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What Does The Average American Earn?; What's A Greater Threat To The Social Fabric Of The U.S.?; Troubled Tenure?; CDC: Booster Gives Best Protection Versus Omicron; Can Tenured Professors Be Fired For What They Say Or Write?; Court To Hear Sarah Palin Libel Lawsuit Versus New York Times. Aired 9-10a ET
Aired January 22, 2022 - 09:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
MICHAEL SMERCONISH, CNN ANCHOR: Meat Loaf sang that "Two Out Of Three Ain't Bad." What about one out of four?
I'm Michael Smerconish in Philadelphia.
I guess it was supposed to be a rudimentary experiment in cultural awareness and the result quickly went viral because there was no ordinary group of respondents. No, they were students at one of the most prestigious business schools in America. Wharton, currently ranked number two by U.S. News and World Report.
That's where Nina Strohminger, a professor of Legal Studies and Business Ethics asked her students what they thought the average American makes in annual wages. Think about that. How would you have answered that question?
Well, she then tweeted their response, quote, "I asked Wharton students what they thought the average American worker makes per year and 25 percent of them thought it was over six figures. One of them thought it was $800,000."
The professor said the real number is $45,000. And "The Washington Post" reported that, "According to the Social Security Administration, the average U.S. annual wage last year was in fact $53,383, with the median wage at $34,612."
We don't know how many students responded to Professor Strohminger's question. That 75 percent of the students, three quarters of the class got it right didn't placate the blogosphere.
As one tweet put it, "That's the average of who they know, which is why rich people usually don't feel rich."
This was borne out by another who pointed out, "The median income of a family at U-Penn is $195,500 and 71 percent come from the top 20 percent. Just 3.3 percent come from the bottom 20 percent. It's presumably even worse in the Wharton Business School."
Someone else tweeted a meme of the matriarch from arrested development guessing that a single banana costs $10. But there's a serious aspect to this as noted in other tweets.
"How does a business school not require any kind of economics class that actually discusses the existing economics of the U.S.?"
Or "Remember those setting economic policy are more likely to be Wharton or similar grads than have worked multiple minimum wage jobs."
And of course, that's the real concern. This was not some late-night television man on the street interview. These are future masters of the universe who will soon determine public policy.
We're currently experiencing the worst inflation in nearly 40 years. Over the last year, inflation rates were driven by cars, furniture, other goods. You've seen all the data.
We would hope that future Wharton grads could figure it all out but if they can't empathize with those most impacted, society will suffer.
Many in the Twitter mob were eager to point to the privileged status of Wharton students. And there's truth in that. Tuition at Wharton is about 80 grand a year. The average annual income by contrast for those living in West Philadelphia, the neighborhood where Wharton is housed is about 34 grand. 24 percent of Philadelphians live in poverty.
But being out of touch with neighbors cuts both ways. The social science suggests that the poor would be equally off-base in estimating the income of the rich. And, to me, it's all reminiscent of what Dr. Charles Murray described in his 2012 book "Coming Apart."
Murray is a provocative libertarian. He argued in that book that America is coming apart at the seams, not from race, but from class. A large part of the problem, he posited, is that people in working-class neighborhoods are no longer connected to the wealthy.
Denying the former with a needed form of social order. Murray argued that while there have always been rich and poor folks who had somewhat different customs and morays, there used to be a lot of interchange and it used to be that even the rich folks had grown up either poor or middle class and knew what that was like personally.
But all of this is changing and 10 years ago, he wrote, it's going to get worse. This is what happens when power is concentrated in the hands of a new upper class which lacks the requisite empathy to make decisions for the remainder of society.
Well, I guess you could say he was pression. Which leads me to this week's survey question at smerconish.com. I want to know what you think. Which poses a greater risk to the social fabric of the United States: Differences in race or differences in class?
