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Bigfooting At The Times

Sarah Palin talks about New York Times libel trial. newyorklatestnews.com image

By Casey Bukro

Ethics AdviceLine for Journalists

The New York Times’ editorial page editor went bigfooting into an editorial about the dangers of violent political rhetoric, setting the stage for a cringe-worthy series of fumbled editing events that landed the storied newspaper in federal court charged with defamation.

Bigfooting: Defined as a powerful or important person taking control of a situation, barging in and pushing others aside. Powerful editors do it. They can’t resist meddling. But they call it editing.

The gist: The courtroom drama stars the Times, the highly respected national newspaper known as The Gray Lady, and Sarah Palin, former Alaska governor and 2008 Republican vice presidential candidate, a colorful political glamour girl who lashes out at “the lamestream media” and lost her allure by talking too much and making outlandish statements.

In a suit filed June 27, 2017, Palin contends that the June 14, 2017 Times editorial, titled America’s Lethal Politics, alleged her political action committee “incited” the 2011 mass shooting of 18 people at a political rally in Tucson, Arizona, killing six of them. Among the wounded was Democratic congresswoman Gabrielle Giffords, who was shot in the head and left brain impaired.

Palin argues that the then-editorial editor, James Bennet, added the incitement language to the editorial and knowingly published false claims about her because “stories attacking Gov. Palin inflame passions, which drives viewership and Web clicks.” She contends the editorial damaged her reputation, and asked for $421,000 in damages.

Bennet leaves Times in 2020

Photos of Bennet show a bald man with close-cropped mustache and beard, dark-eyed with a piercing look under thick eyebrows. He left the Times in 2020 after another editorial got him in trouble, though he admitted he had not read it before it was published. It was an op-ed by Sen. Tom Cotton, a Republican from Arkansas, who wrote that military troops should be called in against racial justice protesters. That caused a newsroom furor. The Economist magazine hired Bennet as a visiting senior editor on Jan. 26, 2021.

No one denies the Palin editorial contained errors; Bennet admits inserting those errors about inciting violence into the editorial written by a Times editorial writer. Times lawyers called those errors “honest mistakes,” pointing out that the newspaper quickly published two corrections digitally and in print as readers complained about the false accusations.

In its Twitter account, @NYTOpinion, the Times apologized to readers for its lapses.

“We got an important fact wrong, incorrectly linking political incitement and the 2011 shooting of Giffords. No link was ever established,” said a June 15, 2017, tweet. Another tweet said, “We’re sorry about this and we appreciate that our readers called us on the mistake. We’ve corrected the editorial.”

Journalists talk about the power of the press. In this case, the power of the people to point out mistakes in the press was clearly demonstrated, and effective.

Palin said the Times never apologized to her, although “apology” can be a loaded word. Some lawyers fear that an apology can be considered a legal admission of guilt. The Times typically does not offer apologies along with its corrections, considering that unnecessary.

An odd case with big potential

What seemed to be taking shape was one of those quirky cases involving unlikely combatants and circumstances that potentially could lead to major changes in media law.

The 1964 landmark New York Times vs. Sullivan case established strong protections for the media, especially where celebrities and public figures like Palin are concerned. The decision by the U.S. Supreme Court held that First Amendment freedom of speech protections limit the ability of public officials to sue for defamation. Even if the press makes false statements, a public official must prove they are made with “actual malice” and “with reckless disregard of whether it was false or not.” Ordinary citizens are not required to make that case, only that statements about them were false.

Intentionally, the Supreme Court set the burden of proof bar high for public officials so the press in a democracy could fearlessly report on the activities of public officials without the danger of legal reprisal and nuisance lawsuits.

It would be ironic if the New York Times now played a role in weakening the press protections it helped create in 1964 by way of the Palin case. That would make the newspaper bookends to the hallowed landmark ruling.

Critics of the standard, almost 60 years old, say it is antiquated and too generous in a digital age of split-second communication decisions ushered in by a revolution in media technology and an internet filled with acrimony, abusive language and misinformation.

It could be argued, though, that although the technology of communication changes, the central role of journalism to keep people informed in a fair and accurate way does not change.

Creating a Palin legacy

Palin appears determined to create a legacy by taking her grievances all the way to the Supreme Court. Waiting there is a court unlike the one in 1964, including two conservative justices who might be eager to settle scores with the badgering media, Neil Gorsuch and Clarence Thomas. Both have said they want the court to overturn the Sullivan precedent.

