everybody’s assumptions, including his own.”

“Is that a way you aspire to practice journalism?” Vogt said.

After asking for a read-back of the quotation, Bennet agreed, “That’s certainly the way I aspire to practice journalism.”

Senior U.S. District Judge Jed Rakoff interjected: “There is an exception that federal judges are 100% right.”

Though the quip sparked laughter in the courtroom, the trial is a testament to one of the judge’s errors. Rakoff initially dismissed Palin’s suit before being overruled on appeal by the Second Circuit, which found that his fact-gathering hearing before a motion to dismiss was impermissible. That judicial misstep brought the case to discovery, where Palin gained access to internal Times communications.

Some of those communications were laid bare, including an exchange between Bennet and Times columnist Ross Douthat, who fired off a 10 p.m. email complaining about the link between Palin and the Loughner shooting.

Bennet promised to look into the issue the next morning, and he insisted that the goal was to denounce overheated political rhetoric generally, though Bennet apparently acknowledged that it might look different from the outside.

“I see your point it sounds like partisan scorekeeping,” Bennet acknowledged having written.

On the paper’s second attempt to boot the case on summary judgment, Rakoff ruled that Palin obtained enough evidence of reckless disregard for the truth for a jury to hear the case.

The Times has reported that it has not lost a defamation suit in more than 50 years. The Sullivan standard has been the law of the United States since 1964.

(Photo of Palin via Spencer Platt/Getty Images; photo of NYT building via JOHANNES EISELE/AFP via Getty Images)

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."