Now, in the case of the Wharton professor. Professor Strohminger, she tweeted this. "A lot of people want to conclude that this says something special about Wharton students -- I'm not sure it does. People are notoriously bad at making this kind of estimate, thinking the gap between rich and poor is smaller than it is."
She linked to a study from 2011 published by researchers at the Harvard Business School and Duke University which found that respondents back then, too, dramatically underestimated the level of wealth inequality. And that all democratic groups desired a more equal distribution of wealth than the status quo.
Well, one of those authors joins me now. Michael Norton is a professor of Business Administration at the Harvard Business School and he's the co-author of the book "Happy Money: The New Science of Smarter Spending."
Professor, the Wharton professor said in a tweet that you just heard that she's not sure this says something special about Wharton students. What do you think?
MICHAEL NORTON, PROFESSOR OF BUSINESS ADMINISTRATION, HARVARD BUSINESS SCHOOL: One of the things that we've found in our research over the years, so we've asked people all over the world to guess what the current distribution of income is. Literally, if you just ask people in a company what does the richest person make and what does the lowest paid person make.
All over the world, 40 countries if you look at rich people and poor people making the estimate. If you look at people on the left, people on the right, we almost never find any group that's accurate. In other words, nearly everyone we surveyed all over the world just doesn't know the current distribution of these things.
And I think it's partly because it's just hard to know. We just don't always have all the information that we might need.
SMERCONISH: What do you make of the link that I tried to make to Charles Murray's work saying that maybe what drives this is we're not walking anymore in one another's shoes?
NORTON: We do certainly have and if you think about any quite if I asked you what the average height of someone, what we often do is start with ourselves and the people we know. And then we start to think, oh, there's also NBA players, maybe I should factor them into it.
So, I think we do have a tendency to focus on what our own income is when we're asked these questions and then try to extrapolate from that. And that means that everybody is a little bit off in how they estimate because we're all starting kind of with a biased sample of one and then trying to move on from that.
I'm not sure how much it means that all of us are growing further apart. So much as we're all in a different spot. And so, it changes the way we think about the question.
SMERCONISH: So, what's your takeaway? I mean, she linked then in an explanation to your academic research, this has gone viral. In the wee hours of this morning, it was still the number two item at "The Washington Post" on a pretty busy news day. So, watching it from a distance, what are you thinking?
NORTON: One of the things that we've seen, if you think about the way things actually are and then we can ask people the way they think things are, but we could also ask them as you said, how they'd like things to be.
So, if it were up to you, what would rich people and lower income people be paid. And what we always find also in all of these surveys is that it's true that people are sort of inaccurate on what the current levels are. But also, every single group seems to want things to be a bit more equal than what they are, including the richest people in our sample, including people on the left and right.
So, for me, actually the takeaway from all of our research is that underneath a lot of the disagreements about the minimum wage and the wealth packs and all sorts of things, there actually is some consensus among Americans and in fact, all over the world that people do think the current level is a little bit off or a lot off, and they'd like things to be actually more equally distributed.
SMERCONISH: Do you think that if you were to survey your Harvard students, you'd get a similar result to what she found at Wharton?
NORTON: I'm very - that's a competition - and I'm very tempted to say, yes. But I think we've honestly never found a group that's particularly accurate. I will say when I do these sorts of surveys with executives, people in their 40s and 50s who have been working for quite some time, they're actually the most accurate group.
So, it is the case I think that when people have been working for quite some time and have seen the world, they do actually get a little bit better at estimating these differences. Again, it's really hard to get it--
SMERCONISH: You know, it's funny - it's funny you say that - it's funny you say that because I opened telephone lines on my SiriusXM radio program yesterday, cold, without telling people why I was asking. And I posited the question, what does the average American wage earner make. And they were pretty damn close which I was thrilled about.
Professor, thank you so much. It's a really interesting and important subject. And I appreciate you being here.
NORTON: Thank you.
SMERCONISH: What are your thoughts? Tweet me @smerconish or go to my Facebook page. I'll read some during the course of the program. From the Twitter-verse this comes. What does it say?