Justice Gorsuch wrote that the internet caused the 1964 Sullivan standard to evolve “into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”

Before taking office, former President Trump vowed to “open up” libel laws.” Once in office, he aimed much of his invective against the media and those he considered disloyal.

Critics of the Sullivan standard often see it as a shelter for big corporate media, but observers point out that dismantling it might lead to unintended consequences, such as libel judgments against millions of people on social media and websites.

The Palin case is the first libel lawsuit against the Times to go to trial in nearly 20 years and the Times has not lost a defamation case in the U.S. for more than 50 years. While much of the attention focuses on the legal push and pull, journalists are likely to be drawn to Bennet, the New York Times editing process and the blunders that led to a lawsuit aimed at rewriting press law.

All journalists know that stomach-churning moment upon discovering they’ve made an error, and must correct it. In broadcasting and online journalism, that can be done fairly quickly. It’s more difficult for newspapers. Once printed, a mistake cannot be unprinted and is permanent if the newspapers are already delivered. Newspapers with online editions respond more quickly.

Mistakes derail careers

Mistakes are made, and sometimes they derail a career, which was the case for Bennet. Joining the New York Times in 1991, he rose through the reporting ranks to serve as a White House correspondent and Jerusalem bureau chief. He enhanced his reputation in 2006 by leaving the Times to become editor-in-chief of The Atlantic magazine, founded in Boston in 1857, and aimed at serious national readers and “thought leaders.” Under his leadership, The Atlantic in 2010 had its first profitable year in a decade.

Impressed by Bennet’s buzz-chasing skill in the new and difficult digital age, the Times welcomed him back in April, 2016, as editorial page editor with a mandate to shake up the sober opinions section. Bennet took charge of the editorial page with orders to “move faster” and “make changes that are more disruptive,” according to one performance review.

Cringe. Be careful what you wish for. Disrupt: To throw into confusion or disorder. Called dynamic tension, there is a management style that pits journalists against each other, expecting the competition to bring out the best in them. Or the call for disruption might be seen as making journalism into some kind of exciting video game with flashing lights and sound effects that might appeal to a younger generation. It was not an appeal for higher standards. Bennet broadened the range of viewpoints by hiring conservative writers.

Bennet was 50 when he became editorial page editor. His name surfaced among those considered as a potential candidate to succeed Dean Baquet, the executive editor. That changed when Bennet was engulfed by confusion and disorder of his own making.

A political shooting

On June 14, 2017, James Hodgkinson, 66, known to hate Republicans and President Trump, opened fire with a pistol and a rifle on 24 Republican congressmen practicing for a congressional baseball game at an Alexandria, Virginia, ball field, after asking bystanders if the players were Republicans. Hodgkinson, a Bellville, Illinois, owner of a home inspection business, engaged in a ten-minute shootout with police before he was mortally wounded and died in a hospital. Four people were wounded, including U.S. House Majority Whip Steve Scalise, none fatally.

A few hours after the shooting, Elizabeth Williamson, a Washington-based Times editorial writer, emailed colleagues asking if an editorial about the armed attack on Republican congressmen was planned. For the next few hours, Williamson and other staffers, including Bennet, traded emails on their research into motives for the shooting.

Gleaning what’s on a homicidal man’s mind is tricky, but Hodgkinson’s Facebook account and letters he wrote to his local newspaper offered plenty of evidence of anti-GOP rage. ABC News reported that he vented his political frustration for years before crossing the line.

In the email exchange with Williamson, Bennet asks if the 2011 Giffords shooting was linked “to some kind of incitement?” Here is an editor coming to some of his own conclusions.

Williamson wrote an editorial, focused in part on gun control, which mentioned Palin’s map containing gun sight-like cross hairs on 20 districts held by Democrats which should be targeted by Republicans in the next election. One of those districts was held by Giffords. Palin insists the cross hairs were not intended to represent gun sights. The editorial included a link to an ABC News article saying  “no connection has been made between this graphic and the Arizona shooting.”

History of rewriting

Williamson sent her piece to New York headquarters around 4:45 p.m. In a court deposition explaining the process, Williamson said: “I filed my draft, and after that, it was in New York, and they did what they were going to do.” 

