Federal Judge Jed S. Rakoff dismissed former Alaska Governor Sarah Palin’s defamation lawsuit against the New York Times on Tuesday.
“[I]f political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity,” Rakoff wrote in his 26-page opinion. “Here, plaintiff’s complaint, even when supplemented by facts developed at an evidentiary hearing convened by the Court, fails to make that showing. Accordingly, the complaint must be dismissed.”
Palin sued the Times for defamation in Manhattan federal court in the Southern District of New York after the Times published a June editorial hours after House Majority Whip Steve Scalise (R-LA) was shot on a baseball field in which it, as Breitbart News noted, “falsely accused Palin of inspiring Jared Lee Loughner in his assassination of attempt of former Rep. Gabby Giffords (D-AZ) in 2011.”
There has never been a shred of evidence whatsoever to even suggest that Loughner, who was apolitical, was inspired by Palin or the Tea Party. Yet, the Times alleged Palin was responsible for the “political incitement” that caused Loughner to open fire at Giffords’ event:
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.
The Times issued two subsequent corrections, and, in the complaint, Palin’s lawyers cited the Times’ own articles and “argued that the Times knew there was no link between Palin and the Giffords shooting.” As Breitbart News noted, Palin’s legal team 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.”
Rakoff did not buy the Times’ arguments that “the challenged statements are not ‘of and concerning’ plaintiff” and that “the challenged statements are not provably false.”
But he noted that “public figures who seek damages for defamatory statements must, however, do more than prove that the statements about them were false. They must also prove by ‘clear and convincing evidence’ that the statements were made with ‘actual malice’ – that is, with knowledge that the statements were false or with reckless disregard as to their falsity.”
Rakoff wrote that Palin’s “complaint fails on its face to adequately allege actual malice, because it fails to identify any individual who possessed the requisite knowledge and intent and, instead, attributes it to the Times in general. This will not suffice.”
“It is not the Times‘ collective knowledge and intent that is relevant but rather [the Times editorial page editor James] Bennet’s,” he wrote.
The Times argued that it had simply made an “honest mistake” even though, as Rakoff acknowledged, its editorial board “is not a fan of Mrs. Palin.” A reportedly “anguished” Bennet, who was The Atlantic‘s editor before joining the Times in 2016, claimed during the evidentiary hearing that a Times editorial writer in Washington, DC wrote the first draft of the editorial, which Bennet then apparently decided to nearly completely re-write on his own. Bennet also testified that he hastily added the words “political incitement” because he was “looking for a very strong word to write about the political climate because I wanted to get our readers’ attention.”
According to Politico, “lawyers for Palin asked Bennet, whose brother Michael is a Democratic senator in Colorado, whether he knew that Colorado Democratic Congress members who endorsed his brother in 2016 had been listed as targets on the 2011 map, or whether he remembered that a PAC associated with Giffords, advocating gun control, had endorsed his brother’s re-election.” Bennet reportedly “said he did not remember or recall those circumstances at the time he was rewriting the editorial.”
Palin’s lawyer, according to HuffPost, also “asked if Bennet recalled a 2011 dispute between commentator Andrew Sullivan ― whose ‘Daily Dish’ blog was then published by The Atlantic ― and a Financial Times writer over linking Palin to the Giffords shooting. Bennet, who was The Atlantic’s top editor at the time, said he didn’t recall the matter when he was rewriting the Times editorial.”
Rakoff wrote that Palin’s lawyers “failed to identify an individual with actual malice” and, as “to hostility, the best that plaintiff can muster is that Mr. Bennet has a long association with liberal publications and that his brother is the Democratic senator from Colorado who was endorsed by Congresswoman Giffords’ political action committee in his 2016 election and whose opponent was endorsed by Mrs. Palin in that same election.”
The judge also bought Bennet’s testimony in which he claimed complete ignorance regarding one of the most seminal political events in recent memory. Rakoff wrote that “all these articles appeared years earlier, and there is no reason to suppose that, even if Bennet had read them at the time, he would necessarily remember their conclusions, especially since, as the complaint itself notes, there were also articles that appeared shortly after the Loughner shooting that drew contrary conclusions.”
“What we have here is an editorial, written and rewritten rapidly in order to voice an opinion on an immediate event of importance, in which are included a few factual inaccuracies somewhat pertaining to Mrs. Palin that are very rapidly corrected,” Rakoff wrote. “Negligence this may be; but defamation of a public figure it plainly is not.”
Because the case was dismissed, Palin’s lawyers will not be able to question “twenty-three non-party current and former Times reporters, editors and other employees” and seek internal Times “documents that might reveal, among other things, their ‘negative feelings’ toward” Palin.