"It's a reflection of the disconnect in society between the haves and the have nots. It has always existed, but the gulf is getting wider. This may ultimately lead to the country's downfall."
Yeah. I agree with that.
Bill Bishop wrote the book a couple of years ago, "The Big Sort." The premise real quick is that we drifted apart from one another. No more elks club, no more rotary, et cetera, et cetera. When we re-engaged as a society in the Internet era, it was easier to associate with the like-minded. And we don't have common experiences.
Look at the fragmentation of the media. I mean, this weekend is an exception. We're all going to watch the NFL, right? But we don't have common experiences anymore. That's my explanation.
Well, I want to know what you think. Go to the website. It's smerconish.com. Now you know why I'm asking this question.
Which poses a greater threat to the social fabric of the United States: Differences in race or differences in class?
Still to come, new CDC data. Booster shots sharply increase immunity to the effects of Omicron. But also, turns out that people who had COVID actually had better resistance to the Delta variant than the vaccinated. Could that be why Austria and France's new strict mandates still allowing exemptions if you've had COVID in the past 6 months?
Plus, the University of Pennsylvania Law School, my alma mater has started proceedings against one of its own tenured faculty members for things that she thinks, write and says. Could she lose her job? Should she lose her job?
SMERCONISH: There were several important developments on the COVID front this week. Yesterday, the CDC released the results of three new studies that highlight the importance of getting a booster shot to protect against the Omicron variant. Omicron cases now account for more than 99 percent of new COVID cases in the United States. And here's the bottom line.
These three world class studies confirmed that people who have gotten their boosters are less likely to have a breakthrough, and when they do, they are much milder. But less than half the population eligible for a booster shot has received one. Still, CDC Director Rochelle Walensky said yesterday that the CDC doesn't plan to change the definition of what it means to be fully vaccinated.
Also, this week, another CDC study was published regarding the Delta variant showing that a prior case of COVID-19 protected people from infection better than vaccinations did during the Delta wave last summer and fall. Again, that's Delta. That's not Omicron. But it's a reminder that other countries treat prior infection differently than the United States.
As I've discussed here before, in many other countries people who have had COVID within the past six months have the same status as those who are vaccinated. Among them, Austria, Belgium, France, Germany, Greece, Ireland, Israel, the Netherlands, Spain, Switzerland, Turkey, Ukraine, the United Kingdom and the Vatican.
Starting Monday, France is implementing a vaccine requirement. Anyone over 16 must have proof of full vaccination to access a wide range of everyday activities. A negative PCR or antigen test will no longer be accepted. But you know what will still be accepted, a recovery certificate showing that you have tested positive more than 11 days ago and less than six months ago.
And soon in Austria, effective March 15, a new mandate kicks in that's being called Europe's strictest. But it nevertheless includes this exemption. People who are recovering from COVID-19 infection are also exempt for 180 days from the date they receive their first positive PCR COVID-19 test.
And then there's England. Come Monday, England, which already had some of the least stringent COVID restrictions in Europe is ending them. They're ending them all, including COVID passes proving vaccination or negative tests. Even any mandatory face mask rules.
It's a heck of a lot to process. Who better to discuss all of it with than CNN chief medical correspondent Dr. Sanjay Gupta? His book "Keep Sharp: Build A Better Brain At Any Age" just came out in paperback.
Doctor, thank you so much for being here.
What are your big takeaways from a busy week of data?
DR. SANJAY GUPTA, CNN CHIEF MEDICAL CORRESPONDENT: Well, you know, first of all, I think with regard to the studies around vaccination and boosters, I think this is important. And there's two things that really jumped out at me. I can show you the data, in terms of the likelihood of someone who developed a breakthrough infection if they've been vaccinated versus vaccinated and boosted.
