Federal Judge Dismisses Sarah Palin’s Lawsuit Against The New York Times
Earlier this summer, former Alaska Governor and 2008 Republican Vice-Presidential nominee Sarah Palin filed a defamation lawsuit against The New York Times seeking some $75,000 in damages for allegedly defamatory statements made about her in a Times editorial published in the wake of the shooting of several Congressmen at a baseball practice session in Northern Virginia. The basis for the lawsuit centered on a portion of the editorial that made reference to the January 2011 shooting of former Congresswoman Gabby Giffords and the debate over so-called heated political rhetoric that raged in the days and weeks after the shooting. Within hours if not minutes after the shooting, memes began appearing on social media and elsewhere that tried to link the shooting to a map that Palin’s political action committee had distributed prior to the 2010 election that depicted a number of Congressional districts around the country as “target races” and placed a target over the general location of each of them, one of those districts was the 8th Congressional District in Arizona, which Giffords represented at the time.
As James Joyner and others pointed out at the time, though, the idea of a “target district” and the use of maps with similar-looking targets was fairly common in political fundraising long before Sarah Palin became a national political figure Furthermore, at the time the meme began circulating in the hours after the shooting, there was absolutely no evidence that the shooter had any political motive at all, or that he had ever even seen the map in question. As we learned days later, Jared Loughner, the shooter in question, had political views that were a bizarre mixture of far left and far right political views and conspiracy theories from various corners of the Internet. There was also anecdotal evidence that he was mentally disturbed, something that was confirmed as the case against him unfolded. Finally, it became clear that Loughner had an obsession with Giffords that existed long before anyone outside of Alaska ever heard of Sarah Palin. In other words, there was simply no evidence to support the idea that there was any connection at all between Loughner, the shooting, and the map produced by SarahPAC. As I said a few days after the shooting, “Sarah Palin is not responsible for what happened in Tuscon on Saturday, she neither pulled the trigger nor said anything that comes even close to incitement to violence.”
Despite all of this, when the Times published its Editorial regarding the shooting in Alexandria, Virginia, it’s original version once again tried to link Palin to the Giffords shooting as part of an effort to make an argument about political rhetoric and what appear to be examples of politically-motivated violence. Here’s what the Editorial read like in its original version:
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 9-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 for of the right.
That original editorial came under immediate criticism including a Washington Post fact check that called the attempt to link the Palin map to the Giffords shooting “bogus.” In response to this criticism the Times corrected the Editorial to address the concerns regarding the language that was used regarding the Palin map and the Arizona shooting.:In its corrected version, the editorial adds this sentence to the end of the first paragraph “But in that case no connection to the shooting was ever established.” It also changed the final sentence of the second paragraph to read “Liberals should, of course, be held to the same standard of decency that they ask of the right.” In both paragraphs, any inference of a link between Palin and the map was removed. A correction posted later on the same day as the editorial acknowledged the lack of any link between the Giffords shooting and either the map, but did not meaningfully change the text of the editorial. However, a subsequent correction posted the day after the editorial was posted on the Times website and now accompanies the revised Editorial. It reads as follows:
An editorial on Thursday about the shooting of Representative Steve 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.
Notwithstanding these corrections, Palin alleged in her lawsuit that the Times original editorial seeking to link her PAC to the Giffords shooting was defamatory and argued that the paper knew or should have known that the claims made in the piece were false and defamatory. In support of that argument, Palin’s Complaint made reference to the fact that Times columnist Charles Blow wrote an Op-Ed piece in the days after the Giffords shooting in which he called out the effort to falsely link Palin to the shooting, and the Times itself published an article that detailed the history of Giffords shooter Jared Lee Loughner that made clear both his apparent mental illness and lack of any discernible political motive. Finally, on the same day as the Editorial, the Times published an Op-Ed piece by columnist Bret Stephens that spoke about the 2011 allegations regarding a link between the Giffords shooting and the SarahPAC map and made clear that the claims of such a link were debunked. All of this, Palin claimed in her lawsuit was evidence not only that the Times had defamed her, but that it had done so with the actual malice required by the standard set forth by the Supreme Court in the landmark case New York Times v. Sullivan.
Yesterday, a Federal District Court Judge in New York City rejected Palin’s lawsuit and granted the Times’motion to dismiss the case:
A federal judge on Tuesday dismissed a defamation lawsuit filed by the former vice-presidential candidate Sarah Palin against The New York Times, saying Ms. Palin’s complaint failed to show that a mistake in an editorial was made maliciously.
