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Palin sued the Times and former editorial page editor James Bennet in 2017 over an editorial that incorrectly linked her political rhetoric to a 2011 Arizona mass shooting that left six dead and U.S. Representative Gabby Giffords seriously wounded.
The Times later corrected the editorial.
Jury selection had been scheduled for Jan. 24 but was delayed because Palin tested positive for the coronavirus.
Palin is expected after receiving medical clearance to appear and testify in person at the trial before U.S. District Judge Jed Rakoff in Manhattan.
It is rare for a major media company such as the Times to have to defend its editorial practices before a jury.
The trial comes as some legal scholars recommend revisiting the U.S. Supreme Court’s landmark 1964 decision in New York Times v. Sullivan that made it difficult for public officials to prove defamation.
To win, Palin, 57, must offer clear and convincing evidence that the Times acted with “actual malice,” https://www.reuters.com/article/uk-new-york-times-palin-idUKKBN25O31B meaning it knew the editorial was false or had reckless disregard for the truth.
“The key will be showing how the editorial came together,” said Timothy Zick, a professor and First Amendment specialist at William & Mary Law School. “Essentially, did the Times do its homework before publishing?”
Headlined “America’s Lethal Politics,” the disputed June 14, 2017, editorial was published after a shooting in Alexandria, Virginia in which U.S. Representative Steve Scalise, a member of the House of Representatives Republican leadership, was wounded.
The editorial questioned whether the shooting reflected how vicious American politics had become.
It then said “the link to political incitement was clear” when Jared Lee Loughner opened fire in the 2011 shooting after Palin’s political action committee had circulated a map putting 20 Democrats including Giffords under “stylized cross hairs.”
Bennet had added that language to a draft prepared by a Times colleague. The Times later said its quick correction removing those words reflected its lack of actual malice.
But Palin said the added language fit Bennet’s “preconceived narrative,” including opposition to gun rights advocacy. Bennet has said he did not intend to blame Palin.
The trial is expected to last five days.
Palin is seeking unspecified damages, saying the editorial harmed her reputation. She has signaled she would challenge the Sullivan precedent on appeal if she loses.
Two conservative Supreme Court justices, Clarence Thomas and Neil Gorsuch, have called for reconsidering Sullivan.
Thomas has said little historical evidence https://www.supremecourt.gov/opinions/18pdf/17-1542_ihdk.pdf suggested that the actual malice standard flowed from the original meaning of the U.S. Constitution’s First and 14th Amendments.
Gorsuch has said the standard offered an “ironclad subsidy for the publication of falsehoods” https://www.supremecourt.gov/opinions/20pdf/20-1063_new_gfbi.pdf#page=4 in a landscape increasingly populated by media that can disseminate sensational information with little regard for the truth.