And what they found was the biggest difference, no surprise, was between the unvaccinated and the vaccinated. That that was very clear. That's still the biggest difference. You can see it there.
But you did get a benefit, not an insignificant one from being boosted as well. So, there's two stories here. As you point out, Michael, less than half the people who qualify for these boosters have actually gotten them. You can see the benefit there. But the larger problem in this country is still far and away, the unvaccinated.
The second thing I'll just tell you quick. I think there's increasing evidence about just how long the vaccines last. The sort of waning effect of the vaccines over time.
And what they found was basically, around the six-month mark, things changed. If you were - if you've been vaccinated earlier than six months ago, your protection against this is roughly around 57 percent against the circulating virus. If you've been within the last six months, closer to 81 percent.
Again, that's the big jump. If you get boosted, you get an additional 9 percent. If you've been boosted - if you've been vaccinated within the last 6 months.
So, there's two stories there. The vaccines seem to work. They work best early on. And a booster sort of restores that benefit significantly.
SMERCONISH: The subject of what it means to be fully vaccinated came up at President Biden's presser this week. Here's a snippet that I want to show you.
(BEGIN VIDEO CLIP)
QUESTION: Why hasn't this White House changed the definition of fully vaccinated to include that third booster shot? Is it because the numbers of fully vaccinated Americans would suddenly look a lot less --
JOE BIDEN, PRESIDENT OF THE UNITED STATES: No, it's not that at all. It's just this has become clearer and clearer. And every time I speak of it, I say, if you've been vaccinated, get your booster shot. Everybody, get the booster shot. It's the optimum protection you can have.
(END VIDEO CLIP)
SMERCONISH: If the data you that just referenced speaks to the efficacy of boosters, why not change the definition?
GUPTA: You know, I -- this is a little bit confusing, I admit, Michael. I mean, I think this is one of these collisions of public health and public policy and some of this may be semantics. What they've added is this sort of saying up to date, are you up to date on your vaccines? Which would mean that you've been boosted, especially if you've had your vaccines greater than six months ago. If you've had your first two shots greater than six months ago, you need to be boosted.
I think the big thing here is that, if you have received your vaccines within the last six months, you've got really good protection. I mean, if you get boosted, it will increase it somewhat. But the greatest benefit is getting boosted in people who got their vaccines longer ago.
So, it just gets confusing. And I think, as a result, they're not being very clear about it. There may also be some legal implications, Michael.
As you know - you know, what is fully vaccinated then? If I just got my shots you know, a couple months ago, I should be considered fully vaccinated. If I got my shots sometime last year you know or greater than six months ago, not fully vaccinated. Are you going to check all of that? Are you going to check not only vaccination status but data vaccines? I think that's what they're grappling with here.
SMERCONISH: Well, I think it will have profound implications in the workplace. So, in academic settings, I'm thinking about our own who are still on college or grad campuses and have to be vaccinated.
SMERCONISH: What exactly does that mean?
Final question. Do you think -- I was very careful to make sure that I said that the data pertaining to the Delta variant suggested that if you've had COVID, you had some level of protection, maybe even that exceeded vaccination. We don't know yet about those who've had Omicron. Anything you wanted to say quickly on that point?
GUPTA: Well, I mean, this is a - this is an important topic. So, it's tough to condense into a couple of sentences. But natural immunity or infection-acquired immunity is a thing. There's no question about it. Some diseases out there like measles, you get infected once. You probably have lifelong immunity.
I think the challenge here is that not all infections are the same. An older person who had mild symptoms when they got this disease may not have generated the same amount of antibodies as a young person who got really sick, for example, from this disease.
So, if you're again trying to combine public policy and public health and you got it implemented across hundreds of millions of people, do you say, look, the vaccine offers a more consistent, reliable, predictable amount of immunity. Versus people who say, look, I got infected, I'm probably not protected, but I'm not sure how protected I really am.
That's - that's the challenge here. So, natural immunity is real. I don't think we've dealt with it very well in the United States as they have in other countries. And we may still get there.
