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Palin receiving backlash for White House photo
00:53 - Source: CNN

Editor’s Note: Danny Cevallos is a CNN legal analyst who practices in the areas of personal injury, wrongful conviction and criminal defense in Pennsylvania, New York and the US Virgin Islands, at the law firms of Cevallos & Wong in Philadelphia, and Edelman & Edelman in New York, where he is Of Counsel. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are his.

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Danny Cevallos: Sarah Palin has a shot at winning her defamation lawsuit against the NYT

Palin could further bolster her claim by showing that the retractions were intentionally incomplete, he writes

CNN  — 

Sarah Palin filed a defamation lawsuit against The New York Times on Tuesday alleging that an editorial falsely indicated she incited the 2011 shooting of Democratic Rep. Gabby Giffords and others by Jared Loughner.

She might have a case.

Danny Cevallos

Keep in mind, Sarah Palin is a “public figure” under the law, someone who has assumed a role of special prominence in the affairs of society. And it’s a lot harder for public figures than it is for private persons to win defamation cases.

For Palin to win, the First Amendment requires that the offending statement shows “actual malice,” or, in other words, that the statement was published with either knowledge or reckless disregard of whether it was true or false. Celebrities and politicians have a high bar to meet; mere negligence, or even failing to investigate, do not establish actual malice.

So, to win, Palin must show The New York Times actually had serious doubts about the truth of the publication. But despite the historic difficulty of public figures winning defamation cases, Palin’s complaint makes compelling allegations about what the Times knew when it published the offending article. She cited pieces in the Times acknowledging that there was no connection between Palin and Loughner’s 2011 shooting. One such piece was an article in the Times on June 14, 2017, which acknowledged that “no connection [between Palin and] the crime was established.”

The effect is compelling: The plaintiff is saying the Times had to have a baseline knowledge that there was no connection between Palin and Loughner’s actions … because the Times itself said as much in previous publications.

That’s conclusive proof that the defendant had knowledge of the falsity of the publication, right?

Not under the law.

This argument was rejected by the US Supreme Court in New York Times Co. v. Sullivan, the case that established the “actual malice” standard. The court specifically held that prior stories or articles in a defendant’s own files were insufficient to show actual malice. What about two articles published the same day? In seeking to establish the requisite disregard of the truth, Palin’s complaint also cites the Times’ corrections. Paradoxically, efforts at retraction can sometimes cause a defendant additional damage.

Even if the Times had fully retracted or corrected the alleged falsities after they were pointed out, a retraction will not protect a defendant under New York law. At best, a retraction is only a partial defense and can only mitigate damages.

For example, the complaint points to the first attempt at a correction.

There’s no mention of Palin by name, which the complaint says could be interpreted as “We were wrong about a link to political incitement … but we weren’t wrong about a link between Palin and the Giffords shooting.” And the “no such link was established” sort of sounds like “no such link was established, yet.” One can see how Palin didn’t view it as a full-throated, comprehensive correction.

For a retraction to be effective it has to be complete, unequivocal and show a sincere intent to repair the harm. If it merely corrects only part of the incorrect impression in an article, but leaves offensive parts intact, the retraction fails.

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    And if the retraction is hidden way back on page 100, or not made promptly, it could even be evidence of further wrongdoing.

    Assuming for the moment that Palin can prove the original statement was false, if she shows the retractions were intentionally incomplete or used improper language, this could actually bolster her claim – and maybe even win her the case.