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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. We talked on the show last week about former Alaska governor and Republican vice presidential nominee Sarah Palin dining outside and dining inside at a restaurant in Manhattan after testing positive for COVID here. Now, we'll talk about the reason Palin is in New York in the first place, the libel suit she has brought against The New York Times. It was supposed to begin last week.

The judge in the case put it off until later this week because of two positive COVID tests of Palin, the second one last Monday. Gothamist Jake Offenhartz saw her dining out in the city on Wednesday. The judge noted that Palin is also unvaccinated. She has said that she would take the vaccine only "over my dead body". Now, we'll look at the case itself with NPR media correspondent David Folkenflik, who is also author of the book, Murdoch's World: The Last of the Old Media Empires. David, always good to have you on the show. Welcome back to WNYC.

David Folkenflik: Brian Lehrer, lovely to be with you.

Brian Lehrer: Not to dwell on the COVID issue, but the judge delayed the case until Thursday of this week, which would be 10 days after the last known positive test of Sarah Palin at that time. Do you have any further word on her COVID status and if the trial will be able to begin on Thursday?

David Folkenflik: I don't. There's been every expectation that it would proceed as planned. I think Rakoff was setting a brisk but very realistic timeframe.

Brian Lehrer: Judge Rakoff.

David Folkenflik: I think this is what both sides felt was pretty reasonable approach.

Brian Lehrer: On the case itself, tou reported there is no argument or ambiguity about the fact. What The Times originally published was wrong. What did they publish that was wrong for people who haven't heard anything about this case?

David Folkenflik: This was an editorial published in June of 2017. It was occasioned by the quite critical grave shooting of a very senior House Republican named Steve Scalise at a congressional baseball practice in Washington or outside Washington, I should say, and others were injured as well. The editorial board wanted to whip something up to talk about gun violence and talk about political rhetoric.

What happened was that there was an allusion to the shooting some user years earlier, six years earlier, of then Congresswoman Gabby Giffords, a Democrat from Arizona, in Tucson, in which she was very gravely wounded. Six were killed. I think I want to say it was a dozen other people were also injured in that this mass shooting there, and that it was tied to something sent out by Sarah Palin's political action committee in this editorial that basically made it sound as though the pictures of Democratic lawmakers were put under gun sights as we're taking aim at you.

The idea was that the shooter was somehow directly tied to this. In fact, the editorial said that the connection is clear. That's not the precise wording, but that was what they conveyed very clearly. In fact, that wasn't clear. In fact, the congressional districts were put under little symbolic representation of guns sites that you might use if you were looking to shoot at a target, but that nobody's picture was and nobody's name was. That was not a clear connection.

In fact, there was no clarity that the shooter who had what was clearly determined mental illness issues, there was no clarity that he had any awareness of what had been posted and sent around by Sarah Palin's political action committee. The idea of linking the former governor to that deadly act seemed tenuous, even as the effort by the editorial page editor James Bennett to make a point about the increasingly heated, increasingly violent political rhetoric in American life is a valid one to explore.

Brian Lehrer: One of the facts in the case that you report on is that The Time's opinion editor at the time, James Bennett, added passages to the original draft of the editorial by someone else to make it more sweeping. What was the intent of and some of the language there that plays into this case?

David Folkenflik: Well, the connection wasn't nearly as clear cut in the original draft by the writer Elizabeth Williamson, and James Bennett has been brought in the year before by A.G. Sulzberger, the publisher. Bennett wanted to make it more sweet, but he wanted something to be clear. He didn't feel that the article or the editorial as originally drafted was making the point in the way that he needed to do.

It seems if you read the original editorial as well as what's left after they had to correct it, that there was a desire to make clear that there was dangers on rhetoric on all sides. Of course, this was a moment at which somebody who had been identified as a Bernie Sanders, a supporter, or somebody significantly to American left had been the shooter. There have been a lot of Steve Scalise, a conservative Republican, somebody who had been outraged by the dawn of the Trump years in Washington.

