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.

AUGUST 28, 2020 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. .

The case is Palin v New York Times Co et al, U.S. District Court, Southern District of New York, No. 17-04853.

Rakoff’s decision today comes after he originally dismissed Palin’s lawsuit soon after it was filed. The Second Circuit appeals court disagreed with Rakoff’s original ruling, setting the stage for today’s reconsidered decision.

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.”

When Are False, Defamatory Statements of Fact Actually Nonactionable Statements of Opinion?

ELLIOT M. GROSS, APPELLANT, v. THE NEW YORK TIMES COMPANY, ET AL., RESPONDENTS.
https://www.law.cornell.edu/nyctap/I93_0205.htm

82 N.Y.2d 146, 623 N.E.2d 1163, 603 N.Y.S.2d 813 (1993).
October 21, 1993

1 No. 178 [1993 NY Int. 205]
Decided October 21, 1993

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This opinion is uncorrected and subject to revision before publication in the New York Reports.

Howard M. Squadron, for Appellant.
Floyd Abrams, for Respondents New York Times, et al.
Submitted by Philip Mandel, for Respondent Ehrenreich.

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TITONE, J.:

This dispute has its origin in a series of investigative reports published by defendant New York Times between January of 1985 and February of 1986. The articles in question charged plaintiff, the former Chief Medical Examiner of the City of New York, with having mishandled several high profile cases and having used his authority to protect police officers and other city officials from suspicion after individuals in their custody had died under questionable circumstances. Defendants' articles spawned four separate criminal investigations into plaintiff's conduct, each of which terminated with findings that there was no evidence of professional misconduct or criminal wrongdoing by plaintiff. Plaintiff thereafter commenced the present action for libel. The issue at this early, pre-answer stage of the litigation is whether plaintiff's pleadings sufficiently allege false, defamatory statements of fact rather than mere nonactionable statements of opinion. We hold that plaintiff's complaint, which encompasses actionable assertions of fact as well as nonactionable opinions and conclusions, is sufficient to withstand a motion to dismiss under CPLR 3211(a)(7).

I.

Plaintiff's fifty-nine page complaint cites essentially eight "false and defamatory" articles as the basis for his libel action. The first article in the series, which was published on January 27, 1985 under defendant Philip Shenon's byline, was entitled "Chief Medical Examiner's Report in Police Custody Cases Disputed" and had, as a sub-headline, "Cover-Ups Charged in Autopsies and Some Deaths - Gross Denies 'Misleading" in Any Instance." The opening two paragraphs asserted that, as the City's Chief Medical Examiner, plaintiff had "produced a series of misleading or inaccurate autopsy reports on people who died in custody of the police, according to colleagues in the Medical Examiner's office and pathologists elsewhere." Further, according to the article, plaintiff had "instituted a policy of special handling for police-custody cases," had "performed the autopsies himself" in many such cases and "[i]n others, documents show[,] he intervened to alter the findings of other pathologists." What follows is a series of assertions about plaintiff's actions in connection with several specific cases, including that of "a Brooklyn man who neighbors say was beaten by police officers" and that of Eleanor Bumpurs, "the 66-year old woman who was shot to death * * * by police officers trying to evict her."[n 1]

The article, which also discussed the purported disarray in the Medical Examiner's office, reported on interviews conducted with several pathologists, who both described and characterized plaintiff's specific actions in relation to cases handled by the Medical Examiner's office. One pathologist who had worked with plaintiff asserted for example, that, in the case of the man who had allegedly been beaten by the police, plaintiff had changed the autopsy findings to state that death had resulted from a procedure performed by doctors after the incident rather than from a fractured skull. The pathologist was then quoted as asserting: "What Gross has done is bend over backwards to help the police" and "[i]t's weaseling." Another pathologist, who had not worked with plaintiff but who had been asked to review some of the disputed autopsy findings, was quoted as saying: "If he has done these cases honestly, Dr. Gross is unbelievably incompetent"; "[i]f he has done them deliberately -- and I believe he has -- he may well be looking for a way out for the police." The tenor of the other articles cited in plaintiff's complaint was similar, with quotes from documents and individuals describing plaintiff's specific actions, disagreeing with his medical conclusions and drawing conclusions about his motives. The overall thrust of the series was that plaintiff had issued false or misleading reports about deaths occurring within his jurisdiction in order to protect the police and that his conduct ranged from "highly suspicious" (article published February 5, 1985) to "possibly illegal" (article published January 28, 1985).