“What we have here is an editorial, written and rewritten rapidly in order to voice an opinion on an immediate event of importance, in which are included a few factual inaccuracies somewhat pertaining to Mrs. Palin that are very rapidly corrected,” Judge Jed S. Rakoff of Federal District Court in Manhattan said in his ruling. “Negligence this may be; but defamation of a public figure it plainly is not.”
In the lawsuit, which was filed in June, Ms. Palin contended that a Times editorial that was published roughly two weeks earlier had linked her to a 2011 mass shooting in Arizona even though the news organization knew the connection was false. The editorial was published the day a gunman opened fire at a baseball field where congressmen were practicing for an annual charity game. Several people were injured, including Representative Steve Scalise of Louisiana.
The Times filed a motion to dismiss the case in July.
Earlier this month, Judge Rakoff had ordered the author of the editorial to testify in an unusual evidentiary hearing, saying that a central question he would consider when weighing The Times’s motion was whether Ms. Palin’s defamation complaint contained “sufficient allegations of actual malice.”
The “actual malice” standard for defamation holds that public officials have to show that news outlets knowingly published false information or had acted with “reckless disregard” for the truth.
James Bennet, the editor of The Times editorial page, testified on Aug. 16 that he had not intended to blame Ms. Palin for the 2011 shooting. Instead, he said, he was trying to make a point about the heated political environment.
In his ruling, Judge Rakoff said that the behavior of Mr. Bennet, who introduced the statements in question during the editing process, was “much more plausibly consistent with making an unintended mistake and then correcting it than with acting with actual malice.”
“Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States,” Judge Rakoff wrote. “But if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously.”
The principal ground for the dismissal hinges on the fact that Judge Jed Rakoff, a Clinton appointee who has been on the bench since 1996, found that Palin had failed to sufficiently allege and prove the existence of the actual malice that the Sullivan case requires of public figures who are alleging defamation, libel, or slander. As part of his consideration of the Motion to Dismiss that the Times filed in the case, Judge Rakoff took the somewhat unusual step of scheduling an evidentiary hearing on the actual malice issue. The principal witness at that hearing was James Bennet, the Editor of the Editorial Page who was responsible for editing the Editorial, which was originally written by Editorial Board member Elizabeth Williamson. Here’s perhaps the most important part of Bennett’s testimony as quoted by The Washington Post’s Eric Wemple:
Rakoff: Well, maybe I am misunderstanding the question. What you’re linking to political incitement is the shooting by Mr. Loughner in 2011 of Ms. Giffords and others, yes?
Bennet: Your Honor, what I was thinking of with the word the link to political incitement was clear. What I was thinking of was the link between an example of political incitement and this larger atmosphere. What I mean is I was very mindful as I was editing this editorial, I was thinking here we are, we’re deploring political incitement on the left. We’re not actually calling out any concrete example of such incitement, not citing a single politician or political organization. And we were looking for — I had asked Elizabeth, I had said — the shooter in Virginia was a Bernie Sanders supporter. One of the questions I’d asked was is there an example of really incendiary rhetoric from Bernie Sanders? Is there a connection between — we didn’t see that word and we didn’t see a connection between the victims in Virginia and any specific political incitement. That was the link I was thinking of.
Rakoff: Well, maybe I am asking a more narrow question. I am asking a question about grammar and sentence structure, which presumably you have some expertise in. The sentence in its entirety reads: “In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear.” Doesn’t that mean as a matter of ordinary English grammar and usage that that sentence is saying that the shooting in 2011 was clearly linked to political incitement?
Bennet: That is not what I intended it to mean. I understand what you’re saying, Your Honor. But what I was thinking of was of the link between the victim and the overall climate, that there was actually an example of political incitement that we could point to in that case to create a link between the victim and the incitement. I wasn’t — what I wasn’t trying to say was that there was a causal link between — a direct causal link between this map and the shooting.
Rakoff: In the next sentence you seem to be saying that the political incitement was the result, in part, of Sarah Palin’s political action committee’s map, yes?
Bennet: In which sentence, Your Honor?
Rakoff: The very next sentence, “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 crosshairs.”
Bennet: Right, Your Honor. That is the — is again — in my mind was the example — the specific example of — and the word I used was “political incitement” or “incendiary rhetoric” that connected the climate to the victim.
Relying principally on Bennet’s testimony and other evidence submitted by Palin’s lawyers, Judge Rakoff essentially concluded that there was no evidence of the actual malice that Sullivan requires and that any damage that Palin may have suffered was quickly mitigated when Bennet became aware of the errors he had made in the original version of the Editorial.