This was a time in which a lot of liberals had been saying this stuff had been occasioned by the political right. This article was saying all of the political rhetoric that is so incendiary and so overheated is really to blame for creating a climate in which violence is more likely to ensue. James Bennett wanted to clarify these points by making it as taut and as tight as he could, but he clearly ended up inserting things that overstepped what the facts showed and overstep the bounds of ultimately fairness. This is, of course, the core of Sarah Palin's argument.

Brian Lehrer: Bernie Sanders always calls for a political revolution. He always makes sure to add the word political in there. Political revolution. Palin's political action committee had that image of a target as if in the sights of a gun, but over these congressional districts, like a map, not over the faces of the individual members of Congress. That's the more factual starting point, and The Times editorial went beyond that. You report though that The Times revise the editorials and tweeted an austere apology, but did not mention Pailin by name. A few days later, she filed this suit. What do you mean by austere apology? What did they do?

David Folkenflik: They basically apologized for certain language in the editorial that overstated the connections there. It was posted late at night on the night of the shooting, and then they realized quickly something went awry. They started getting push back online. Ross Douthat, the conservative Times columnist got in contact with Bennett, I believe, late that very night and said "I don't think you guys have your facts right here." Bennett reaches out in early morning hours to Williamson, and they end up talking first thing in the morning.

Some of the exchanges that you can see in the exhibits attached to the court file show that they end up talking back and forth about eight o'clock in the morning. They do an initial correction and then they do a more thorough one later in the day, but there's not an apology per se saying, we apologize to Governor Palin.

If you look at corrections and even editor's notes in The Times, I think there's almost never an actual explicit apology. It appears as though their approach suggests that the correction is the apology effectively. I'm not sure that's something that readers or the subject to those stories always fully appreciate. They did do corrections in a relatively quick time. For the number of hours that it went uncorrected, most of those were sleeping hours.

In the early morning hours, and the back and forth between Bennett and Williamson, that is the editor who inserted the errors, and Williamson who originally drafted, seems to convey in his private communications, he's pretty anguished about it, and so is she, and they both feel bad about it. She says ultimately, "Oh, my gosh, this is my fault. I should have read the edits and revisions more carefully." Bennett says, "No. This is on me." It's essentially a joint effort here, but he said, "This is on me." He said, "I was rushing and I should have been more careful." He said, "I just need to understand what the facts are so we can correct this properly." Which doesn't sound like somebody who has a personal animus or an ideological motivation to go get someone, which of course, is at the heart also of what Sarah Palin is arguing and very much comes into play when you think about what the legal hurdles are that her lawyers have to say.

Brian Lehrer: Let's get to those legal hurdles. Listeners, if you're just joining us, we're talking about Sarah Palin's libel case against the New York Times. That trial was expected to open in court here in New York on Thursday. With David Folkenflik, NPR media correspondent, we can take some phone calls on this.

Anybody ever been on either side of a libel case or anybody with a question about the place of libel law in this country or any other country with a free press? 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer. You write that despite The Times' mistakes, which you've just been going over in detail, Palin has a high bar to meet in court. What is that bar?

David Folkenflik: I know a little something about this, not only having covered the media for how many years it's been now, Brian, but I've been sued twice for defamation myself. So far, we haven't retracted a single syllable. This is an incredibly dramatic thing. If you remember, Palin prior to Trump, she was the great lodestar of anti-media rhetoric in the Republican Party, she always called the media, the lamestream media, she'd go after them, take it to them. The fact that she's getting her day in court against The Times is going to offer some real courtroom drama.

The bar that we're talking about here is a phrase called actual malice, which was set in a case in 1964 Supreme Court decision involving the New York Times and involving a figure in the deep south, a law enforcement official who had taken issue with not something covered in The Times but something that The Times had published in a paid advertisement from civil rights leaders. There was a few factual errors. The question was whether this could be used to sue for defamation and for libel.

