Second Circuit Reinstates Sarah Palin’s Lawsuit Against The New York Times

In a unanimous decision, a three-judge panel from the Second Circuit has reinstated Sarah Palin's defamation lawsuit against The New York Times.

The Second Circuit Court of Appeals has ruled in favor of former Alaska Governor and Republican Vice-Presidential candidate Sarah Palin in her appeal of a District Court ruling last year that dismissed her defamation suit against The New York Times:

Sarah Palin’s defamation lawsuit against The New York Times Company was reinstated by a federal appellate court on Tuesday, with a three-judge panel ruling that a District Court judge was wrong to dismiss it two years ago.

The case involves an editorial The New York Times published in June 2017. Ms. Palin, the former vice presidential candidate, argued in her lawsuit that the editorial had incorrectly linked her to a 2011 mass shooting in which Gabrielle Giffords, then a congresswoman from Arizona, was severely wounded. Ms. Palin’s political action committee had previously circulated a map of electoral districts, some with cross hairs on them, and she said The Times had connected the map to the shooting despite knowing that tie to be false.

The Times later issued a correction, saying there was no link between that political rhetoric and the shooting.

In August, Judge Jed S. Rakoff of Federal District Court in Manhattan dismissed the suit after an unusual evidentiary hearing in which James Bennet, the editor of the Times editorial page, testified. He said he had not intended to blame Ms. Palin for the shooting of Ms. Giffords, but rather to make a broader statement about the country’s heated political environment. Mr. Bennet inserted the statements that Ms. Palin said were defamatory during the editing process.

On Tuesday, a three-judge panel of the United States Court of Appeals for the Second Circuit ruled that it was not for a judge to determine whether Mr. Bennet had acted out of “actual malice,” meaning that he either knew that what he wrote was false or that he acted with “reckless disregard.” The judges said that in light of Mr. Bennet’s testimony, Ms. Palin’s case remained “plausible.”

More from Politico:

A federal appeals court has revived a libel suit former Republican vice presidential nominee Sarah Palin filed against The New York Times over an editorial linking Palin to the 2011 shooting rampage in Arizona that wounded then-Rep. Gabby Giffords and killed six others.

The 2nd Circuit Court of Appeals said a district court judge in Manhattan erred when he dismissed Palin’s lawsuit over the 2017 editorial prompted by a similar shooting attack in Virginia that badly injured Rep. Steve Scalise as he and other lawmakers practiced for a congressional baseball game.

In a unanimous ruling, the three-judge appeals panel said U.S. District Court Judge Jed Rakoff violated procedural rules when he dismissed Palin’s suit after an initial hearing that featured testimony from Times editorial page editor James Bennet.

Bennet testified he wrote the passage into the editorial and was unaware of numerous stories in the Times and other outlets that said no connection had been established between the Arizona shooting and the cross-hairs graphic released by a Palin political committee. Rakoff said that testimony established that Palin could not prove the “actual malice” required for a public figure to win a libel case.

Holding such a hearing with live testimony at the outset of a suit is unusual. The 2nd Circuit panel decided the approach violated Palin’s rights.

“The hearing runs headlong into the federal rules,” wrote Judge John Walker, joined by Judges Denny Chin and John Keenan.
Walker called Rakoff “able and experienced” but said he ran afoul of the federal civil court process by accepting Bennet’s testimony as credible before Palin’s attorneys had the ability to take depositions and demand evidence from the Times.

“It is clear to us that the district court 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,” Walker added.

Rakoff’s ruling seemed to be an act of judicial pushback against recent Supreme Court rulings that required judges to scrutinize suits more carefully for plausibility. Critics say those decisions prematurely shut down cases where plaintiffs might be able to prove their cases.

Walker said Palin’s suit met that standard of plausibility because the Times’ liability for the editorial, which was later corrected, turned on Bennet’s state of mind and the credibility of his testimony. The appeals judge noted that when Bennet was editor in chief at The Atlantic prior to taking the Times editorial page post, the magazine published numerous stories making clear that there was no known connection between the Palin PAC’s graphic and the shooting spree in Tucson carried out by Jared Loughner.

“By crediting Bennet’s testimony, the district court rejected a permissible inference from the articles: that one who had risen to editor‐in‐chief at The Atlantic knew their content and thus that there was no connection between Palin and the Loughner shooting,” Walker wrote.

The appeals judge noted that Palin’s complaint alleges Bennet was personally hostile to the former Alaska governor because his brother is Sen. Michael Bennet (D-Colo.).

“We agree with the district court that political opposition alone does not constitute actual malice, but we conclude that these allegations could indicate more than sheer political bias — they arguably show that Bennet had a personal connection to a potential shooting that animated his hostility to pro‐gun positions at the time of the Loughner shooting in 2011,” wrote Walker.

As you may recall, the basis for Palin’s lawsuit is centered on a portion of a Times 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.

(Emphasis mine)

That original editorial came under immediate criticism including 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.