Judge Rakoff starts off his opinion with a strong statement about the importance of freedom of the press and the higher standard that public figures must meet under the Sullivan standard:
Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States. In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others. Responsible journals will promptly correct their errors; others will not. But if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity. Here, plaintiff’s complaint, even when supplemented by facts developed at an evidentiary hearing convened by the Court, fails to make that showing. Accordingly, the complaint must be dismissed.
Ultimately, though, it was the actual malice issue and Bennet’s own testimony that decided the case:
Here, as already mentioned, the complaint fails on its face to adequately allege actual malice, because it fails to identify any individual who possessed the requisite knowledge and intent and, instead, attributes it to the Times in general. This will not suffice. “When there are multiple actors involved in an organizational defendant’s publication of a defamatory statement, the plaintiff must identify the individual responsible for publication of a statement, and it is that individual the plaintiff must prove acted with actual malice.” Donqguk Univ., 734 F.3d at 123; see Sullivan, 376 U.S. at 287 (“[T]he state of mind required for actual malice would have to be brought home to the persons in the [defendant’s] organization having responsibility for the publication of the [statement].”)
But even assuming, in light of the evidentiary hearing, that the complaint should now be construed as asserting actual malice on Mr. Bennet – the primary, if not the sole, author of the sentences and the Times’ Editorial page editor – plaintiff still fails to meet the actual malice standard. That standard is grounded in “a profound national commitment to the principle that debate on public issues be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Sullivan, 376 U.S. at 270. Sullivan and succeeding cases “have emphasized that the stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies.” St. Amant, 390 U.S. at 731-732. “[S]peaking out on political issues is a core freedom protected by the First Amendment and probably presents the ‘strongest case’ for applying ‘the New York Times [v. Sullivan] rule.'” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 51 (1st Cir. 2012) (quoting HarteHanks, 491 U.S. at 666 n. 7, 686-687)).
Coupling this protective overlay with the more technical requirement that a public figure, in order to survive a motion to dismiss a claim of defamation, must allege specific facts that plausibly evidence actual malice in a clear and convincing manner, it is plain that plaintiff has not and cannot meet this standard, even with the benefit of the facts brought forth by the evidentiary hearing.
To put the matter simply, Bennet – as his undisputed testimony shows – wrote the putatively offending passages of the editorial over a period of a few hours and published it very soon thereafter. Shortly after that, his mistakes in linking the SarahPAC Map to the Loughner shooting were called to his attention, Tr. 27:8-17, and he immediately corrected the errors, not only in the editorial itself but also by publishing corrections both electronically and in print, Tr. 28:19-29:10; Compl. ~~ 50-55, 63. Such behavior is much more plausibly consistent with making an unintended mistake and then correcting it than with acting with actual malice. Plaintiff’s response is, first, to posit that the Times in general, and Mr. Bennet in particular, had a motive to defame Mrs. Palin. As to the Times in general, the complaint alleges that “there is existing hostility toward Mrs. Palin” and “her name and attacks upon her inflame passions and thereby drive viewership and Web clicks to media companies.” Compl. ~ 30. As to the alleged “hostility,” it goes without saying that the Times editorial board is not a fan of Mrs. Palin. But neither the fact of that opposition, nor the supposition that a sharp attack on a disfavored political figure will increase a publication’s readership, has ever been enough to prove actual malice. See, ~, Harte-Hanks, 491 U.S. at 665 (“[A] newspaper’s motive in publishing a story – whether to cannot provide a sufficient basis for finding actual malice.”). For “it is hardly unusual for publications to print matter that will please their subscribers; many publications set out to portray a particular viewpoint or even to advance a partisan cause. Defamation judgments do not exist to police their objectivity.” Reuber v. Food Chem. News, Inc., 925 F.2d 703, 716 (4th Cir. 1991).
Here, moreover, as previously noted, it is not the Times’ collective knowledge and intent that is relevant but rather Mr. Bennet’s. As to hostility, the best that plaintiff can muster is that Mr. Bennet has a long association with liberal publications and that his brother is the Democratic senator from Colorado who was endorsed by Congresswoman Giffords’ political action committee in his 2016 election and whose opponent was endorsed by Mrs. Palin in that same election. Tr. at 34:17-19, 68:20-22, 70:24-71:17; see also Memo. on Plausibility at 5-6 & n.22. If such political opposition counted as evidence of actual malice, the protections imposed by Sullivan and its progency would swiftly become a nullity.