But the original sin, as we talked about last time on your program, Michael, is the lack of testing. We just don't have good eyes on the problem. So, we don't know who's really been exposed in this country, who has natural immunity, who doesn't.
GUPTA: That makes it really challenging.
SMERCONISH: That's a great point. Every time I see the data, I figure, it's got to be exponentially larger than what I'm being show.
GUPTA: That's right.
SMERCONISH: Dr. Gupta, you know how much I appreciate you being here. Thank you so much.
GUPTA: Anytime. Thank you.
SMERCONISH: From the social media world. What has come in, Catherine? Tons of stuff, I am being told. Here's one.
"I'd rather be vaccinated and contract a mild case than gain increased immunity at the risk of a severe case."
Yeah, Adam, I'm certainly not advocating, hey, sit back and collect it. You know get infected and then be good. No, I want everybody to be vaccinated and boosted as I am, for sure.
I do find it interesting that the United States is kind of an outlier in comparison to you know Europe and the developed world in terms of we don't give you a six-month allowance if you've had it. But don't misunderstand where I'm coming from. Go get vaxxed and get boosted.
I want to remind everybody to go to my website at smerconish.com and answer this week's survey question. Talked about it at the outset of the program.
Which poses a greater threat to the social fabric of the United States: Differences in race or differences in class?
Up ahead. Campuses are theoretically havens for free speech. A professor with tenure, theoretically means their job is secure. So, what is it about the words of Penn Law School Professor Amy Wax that compelled the university to start proceedings that could oust her?
(BEGIN VIDEO CLIP)
AMY WAX, LAW PROFESSOR, UNIVERSITY OF PENNSYLVANIA CAREY SCHOOL OF LAW: There is this, let's call it danger of the dominance of an Asian elite in this country, and what does that mean?
(END VIDEO CLIP)
SMERCONISH: When can tenured professors be disciplined even fired for things they say or write?
This week, under pressure from students and politicians, the University of Pennsylvania Law School, my alma mater, announced it was initiating a sanction process against Professor Amy Wax over controversial things that she's written and said about race dating back to 2017.
The current dustup is over statements wax made in December - December 20th on the podcast of Brown University Professor Glenn Loury about immigrants from Asian countries.
(BEGIN VIDEO CLIP)
WAX: There is this, let's call it danger of the dominance of an Asian elite in this country.
And what does that mean? What is that going to mean to change the culture? That's not a popular idea to say that like, why would you ever say anything like that?
GLENN LOURY, PROFESSOR, BROWN UNIVERSITY: What's the danger? What would be wrong with having a lot of Chinese or Indian or Korean engineers, physicians, computer scientists, and whatnot, running around here creating value, enlivening the society? I mean, I don't see how we lose from that? How do we lose from that?
WAX: Does the spirit of liberty beat in their breast, Glenn? That is my question.
(END VIDEO CLIP)
SMERCONISH: In a written response to a listener Wax further elaborated, "As long as most Asians support Democrats and help to advance their positions, I think the United States is better off with fewer Asians and less Asian immigration."
She previously stirred outrage in another Loury episode that was September of 2017, called "The Downside to Social Uplift" for saying this --
(BEGIN VIDEO CLIP)
WAX: Here's a very inconvenient fact, Glenn. I don't think I've ever seen a black student graduate in the top quarter of the class and rarely, rarely, in the top half. I can think of one or two students who scored in the top half in my required first year course.
(END VIDEO CLIP)
SMERCONISH: Wax added that she based her opinion on the performance of her own students because -- quote -- "a lot of this data is closely guarded as a secret." At the time, the dean of Penn Law School, Theodore Ruger, fired back saying her claims were false. Telling the student newspaper, "Black students have graduated in the top of the class at Penn Law. And contrary to any suggestion otherwise, black students at Penn Law are extremely successful both inside and outside the classroom, in the job market, and in their careers."