In this case, the actual malice means either that James Bennett effectively, because that's who they're focusing on, knew that what he was publishing was wrong, or recklessly disregarded information that could have shed light on whether that claims were actually true. It is also worth pointing out that, obviously, the Gabby Giffords in Tucson deadly shooting had happened six years prior to the Scalise shooting that The Times was writing about. Bennett rush, essentially his people, to get something on the same day, same night, online, and the next day. It's not clear to me why that was so necessary.

The Times and other news outlets had previously reported that the question of whether the Palin political action mailings were linked to the Tucson shooting and had essentially said there's no proof to support that whatsoever. In a sense, if you're looking at the archives, you should be able to figure out, is there any truth to that? There was not. This was, in the words of David McCraw, The Times Deputy General, The Times will argue this was an honest mistake, not an exhibit of actual malice, and that is the legal definition of that bar.

The judge, in this case, a federal judge, very distinguished Jed Rakoff, he initially dismissed the suit, saying she hadn't adequately made her case. She appealed, the appellate court said the way in which Rakoff made that judgment was so unusual as to not be appropriate. They said, "Take another look." He said, "The case can move forward." It's real tough to defame a public official or public figure. That 1964 Supreme Court ruling created this actual malice hurdle because they said, "Look, we have to honor the constitutional desire for there to be a full and robust coverage, discussion, scrutiny of our public officials, people who have authority in our name."

Sometimes that means that people will get things a little wrong or be a bit unfair. We have to have some breathing room, some running room for that. Palin had been out of office for some years, but still a public figure, still sometimes commenting on public life. Where does this fall? A lot of this is going to be determined by the jurors.

That's the danger for the New York Times here is not that it's a slam dunk case for Palin. Actually, it looks like a tough case for Palin in a lot of ways, given how quickly they corrected things and given how contrite they seemed to be in there not public, but their private conversations about this. It didn't seem to reflect that we found a desire to harm her and say, "Let's take Palin down using this, ignore the facts, and press on." You have jurors in that box, human beings who bring their own perspectives to it, and that is apparel for The Times, and by extension, could be for the broader press.

Brian Lehrer: I guess one question that might be pertinent here is what constitutes actual malice under the law? You're not a lawyer, you're a media correspondent, but would they argue? Do you think they could argue? Do you know if history suggests they would win an argument that goes something like, "No, they didn't purposely make up false facts to harm Sarah Palin, but they had enough general malice toward her politics, that they may have been biased, and that predisposition to see Sarah Palin negatively could have led to this rushing out in editorial presuming that more damning facts were true than were actually true, even if the evidence shows that ultimately it was an honest mistake"?

David Folkenflik: I've little doubt. I don't want to predict anything, but I've little doubt that Palin’s lawyers will use The Times' previous editorial criticism of the former governor as a way of going to try to prove that somehow he's motivated. They already tried to raise, for example, the fact that when Bennett was the head of The Atlantic Magazine, that a blog that they ran, Daily Dish from Andrew Sullivan in I think it was 2010, years earlier, was writing these very speculative blog posts about the circumstances in which Sarah Palin's youngest child was born in ways that seemed to me, this is just me, David Folkenflik media critic and private citizen, but pretty contemptible. I think the birth of a child is the birth of a child and should be recognized as such, whether or not you have fascination with, antipathy toward, affection for, or indifference towards that public figure.

He went on and on indulging speculation about certain conspiracy theories, basically, certain wild speculation about why that happened. These weren't enormously long posts, but they tried to use that here. The judge didn't seem too inclined to include that. Palin’s attorneys also want to try to or tried to bring in the circumstances under which James Bennett was forced out in 2020, which happened after he published an editorial from Republican Senator Tom Cotton of Arkansas, who was essentially advocating for President Trump to call in the National Guard to put down these social justice protests that had sprung up in cities across the country in late spring 2020. That essentially unraveled Bennett standing there.