The note of resignation is recognizable by anyone who worked with heavy-handed editors. Times editors often went to work on articles to refashion, refine, rephrase and remake them. Jill Abramson, a former Times executive editor, told the Washington Post “the New York Times has long been known as an editor’s paper where there is extensive rewriting of journalists’ stories.”

It’s a tradition, and seems like a lot of wasted effort. Most stories at a newspaper or elsewhere are written after an editorial conference between writers and editors to explain in advance what the story will say, usually after a reporter has gathered the facts. This also is known as a “doping session.” Unless a writer is hopelessly inept, editors or copy readers should not need to overhaul articles if their contents are known in advance.

Every article can benefit from some trimming, tightening and clearer explanation, which happens on the copy desk. And in this time of disappearing newspapers and smaller news staffs, inexperienced writers replace experienced veterans who take buyouts or are laid off. So editing becomes more important when working with inexperienced staffs.

But, as Abramson pointed out, the Times has a culture of rewriting. Unfortunately, it is a culture that spreads. While I was working at the Chicago Tribune, the newspaper hired an editor from the New York Times. He immediately began rewriting everyone’s articles to “punch them up.” I pointed out to him that he had introduced several errors into one of my stories by “punching it up.” He insisted on publishing the article as he had rewritten it, insisting it was more interesting that way.

Such manic rewriting also substitutes an editor’s choice of words over the reporter’s. At the Tribune, writers for a while were encouraged to develop individual writing styles, until rewriting by others made that impossible. Computerization made tinkering easy. The Tribune stopped encouraging writers to find a style of their own.

A first draft

In New York, Bennet read Williamson’s editorial and was not satisfied. “It was very much a first draft and…it wasn’t exactly accomplishing the objectives we had set out that morning to achieve. (It) read to me much more like a summary of the news.” Bennet said he wanted an editorial that “conjured the sense of the horror of the day.” 

Did he tell Williamson that, or is this an afterthought? Good communication is important at a newspaper. Did Williamson deliver the editorial agreed upon earlier that day? Editors sometimes don’t know what they want until they see what a reporter has written, and decide that is not what they wanted. And an idea forms belatedly. Did Williamson and Bennet fail to agree early in the day what that editorial was supposed to say?

The clock ticked closer to the Times print deadline, and Bennet has explained, “I was concerned about the deadlines approaching. We just didn’t have that much time, and I wound up plunging in and just beginning to effectively rewrite the piece.” By some accounts, he finished 45 minutes before the deadline. It’s hazardous to “plunge in” just before deadline, leaving little time for recovery.

The editorial, as Williamson wrote it, said, in part: “Just as in 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a nine-year-old girl, Mr. Hodgkinson’s rage was nurtured in a vile political climate. Then, it was the pro-gun right being criticized: in the weeks before the shooting 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.”

Williamson avoided suggesting a direct link between the cross hairs map and the Giffords attack.

Bennet deleted that paragraph and replaced it with this: “Was this attack evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a nine-year-old girl, the link to political incitement was clear. Before the shooting, 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.

“Conservatives and right-wing media were quick on Wednesday to demand forceful condemnation of hate speech and crimes by anti-Trump liberals. They’re right. Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask of the right.”

Incitement

Two paragraphs replaced one, pumping up the political angle, with two references to “incitement,” the part that got him in trouble.

After he finished, Bennet sent an email to Williamson apologizing for bigfooting her: “I really reworked this one,” Bennet writes, as though that was unusual. “I hope you can see what I was trying to do…. I’m sorry to do such a heavy edit.” Minutes later, Williamson responded, “No worries the lede does a much better job of conveying how incredibly awful this was…. And I could tell from your messages that you were keen to take this on! Looks good. E.”

Neither saw the dangers posed by the poison pills that were dropped into the editorial. Bennet’s two references to “incitement” were key to Palin’s lawsuit. Some time to consider contradictory facts in the editorial itself might have helped. But the boss himself had rewritten the editorial, and sometimes that is reason enough to withhold further scrutiny.

The editorial went online around 9 p.m. and Twitter exploded with reactions within an hour or so, as readers of all political stripes recognized the blunder, even some inside the Times. 

Bafflement

At 10:35 p.m., editorial writer Ross Douthat emailed Bennet, saying: “I would be remiss if I didn’t express my bafflement at the editorial we just ran…There was not, and continues to be so far as I can tell, no evidence that Jared Lee Loughner was incited by Sarah Palin or anyone else……” Bennet responded about a half hour later, “I’ll look into this tomorrow. But my understanding was that in the Giffords case there was a gun sight superimposed over her district.”