Before discovery had begun, defendants moved to dismiss the libel claims in plaintiff's complaint, arguing that the articles on which it was based conveyed only the opinion of its staff and their interviewees and were therefore not actionable.[n 2]The trial court agreed with defendants' position and on June 10, 1991 granted the requested relief.

The Appellate Division affirmed the trial court's determination, stressing that the "articles complained of report accusatory opinions together with a recitation of the facts upon which they are based" and that "[e]specially when attributed to a source, the average reader will recognize that criticisms, allegations and accusations are not statements of fact but rather expressions of opinion" (180 AD2d 308, 316). The court also rejected plaintiff's contention that the articles could not be characterized as protected opinion to the extent that they suggested he was guilty of criminal wrongdoing. In the court's view, the allegations that plaintiff had "lied" in his professional conclusions regarding the causes of death in controversial cases and had "covered up" for misconduct by City police officers were too "[v]ague" to "amount to accusations of criminal misconduct" (id., p 317). This Court subsequently granted plaintiff leave to appeal from the Appellate Division's order. We now reverse and hold that the complaint should have been sustained, since, in addition to the expressed opinions and conclusions, the articles contain defamatory assertions that a reasonable reader would understand to be advanced as statements of fact.

II.

At the core of the dispute in this case is the much discussed distinction between expressions of opinion, which are not actionable, and assertions of fact, which may form the basis of a viable libel claim. The distinction has been the subject of considerable analysis and legal evolution in recent years (see, e.g., Milkovich v Lorain Journal Co., 497 US 1; Immuno AG. v Moor-Jankowski, 77 NY2d 235, cert denied __ US __, 111 S Ct 2261; Steinhilber v Alphonse, 68 NY2d 283). Indeed, we revisited the question ourselves just one year ago (600 West 115th St. Corp. v Von Gutfeld, 80 NY2d 130). Nonetheless, as the opinions below and the parties' submissions illustrate, there remain many unanswered questions and areas of uncertainty in this developing field of libel law.

The underlying principles are not in dispute. The Supreme Court's decision in New York Times Co. v Sullivan (376 US 254) injected a constitutional dimension into what had previously been regarded as a matter of state common law. In that case and others (e.g., Philadelphia Newspapers, Inc. v Hepps, 475 US 767; Curtis Publishing Co. v Butts, 388 US 130; see also,Gertz v Robert Welch, Inc, 418 US 323), the Court delineated the increased burden of proof that libel plaintiffs in the public arena must bear in order to assure the "'unfettered interchange of ideas'" that is so necessary to the continued vitality of a government "'responsive to the will of the people'" (New York Times Co. v Sullivan, supra, p 269, quoting Roth v United States, 354 US 476, 484, and Stromberg v California, 283 US 359, 369). Additionally, in Greenbelt Cooperative Publishing Assn. v Bresler (398 US 6, 12), the Court recognized that there are constitutional restrictions on the "permissible scope" of defamation actions and, specifically, that evident "rhetorical hyperbole" is simply not actionable (see,Milkovich v Lorain Journal Co,, supra, p 16; see also, Hustler Magazine, Inc. v Falwell, 485 US 46, 50; Letter Carriers v Austin, 418 US 264, 284-286).

The focus in this appeal, which involves a pre-answer dispute over the sufficiency of the complaint, is whether the articles published by defendants fall into a category that is actionable and, more specifically, whether the articles constitute the type of opinion statements that cannot, under the case law, form the basis of a defamation claim. While the Supreme Court has rejected the notion that there is a special categorical privilege for expressions of opinion as opposed to assertions of fact, it has recognized that "a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection" (Milkovich v Lorain Journal Co., supra, pp 17-21). Further, this Court has adopted a similar view under our own State Constitution and has embraced a test for determining what constitutes a nonactionable statement of opinion that is more flexible and is decidedly more protective of "the cherished constitutional guarantee of free speech" (Immuno AG. v Moor-Jankowski, supra, p 256; see, 600 West 115 St. Corp. v Gutfeld, supra, p 145).

The dispositive inquiry, under either federal or New York law, is "whether a reasonable [reader] could have concluded that [the articles] were conveying facts about the plaintiff" (600 West 115th St. Corp. v Gutfeld, supra, p 139). Since falsity is a necessary element of a defamation cause of action and only "facts" are capable of being proven false, "it follows that only statements alleging facts can properly be the subject of a defamation action" (id.; accord, Immuno AG. v Moor-Jankowski, supra, p 254). In our State the inquiry, which must be made by the court (see, 600 West 115th St. v Von Gutfeld, supra, p 139; Steinhilber v Alphonse, supra, p 290), entails an examination of the challenged statements with a view toward (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to "'signal * * * readers or listeners that what is being read or heard is likely to be opinion, not fact'" (Steinhilber v Alphonse, supra, p 292; quoting Ollman v Evans, 750 F2d 970, 983, cert denied 471 US 1127; accord, Immuno AG. v Moor-Jankowski, supra).

