A New York federal court judge on Thursday ordered the writers(s) of the New York Times editorial that falsely linked former Alaska Governor Sarah Palin to the assassination attempt on then-Rep. Gabby Giffords (D-AZ) to testify next Wednesday in an evidentiary hearing that legal experts have described as an unusual move that may benefit Palin.
On Thursday evening, David McCraw, deputy general counsel for the Times, “said the witness would be James Bennet, The Times’s editorial page editor,” according to a Times report.
After House Majority Whip Steve Scalise (R-LA) and three others were shot while practicing for the annual Congressional Baseball Game by James Hodgkinson—the shooter who had expressed support for Bernie Sanders and hatred for conservatives and President Donald Trump—the Times promptly published an editorial that falsely accused Palin of creating an atmosphere of “political incitement” that led to Giffords’ assassination attempt. The Times said Palin was part of a “sickeningly familiar pattern” of political violence before accusing her of inciting Jared Lee Loughner to shoot Giffords. It turned out that Lougner was apolitical and even the Times acknowledged in a 2011 article that “no direct or clear link between political rhetoric and Loughner’s actions could be claimed.”
After being smeared by the Times, Palin sued for defamation, alleging that the Times “violated the law and its own policies” because “at the time of publication, The Times knew and had published pieces acknowledging that there was no connection between Mrs. Palin and Loughner’s 2011 shooting.”
The Times is seeking to get the lawsuit dismissed before Palin’s legal team can question “twenty-three non-party current and former Times reporters, editors and other employees” and demand internal communications. Palin’s team, as Breitbart News has reported, is reportedly seeking “documents that might reveal, among other things, their ‘negative feelings’ toward her. ”
Judge Jed Rakoff wrote in the order that “one close question presented by the motion is whether the Complaint contains sufficient allegations of actual malice, an essential element of the claim. To a large extent, determination of that issue may turn on what inferences favorable to the plaintiff are reasonable given the circumstances alleged in the complaint.” He also pointed out that the 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.”
The Times‘ lawyers will be able to question the writer(s) for no more than 30 minutes. Palin’s lawyers will have a chance to examine the writer(s) for no more than 45 minutes, and the defense will then get no more than 15 minutes of redirect.
As Breitbart News has noted, Palin’s lawyers cited the Times’ own articles to argue that the paper knew all along that “there was no link between Palin and the Giffords shooting.”
Palin’s lawyers also “cited a story written by left-wing Times columnist Charles Blow to show that ‘there is existing hostility held toward Mrs. Palin’ and the Gray Lady knows that ‘her name and attacks upon her inflame passions and thereby drive viewership and Web clicks to media companies.’”
“The Times published the Palin Article with actual knowledge that stories attacking Mrs. Palin inflame passions, which drives viewership and Web clicks,” the complaint read. “Thus, The Times knowingly and voluntarily exploited and retained a benefit conferred by Mrs. Palin, in special circumstances particular to this case in which it would be inequitable for The Times to retain that benefit without paying the value thereof to Mrs. Palin.”
The Times is seeking to dismiss the defamation lawsuit by arguing that it simply made an “honest mistake” when it smeared Palin. It took two corrections after heavy backlash from the public for the Times to get the editorial, which was never retracted, factually correct.
William Jacobson of Legal Insurrection wrote that Palin’s all-star 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,” he continues. “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.”