On a sunny Monday in November 2023, a group of lawyers made their way through Foley Square, the plaza outside the federal, state, and county courthouses in Lower Manhattan. The scene was chaotic. The New York attorney general’s fraud trial against the Trump Organization was underway, and Donald Trump was scheduled to be on the stand that day. Protesters, camera crews, and law enforcement swarmed the area.
These lawyers, however, weren’t here for Trump. Instead, they walked into the federal Thurgood Marshall Courthouse and rode the elevator to the seventeenth floor, the home of the Second Circuit Court of Appeals.
Led by Shane Vogt, who seven years earlier had helped Hulk Hogan destroy Gawker, the lawyers were about to argue a case that, though it wasn’t generating much fanfare compared to the Trump circus, had potentially greater ramifications. It had become—and to this day it remains—a primary vehicle for attacking the Supreme Court’s famous decision in New York Times v. Sullivan.
In that 1964 case and a handful of ensuing decisions, the court ruled that public figures could not prevail in libel lawsuits unless they could prove that a publisher acted with “actual malice”—in other words that it knew what it was writing was false or acted with reckless disregard as to its accuracy. By insulating news outlets from weaponized libel lawsuits, the rulings ushered in an era of hard-nosed investigative journalism.
Not coincidentally, Donald Trump and some of his allies wanted the Supreme Court to overturn the precedent.
Vogt got involved in the case in the spring of 2016. He was fresh off his successful lawsuit against Gawker—which had been secretly financed by Peter Thiel, who had long wanted to crush the site—when he received an unsolicited call from an aide to Sarah Palin. In the years since John McCain selected her as his running mate in 2008, the former Alaska governor had been fading back into obscurity. Palin had tried various tactics to arrest this fall, including reality-TV cameos. Now, the aide explained to Vogt, Palin wanted to file a libel lawsuit.
Her intended target was the rapper Azealia Banks. Days earlier, Banks had come across an online article purporting to quote Palin saying that “Negroes loved being slaves and they were doing just fine under our rules.” Banks hadn’t realized that the article, which was spreading via social media, was from a satirical website and that the quotes were fake. She took to Twitter and unloaded on Palin, suggesting in profane terms that she be forced to have sex with large Black men.
It seemed like a golden opportunity for the ex-governor to shoehorn herself back into the headlines. She issued a statement to People magazine: “I’m suing Azealia Banks and can’t wait to share my winnings with others who have gone defenseless against lies and dangerous attacks far too long.” People quoted an unnamed “source in the Palin camp” as saying that the former governor was “in discussions with attorneys” about the planned lawsuit.
Vogt wasn’t one to shy away from a fight with long odds. But the problem, as he informed Palin’s aide, was that her proposed lawsuit against Banks did not seem promising, not least because the rapper had quickly deleted and apologized for her over-the-top tweets. And so Palin decided not to sue.
That was the end of the matter—at least for the following year. Then, early on a Wednesday morning in June 2017, James Hodgkinson, a Trump-hating leftist armed with a semiautomatic rifle and a handgun, opened fire on Republican lawmakers at a baseball practice in Alexandria, Virginia. Six people were injured.
The near-tragedy would provide Palin with another opportunity to sue for libel—and Vogt with a chance to challenge the Sullivan decision.
Elizabeth Williamson, an editorial writer at the New York Times, had initially heard the news of the shooting on the radio. She’d been working in Washington, covering Congress and politics, since 2003, and she’d previously met some of the lawmakers who’d come under fire that morning.
She emailed her colleagues on the editorial page in New York and proposed that they write a quick opinion piece about the attack. After a bunch of back-and-forth, they decided that the focus should be on “the rhetoric of demonization and whether it incites people to this kind of violence,” as Williamson’s boss, James Bennet, put it in an email.
Williamson, Bennet, and their colleagues knew that this was not the first time that a lawmaker had been attacked by a crazed gunman. In 2011, Jared Lee Loughner had killed six people, including a federal judge and a young girl, and injured thirteen, including Representative Gabby Giffords, in Arizona. Loughner was later diagnosed as suffering from paranoid schizophrenia, and no evidence ever emerged that he had been motivated by politics.
But in the shooting’s immediate aftermath, many observers had assumed otherwise. And they had wrongly blamed Palin, whose political action committee a year earlier had posted on Facebook a map with rifle crosshairs over twenty Democratic congressional districts, including Gifford’s. “It’s time to take a stand,” the ad had implored.
