Sarah Palin wins defamation appeal against New York Times

This case examines how trial courts are supposed to resolve motions to dismiss the lawsuit. Can the judge hear live testimony in addition to reviewing the complaint in determining if the plaintiff alleges a plausible claim for relief? The answer is that the trial court is prohibited from doing so. The end result is that Sarah Palin can sue the New York Times for defamation.

The case is Palin v. New York Times, issued on August 6. Remember Sarah Palin? We all thought at the time that her candidacy for Vice President in 2008 was the rock-bottom moment for the United States. Back in 2017, after a mass shooting in Alexandria, Virginia, the Times ran an editorial about the "vicious" nature of American politics. The editorial drew attention to Palin's political action committee (SarahPAC), which has circulated a map that superimposed congressional districts with crosshairs that resembled the crosshairs from a rifle. The editorial also made reference to the shooting in 2011, when Jared Loughner shot Congresswoman Gabrielle Giffords. The Times said the "link to political incidement was clear" and that the political action committee had "circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs." The Times quickly backed away from that editorial after a public outcry. Pain sued the Times for defamation, claiming the Times was associating her with the shootings.

The case was assigned to Judge Rakoff, who held an evidentiary hearing for "one close question," whether Palin had sufficiently pled the actual malice element of her defamation claim. (As a public figure, Palin cannot win a defamation unless the falsehood was malicious or resulted from a reckless disregard for the truth). Here is what happened next:

The district judge ordered the Times to identify the author of the editorial and the Times produced James Bennet, the editorial page editor at the Times and the author of the editorial, to testify at the hearing. Bennet was the hearing’s only witness. Bennet explained at the hearing that his reference to Palin in the editorial was intended to make a rhetorical point about the present atmosphere of political anger. He also recounted the editorial’s research and publication process and answered inquiries about his prior knowledge of the Loughner shooting six years earlier and any connection to Palin.

Bennet testified that he was unaware of any of the earlier articles published by the Times, or by The Atlantic (where he had previously been the editor‐in‐chief), that indicated that no connection between Palin or her political action committee and Loughner had ever been established. In addition to answering questions from the Times’ counsel, Bennet responded to questions by Palin’s counsel and the district judge. Neither party objected to the district judge’s decision to hold the hearing.

Following the hearing, the district court dismissed the lawsuit. The Court of Appeals (Walker, Chin and Keenan [D.J.]) has revived the case. The trial court's evidentiary "runs headlong into the federal rules" of civil procedure. While Judge Rakoff invokved Rule 43(c) as justification for the hearing, that rule "has nothing to do with the proceedings at the motion-to-dismiss stage." What is more, under Rule 12(b)(6), if the district court considers evidence outside the pleadings on a motion to dismiss, it has to treat the motion as one for summary judgment, where the parties can supplement the evidentiary record beyond the pleadings. The trial court did not convert the motion to one for summary judgment, and instead the Court of Appeals says "the district court viewed the hearing as a way to more expeditiously decide whether Palin had a viable way to establish actual malice." The court cannot do that.

The Court of Appeals also revives the case because Palin's lawyers tried to amend the complaint following the evidentiary hearing. That proposed amendment states a plausible claim for relief because the editorial writer used to work for the Atlantic, which ran an article that rejected any link between Palin and the Giffords shooting, and the writer's brother is a Democrat who used to serve in the U.S. Senate and was endorsed by House members who were targeted by the SarahPAC map. Palin also endorsed the brother's opponent. These allegations in the proposed amended complaint give rise to a plausible malice inference, the Court of Appeals says, along with the fact that the Times issued an immediate correction to the editorial following an outcry over its linking Palin to the shootings. As a reasonable reader may identify Palin as the subject of the editorial criticism, the editorial is "of and concerning" Palin, which further supports her defamation claim. The case now proceeds to discovery.