This instance and lawsuit by Palin also undermined Bennett at The Times, but The Times' lawyers argued successfully, "Hey, look, that happened three years after the editorial in question. You can't use what happened then as an impetus for what happened three years prior." Furthermore, this is not a case about journalistic sensibilities. This is not a case about judgment calls, and whether or not he was right or wrong to publish an editorial years later at the nature of The Times newsroom. This is about whether or not Sarah Palin's attorneys can meet a legal standard. Those are two separate things.

Even as Sarah Palin's lawyers are saying, "Let's send a message to the media here." They're essentially saying that explicitly. So far, she's finding it very hard to prove any or has not presented any real evidence of actual harm done in terms of her career or finances. She's asking for punitive damages to basically, I think, be a hammer blow to The Times. That's what she’s likely seeking in court.

Brian Lehrer: Is something larger at stake here in your opinion, or according to sources you interview, journalistic freedom in any meaningful sense or anything like that?

David Folkenflik: I think there are a couple things here, one of which is, the New York's Southern District is a very influential federal court. One of the things I realized being sued myself was that these are applied under state laws because there is no federal law of defamation. When there are federal actions, that is federal lawsuits filed and they're found to have reasonable jurisdiction, federal judges apply it, Rakoff, very distinguished judge. If this case were to go and she were to-- in the absence of very new evidence being uncovered on these grounds be able to make the case that this constitutes actual malice and that there should be punitive damages assigned, it will send a message that you have to be more circumspect in how you criticize and condemn public officials and significantly public figures in the public realm.

While I think The Times itself would privately, after this lawsuit is resolved, acknowledge that it needed to behave differently. In fact, The Times has acknowledged this was a mistake, and it was wrong. It was wrong. It wasn't fair, and it was wrong. The question of something being wrong and corrected is a part of, journalists would argue, a part of the mortal endeavor of journalism. It is imperfect. There are people doing it, it is not going to be 100%.

There has to be room for some things being inaccurate, and some room for remedies. The Times had never corrected this. You might think that there'd be a pretty strong case here because there would be a willful indifference after the fact even whether the claims were true or not. That isn't the case. The Times corrected it in less than a day and did a fuller correction, I think in less than a day as well.

I think that there are a lot of media lawyers who are concerned that this has gotten to trial because both the financial damages can get pretty hairy for them once you're in front of the jury. I think it creates running room and breathing space not for the journalism that is afforded on the First Amendment, but for people to challenge journalists, tie them up in court in exceptionally expensive and lengthy proceedings.

As the Times noted, this has already been going on for four and a half years. They didn't really want this delayed for Palin's COVID assessment, but they went along with it. I think that there are concerns from folks that this has some real serious implications, even if most media lawyers think on the merits, this should have a very tough time of prevailing.

Brian Lehrer: If you're just joining us, we're talking about Sarah Palin's libel case against The New York Times. That case is supposed to commence in court this Thursday, here in New York, David Folkenflik, NPR media correspondent. Before we finish, I'm going to ask David to touch on another media story that's very much in the news.

Today, Neil Young and Joni Mitchell pulling their music off Spotify because Spotify wouldn't do anything about COVID disinformation on Joe Rogan's popular podcast, also distributed by Spotify. There are some developments in that story today, and we're going to get to them. Before we finish up on Sarah Palin versus the New York Times, Mark in New Rochelle, you're on WNYC. A retired lawyer, I see. Oh, no, that's a different caller. I apologize. Mike, you're on WNYC. Hello.

Mike: Hi. Can you hear me?

Brian Lehrer: I can.

Mike: Oh, great. Yes, I was just wondering, at the end of the day, what say this case goes to Sarah Palin, who is affected more at the end of the day, the liberal media, or the conservative media? Who tells the most lies, and who tells the biggest lies?

Brian Lehrer: With the most malice of forethought? That's an interesting question. Do you hear people concerned about the political ramifications of media banned from one side or the other kind of debating who loses here more if the case goes one way or another?

