M.J. Sheppard | August 11th, 2017
"Can a housewife from Wasilla, Alaska prevail in a libel case against the liberal New York Times in front of a Federal Judge appointed by Democratic president Bill Clinton in overwhelmingly Democratic New York?’
I wrote the above as part of an article on July 28th, three days before Judge Rakoff was to make his decision on whether Governor Palin’s libel case could proceed to jury trial which I, frankly, thought was a purely rhetorical question as the claim proceeding seemed unlikely given venue, defendant, judge.
However Judge Rakoff surprised many perhaps by ruling that he would consider the matter further and would rule at the end of August. What seems an insurmountable block to the expected quick dismissal is the fact that the New York Times printed that Palin was connected to the shooting of Gabby Giffords when on the same day they ran an article advising she had no connection whatsoever.
No matter how any judge in any venue leaned towards the Gray Lady to dismiss the complaint under those circumstances would seem unseemly, to say the least. Where we are now is that Judge Rakoff has given the Palin team leave to call any or all of the Times staff connected with their editorial for cross examination (but, perhaps significantly has disallowed discovery) New York Times editorial page editor James Bennet will testify at a court hearing.It seems clear that the only defense The Times has is that they are so significant that they don’t read their own paper before writing something they had to retract. Common sense says this is insupportable but acting dumb may prove not to be a crime and may give the judge an escape.
If that eventuates, as with the establishment in the dock the odds are in their favor, Palin will have won a major victory in the court of public opinion and the Times will look foolish and of course appeal to a higher court would be open.
As would be expected with all things Palin there has been much media coverage including, no doubt to their chagrin even from the New York Times itself. The basic summary of the new rulings from Judge Rakoff has been set out by The New York Daily News without commentary. Trained professional legal minds, and informed commentators have not be so reticent and a selection shows, to my mind, a common view that Palin’s case on moral and common sense grounds is clear, but that the defendant, and the judge,also have a clear path to dismissal. Hopefully justice is blind, if not in New York then at the Supreme Court if required.
Noted legal mind Prof. William A. Jacobson who runs the ‘Legal Insurrection’ website commented;
"The Court just issued an unusual order on a motion to dismiss…The Order is unusual because normally motions to dismiss are decided on the papers, and the court must determine all reasonable inferences in favor of the non-moving party (Palin, here). One of the key factual allegations in the Complaint is that the NY Times was aware that Palin’s map had nothing to do with the Giffords shooting, because prior NY Times articles so stated. So, by inference, the authors of the Editorial ignored information available at the NY Times itself.
The Judge appears to be requiring not just imputed knowledge of prior NY Times articles, but actual knowledge by the authors of the Editorial in order to find a reasonable inference of actual malice. That the Judge says the issue is a “close question” based on the pleadings demonstrates that if Palin survives the motion to dismiss, it will turn on who knew what, and when.
Palin’s attorneys will seek not only to demonstrate actual knowledge, but also such reckless disregard for the truth as to establish actual malice. How could the authors of the Editorial not at least do a search of the NY Times itself? And as to the members of the Editorial Board in whose name the Editorial appeared, but who may not have been “authors” of it, why should their knowledge or lack thereof be ignored.
Make no mistake, however, this is a gift to Palin’s team. They get what they normally are not entitled to at this stage — testimony. That testimony, though limited in time, could be a goldmine of information.Media defendants usually win these motions to dismiss on the papers. That the Times has not yet done so should give the Palin team encouragement.
Huffington Post, no friend of Palin’s to the extent they dredged up a Palin/Couric interview from 9 years ago postulated;
"Palin, a public figure, has to prove the Times acted with malice to defame her ? a legal threshold much higher than simply a good-faith mistake."
John Sexton at Hot Air opined;
"Let’s just step back and admire this situation for a moment. One or more editorial writers at the NY Times, the folks who speak with the paper’s voice of authority on every subject you can imagine, will plead with a judge to believe they did not know the basic facts of a story they were writing about, including facts reported in their own paper! The Times’ defense is: We so dumb.
I find this indescribably delicious, especially given that it was Paul Krugman who used his perch at the NY Times to lead this false charge against Palin back in 2011. There were certainly many who echoed him at the time, but Krugman was the most high profile voice making this claim after the shooting. In fact, if the editorial writers are asked to explain where they got the dumb idea that Palin had been definitively linked to the Tucson shooting, the most likely explanation will be that they got the idea from Paul Krugman. There’s a certain justice to having the paper that mainstreamed this lie face the music over it, albeit belatedly.
Will the judge believe that NY Times editorial writers are ignorant rubes who don’t read their own paper? I won’t guess at the outcome, but I will say that the author(s) certainly wrote as if the facts were crystal clear.Either the author of this piece was a malicious liar or he/she is too ill-informed to be writing editorials for a newspaper. Either way, it looks pretty bad for the NY Times and quite possibly for the future employment of the author(s). It also makes one wonder what other things the NY Times editorial board opines about without a complete familiarity with the facts."
John Hinderaker at PowerLine is scathing;
‘You Heard It Here First: NY Times Editors Deny Reading Their Own Newspaper‘
I wrote here that Palin has a strong case, despite the extraordinary burden of proof imposed on public figures who sue for defamation. This is true, in part, because the Times’s own reporting debunked the idea that Palin had anything to do with Laughlin’s murders (which was a crazy idea in the first place). I wrote:
Ms. Palin can make a strong argument that the Times editorialists knew that their smear was a lie, based on reporting done by the Times itself. (The editorialists’ defense likely will have to be that they don’t read their own newspaper.)
That last observation was prophetic. The Times’s lawyers have moved to dismiss Palin’s case on the ground that her complaint fails to state a claim. This means that even if you assume everything in the complaint is true, she still doesn’t have a case. In response to that motion, the presiding judge, Jed Rakoff, has ordered an evidentiary hearing. You can read his order here. Judge Rakoff writes that whether Palin has sufficiently alleged actual malice is a “close question.” I disagree, I think her complaint is plainly sufficient. But Judge Rakoff continues:
[T]he 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. This is information peculiarly within the knowledge of defendant; but on it arguably depends the reasonableness vel non of inferring actual malice.
So, as I predicted, the Times won’t admit that its editors read their own paper. Judge Rakoff’s order requires the Times to produce for depositions all people who were involved in writing the editorial, so that Palin’s lawyer can ask them under oath whether they knew about the paper’s reporting on Jared Laughlin’s crime. The interrogation will take place in front of Judge Rakoff, who may ask questions of his own.
Be that as it may, the Times editorialists have no choice but to testify that they wrote their editorial blaming Sarah Palin for an insane person’s murders without even bothering to check their own paper to see what news about the shootings had been reported. The context is macabre, but it will be highly entertaining to read the Times editorialists’ depositions when they are made public."
Breitbart which one would expect to be strongly gung ho for Palin is instead very precise in setting out the details of the upcoming court battle, perhaps Steve Bannon’s White House position makes a slightly distant approach more seemly.
However there are no such constraints in the comment section where the armchair legalists vent obviously happily.