In 2019, Wax told a conservatism conference in Washington that the United States would be -- quote -- "better off" as a country if the immigration system favored immigrants from western countries due to -- quote -- "cultural compatibility." Adding that, "Embracing cultural distance nationalism, means in effect taking the position that our country will be better off with more whites and fewer non-whites."
Pretty ugly stuff, right? But tenure is supposed to be an ongoing gig for professors extending to retirement that frees them from career worries and not just financial ones. As the Penn faculty handbook explains, "A system of tenure for faculty members is the preeminent means of fostering and protecting academic freedom of the faculty in teaching and in scholarly inquiry."
And the only reasons it would ever end before retirement are resignation by -- death, or by action of the trustees under the provisions for removal by just cause or by reason of financial exigency. Just cause, what might that mean? Well, again, per the handbook, a major infraction of university behavioral standards, an action involving flagrant disregard of standards, rules, or mission of the university or customs of scholarly communities.
Pretty broad but it goes on to list examples while warning that it is not a complete list. Everything from plagiarism to misusing university funds, to harassing a member of the university community, to sexual assault, rape and murder.
So, what compelled the dean of the law school Ted Ruger to feel that Wax's words warranted an elaborate university hearing process that could result in anything from a salary reduction to suspension or even termination? In a statement this week, Ruger wrote that -- quote -- "Her conduct has generated multiple complaints from members of our community citing the impact of pervasive and recurring vitriol and promotion of white supremacy as cumulative and increasing.
These complaints clearly call for a process that can fairly consider claims, for example, that her conduct is having an adverse and discernable impact on her teaching and classroom activities."
Joining me now is Keith Whittington, a professor of politics at Princeton University who chairs the academic committee of the group known as Academic Freedom Alliance, which this week sent a letter to the university law school defending Professor Wax's right to express her political views. Can we begin by agreeing that she has said some awfully repugnant stuff?
KEITH WHITTINGTON, CHAIR, ACADEMIC FREEDOM ALLIANCE: Sure. Absolutely, she has. It's stuff that I certainly disagree with, stuff I think is wrong on policy matters. It's wrong as a moral matter. But often people wind up saying things that I disagree with and find offensive.
SMERCONISH: Would you go so far, professor, as to say that she has made racist statements?
WHITTINGTON: Well, I don't know if I would necessarily characterize it as that. Although we'd have to go through the details of what exactly she said. I think the question ultimately is -- it doesn't matter whether we want to characterize it as racist or something else. Universities are committed to protecting people as they express their political views in public as individuals.
Those are particularly strong protections about what people say on those kinds of political issues in public life, for example, on a podcasts. And we ought to be very, very cautious before we try to punish someone for expressing them even if we find those political views very disturbing.
SMERCONISH: Right. But I'm just trying to understand whether that extends to racism. I find this of interest, "The Philadelphia Inquirer," the hometown newspaper here, in their coverage -- put it up on the screen. There are no qualifiers in the way that they described this. This was the lead paragraph this week. "The University of Pennsylvania's law school dean Tuesday announced he would initiate a process that could lead to sanctions against long-time law professor Amy Wax for her racist comments."
It kind of jumped out at me, there's not even a word "alleged" in there. And I'm wondering should -- if they are right -- if they are right and arguably, they are, does tenure even extend to racist statements?
WHITTINGTON: Yes. I think it does. And so, the question becomes in part what context is in which you're saying it? We tend to at this point given the kind of political debates that we're having these days, and given our polarization on these issues in particular, we see a lot of claims of racism that get bandied about. And if all it takes is an argument that somebody has said something that somebody wants to characterize as racist is enough to get a professor fired, we'll have a lot of fired professors as a consequence.
I think there are very different standards and traditionally universities have recognized different standards about what it is, for example, people say in public as part of their political opinions on a podcast, for example, as opposed to what they might say in a classroom. The standards are very different about what somebody is saying in a classroom.
