Sarah Palin Defamation Lawsuit Against N.Y. Times Revived by Appeals Court

The 2nd Circuit knocks the trial judge's expeditious manner in cutting short a claim over an anti-gun op-ed, ruling that Palin should have had opportunity to explore her actual malice theories.
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Sarah Palin will have another shot in her defamation lawsuit against The New York Times after the 2nd U.S. Circuit Court of Appeals on Tuesday overturned a lower court's dismissal.

The former Republican vice presidential candidate sued the paper in 2017 over an editorial linking one of her 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.

In August 2017, U.S. District Court Judge Jed Rakoff dismissed the lawsuit after conducting an evidentiary hearing that led him to the conclusion that Palin, as a public figure, couldn't sustain an assertion that the paper acted with actual malice. Rakoff also made a point about free speech: "Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States," wrote the judge in the order. "In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others."

A hearing in September 2018 appeared to signal that the judges on the federal appellate court weren't happy with the swift way that Rakoff handled this matter.

Writing for the panel of three judges, John M. Walker Jr. opens his opinion, "This case is ultimately about the First Amendment, but the subject matter implicated in this appeal is far less dramatic: rules of procedure and pleading standards."

On a motion to dismiss, judges are supposed to accept pled facts as true before deciding whether a viable claim has been asserted and the case should move forward. Walker notes that Rakoff didn't convert the NYT's motion to dismiss into a motion for summary judgment wherein the evidence could be weighed and a judge could have made a decision whether there was triable facts for a jury trial. On appeal, the NYT attempted to argue that even if Rakoff didn't officially convert the motion, the appeals court could have treated it as such anyway.

The 2nd Circuit declines that invitation.

"This is not a situation in which the plaintiff ought to have seen a summary‐judgment decision coming," states the opinion.

Walker continues, "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."

In the opinion (read here), Walker then analyzes Palin's proposed amended complaint as well as the paper's contention that the only plausible conclusion was that Bennet made a mistake that could not rise to actual malice.

The appellate court disagrees with the NYT and nods to Palin's allegations that Bennet, whose brother is a Senator from Colorado (and is currently running for president), would be more likely than the average editor to know the truth of the shooting because he had reason to be personally hostile to Palin, her party, and her pro-gun position.

"The district court gave no weight to these allegations, finding that political opposition did not rise to the level of actual malice," continues the opinion. "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. Palin’s allegations are relevant to the credibility of Bennet’s testimony that he was unaware of facts published on his watch relating to the Loughner shooting and that he made a mistake when he connected Palin to the that shooting. Palin’s allegations present a plausible inference that Bennet’s claim of memory loss is untrue."

After again cautioning that the latest decision is most concerned with pleading standards and is not casting doubt on First Amendment protections, the 2nd Circuit revives the case and remands it back to the district court for further adjudication. The result likely means that Palin will be able to conduct discovery.