This is not to suggest that the wisdom to be derived from the formerly utilized common-law analysis has been completely discarded. To the contrary, although the terminology may have fallen out of favor, the seasoned common-law categories for actionable and nonactionable reportage have been invoked to inform our modern constitutional analysis (Immuno AG. v Moor-Jankowski, supra, p 250; see, e.g., James v Gannett Co., 40 NY2d 415; Julian v American Business Consultants, 2 NY2d 1; see also, Steinhilber v Alphonse, supra, p 293).

Thus, in determining whether a particular communication is actionable, we continue to recognize and utilize the important distinction between a statement of opinion that implies a basis in facts which are not disclosed to the reader or listener (see, Hotchner v Castillo-Puche, 551 F2d 910, 913, cert denied sub nom. Hotchner v Doubleday & Co., 434 US 834; Restatement [Second] of Torts § 566), and a statement of opinion that is accompanied by a recitation of the facts on which it is based or one that does not imply the existence of undisclosed underlying facts (see, Ollman v Evans, supra, p 976;Buckley v Littell, 539 F2d 882, 893, cert denied 429 US 1062; Restatement [Second] of Torts § 556 comment c). The former are actionable not because they convey "false opinions" but rather because a reasonable listener or reader would infer that "the speaker [or writer] knows certain facts, unknown to [the] audience, which support [the] opinion and are detrimental to the person [toward] whom [the communication is directed]" (Steinhilber v Alphonse, supra, p 290). In contrast, the latter are not actionable because, as was noted by the dissenting opinion in Milkovich v Lorain Journal Co.(supra, pp 26-27, p 28 n3 [Brennan, J.]), a proffered hypothesis that is offered after a full recitation of the facts on which it is based is readily understood by the audience as conjecture (see, e.g., Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F2d 1280, 1290). Indeed, this class of statements provides a clear illustration of situations in which the full context of the communication "'signal[s] * * * readers or listeners that what is being read or heard is likely to be opinion, not fact'" (Steinhilber v Alphonse, supra, p 292; quoting Ollman v Evans, supra, p 983).

III.

Applying these principles to plaintiff's cause is not a simple task because plaintiff's pleadings cite the whole series of articles, each in its entirety, as the basis for plaintiff's defamation claim. Obviously, not every word and assertion in the disputed articles is false or defamatory. Some of the actions and words attributed to plaintiff undoubtedly did take place. Furthermore, many of the objective assertions made in this series of many thousand words are uncontroversial and are therefore not the proper subject for a defamation action.

We conclude, however, that the courts below erred in dismissing the complaint, since the articles it cited contain many assertions of objective fact that, if proven false, could form the predicate for a maintainable libel action. Additionally, although the articles contain many assertions that would be understood by the reasonable reader as mere hypotheses premised on stated facts, there are also actionable charges made in the articles -- such as the charges that plaintiff engaged in cover-ups, directed the creation of "misleading" autopsy reports and was guilty of "possibly illegal" conduct -- that, although couched in the language of hypothesis or conclusion, actually would be understood by the reasonable reader as assertions of fact (see, Rinaldi v Holt, Rinehart & Winston, Inc., 42 NY2d 369, 382).

Contrary to the Appellate Division's conclusion, these assertions are not too vague to constitute concrete accusations of criminality. Nonetheless, we hold them to be actionable not, as plaintiff would have it, because they involve accusations of criminality per se, but rather because in this context they convey "facts" that are capable of being proven true or false. Although plaintiff repeatedly suggests otherwise, there is simply no special rule of law making criminal slurs actionable regardless of whether they are asserted as opinion or fact.