If Amy Wax is saying similar kinds of things in a classroom, for example, different rules would apply. And she'd be in much more trouble. I think if she's saying it on a podcast on the other hand her protections are quite broad.
SMERCONISH: I mean, I hear you differentiating between the two. But if I am a student of color, why would I even want to be in her classroom? Frankly, if I'm a black student at Penn hasn't, she just besmirched me by some revelation that exposes grading?
There surely is some type of confidentiality that she violates when she says, well, I've never had a black student at the top of my class. Whether that's accurate or inaccurate if I'm now walking around, you know, on campus, how am I to feel?
WHITTINGTON: No. Certainly, students I think are going to be offended and concerned when professors engage in this kind of speech. That's true in Amy Wax's situation. It's true in lots of other situations where professors make very broad claims, broader than they ought to make often times about groups of people including groups of people who are going to be students in their classes. And students often object to that and say they don't trust those faculty as a consequence.
Penn has a real obligation to make sure that she's in fact treating people fairly in the classroom and in her actual duties as a professor. If she's not grading people fairly, if she's not treating them fairly in the classroom, they have a responsibility to find that out. And if necessary, punish her and take steps as a consequence of that. But just because people are nervous about it, just because she's making people uncomfortable, that's not necessarily going to be sufficient.
SMERCONISH: Yes, but -- this goes beyond -- look, first of all, I appreciate your willingness to have this kind of dialogue because yours is, I think, a very unpopular point of view but I appreciate we can have the discussion. However, when she questions -- quote -- "does the spirit of liberty beat in their breast?" I'm an Asian student and this professor questions, you know, whether I admire and see liberty as a virtue to me -- it's Potter Stewart, I guess. Like pornography and knowing it when you see it. I think I see it.
Anyway, professor, thank you for being here. I appreciate it.
WHITTINGTON: Thank you.
SMERCONISH: All right. Where are we going, gang? Keep going with that prompter. Ron Burgundy needs it.
Still to come, on Monday, jury selection begins for Sarah Palin's defamation suit against "The New York Times." This is a really fascinating case. Does she have a case?
And I want to remind you to answer this week's survey question at Smerconish.com. "Which poses a greater threat to the social fabric of the United States: differences in race or differences in class?"
SMERCONISH: Perhaps you have heard of the landmark Supreme Court decision restricting the ability of public officials to sue for defamation because of the First Amendment called "New York Times" versus Sullivan. Well, get ready for Palin versus "New York Times." As in Sarah Palin, the former governor of Alaska and onetime Republican vice-presidential candidate.
The trial is scheduled to begin with jury selection on Monday. Palin alleges that she was defamed by a June 2017 editorial the paper published about the shooting at a congressional softball game in Alexandria, Virginia, in which four were wounded including then Majority Whip Republican Steve Scalise.
In the editorial "The New York Times" falsely said there was a causal connection between an advertisement run by a Sarah Palin PAC and the prior shooting incident involving Congresswoman Gabby Giffords. The key section of the original piece as it was originally published by the "Times" said this, "Was this attack evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a nine-year-old girl, the link to political incitement was clear.
Before the shooting, Sarah Palin's political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs. Conservatives and right-wing media were quick on Wednesday to demand forceful condemnation of hate speech and crimes by anti-Trump liberals. They're right. 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."
Here's the political action committee ad to which it refers that overlay cross hairs on a map of America advocating to target congressional districts. The Giffords attack, of course, was the 2011 mass shooting in Arizona that severely wounded then Congresswoman Gabby Giffords. The ad was a controversy at the time, but in fact, there was no causal link found between the Palin PAC ad and the shooting of Giffords.
Shortly after the "Times" editorial ran, the newspaper published a correction -- quote -- "An editorial on Thursday about the shooting of Representative Steven Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs."