David Folkenflik: Well, let's look at it this way. Sarah Palin twice worked for Fox News as a commentator. She was let go more than a year and a half before this editorial came out, so that didn't have any effect on her career at Fox, but Fox had championed her over the years and few corporate entities are probably rooting harder for The New York Times in this than Fox News.

Why is that? Well, Fox News media is currently subject to twin defamation suits by these election tech companies that allege that Fox defamed them, among other right-wing outlets, but particularly Fox. These lawsuits combined to be, I believe, more than $4 billion. Fox News is facing so far, a little bit of a tough sledding in court, at least one of the big suits have been allowed to proceed ahead to discovery, which means that they are going to get evidence from emails presumably, from texts, or from things that were cut and didn't make it to air. They're going to be able to take depositions.

These are things that Fox very much doesn't want to have happened because Fox likes to skate back and forth between being a news organization, which it is, but isn't the point of its enterprise and propagating the kind of red meat opinions that will serve its audiences and keep them stable even after its new site acknowledged then President Trump's defeat in November of 2020.

Cases like this could make it easier for plaintiffs to find sympathetic hearings from judges and from juries in a way that could make it a lot harder for Fox to do what it does. It could be that defamation suits become an approach to trying to snap back at major sources of defamatory claims, misinformation, and disparaging information.

The question is not just on the right and left, but more broadly, what will news organizations confront if they're running room to pursue hard truths and rough claims is narrowed. What does that do for us as Americans in terms of having a robust political debate, and also having the information we need to evaluate people who act in our name as public officials or seek to join their ranks?

Brian Lehrer: Mark in New Rochelle, you asked a great question, because now I think we buried the lead in the whole segment, which could be David Folkenflik says, "Fox News would really like Sarah Palin to lose her libel suit against The New York Times," in his opinion. One more question from Twitter, and then we're going to talk for a minute about the Spotify case; Neil Young, Joni Mitchell, Joe Rogan. Listener asks, let's see. Just popped off my screen. Oh, there it is. Does David Folkenflik know who might be financing the Palin against The Times?

David Folkenflik: This is a great question because a lot of these lawsuits against media outlets, including possibly my own, one wonders where the money comes to finance them. There have been actors in ideological realms that support such lawsuits in certain times. Sometimes those come to light, sometimes they don't.

So far, we don't know, she may be financing it herself. It is possible, there are times where lawyers take such things on contingency. If they think they're going to get millions or potentially tens of millions of dollars, they may feel it's worth their while to some extent to absorb the cost themselves, and then take a greater share of the winnings should they prevail, but that's a question that looms over this trial as well, for sure.

Brian Lehrer: Before you go, have you reported at all? I haven't seen it. If you did, maybe you're just following it and haven't gone to air with it yet. On Neil Young and Joni Mitchell pulling their music off Spotify, because Spotify wouldn't do anything about COVID disinformation on Joe Rogan's popular podcast. Now, I see Spotify might be changing its policy in some way. Rogan is saying something about striving to be more balanced. What's the issue there and what's the latest?

David Folkenflik: Joe Rogan is, as I understand it, one of the or the most downloaded podcast in America and the world. He's a former comic. I remember him from the great sitcom NewsRadio. He's become a guy who explores issues through talking to buddies and talking to other people. That's well and good. Well, during the Coronavirus, he's been talking to people who have opinions about the virus and about masks and about the vaccine and about the pandemic generally. He likes talking to people who spark controversy and who cut against the grain.

While that can be appealing and sounds appealing, sometimes that means he brings people in who are well-credentialed in the medical field and have some knowledge of these things or cutting against the grain of 90%, 95% plus of people in the realms of, say, epidemiology and public health, and public officials at a time where what the public hears and what the public believes to be the case is very much affecting not only their own circumstances but those of their own communities. That's something that's often lost in the idea of public health is not about just simply personal health and personal medicine and practices, it's about what happens to those around you. [crosstalk]

Brian Lehrer: Go ahead.