Cringe. Tomorrow? 

Others on the editorial page sensed a big problem. At 11:11 p.m., editor Jesse Wegman sent an email to Williamson, asking: “Did James add that line about Giffords and Palin?” She responded: “No, I had a version of that in my draft.” Williamson answered accurately to the wrong question. Wegman should have asked if Bennet added the parts about incitement, which Williamson had overlooked. It is an example of how errors can snowball, like a rolling blackout, even as some are trying to grasp the situation.

Williamson went to bed after communicating with Wegman. Unaware of that, Bennet sent an anxious email to her at 11:38 p.m., saying: “Are you up? The right is coming after us over the Giffords comparison. Do we have it right?”

Cringe.

This is remarkable for two reasons. Bennet sees the issue as a political problem, not a major accuracy issue, although Douthat had clearly warned him. Most editors, with red flags flying and nerves tingling with apprehension, would have picked up the phone and called Williamson to ask that important question: Do we have it right? 

Lot of criticism

But he didn’t do that. He called it a night, a very short night.  A 5:08 a.m. email to colleagues said: “Hey guys — We’re taking a lot of criticism for saying that the attack on Giffords was in any way connected to incitement… I don’t know what the truth is here, but we may have relied too heavily on our early editorials and other early coverage of that attack. If so, I’m very sorry for my own failure on this yesterday…. I’d like to get to the bottom of this as quickly as possible this morning and correct the piece if needed.”

Cringe and cringe. Bennet says he does not know the truth. The truth should be known before an editorial is written, not after.

After waking, Williamson texted Bennet , saying: “Hey I’m sorry James. I should have read those grafs more closely and asked more questions. That’s on me. Will get a cx (correction) drafted soonest.”

Cringe. She admits that she did not read the entire rewritten editorial, failing to recognize that Bennet had added erroneous information. If she had, that would have saved the Times a lot of embarrassment. (Williamson now is a feature writer in the Times Washington bureau, no longer a member of the editorial board.)

Bennet texted back: “No worries. I feel lousy about this one – I just moved too fast. I’m sorry. Now what I need…soonest is a rock-solid version of what we should say – that an investigation showed NO link to incitement, or NO DIRECT link or NO CLEAR link.”

Cringe. Actually, what he needed was a rock solid editorial to begin with. But even the correction was botched. It did not mention the Palin map, so a second correction was written.

Corrections

It is the nature of corrections that they sometimes take more time to compile than the time it would have taken to simply do the story right in the first place. At the Chicago Tribune, all corrections required a report to the standards editor explaining how the error occurred and what could have been done to avoid it.

Sarah Palin sued the New York Times 13 days after the botched editorial.

The case landed before Judge Jed S. Rakoff, United States District Court, Southern District of New York. He dismissed Palin’s complaint on August 29, 2017, in an opinion and order that reads almost like an ode to American journalism.

“Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States,” he wrote. “In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others. Responsible journals will promptly correct their errors; others will not. But if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity.” That sticks strictly to the Sullivan formula.

Palin “fails to make that showing,” Rakoff ruled. Also, he noted that Palin failed to identify anyone at the Times who allegedly acted with actual malice. The Bennet editorial was signed by the Times Editorial Board.

Before ruling, Judge Rakoff held an evidentiary hearing which threw more light on the muddled editorial.

“My fault”

“This is my fault, right?” testified Bennet. “I wrote those sentences and I’m not looking to shift the blame to anyone else, so I just want to say that. But yeah, I mean, this is why we send playback to writers, because they’re the ones who reported the story. They’re the ones who are in possession of the facts and it’s important for them to review pieces to make sure that (others) haven’t introduced errors.”

Playback is what Times staffers call emailing a revised version of a story to the original writer for confirmation that it is accurate as rewritten. The final revised version of the Palin editorial was emailed to Williamson twice.

Wince. It can be argued that anyone who is not entirely familiar with the facts should tread lightly, especially at deadline. Wise editors making major changes in a story will contact the writer and discuss them, to be sure they are accurate and to explain why the changes were made.

A Palin lawyer asked Bennet if he attempted to call Williamson, and the editor replied: “I didn’t call her…”

Williamson testified she failed to read the final version closely. “I did not read it thoroughly. In retrospect, I wish I had.”