Several months after the Editorial appeared, Palin filed her lawsuit. In response, The New York Times responded by filing a Motion to Dismiss the Complaint. Since this was a motion filed early in the case, the motion essentially argued that even if all of the allegations in the Complaint are assumed to be true the case should still be dismissed because it failed to state a claim upon which relief can be granted. Generally speaking, when considering such a motion, a Judge is supposed to limit themselves to just the four corners of the Complaint and not consider any outside evidence.

Instead of doing this, though, Judge Ted Rakoff, who was appointed by President Clinton in 1996 and took senior status in 2010, took the unusual step of holding an evidentiary hearing in the case at which various witnesses involved in the drafting of the Editorial were brought in to testify. Prior to this hearing, Palin’s attorneys had requested the opportunity to conduct discovery but Judge Rakoff refused that request. Based on the testimony at the hearing, Rakoff dismissed Palin’s lawsuit finding that she had failed to establish the actual malice required under the standard set by New York Times v. Sullivan, as well as other defects he alleged existed in the Plaintiff’s case. Additionally, while it is typically the case that a Plaintiff who is on the losing end of a Motion To Dismiss is granted at least one opportunity to amend their Complaint. Instead of doing this, though, Judge Rakoff dismissed the case with prejudice, thus meaning that an appeal was Palin’s only viable option.

In its ruling, the Court of Appeals concentrated on the procedures that the Court used leading up to the dismissal. As I noted above, typically a Motion to Dismiss is typically focused only on whether or not the allegations in the Complaint are sufficient to make out a case against the Defendant. As I discussed when Palin first filed the suit, it appeared from the allegations in the Complaint that the answer to this question should have been yes. Instead of following this procedure, though, Rakoff took the unusual step of holding an evidentiary hearing at which he only heard from representatives of the Times. While permitted by the Federal Rules of Civil Procedure in certain circumstances, this was an unusual step.

The appeals court ruled that in following this procedure the trial Judge had acted improperly and essentially acted as a fact-finder would in a trial notwithstanding the fact that it had denied Palin the opportunity to conduct discovery prior to the hearing. Additionally, the appeals panel, composed of Judges appointed by both Republican and Democratic Presidents, found unanimously that the Judge had acted improperly in making determinations about witness credibility that should only be made by a trier of fact at trial. Finally, the panel found that the Judge had not given sufficient weight to the issue of whether or not the author of the Editorial had come to the process of writing it with a pre-determined policial bias against Palin that influenced the manner in which it was originally written. Such evidence would also be relevant to the actual malice standard under the Sullivan decision. As a result of all of this, the Court of Appeals dismissed the Court’s ruling and sent the case back to the District Court where it will either proceed to a jury trial or be settled if the parties are able to come to an agreement.

It seems fairly clear to me that the appeals panel got this decision right. Had Judge Rakoff left his determination to considering the four corners of the document, there would be no issue here. He didn’t do that, though. Instead, he not only held an unusual evidentiary hearing but also refused to allow Palin’s lawyers to conduct discovery prior to the hearing. Finally, as noted, he conducted the hearing in such a way that he essentially acted as both Judge and jury, something clearly not permitted under the law. In doing all of this, he basically violated Palin’s right to a full and complete hearing before a trier of fact in a forum where both sides are permitted to present witnesses and evidence and conduct cross-examination. This was entirely impermissible, meaning that the underlying dismissal was without merit.

Here’s the opinion:

Palin v. New York Times Et Al by Doug Mataconis on Scribd

FILED UNDER: First Amendment, Law and the Courts, Media, Politicians, Sarah Palin, U.S. Constitution, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook


  1. mattbernius says:

    It seems fairly clear to me that the appeals panel got this decision right. Had Judge Rakoff left his determination to considering the four corners of the document, there would be no issue here. He didn’t do that, though. [… H]e basically violated Palin’s right to a full and complete hearing before a trier of fact in a forum where both sides are permitted to present witnesses and evidence and conduct cross-examination. This was entirely impermissible, meaning that the underlying dismissal was without merit.

    IANALBIAMTAFC* and based on what I’ve learn from that, this strikes me (and clearly the three judge panel) as the right decision.

    * IANAL + but I am married to a Federal Clerk

  2. Dave Schuler says:

    It’s always seemed to me that the great lesson from this matter is to make sure that your editors read your paper. A lot of grief could have been avoided if they had.

  3. OzarkHillbilly says:

    @Dave Schuler: Say what??? Why that would be like work! The horror.

  4. CSK says:

    @Dave Schuler: I believe the editorial board had to sign off on it.

  5. @Dave Schuler:

    FWIW I tend to think that if this case goes all the way to verdict that Palin would end up losing but that wasn’t a proper decision for the Judge to make on his own,

    The question now is whether the case goes forward or the parties decide to find a way to settle it

  6. Mister Bluster says:

    …settle it…

    Maybe she will take a free lifetime subscription!

    HA! HA! Call me…Joker!