In Silsdorf v Levine (59 NY2d 8, 16, cert denied 464 US 831), we merely held that an accusation of criminality that, read in context, is set forth as a fact is not transformed into a nonactionable expression of opinion merely because it is couched "in the form of an opinion." To illustrate, if the statement "John is a thief" is actionable when considered in its applicable context, the statement "I believe John is a thief" would be equally actionable when placed in precisely the same context. By the same token, however, the assertion that "John is a thief" could well be treated as an expression of opinion or rhetorical hyperbole where it is accompanied by other statements, such as "John stole my heart," that, taken in context, convey to the reasonable reader that something other than an objective fact is being asserted. Indeed, it has already been held that assertions that a person is guilty of "blackmail," "fraud," "bribery" and "corruption" could, in certain contexts, be understood as mere, nonactionable "rhetorical hyperbole" or "vigorous epithets" (see, e.g., Greenbelt Pub. Assn. v Bresler, supra, p 14; 600 W. 115th Street Corp. v Gutfeld, supra, pp 143-145).

Similarly, even when uttered or published in a more serious tone, accusations of criminality could be regarded as mere hypothesis and therefore not actionable if the facts on which they are based are fully and accurately set forth and it is clear to the reasonable reader or listener that the accusation is merely a personal surmise built upon those facts. In all cases, whether the challenged remark concerns criminality or some other defamatory category, the courts are obliged to consider the communication as a whole, as well as its immediate and broader social contexts, to determine whether the reasonable listener or reader is likely to understand the remark as an assertion of provable fact (600 W. 115th Street Corp. v Von Gutfeld; see, Immuno AG. v Moor-Jankowski, 77 NY2d 235, supra).

In this case, the assertion that plaintiff engaged in "corrupt" conduct in his capacity as Chief Medical Examiner cannot be treated as a mere rhetorical flourish or the speculative accusation of an angry but ill-informed citizen made during the course of a heated debate (see, 600 West 115th Street Corp. v Von Gutfeld, supra). Rather, the accusation was made in the course of a lengthy, copiously documented newspaper series that was written only after what purported to be a thorough investigation. Having been offered as a special feature series rather than as coverage of a current news story, the disputed articles were calculated to give the impression they were "the product of some deliberation, not of the heat of the moment" (id., p 142). Moreover, since the articles appeared in the news section rather than the editorial or "op ed" sections, the common expectations that apply to those more opinionated journalistic endeavors were inapplicable here (see,Immuno AG. v Moor-Jankowski, supra). Thus, the circumstances under which these accusations were published "encourag[ed] the reasonable reader to be less skeptical and more willing to conclude that the[y] stat[ed] or impl[ied] facts" (600 W. 115th Street Corp. v Von Gutfeld, supra, p 142).

In closing, we stress once again our commitment to avoiding the "hypertechnical parsing" of written and spoken words for the purpose of identifying "possible 'facts'" that might form the basis of a sustainable libel action (Immuno AG. v Moor-Jankowski, supra, p 256). The core goal of "exercises" such as this is to protect the individual's historic right to vindicate reputation without impairing our "cherished constitutional guarantee of free speech" (id.) or casting a pall over citizens' ability to engage in robust debate through the print and broadcast media. In this case, the reputation of a public official with significant professional credentials was allegedly impaired by a series of widely read newspaper articles that portrayed him as unethical and corrupt. Under the circumstances of his case, we conclude that this individual should be permitted to go forward in an effort to establish a right to a libel recovery. The defendants' expressional rights as well as the cherished values embodied in the First Amendment guarantees can be adequately protected in this context by the well-established rule requiring that plaintiff prove not only that the statements he cites are false and defamatory but also that they were made with actual malice. As this Court has previously observed, compliance with the latter requirements is a matter that is well suited to testing, at least in the first instance, on a motion for summary judgment brought pursuant to CPLR 3212 (see, Immuno AG. v Moor-Jankowski, supra, p 256; Karaduman v Newsday, Inc., supra, p 545).

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the motion of the Times defendants to dismiss causes of action one through five and eight through thirteen of the complaint denied.

F O O T N O T E S

1. For a review of the factual background of the Bumpurs case, see People v Sullivan, 68 NY2d 495.[return to text]

2. The dismissal motion at issue in this appeal is the one made by The New York Times, Philip Shenon, Sam Roberts, A.M. Rosenthal and Peter Milones, all of whom are affiliated with defendant newspaper. An earlier dismissal motion by the other named defendants was granted by the trial court. The trial court also dismissed plaintiff's sixth, seventh, fourteenth and fifteenth causes of action against the New York Times defendants. Those dismissals are not being challenged on this appeal.[return to text]

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Order, insofar as appealed from, reversed, with costs, and motion of the "Times defendants" to dismiss causes of action 1 through 5 and 8 through 13 of the complaint denied. Opinion by Judge Titone. Chief Judge Kaye and Judges Simons, Hancock and Bellacosa concur. Judges Smith and Levine took no part.