The “Old Gray Lady” Versus The Masked Singer: The Times Seeks To Use Palin Music Video in Libel Trial

YouTube

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.”

41 thoughts on “The “Old Gray Lady” Versus The Masked Singer: The Times Seeks To Use Palin Music Video in Libel Trial”

  1. Karen laments:

    “Ethical journalism is dead at NYT.”

    It remains to be seen whether Fox News will join the land of the dead, for Fox is facing its own defamation lawsuits- not for millions of dollars but billions. Allow me to refresh your recollection since Turley mentioned this defamation lawsuit but *once* months ago. He stated:

    “Over at Fox, the network is facing lawsuits by the company Smartmatic as well as a $1.6 billion lawsuit from Dominion Voting Systems over the coverage of allegations of fraud and election tampering made by Trump lawyers. Fox maintains that it was merely covering the allegations while the company insists that hosts went beyond reporting and affirmed the allegations as true. Hosts Maria Bartiromo, Jeanine Pirro and Lou Dobbs are also named as defendants.

    “The Smartmatic lawsuit is far more detailed and comprehensive. However, it is focused on debunking the claims of Trump lawyers like Giuliani and Powell and then accusing Fox hosts of giving unwarranted credibility to the claims in interviews. The complaint cites, for example, this statement by Dobbs after allowing Giuliani to recount his allegations:

    “And Rudy we’re glad you’re on the case and, and pursuing what is the truth and straightening out what is a very complicated and difficult story. And by the way, it’s not only difficult, it has the feeling of a cover up in certain places, you know, putting the servers in foreign countries, private companies, we don’t have transparency with those servers. This is, this is an election nightmare, as well as a battle.”
    In its complaint, the company also cites reports like this one on November 15 from Bartiromo who also interviewed Giuliani. Bartiromo stated “One source says that the key point to understand is that the Smartmatic system has a backdoor that allows it to be [ ] or that allows the votes to be mirrored and monitored, allowing an intervening party a real-time understanding of how many votes will be needed to gain an electoral advantage.” She then showed a graphic, explaining that it was “showing the states where they stopped counting, which I thought was also strange to stop counting in the middle of election night.”

    “Fox insists that she was recounting accurate what the lawyers were arguing and that “To the extent Bartiromo linked Smartmatic and Dominion in her voice-over of the Dominion graphic, she simply misspoke, later clarifying that the graphic referred only to Dominion voting machines.”

    “The company disagrees: “The Fox anchors knew what Giuliani and Powell would say on their shows, asked questions to elicit lies about Smartmatic, and endorsed Giuliani’s and Powell’s investigation. The Fox anchors added their own defamatory comments about Smartmatic for good measure. This was a scripted performance by the Fox anchors, Giuliani, and Powell to defame and disparage Smartmatic for personal gain.”

    “On the day, Project Veritas filed against CNN, Fox responded to Smartmatic’s lawsuit:

    “Smartmatic may be frustrated that it became embroiled in a heated national controversy, but one cannot supply voting technology and expect to avoid the spotlight. Controversy comes with the territory. And it was the President’s allegations, not the press’s coverage of them, that put Smartmatic in the spotlight. Smartmatic’s effort to hold Fox responsible for ensuring that the public understood what the nation’s highest elected official was claiming (and what numerous government agencies were investigating) is a profound threat to the ‘uninhibited, robust, and wide-open’ debate that the First Amendment safeguards.”

    “The different lawsuits will test the leeway afforded media in such coverage. Both networks insist that they were characterizing or summarizing claims. These cases are expected to produce major new precedent on the protections afforded media organizations under the defamation standards.”
    ———————-

    https://jonathanturley.org/2021/04/27/project-veritas-sues-cnn-in-latest-media-defamation-lawsuit/

    It’s not surprising that Turley chose to bury the far more consequential Fox News lawsuits in an article headlined by Project Veritas’ measly lawsuit against CNN. Well played, Turley.

    You will observe that Turley discusses the legal strengths and weaknesses of Palin’s lawsuit against the NYT, but he made no such legal analysis of the Smartmatic and Dominion lawsuits. Instead, he merely quoted the allegations in the Smartmatic complaint and Fox’s answer. Why such short shrift? The only judgment he allowed himself was to note that these defamation lawsuits could establish a new precedent in this area of the law. And yet, despite the expectation that these defamation cases are likely to produce a major new precedent on the protections afforded media organizations under the defamation standards, Turley has not uttered a single word about these consequential Fox lawsuits since acknowledging them on April 27, 2021!

    BEFORE Fox News was sued for promoting Trump’s lawyers alleged defamations, Turley was not reticent in discussing the legal merits of election conspiracy theories by Trump’s legal team:

    “The team alleged a global, Communist-backed conspiracy to “inject” and “change” votes through the use of the Dominion computer system. It was exhausting and breathtaking. I was critical of the press conference as being long on heated rhetoric and short on hard evidence. Dominion issued a statement categorically denying the allegations. The question is whether Dominion itself will now sue. The company denied the allegations but I often measure such denials by whether anyone actually sues. Dominion could do so and force the Trump team to reveal the evidence supporting their allegations or face potentially significant liability. These are not just colorful but criminal allegations against named companies and by implication corporate officials and political allies.