David Folkenflik: I apologize, but at the same time, Rogan has been accused of being one of the biggest spreaders of misinformation about the pandemic in the country, and there's been increasing pressure. As you mentioned, Joni Mitchell, Neil Young, some others, have removed their music from Spotify.

As just a brief full disclosure, my wife, the founder of a podcast company and because Spotify is so big in the audio space, they've done some business with Spotify, so I should acknowledge that. Spotify has come under increasing pressure, and they're concerned about their stock, they're concerned making sure that subscribers don't peel away on this. There appears to be an effort to say that they are going to label certain kinds of shows and streams that have information that is disputed and try to steer people to other, shall we say authenticated sources of information. Rogan posted a nine-plus minute thing to Instagram today, a video in which he didn't exactly apologize, but said he wanted to do better, that he agreed with Spotify's decision to put a label on what he says or controversial podcasts, and that he wanted to bring on other guests to-- it sounded like he was saying compliment, but in a sense, he's really saying rebut the outliers that he brings on to offer alternative views. He has, to be fair, brought on people like Sanjay Gupta, CNN's chief medical correspondent, a guy who was considered by Obama to be surgeon general, and somebody who is very much dedicated himself during this national health crisis to get authoritative information out there.

There are two complicated things, if you'll indulge me for just one sec, Brian, about this. One of which is that Rogan is not wrong in that some things that were asserted as absolute truths have come under some challenge. For example, I did a story a few months ago saying that I thought the media had been too quick and too severe in shutting down conversation or commentary or exploration of the possibility that the virus was leaked from a lab, as opposed to merely exploded from the sale of wet animals at a food market--

Brian Lehrer: In China. Yes.

David Folkenflik: That public health officials have grudgingly acknowledged that it's not clear and that is possible if unlikely. There are other things along the way that we're initially knocked down. We couldn't get or transmit the disease once we were vaccinated. Well, now certainly, during Omicron, we know we can, but there are a couple of things there. First off, our knowledge changes. Secondly, some of these variants means that the disease itself, the nature of it changes and that public health communications and authoritative media coverage have to adapt to that.

The second element of this is that Rogan is not perfectly placed to rebut these guys. He's a more interesting figure than I think his critics sometimes acknowledge, but he does say things that are not only offensive at times, and there, he'll point his past as a comic, but also he just doesn't seem to register that certain things are hurtful or problematic until later, but he's not the guy I would look to. It's not like he's Ted Coppel, teasing these things apart.

Spotify itself is not a news organization. Even though Rogan is incredibly powerful, it's a little different than when Tucker Carlson does this, perhaps to an even more extreme extent on his show basically eviscerating people trying to bring authoritative and validated and replicable studies and information to the fore, because Carlson has the imprimatur of a news organization associated with it. Rogan doesn't, it's his own show, and people watching Rogan aren't going to turn to, what can I say, to just watch hours of CDC briefings instead of Rogan Show, they're turning to Rogan because they like what he has to say. Spotify is trying to manage this belatedly and hasn't done a great job at doing that, and I think that's what we're seeing play out right now.

Brian Lehrer: Last question, and we have just 30 seconds. This ties both our conversations together. If someone, even a former vice presidential candidate, were to take demonstrably false medical advice that they got on Joe Rogan Show or on Tucker Carlson Show and get sick as a result, would that be cause for a libel suit?

David Folkenflik: I don't think that you could-- libel and defamation wouldn't cover that tort that, that legal wrong, but there are those who are seeking new and novel ways to hold what they believe to be bad actors in the so-called media space accountable. You're seeing folks do that including, for example, the survivors of mass shootings against Alex Jones who spins one terrible conspiracy theory after another. There are ways in which as Wilder claims on the media get greater birth, I think you're going to see greater legal challenges them. The question in something like the Palin cases, does it apply to mainstream media organizations, even when they are proving fallible as opposed to proving vindictive or malevolent.

Brian Lehrer: NPR media correspondent, David Folkenflik, also the author of Murdoch's World: The Last of the Old Media Empires. David, thank you so much.

David Folkenflik: You bet.

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