Former New York Times editor takes stand at trial on Sarah Palin libel suit

The editor who inserted pointed language about “incitement” of violence into a New York Times editorial that drew a libel lawsuit from former Alaska Gov. Sarah Palin testified Tuesday that he had no intention to claim Palin had directly inspired a 2011 shooting that killed six people and left Rep. Gabby Giffords (D-Ariz.) badly wounded.

Former Times editorial page editor James Bennet told a Manhattan federal court jury at the trial on Palin’s suit that, despite her grievances, the impulse behind the June 2017 editorial that the former GOP vice presidential nominee claimed defamed her was actually to confront liberals about the dangers of extreme political rhetoric regardless of its source.

The editorial, titled “America’s Lethal Politics,” was prompted by a shooting at a practice for the congressional Republican baseball team in Alexandria, Va., that gravely wounded Rep. Steve Scalise (R-La.)

“I was really concerned that day,” Bennet recalled. “This didn’t seem like such a big deal anymore. … It seemed like a huge deal that several Republican congressmen had been shot, and I did want to get our readers’ attention to that.”

Palin attorney Shane Vogt did not call attention to the fact that Scalise was the only lawmaker shot that day, although other House members dove for cover and at least three other people were wounded.

However, moments after Bennet took the stand for the first time in the trial, Vogt suggested that the former editor insisted on sharpening a draft of the editorial — even if doing so came at Palin’s expense.

“Would it be fair to say that you were determined to use the word incitement in the ‘America’s Lethal Politics’ editorial?” Vogt asked.

“No,” Bennet said calmly.

Judge Jed Rakoff has twice read jurors a dictionary definition of incitement, but Bennet said his experience covering the Israeli-Palestinian conflict as a Jerusalem correspondent for the Times left him with a sense of the term as covering any sort of incendiary rhetoric or media.

“It’s used on both sides in that conflict to basically describe all sorts of communications that teach people to treat each other as enemies and, in some cases as less than human,” Bennet said.

However, the former Times editor also conceded he would not be surprised if some Times readers subscribed to the dictionary definition.

On the same night the editorial was published, Times columnist Ross Douthat emailed Bennet to flag that no link had ever been found between a map from Palin’s political action committee and the 2011 shooting carried out by Jared Loughner, a mentally ill Arizona man who pleaded guilty to the rampage. Bennet said Douthat’s message came as a surprise because the editorial was never intended to claim such a link.

“That is not the message we intended to send,” Bennet said. “I recognized that people were interpreting it that way.”

The former Times editor also said under questioning that one reason the disputed passages were not flagged sooner was that the original drafter of the editorial, Elizabeth Williamson, did not carefully read the final copy after it was sent to her by email twice in a process Times staffers call “playback.”

“This is my fault, right? 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,” Bennet said. “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.”

Williamsonsaid in testimony last week that she regretted not looking more closely at that version. “I did not read it thoroughly,” she told the jury on Friday. “In retrospect, I wish I had.”

Largely at Bennet’s urging, the Times wound up issuing two corrections to the editorial within hours. One withdrew a claim that the 2011 shooting was inspired by the Palin PAC’s political targeting map. The other made clear that what appeared to be gunsights on that map were placed over the districts of House members the group was targeting for defeat, not over photos of the members themselves.

The Times also softened the word “incitement,” faulting instead heated political “rhetoric.”

Despite the corrections and wording changes, Palin filed suit over the editorial about two weeks later, seeking compensation for alleged damage to her reputation and demanding punitive damages over the Times’ conduct.

Jurors heard at least twice on Tuesday that Bennet is no longer in his former job at the Times, but have not been told why. Heresigned under pressure in June 2020, after a group of Times staffers and many liberal readers of the newspaper denounced his decision to run an op-ed in which Sen. Tom Cotton (R-Ark.) advocated for the use of national guard troops to combat violence arising from some Black Lives Matter protests that followed the murder of Black motorist George Floyd by Minneapolis police.

It is unclear what role, if any, the imbroglio stemming from the Palin-related editorial played in Bennet’s abrupt exit from the Times.

As the court session ended on Tuesday afternoon, Vogt cited a highly laudatory personnel review Bennet got for his work in 2017, when the editorial in dispute was published. The Palin attorney also asked Bennet whether he’d ever been disciplined over the editorial. The former Times editor said he had not, but he also said he offered an apology to the Times’ board over the episode and took responsibility for it.

“I don’t know if that qualifies as a reprimand … but it felt like one,” he said.

Jurors also heard testimony on Tuesday about several Times policies that have arguably complicated the case, including one against apologizing for corrections. Bennet said that was in part because constant apologies for corrections would seem meaningless. Nevertheless, Bennet and the Times issued a statement to CNN expressing regret to readers about the episode.

Vogt asked Bennet whether he’d ever apologized to Palin over the editorial.