Cringe. It was an admission she failed to pay attention to the details of her editorial at a critical time, when she knew it was being changed in major ways by the boss. This was a time for alertness, not resignation or surrender. Both Bennet and Williamson admitted they erred.

Culture of rewriting

Journalists might sympathize with Williamson, who might be seen as struggling in a culture of second-guessing editors. It’s a workplace that treats writers as though their writing is substandard or does not meet Times standards or editors’ expectations. The knowledge that almost anything they write will go through an editorial chopping block can be demoralizing.

Judge Rakoff asked Bennet for his rationale for pumping up Williamson’s editorial, and got a rambling answer. “I am asking a question about grammar and sentence structure, which presumably you have some expertise in,” the judge countered sharply. 

The judge read the first “incitement” passage to Bennet and asked, “Doesn’t that mean as a matter of ordinary English grammar and usage that that sentence is saying that the shooting in 2011 was clearly linked to political incitement?” 

“That is not what I intended it to mean,” answered Bennet.

Moving on, Judge Rakoff says: “You’re saying that this map circulated by Sarah Palin’s political action committee was a direct cause of the kind of political incitement that you think led to various acts of violence?”

Bennet answered: “I would not use the word ‘cause,’ your honor,” saying later, “it wasn’t in my head that that was tantamount to complicity in attempted murder. It’s simply rhetoric.”

Rhetoric? Persuasive use of language?

Palin map

Asked if he ever looked at the Palin map, Bennet said no. “I was not reporting the editorial… I was editing it, and so I was working from the draft that was in front of me on a tight deadline.”

Cringe and double cringe. Bennet pleads ignorance of the facts, and blames a tight deadline. All journalists work on deadlines. They are a fact of life in journalism, and not an excuse for carelessness. Journalists learn to hew to what is proven at deadline time, and reserve what is not yet proven until it can be proven at a later time.

“Negligence this may be; but defamation of a public figure it plainly is not,” ruled  Rakoff in 2017.

Palin was not done with Bennet. She appealed, and the case came before a three-judge panel of the United States Court of Appeals for the Second Circuit in lower Manhattan in 2018 and was decided in 2019.

The court found that Palin’s amended complaint “plausibly states a claim for defamation….” A plausible picture of an “actual-malice scenario” emerges because of Bennet’s background as an editor and political advocate.

Though the Times view is that Bennet made an unintended mistake by including erroneous facts about Palin, “we disagree,” said the court.

Bennet’s brother

Bennet’s older brother is Michael Bennet, the Democratic U.S. senator from Colorado. Palin’s lawyers said the Times editorial was political “scorekeeping” because two congressmen targeted in the Palin PAC map had endorsed Senator Bennet, and that his editor brother had “a personal connection” to the 2011 Loughner shooting in Arizona through gun-control activities.

Bennet “willfully disregarded the truth,” alleged Palin’s political action committee, by ignoring the link in the editorial mentioning the ABC News article saying “no connection has been made between this graphic and the Arizona shooting.” They insist Bennet knew or should have known that article, contained in the editorial, contradicted the arguments of his editorial.

The appellate court sent the case back to Judge Rakoff. The case, which already took some surprising twists and turns, took another. On Feb. 16, 2022, in a Manhattan federal courtroom, Rakoff invoked Rule 50 of the Federal Rules of Criminal Procedure. He dismissed Palin’s complaint a second time after all the evidence had been heard in a jury trial, but before the jury reached a decision.

Rakoff was concerned, though, that several jurors involuntarily received calls on their cell phones, telling them that the judge dismissed the case, contrary to court instructions to avoid media coverage of the trial. The jurors told a court clerk about getting the calls while they were still deliberating.

Jury’s verdict

Forging ahead, the jury came to its own verdict a day later, agreeing unanimously with the judge that the Times did not libel Palin.

“You decided the facts, I decided the law,” Rakoff told jurors after the verdict. “It turns out they were both in agreement, in this case.”

Palin said she hoped to appeal the verdict to the Supreme Court. But legal experts believe that would be difficult. Under New York law, Palin can’t challenge the jury’s unanimous decision.

Rakoff described the case as “an example of very unfortunate editorializing on the part of the Times,” adding that he was “not at all happy to make this decision” in its favor. “The law sets a very high standard for actual malice, and in this case the court finds that that standard has not been met.”

The assault on the New York Times vs. Sullivan standard failed, this time.

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