Judge Orders N.Y. Times Editorial Writer to Testify in Sarah Palin Lawsuit

Testimony is needed, writes the judge, to help determine whether Palin has sufficiently stated a case for actual malice in her defamation complaint.
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Sarah Palin

In an unusual move, New York federal court judge Jed Rakoff has called for an evidentiary hearing in Sarah Palin's defamation lawsuit against The New York Times. The lawsuit is just six weeks old, but the judge says he needs to hear from the paper's editorial writer(s) to decide whether the lawsuit should move forward.

Palin, the former Alaska governor who ran as John McCain's presidential running mate in 2008, is suing the Times over an editorial that ran after a gunman opened fire on Republican lawmakers who were practicing for an annual charity game. The editorial originally linked one of Palin's political action committee ads to a 2011 mass shooting that severely wounded then-Arizona Congressman Gabby Giffords. After the editorial ran, the paper issued a correction acknowledging that no link had been established.

Palin claims the newspaper published something it "knew to be false," which would constitute actual malice, a necessary element in defamation actions brought by public figures.

In a motion to dismiss, the Times is challenging whether Palin's complaint contains sufficient allegations of actual malice.

Rakoff writes in a short order Thursday that Palin's complaint "alleges that the allegedly false statements of fact that are the subject of the Complaint were contradicted by information already set forth in prior news stories published by the Times. However, these prior stories arguably would only evidence actual malice if the person(s) who wrote the editorial were aware of them."

And so, Rakoff now wants to convene a hearing next Wednesday to hear from the editorial writer or writers under oath. The paper must produce them for no more than 30 minutes of examination by the papers' lawyer to be followed by no more than 45 minutes of cross-examination by Palin's attorney. The Times then gets an additional 15 minutes for redirect.

Concludes Rakoff, "The Court also may question each such witness."

If the editorial writer insists he or she didn't know the truth when making a connection to the Giffords shooting, Palin's lawyer could question whether the witness really reads The New York Times. Should that happen, it would present an ironic post-script to Palin's infamous 2008 interview with Katie Couric, where the then vice presidential candidate was embarrassed after being flummoxed by which newspapers she reads.

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