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    Sarah Palin defamation lawsuit against NY Times reinstated by appeals court

    Sarah Palin defamation lawsuit against NY Times reinstated by appeals court

    “Palin’s Proposed Amended Complaint plausibly states a claim for defamation and may proceed to full discovery.”

    Sarah Palin sued the NY Times for defamation regarding the (false) allegation that an electoral map she used was connected to the shooting of Gabby Giffords by Jared Loughner. As we reported at the time, there was no connection, it was a fabrication of left-wing bloggers.

    The rest of the world got the message, but not the NY Times:

    A firestorm of controversy erupted when the NY Times ran an editorial, after the attempted assassination of Republican congressmen in Virginia, blaming Sarah Palin for the culture of political violence.

    The Times specifically referenced an electoral map from 2011 which showed what appears to be cross-hairs over Arizona. That map, as we covered at the time, was used to falsely blame Palin for the January 8, 2011 shooting of Congresswoman Gabby Giffords and the murder of several people by Jared Loughner.

    In fact, that connection between the map and the shooting was completely fabricated, and spread by left-wing bloggers and media. There is zero evidence to suggest that Loughner ever saw the map, much less was motivated by it.

    The Times Editorial Board resurfaced the claim in 2017 in its editorial, which provided in pertinent part (emphasis added):

    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.

    Conservatives and right-wing media were quick on Wednesday to demand forceful condemnation of hate speech and crimes by anti-Trump liberals. They’re right. Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask of the right.

    The Times Editorial Board issued a quasi-correction, never really apologizing for the claim, simply acknowledging that there is no evidence to suggest a connection.

    An editorial on Thursday about the shooting of Representative Steve Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs.

    The case was dismissed after an evidentiary hearing on the Times’ motion to dismiss. You can read the details here, Sarah Palin defamation lawsuit against NY Times dismissed.

    The lawsuit was just reinstated by the Court of Appeals for the Second Circuit. Here is the summary at the beginning of the Opinion (pdf.)(full copy embedded at bottom of post):

    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. Sarah Palin appeals the dismissal 4 of her defamation complaint against The New York Times (“the Times”) for failure to state a claim. The district court (Rakoff, J.), uncertain as to whether Palin’s complaint plausibly alleged all of the required elements of her defamation claim, held an evidentiary hearing to test the sufficiency of Palin’s pleadings. Following the hearing, and 9 without converting the proceeding to one for summary judgment, the district court relied on evidence adduced at that hearing to dismiss Palin’s complaint under Federal Rule of Civil Procedure 12(b)(6). We find that the district court erred in relying on facts outside the pleadings to dismiss the complaint. We further conclude that Palin’s Proposed Amended Complaint plausibly states a claim for defamation and may proceed to full discovery.


    We covered the case extensively, including in these posts:

    I was highly critical of district court’s dismissal of the case:

    This is a case where the NY Times Editorial author James Bennet claimed to be so ignorant, so uninterested in doing any research, and so oblivious to his surroundings, that his ignorance turned into legal bliss….

    The Court repeatedly took facts that arguably showed reckless disregard for the truth, and turned them around to argue they created an inference against malice. For example, a hyperlink in the editoriral contradicted the text of the editorial, leading many commenters to argue that this showed recklessness. But to the contrary, the court considered the hyperlink the equivalent of a footnote, presuming it constituted disclosure of the material.

    The inclusion of this article through the hyperlink shows, first, that the Times did do some research before publishing the editorial (despite the very limited time available) and, second,
    that the allegation of actual malice is even more improbable because the Times included as a hyperlink an article undercutting its own conclusions.

    There should be a high bar for alleging defamation against a public figure. But ignorance shouldn’t be bliss, as it was here.


    Sarah Palin v. NY Times – 2nd Circuit Opinion Vacating Dismissal by Legal Insurrection on Scribd


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    John Sullivan | August 6, 2019 at 1:56 pm

    Judge Newman is a former Chief Judge of the Second Circuit, appointed by Nixon to the district court and Carter to the circuit court. Judge Chin was appointed by Clinton to the district court and Obama to the circuit court. Judge Keenan is a senior district judge appointed by Regan to the bench, and sitting on an appellate panel as experienced district judges often do. A very balanced AND respected panel.

    John Sullivan | August 6, 2019 at 1:59 pm

    Correction: Judge Walker (not Newman) was appointed by Reagan (district) and G.H.W. Bush (circuit), and formerly was also a chief judge of the court.

    Joelist | August 6, 2019 at 3:01 pm

    Get ready for the Sandman suit vs WAPO to also be reinstated by the appellate court and on similar grounds – the judge engaged in “fact finding” which is a specific province of the jury or judge in trial – not in a rule 12 motion to dismiss. The ruling here even lays out the way Rule 12 is to be adjudicated – and the Sandman judge did almost the exact opposite.

      MarkS in reply to Joelist. | August 6, 2019 at 4:07 pm

      I hope that you are correct, however Robert’s adherence to logic is undependable

        Joelist in reply to MarkS. | August 6, 2019 at 10:55 pm

        It won’t get to SCOTUS. The appellate court will reinstate it and for a similar reason to this – Rule 12 motions to dismiss have very specific requirements to be granted which this ruling laid out – and the Sandman district judge did not follow them at all.

    I hope she gets multiple millions.

    artichoke | August 6, 2019 at 9:33 pm

    Big win. Not only did the dismissal get tossed, it didn’t get remanded for reconsideration but actually overruled and the case moved ahead to discovery.

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