So does Sarah Palin have a case? Joining me now is Bill Grueskin, professor of Professional Practice at the Columbia Journalism School. He wrote this piece for the Columbia Journalism Review titled "How the New York Times Editorial Page Got Sued by Sarah Palin."
Professor, thank you for being here. Clearly, they screwed up. The issue, right, is whether it reaches the level of actual malice, reckless disregard for the truth or knowledge of falsity. Speak to that standard.
BILL GRUESKIN, PROFESSOR OF PROFESSIONAL PRACTICE, COLUMBIA JOURNALISM SCHOOL: Well, thanks for having me, Michael. And yes, this is going to be an incredible case. It was well-known at the time that James Bennet, who is the editorial page editor of the "Times" inserted this language into the editorial that Palin's political action committee ad was not tied in any way to the Arizona shooting or at least there was no evidence that it was.
And so basically, what Palin has to prove is either that the "Times" showed actual malice which would be basically a bunch of "The New York Times" people conspiring to say bad things about Sarah Palin. Or that they demonstrated a reckless disregard for the truth.
And the case that Palin has made, and pretty effectively so far, is that this -- this editorial does fall into that second category. And that's why this case is so unusual, because Palin is a pure public figure. And public figures in this country have a very hard time suing the media.
SMERCONISH: So, clearly, the politics of Governor Palin and the politics of the editorial page of the "The New York Times" are very dissimilar to say the least. I know that you read a great deal in the litigation file. Did you find any personal animus directed toward her? Is there any evidence that you saw where the "Times" people said, oh, here's our opportunity, you know, to take it to Sarah Palin?
GRUESKIN: No, just the opposite, Michael. I mean there are hundreds of pages of depositions from James Bennet who is the editorial page editor, Elizabeth Williamson, who is the person who wrote the first draft, and from a bunch of other people on the editorial page of the "Times." By the way, I should just this is purely the editorial page. It has nothing to do with the news site. And this is basically a screw up.
And anybody who has worked in the news business knows that sometimes you screw up particularly when an -- excuse me -- particularly when an editor puts his prose in somebody else's copy. But there was no evidence that I saw or that's anywhere in the current court file that demonstrates that the "Times" had it out for Palin and wanted to get her.
SMERCONISH: And quickly, what are her damages, as she alleges?
GRUESKIN: Well, she claims that her reputation was damaged. She claims that her -- her appearances on Fox News were diminished. But she doesn't -- at least in the deposition that she gave a few years ago, she doesn't clearly demonstrate exactly what she suffered either emotionally or on a financial level.
And that, I suspect, is why Palin is asking not just for actual damages but also punitive damages which is a way of demonstrating to the overall journalism community that you just can't do this anymore. And that's where the "Times" may face some liability.
But I would say, overall, Palin has a very big mountain to climb here.
SMERCONISH: It will be -- well, it's a high standard for a public figure because as you know the predicate sort of the law is that if you're a public figure you've got platforms on which you can defend yourself, which I think intuitively makes sense.
Bill, thank you so much. That was excellent. It is going to be really interesting to watch this case unfold.
Still to come, more of your best and worst tweets and Facebook comments, and the results of this week's survey question. Go to Smerconish.com if you have not already voted. Here it is, "Which poses a greater threat to the social fabric of the United States: differences in race or differences in class?"
SMERCONISH: You are looking at the survey result of the week. There it is, "Which poses a greater threat to the social fabric of the United States: differences in race or differences in class?" Seventy-three percent -- I'm going to say of us, nearly, well, 14,000 and change, said class. I think that's the right answer. Time for only one tweet. What do we have, Catherine? A lot of reaction but limited time.
Even if we're all watching the NFL this weekend, we won't be sitting in the same sections. Suites cost more than my car.
It's a great observation, Bob. I was simply saying that we're just not even watching the same media outlets anymore. Much less patronizing, you know, the same businesses or sending our kids to the same school et cetera, et cetera. We need more comingling. I'll see you next week.