The Journalist as Superb Witness: Another Look at Palin v. Times

In late April, MLRC held a Zoom call, attended by over 100 members, on the Palin trial — less than 24 hours after the verdict in favor of The New York Times came down. An AP reporter who covered the entire trial — fortunately Trump didn’t ban him from it — and a former Dean at Columbia Journalism School who had written at length about the first trial were our panelists. 

They agreed that the jury’s verdict — after only two hours of deliberation — was driven by three factors. First, that there was no evidence of actual malice. In what I believe and hope is a critical lesson going forward, the jury appeared to understand and strictly followed the judge’s instructions on that sometimes emotionally challenging point. Second, that Ms. Palin could not articulate any real damage; she could not and did not show that she suffered monetary or professional harm. 

And third, and perhaps most important, in contrast to Ms. Palin’s unemotional and unconvincing demeanor, the Times’s witnesses appeared dedicated to their craft, emotionally upset about making a mistake, passionate about getting it fixed as soon as possible, and generally, from just a human standpoint, as professional and responsible as possible. 

Now those of us who have worked with reporters and editors will not be surprised to read this. We have seen journalists work long hours under huge pressure totally dedicated to get the facts right and author an account without fear or favor. Yet, tragically, the President’s constant haranguing about fake news and enemy of the people has taken a toll. Combined with the inevitable errors in publications with thousands of often quite complicated facts a day, and the occasional really troublesome scandal, the public perception of journalists is probably even lower than that of lawyers. The question is how do we get the positive portrayal out to the public to overcome the Trumpian rhetoric, self-serving gibberish meant to give him a defense — they always get it wrong — when he is appropriately criticized by the media.

I remember during Trump’s first term an ABA panel I was moderating. Jim Rutenberg, a long time Times reporter, was very movingly talking about how hard he and his colleagues work to get every little detail right – and how they come close to tears on the rare occasions where it turns out they have erred and a retraction is warranted. They get so upset, he explained, not because of the repercussions of a correction, but because they feel they have let down the subjects of the story, the Times itself and ultimately the public whom they are working for. At the time I was working with some other non-profits on a putative advertising campaign to gain public trust in the media. I urged that this Rutenberg clip be used in an ad. Sadly, the advertising agency wanted a more artsy theme, and the campaign died anyhow for a plethora of reasons, but my point – that we need to convey to the public how dedicated, well-meaning and hardworking our journalists are – remains, if anything, even more relevant eight years later.

Back to the Palin trial. What were the characteristics of the Times journalists which won over the jury? The commentators repeated one which all trial litigators will easily appreciate: there was no smoking gun, they echoed. No email from one reporter to another mocking or debasing Ms. Palin; no email showing a bias or some sort of motive to put her in a bad light. As litigators well know, even one of those could be fatal, but due to the professionalism of the newsroom, there were none. (Ken Richieri, former Times GC and former MLRC Board Chair, commented that the Legal Department shares in the credit, as ever since the debut of email, it emphasized not to treat emails as water-cooler banter.)

The editor who made the mistake cried on the stand, and showed that he was genuinely upset by the error. The court observers said that starkly contrasted with Ms. Palin’s testimony which was unemotional and unmoving. And the Times’ testimony showed editors working late at night and early in the morning to get a correction online as soon as possible to override the mistake  — actions and feelings the Palin team couldn’t contravert or overcome.

I think we sometimes underestimate the powerful and human characteristics our clients have; they are not nerdy geeks with notebooks; they are social and caring humans, who make their living by relating to and earning the trust of other people.

I remember a libel trial I worked on for the Times in Cleveland. The reporter who wrote the article at issue was a somewhat difficult guy who was quite unpopular in the newsroom. I spent quite a bit of time with him before the day he testified trying to soften his rough edges, and found him quite nice and interesting – after all he had reported for the Times from China and all over the world. Still I was worried about how he would play with the jury. 

After we won a jury verdict (which came only after the judge finally gave a “serious doubts” and “conscious awareness” definition of what actual malice was), I called some of the jurors on the phone to get some feedback as to their deliberations. (The judge had spoken with them immediately after the verdict, but didn’t allow the lawyers to attend.) To a person, they all said how much they liked our reporter, how they felt bad for him and were worried about him. I tell this story just to underscore how sometimes we underestimate the rapport and sympathy our journalists can have with the public – and jurors – and to be hopeful and positive about their performances in court. Indeed, from our observers’ comments, the jury was far more sympathetic to James Bennett than they were to the Sarah Palin.

One further point: I have found consistently that the newsroom’s best witnesses are photographers. Whether it’s because maybe they feel more like regular people to the jurors, and less eggheaded than reporters, or because jurors think artists have more sensitivity and credibility, I’ve never seen a photographer not connect with jurors. And this includes employment  type cases where photographers are on the opposite side from the media company. 

(And this thought comes well before I became aware of a recent Erik Wemple column, which praised to the skies the testimony of Evan Vucci, Chief Washington photographer for AP, at a hearing in AP’s challenge to the White House’s limiting its access due to viewpont discrimination in the Gulf of Mexico case. Wemple wrote: “The craft requires an aesthete’s eye, a newshound’s reading diet, and a curious mix of patience and endurance. But who knew that Vucci could light up a courtroom with his quips about his profession and some blunt talk about photographs?”)

In any event, let’s hope there will be no Palin III trial and these issues are all moot in the Palin context. I see no reason why there should be another reversal. I likewise can’t imagine her lawyers’ alleged strategy of using this case to mount a Times v. Sullivan challenge to the Supreme Court will be successful. 

After all, the Second Circuit has already said plaintiff was late in raising objections to Sullivan, two juries have delivered verdicts against Ms. Palin, no actual damage was shown, New York now has a statutory actual malice standard for public officials, and, most important, the plaintiff was clearly a high public official, Governor of a state and a Republican Party candidate for Vice President, not a celebrity/public figure. For all those reasons, this seems like a terribly unlikely vehicle for SCOTUS to take and review Sullivan. 

George Freeman is executive director of MLRC. Opinions expressed are his and not those of the organization. Your feedback is welcome at gfreeman@medialaw.org.