Sunday, August 30, 2020

Sarah Palin's Defamation Lawsuit Against The New York Times Will Go To Trial in February

Sarah Palin
Sarah Palin Gets Libel Trial Against New York Times
A federal judge rejects the paper's summary judgment motion and sets a trial for February.

 3:57pm PT by Eriq Gardner

Sarah Palin will proceed to trial against The New York Times next February, pandemic permitting. On Friday, U.S. District Court Judge Jed Rakoff rejected the paper's summary judgment motion in a big libel case over an editorial about gun violence. The New York federal judge concludes that she had provided enough evidence to establish actual malice on the part of the paper's former op/ed chief.

The editorial linked one of Palin's political action committee ads to a 2011 mass shooting that severely wounded then-Arizona Congresswoman Gabby Giffords. James Bennet, the writer of the editorial, wanted to make a point about a climate of political incitement, but The New York Times quickly made a correction acknowledging that no link had been established between Palin's ad and the shooting.

Rakoff had previously dismissed the suit in Aug. 2017, writing at the time that "in the exercise of that freedom, mistakes will be made, some of which will be hurtful to others."

The 2nd Circuit Court of Appeals then revived the case based on Rakoff's rash conclusion that Palin couldn't establish actual malice.

Back at the lower court, Palin aimed for something even greater than a win against The New York Times. She aimed to basically upend a half century of jurisprudence in libel cases by overthrowing the actual malice standard — that being how public figures must demonstrate awareness of falsity or reckless disregard of the truth.

Rakoff won't give that to Palin.

"Perhaps recognizing that this Court is not free to disregard preced3ent even if it were so inclined (which in this case it distinctly is not), [Palin] offers what she calls an alternative argument: that 'actual malice rule arose from distinguishable facts and should not be applied,'" writes Rakoff. "More precisely, [Palin's] argument is that the actual malice rule, which was first articulated more than half a century ago in the days before the Internet and social media, has run its course and should no longer govern our contemporary media landscape. Binding precedent does not, however, come with an experiation date. To the extend plaintiff believes the actual malice requirement ought to be abolished, she should make that argument to the appropriate court — the Supreme Court."

At the Supreme Court, Justice Clarence Thomas wants to get rid of actual malice, but whether that would ever happen is a subject for another day. In the meantime, she needs to establish actual malice to prevail.

Fortunately for Palin, Rakoff looks at the evidence and decides there's enough there, especially when viewing it in a light that is most favorable to her. In particular, he points to strong evidence that Bennet may have recklessly disregarded truth by failing to read stuff that the paper's researchers had been sending him on the topic of the shooter. The judge adds that his failure to investigate could support an inference he purposely avoided the truth.

Then again, it's no slam dunk and will be decided at a trial that Rakoff sets for February.

In the opinion (read here), Rakoff writes "there is considerable evidence that defendants mount to support the notion that Bennet simply drew the innocent inference that a political circular showing crosshairs over a Congressperson's district might well invite an increased climate of violence with respect to her. But, taken in the light most favorable to plaintiff, 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, disregarded the results the Williamson research that he commissioned, and ultimately made the point he set out to make in reckless disregard of the truth."

Notably, Bennet resigned as opinion editor in June after a controversy over publishing an opinion piece by U.S. Senator Tom Cotton that called for a military response to civic unrest in American cities. That article spurred a rebellion by much of the paper's staff. Bennet later acknowledged that this piece hadn't been edited carefully enough.

Sarah Palin Defamation Suit Against New York Times Can Move Forward, Federal Judge Rules
by Bruce Haring, Deadline, AugustAugust 28, 2020

Sarah Palin’s defamation suit against the New York Times can move forward, a federal judge said on Friday.
US District Court Judge Jed Rakoff rejected the Times bid to dismiss the suit, which arose over a 2017 editorial Palin claims wrongly linked her to the 2011 mass shooting of Congresswoman Gabrielle Giffords. Palin was a 2008 Vice Presidential candidate and is a former Governor of Alaska.
Rakoff today said there was “sufficient evidence to allow a rational finder of fact to find actual malice by clear and convincing evidence.” While Rakoff allowed that much of Palin’s case was circumstantial, it was strong enough that a jury might find the Times and its former editorial page editor James Bennet acted with “actual malice by clear and convincing evidence.”
Rakoff scheduled a Feb. 1, 2021 trial. Read the court documents here.
“We’re disappointed in the ruling but are confident we will prevail at trial when a jury hears the facts,” Times spokeswoman Danielle Rhoades-Ha said.
The 2017 editorial came after an Alexandria, Virginia mass shooting that wounded four people, including then-House Majority Whip Steve Scalise. The editorial said that the 2011 Giffords shooting came after Palin’s political action committee had circulated a map that put 20 Democrats, including Giffords, under “stylized cross hairs.”
The Times later issued a correction, saying there was no link between “political rhetoric” and the Giffords shooting. Bennet said he had not intended to blame Palin.
Rakoff disagreed. He said Bennet’s substantial rewrite of an earlier draft, and admission he was aware “incitement” could mean a call to violence, could suggest actual malice. Rakoff also noted that Bennet may have ignored materials that were not in step with his “angle” on the editorial, something that could be construed as a reckless disregard for the truth. .

In its ruling (read it here), the three-judge US Court of Appeals for the Second Circuit vacated and remanded Rakoff’s original ruling, reached after hearing from testimony from Bennet, on procedural grounds. Therefore it did not offer an opinion on the merits of Palin’s case.
“The district court (Rakoff, J.), uncertain as to whether Palin’s complaint plausibly alleged all of the required elements of her defamation claim, held an evidentiary hearing to test the sufficiency of Palin’s pleadings. Following the hearing, and without converting the proceeding to one for summary judgment, the district court relied on evidence adduced at that hearing to dismiss Palin’s complaint under Federal Rule of Civil Procedure 12(b)(6). We find that the district court erred in relying on facts outside the pleadings to dismiss the complaint. We further conclude that Palin’s Proposed Amended Complaint plausibly states a claim for defamation and may proceed to full discovery.”
Bennet testified in the unusual hearing that he did not intend to draw a “causal link” between the 2011 shooting that left Giffords severely wounded and a notorious “crosshairs” map distributed at the time by a Sarah Palin PAC.
Listening to Bennet’s testimony and considering the circumstances of law and otherwise, Rakoff made the call that Palin’s case could not effectively demonstrate actual malice, as would be required to move the matter forward.
Writing the Second Circuit’s ruling, Judge John M. Walker noted that it was clear Rakoff “viewed the hearing as a way to more expeditiously decide whether Palin had a viable way to establish actual malice. But, despite the flexibility that is accorded district courts to streamline proceedings and manage their calendars, district courts are not free to bypass rules of procedure that are carefully calibrated to ensure fair process to both sides.”

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