We previously discussed a major ruling restoring the defamation lawsuit of Sarah Palin against the New York Times over a false claim related to the shooting of former United States Rep. Gabrielle Giffords. Now, the New York Times is trying to introduce footage of Palin on “The Masked Singer.” The effort to introduce the video would seem to have no probative value and clearly is meant to ridicule Palin.
The case concerns an editorial by the New York Times where it sought to paint Palin and other Republicans as inciting the earlier shooting. The editorial was on the shooting of GOP Rep. Steve Scalise and other members of Congress by James T. Hodgkinson, of Illinois, 66, a liberal activist and Sanders supporter. The Times awkwardly sought to shift the focus back on conservatives. It stated that SarahPAC had posted a graphic that put Giffords in crosshairs before she was shot. It was false but it was enough for the intended spin: “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.”
The editorial was grossly unfair and falsely worded. Indeed, the earlier opinion began with a bang: “Gov. Palin brings this action to hold James Bennet and The Times accountable for defaming her by falsely asserting what they knew to be false: that Gov. Palin was clearly and directly responsible for inciting a mass shooting at a political event in January 2011.”
Now the Times is seeking to introduce the video from “Masked Singer Video – Dancing and Rapping” and “Masked Singer Video – Reveal.”
The disguised Palin is quoted as saying:
“After years of hearing all the phony baloney, I’m sick of everyone not knowing who I really am. This mama bear is coming out of hibernation. Maybe I’ve been a little polarizing, but just like a bear, it’s all been to protect my cubs. Under this mask, I found the courage to come out of my cage, stop hiding and face the world head-on.”
I fail to see any relevancy in this demand by the New York Times and, if anything, it will undermine the credibility of their arguments generally.
Rule 401 states:
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
What fact does this video tend to make more or less probable? The video request seems intended to mock rather than make a material point.
Rule 403 states:
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
This would seem an easy example of evidence having a greater likelihood to produce unfair prejudice and confusing the issues before the jury. It is frankly a cheap shot unworthy of any major publication. It is entirely irrelevant to whether the Times acted with knowing falsity or reckless disregard of the truth in attacking Palin.
That decision rests with U.S. District Court Judge Jed Rakoff, who was previously reversed by the Second Circuit after quickly dismissing Palin’s complaint. He wrote “Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States. In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others.”
He was clearly wrong and hopefully he will now see this demand for what it is: a transparent effort to mock Palin before the jury.
Judge Rakoff did reach a very different conclusion in denying a later summary judgment motion. He declared that “the evidence shows Bennet came up with an angle for the Editorial, ignored the articles brought to his attention that were inconsistent with his angle… and ultimately made the point he set out to make in reckless disregard of the truth.”