    “Trump campaign counsel repeatedly accused Dominion and its officers of criminal conduct and business improprieties. Those are categories of “per se defamation” under the common law. No special damages must be shown in such per se cases. Individual officers could bring defamation claims and the company itself could bring a business disparagement action.”

    https://jonathanturley.org/2020/11/19/is-dominion-going-to-sue-the-trump-team/

    It was only AFTER his employer Fox was sued did Turley clam-up about these lawsuits….

  2. As much as I admire and respect Professor Turley…..his thought that the NYT’s “Cheap Shot” is anything but typical Media sleaziness makes his best attempt to hold to the high moral ground himself one the makes him look as though he is admiring a Hunter Biden Painting and calling it a genuine Picasso. Professor…..call it for what it is….a very trashy and despicable act by a street walker high on meth shooting insults at the passersby and not anything an Old Gray Lady would remotely consider doing.

    But then….it be some very high paid Lawyers that are making that pitch to the Court isn’t it.

    Neither profession is acclaimed for its collective ethical standards these days.

    1. “.call it for what it is….a very trashy and despicable act by a street walker high on meth shooting insults at the passersby and not anything an Old Gray Lady would remotely consider doing.”

      The old gray lady is pimping for the Democrat Party.

  3. The lawyers for Sandmann, Rittenhouse, Palin, and everyone else damaged by false reporting need to get together to share best practices.

    Sue the snot out of them.

  4. The Times showed reckless disregard for the truth. It tried to assassinate Palin’s character in order to get more Democrats elected. Ethical journalism is dead at NYT.

    I remember when the media pretended that only Republicans used war metaphors in political discourse. It pledged that it would never utter any battle-inspired language in its reporting. These people couldn’t complete a thought about election coverage. They stumbled and apologized over target, sights, war room, battle, take down, eviscerate, cut the knees out from under, battleground, take a shot at, and all the other war like rhetoric in regards to elections. Eventually, instead of admitting that they were wrong, that such language is completely normal and appropriate, their strict self monitoring simply faded away.

    But the damage was done.

    Editorials, opinion pieces, and round table discussion formats are perfectly fine. You expect opinionated discussions. What is not acceptable is rank partisanship with the goal of electing a political party masquerading as straight news.

    The media, Hollywood, most television channels, universities, and the public education system coordinate to give Democrat candidates a tremendous boost in free marketing.

    1. Well said. The dnc, libs and dims control the msm, the rnc cons and repubs control the NON msm. When the dims invited Burnie into the “Party”, and then kicked him to the curb, that should have been the end of brandon, but 84 million voters elected a dolt to be president. THE CITIZENS lost the last election. Power and money corrupt absolutely.

      1. True, but I would not rather have had Bernie, either. We dodged a real bullet on that one. If he had been installed, it would be our current situation x 1000.

  5. It’s very revealing what you’ll find by searching Turley’s archive. Turley is not above defaming and ridiculing a celebrity:

    Turley once had this to say:

    “NewsMax CEO Christopher Ruddy’s cynical and sensational selection of Donald Trump to moderate the next presidential debate has backfired. Ruddy united conservative and liberal commentators and candidates in denouncing him and NewsMax for the obscene idea — with Ron Paul and Jon Hunstman leading the way in immediately refusing to participate in such a circus. Perry, and Romney were the next (rather belatedly) to refuse to participate. Bachmann has now also declined to participate on a program with look of The Apprentice and the dignity of the Jersey Wives. That leaves Santorum and Gingrich who have confirmed that they will appear with a carnival snake charmer to get on TV.”

    https://jonathanturley.org/2011/12/09/newsmax-flames-out-trump-debate-down-to-gingrich-and-santorum/

    I did not say Trump is a “carnival snake charmer.” Professor TURLEY did! His unmitigated contempt for Trump’s moral character is downright palpable by calling his participation in politics an “obscene idea.”

    But Turley didn’t stop there:

    “Perry yesterday respectfully declined the invitation due to other campaign commitments. It was less than honest as the basis for the rejection and certainly less redeeming than the condemnations of Paul and Huntsman for Ruddy’s effort to degrade American politics even more with the use of such an absurd reality television star.”

    We can barely imagine how much more degrading to American politics Turley must have felt when he witnessed this “absurd reality television star” descend his golden escalator to throw his hat in the ring as a presidential contender!

  6. My closing argument to the jury:

    “Unsatisfied by falsely ridiculing Ms. Palin in print, the NYT and their lawyers now seek to do the same in this court using an irrelevant, unflattering video. It seems some bullies never learn. You, ladies and gentlemen of the jury, know exactly how to handle this kind of big law, big corporation abuse of a fellow citizen whose audacity was merely to be on the other side of the political fence of the defendants. Please do your duty for us all.”

    1. Jeff:

      “Turley is not above defaming and ridiculing a celebrity:”
      ******************************
      What you cited (“carnival snake charmer”) is ridicule of a public figure, not defamation of a public figure. I would know having utilized the former in prosecuting the latter. It really helps to define terms, know what you’re talking about and when in doubt kinda letting us wonder about what you think rather than plastering your ignorance all over the place.

      1. Mespo,

        I used the word “defaming” in the colloquial sense as in “damaging the good reputation of someone.” I did not use the legal term of art, “defamation.”

        However, I’ll stand corrected, and I’ll concede that Turley DEBASED Trump instead of DEFAMING him.

    2. Mespo says:

      “It seems some bullies never learn.”

      Not until they suffer legal consequences, that is. Avenatti learned after being sentenced to 2 1/2 years for extortion. Michael Cohen learned after being sentenced to 3 years for tax evasion.

      I wonder what it will take for Trump to get schooled?

  7. i used to love reading the Sunday edition of the Times years ago. Wouldn’t use it to wipe my backside today. I don’t know who their young editors think they are impressing, but it sure isn’t anyone with two brain cells to rub together. It is legitimately sad to me to say i would not be upset if they ceased to be altogether as at one time it really was a good paper.

  8. RDK Comparing character, your character would barley be a pimple on her rear end an just something bad on her shoesole. Why are you Dems so desperate?

  9. I’m trying to understand the relevance of this show to the case at hand. I understand that unlike TV, trials in practice can be quite boring and tedious. While showing old I Dream of Jeannie reruns for example during proceedings may serve to relive some of the monotony if they are not germane I cannot see how it would be admissible.

  10. If I was on that jury, my first thought would likely be, what the heck?
    And then think the NYT must be desperate if this is the kind of evidence they are going to pull.
    Not a good look for them.
    I have to agree with others about the downward fall of the NYT. The same could be said about most MSM.

    1. If I was on that jury, my first thought would likely be, what the heck?

      That was my initial reaction as well. It reminded me of Adam Schiff reading into the congressional record a “parody” of Trump’s call transcript with Zelensky. They (Leftists) must believe that because Americans have become consumers of “Reality TV” shows, that they can influence our perception of reality by treating everything as a reality show. The NYT or those that think like Schiff might be able to “entertain” and influence a small percentage of Americans, but I believe a large percentage have the “what the heck” response to this nonsense.

  11. Hold on. Turley is complaining about the NYT being a bit loose with its reporting?

    “ 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.”

    Fox News does this all the time. Whatever happened to countering bad free speech with good free speech? A cheap shot is still free speech. Funny thing is Turley himself engages in the same kind of journalism he accuses the NYT of.

    Must be a slow news day.

    1. Whatever happened to countering bad free speech with good free speech?

      Try to pick a position and stay with it for, oh, 12 hours?

      You have to answer 2 questions.

      1) are there limits on speech”
      2) are the courts available to those that show they have been harmed by false speech?

  12. Wow. “In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others.” So it is OK for a news publication to lie? It does not matter if someone is hurt? Doxxing comes to mind. It does not matter if the wrong person is identified, address of home and work publicized, ruins that person’s life? It was a mistake “in the exercise of that freedom”. We’re sorry it was hurtful—Where does that correction get posted–right hand corner, second section, page 5, small print—Where no one will see it. IMHO, “In the exercise of that freedom”, media has a responsibility to find the truth before they report on the incident.

  13. In the 1950’s, my parents subscribed to the New York Times. It was back then a reputable journalistic news reporting organization. Someone who reads Turley’s offerings will likely know, perhaps Turley himself, fairly precisely when the Times began its slide, years or decades ago, to what it has become now —- or suitable more for the bottom of your birdcage than as a reputable, reliable journalistic news source — I don’t know when the slide began but it’s clear the slide is nearly complete.

    1. “I don’t know when the slide began . . .”

      In the late-80’s, after the departure of the great Executive Editor, A.M. Rosenthal. He passionately defended objectivity in journalism (e.g., a clear distinction between reporting and editorializing), and held the reporters’ feet to the fire.

    2. I don’t know if you watch or listen to Mark Levin–But from his point of view, NYT was not reputable before WWII. He speaks of how they did not report on the Holocaust and Russian occurrences.

      1. “NYT was not reputable before WWII.”

        That is true, on this or that issue. On many other issues, their reporting was objective (and well-written). And quite often, the comprehensiveness of their reporting was unmatched. The sea change, to being a nonobjective *newspaper*, was not complete until recently.

        What is taught in J-schools (objectivity is dead) eventually makes its way into the practice of journalism.

  14. Typical Lefty logic; the shooting of Scalise (and others) by a Bernie Bro was unfortunate. The lesser actions of Republicans is insurrection.

    But we know that the left lies to further their agenda.

    And it works.

    Just look at the postings of our resident Lefties.

    They are either the works of idiots or of willing deceivers.

  15. Maybe it’s an attempt to show that she has no good character to be defamed. Otherwise, I agree with JT.

Leave a Reply to rixthe1 Cancel reply