“My hope is, as a consequence of this process, now I have,” the former Times editor said. “I went home that night thinking that I made a pretty full apology to the governor, and I guess my hope is that that’s now reached her.”

Palin, who has been seated between her attorneys in the courtroom since the trial opened last week, is expected to testify as soon as Wednesday.

To prevail in the civil suit, the former Alaska governor and 2008 vice presidential nominee must show that the Times or Bennet acted with “actual malice,” meaning they either knew the claims in the editorial were false at the time it was published or they recklessly disregarded indications the assertions were false. Palin’s attorneys hoped to use the suit as a vehicle to challenge the federal “actual malice” standard for defamation cases involving public figures, but it now seems a poor vehicle to do so because New York has independently adopted that rule.

Before Bennet took the stand, a former editor at the Times’ editorial section, Linda Cohn, continued her testimony about the editing of the editorial that led to the suit.

Cohn said she had concerns that language in the editorial implied that political figures on the left and right were both engaged in violent rhetoric, when there was little sign of that on the left. On the evening the editorial was being drafted, she inserted a question in a Times computer system: “Does this graf imply equivalence?”

“There was this idea, it was like, the left and the right, they’re the same,” Cohn testified, under questioning by Palin attorney Ken Turkel. She said she couldn’t think of any politician on the left using violent rhetoric, although she did think about comedian Kathy Griffin’s controversial pose with a mask doctored to look like a severed, bloody head of then-President Donald Trump.

Cohn also said she did not interpret language in the editorial about “incitement” as suggesting that there was a direct, causal link between political rhetoric and outbursts of violence.

“I never thought of the word incite to mean it was giving orders or telling someone to do something,” she said. “Incitement is more just rhetoric you put out there. It’s very different than saying you instigated something.”

Palin’s attorneys have argued that Bennet’s insertion of language about “incitement” into the editorial conveyed something closer to the legal meaning of the word, but Cohn said that wasn’t her impression of what the editorial was trying to say.

“To me, the link was this sort of confluence of things going on. We had the quickly rising temperature of political rhetoric in the country, a lot more demonization of opponents. Things got very ugly,” Cohn said. “I think we were just thinking more generally about how these things sort of boil up and affect the whole culture.”

Rakoff pressed Cohn further on that point, reading a dictionary definition of “incite” to the jury for a second time, and asking the editor whether she agreed with it.

“I would think of it more as stir up,” she said. “I actually think you can have rhetoric that you would call incitement even if nothing happened afterwards. I would say language aimed to stir up or arouse.”

Palin’s lawyers have suggested that the Times left Palin’s name out of corrections to the editorial because Times staffers wanted to saddle the former Alaska governor with the derogatory implications of the original editorial.

However, Cohn testified that Palin’s name was omitted from the main correction because of Times policy against repeating errors. Cohn also said she felt an impulse to avoid impugning Palin, but the former editor also seemed to concede in passing that the original editorial had done just that.

“We were very concerned about this correction,” Cohn said. ”I said … maybe it would be more gracious not to have her name in proximity, in the same sentence, with this horrific shooting again.”

The Times editor conceded later, though, that Palin’s name remained in the body of the editorial online even after the corrections were added.

As the trial entered its fourth day on Tuesday, Rakoff warned jurors at the Times’ request to disregard out-of-court comments about the case. The judge’s warning followed a Times lawyer’s complaint that jurors were in a courthouse hallway Monday as an onlooker at the trial made a comment to Palin, expressing a wish that she prevail over the storied newspaper in the case.

“When you’re out in the hallway or leaving the courthouse, it’s possible you may hear someone say something about the case and, of course, that’s not evidence. It’s irrelevant. You should totally disregard it,” Rakoff said. “I can’t control what some member of the public might say in your presence.”

Rakoff also said that, as the trial continues, he plans to hold participants and observers in the courtroom briefly when court recesses. That should reduce the chance for unexpected encounters between jurors and others involved in or attending the trial, he said.

Before testimony began on Tuesday, Rakoff rejected a bid by Palin’s attorneys to ask Bennet whether he maligned Palin as an act of political retribution on behalf of his brother, Sen. Michael Bennet (D-Colo.). Palin’s lawyers noted that two of those members of Congress targeted in the Palin PAC’s map had endorsed Senator Bennet.

Rakoff, an appointee of President Bill Clinton, tossed out Palin’s suit after a hearing in which Bennet testified in 2017. However, a federal appeals court rejected that procedure and reinstated the case.

When the 2nd U.S. Circuit Court of Appeals issued its decision in 2019, the panel said that the Bennets’ family ties were a plausible motivation for the Times editorial.

During his opening statement for Palin last week, Vogt told jurors the editorial was an exercise in political “scorekeeping.”

However, Rakoff said on Tuesday that Palin’s attorneys failed to produce any evidence beyond speculation that the Times editor acted for his senator-brother, so questioning on that issue would not be allowed.