We come back to the basics. What we have here is an editorial, written and rewritten rapidly in order to voice an opinion on an immediate event of importance, in which are included a few factual inaccuracies somewhat pertaining to Mrs. Palin that are very rapidly corrected. Negligence this may be; but defamation of a public figure it plainly is not.
When I originally commented on Palin’s lawsuit, I argued that it appeared from her Complaint that she had a fairly strong case or at least one that would be strong enough to survive a Motion To Dismiss. Had Judge Rakoff limited consideration of the case to just the four corners of the Complaint itself, it’s possible that he would have agreed and that Palin’s lawsuit would have survived this motion. Rather than doing that, though, Rakoff decided to take the step of holding a hearing in order to hear from Bennet and other witnesses involved in drafting the Editorial regarding the process that led to the publication of the Editorial and the corrections that followed. Notwithstanding presumably vigorous testimony by Palin’s lawyers, that testimony ultimately seemed to establish that neither of the Editorial nor Bennet was acting with the sufficient kind of malice toward Palin or reckless disregard for the truth that would be sufficient to establish actual malice. Instead, it appears to be clear from the testimony that Bennet did not act with actual malice in connection with the sentences in question and, perhaps crucially, that he took steps to correct them when the errors in the Editorial were brought to his attention. Given this, it is clear that there was not sufficient evidence of actual malice to support Palin’s claim, and the dismissal was entirely appropriate.
As Judge Rakoff points out in his opinion, political journalism is among the most important areas protected by the First Amendment. Because of this, the Supreme Court has stated, starting in Sullivan and continuing through other cases such as the famous case in which the late Jerry Falwell sued Hustler magazine for a parody ad that portrayed him in an admittedly lewd manner, that Plaintiff’s who are public figures must meet a strict standard in order to impose liability for libel, slander, or defamation on a publication or writer. As the Supreme Court stated in the Sullivan opinion:
A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount — leads to a comparable “self-censorship.” Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. See, e.g., Post Publishing Co. v. Hallam, 59 F. 530, 540 (C.A. 6th Cir. 1893); see also Noel, Defamation of Public Officers and Candidates, 49 Col.L.Rev. 875, 892 (1949). Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which “steer far wider of the unlawful zone.” Speiser v. Randall, supra, 357 U.S. at 526. The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
The evidence established that Palin failed to meet this standard. Therefore, it was entirely appropriate for the Court to dismiss the case.
In civil cases in Federal District Court, and most state courts, it is ordinarily the case that a Plaintiff who loses on a Motion to Dismiss at an early stage of the litigation is given at least one chance to file an Amended Complaint that would address the pleading errors that were the basis for the dismissal. In this case, though, Judge Rakoff chose to dismiss the case with prejudice, meaning that there would be no leave to amend. This appears to be based primarily on the fact that the evidentiary hearing established that there was no evidence of actual malice that could be adduced through further investigation or discovery and that allowing the case to continue would be a waste of time and a miscarriage of justice.
This means that Palin’s next legal option is to appeal the case to the Second Circuit Court of Appeals, which she has the right to do. As things stand, there appear to be three grounds for the appeal that Palin could puruse. First, of course, they are likely to argue that Rakoff’s application of the actual malice to the facts alleged in the Complaint and the testimony at the evidentiary hearing was improper under the law, for example, that he held Palin to too high of a burden for purposes of a Motion to Dismiss. Second, there’s the issue of the evidentiary hearing itself. While technically authorized by the rules, it was nonetheless an unusual procedural step and the fact that Palin’s attorneys do not appear to have had the opportunity for prehearing discovery of any kind was arguably prejudicial given the fact that Judge Rakoff appears to have relied primarily upon Bennet’s testimony at this hearing as the basis for his ruling. Finally, the decision to dismiss the case with prejudice without giving Palin the opportunity to amend the Complaint at least once was an abuse of discretion, especially given the fact that Federal Rule of Civil Procedure 15(a)(2) states that “the court should freely give leave when justice so requires.”
As of this morning, I haven’t seen any comment from Palin or her attorneys regarding the lawsuit, so it’s unclear whether that will happen, however, she has plenty of time to make that decision and take the steps necessary to take the appeal. If she does, then it could be up to a year or more before the case is heard and decided by the Court of Appeals. Beyond that, of course, lies either an en banc hearing before the full Second Circuit or an appeal to the U.S. Supreme Court. For now, though, the case is ended and Palin’s legal options appear to be at an end.
Update: This post was updated to include a brief discussion of potential grounds for appeal.
00000000000000H0ere’s the opinion: