Does the “Gray Lady” have a “longstanding Jewish problem“?
That question may soon be answered in a Manhattan courtroom as the New York Times stands accused of an alleged attack piece on Israel. This week, Israeli Prime Minister Benjamin Netanyahu announced that he would sue the paper and columnist Nicholas Kristof for defamation over the publication of what he called a “blood libel.”
The latest controversy emerged after the Times ran a Kristof column alleging widespread sexual abuse and torture of Palestinians, including the use of dogs to rape prisoners. The government denounced the column as “one of the most hideous and distorted lies ever published against the State of Israel in the modern press.”
The Israelis allege that the column was intentionally posted ahead of the release of an independent Israeli report that found Hamas had systematically used sexual violence in the onslaught of October 7, 2023.
It is unclear whether the lawsuit will be filed on behalf of individuals, groups, or the nation as a whole. Regardless of the framing, the defamation action could allow Israel to delve into the paper’s journalistic practices and alleged bias.
Under the higher “actual malice standard,” Israeli counsel would likely need to prove that Kristof and the Times acted with knowledge of the allegation’s falsity or in reckless disregard of the truth.
The Times has been accused of such malice for years. A newspaper with an overwhelmingly Democratic and liberal readership, critics have accused the paper of pandering to its increasingly anti-Israeli base.
According to recent polls, two-thirds of Democrats (67%) now support Palestinians over Israel (17%).
The newspaper has been repeatedly called out for slanted and sometimes false reporting on the Israeli-Palestinian conflicts. For example, after Israel attacked Gaza in response to the October 7th massacre, the Times reported on an alleged Israeli strike that destroyed part of the Al-Ahli hospital. The Times seemed to rush to get the allegation into print, with little supporting evidence.
The story was based on sources associated with the terrorist group Hamas, which is notorious for disseminating propaganda and false stories. It took a week before the Times retracted the claim. (It turned out to be a misfired Palestinian rocket that hit a parking lot).
The Times has been forced to make a series of retractions and apologies for such coverage. After the newspaper ran a column that it later admitted was antisemitic, Times columnist Bret Stephens wrote that “The Times has a longstanding Jewish problem … continuing into the present day in the form of intensely adversarial coverage of Israel.”
In May 2021, a front-page story contained multiple factual errors and biased elements, including the portrayal of a Hamas militant as a civilian child. It also used a stock image of a girl to claim that she was a dead Palestinian child.
The Times also claimed that, in a later retracted statement, most of the dead from airstrikes in Gaza were civilians.
The Times has had to sever ties with antisemitic writers, or stringers, including one who said “the Jews are sons of the dogs, and I am in favor of killing them and burning them like Hitler did to them.”
These past controversies are potentially admissible in a defamation trial to show malice and a history of reckless reporting about Israel.
Critics allege that Kristof’s column was also based on dubious sources connected to Hamas.
The Times only names a few of the 14 individuals claiming to have been raped or otherwise sexually assaulted by Israeli settlers or members of the security forces. However, Israel has pointed out that several have changed their accounts over time.
Moreover, the Times is relying on sources such as Euro-Med Human Rights Monitor, a group with a controversial history of false claims and ties to Hamas. This group has been criticized for allegedly spreading the false story that Israel was harvesting dead Palestinians for human organs.
A trial could get to the truth of the matter, and the Times will be able to make its case.
But one argument the publication can’t make it that it was an opinion, a common defense in defamation cases. Kristof was stating a “fact” and the Times reaffirmed his factual reporting.
The case will not be easy. The biggest problem with a defamation claim is that “blood libel” sounds a lot like a “group libel.”
Such lawsuits are very difficult to maintain outside of small, readily identifiable groups. In Neiman-Marcus v. Lait (1952), a New York federal district court found that a defamatory statement about 382 saleswomen was still too large a group to maintain an action. With regard to another statement, it found 25 salesmen could sue.
Nevertheless, various groups have attempted to bring such group claims. China claimed defamation over the claim that COVID-19 was released from its Wuhan Lab. It went nowhere.
The Chinese American Civil Rights Coalition similarly filed a defamation lawsuit over references to COVID-19 as Kung Flu. It was quickly dismissed.
Foreign leaders continue to look to the United States for such legal vindication. The most serious lawsuits are brought on behalf of individuals such as Brigitte Macron, the First Lady of France. She is suing commentator Candace Owens over claims that she is a biological male. Macron prevailed earlier in France in a separate action.
The strongest claim for Israel would be to focus on individuals associated with the underlying claims in Israel, from settlers to soldiers.
The commission of a war crime would constitute a “per se” category of common law defamation. Even if the case had to be proven “per quod” (or with reliance on extrinsic facts), it would be easier than a group libel claim.
The Times clearly has the advantage in such litigation in New York. The driving force behind the lawsuit may not be a verdict but discovery. Israel wants to put the Times under a spotlight and expose its methods and sources.
The Times stressed that it has “on-the-record accounts,” but the constitutional standard is not satisfied with “sources” but credible sources. A publication can show reckless disregard in ignoring the malice or bias of its sources.
It will be a while before the Gray Lady is actually before a jury, if ever. However, it may soon have to answer if it remains faithful to its founding pledge to publish “all news fit to print.”
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
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