The journal Law and Crime has reported that appellate court has reinstated a defamation suit brought against the New York Times by former Alaska governor and vice-presidential candidate Sarah Palin.
“A federal court in Manhattan on Tuesday reinstated Sarah Palin’s defamation lawsuit against the New York Times, overturning a district court’s ruling which dismissed her claim in 2017. The three-judge panel ruled that the lower court was wrong to use an ‘unusual process’ in determining the validity of Palin’s claim, vacating the decision and sending the case back to the District Court for discovery.”
Palin had brought her action against the New York Times in 2017 in response to an editorial published by the newspaper in response to the shooting of Republican Rep, Steve Scalise by a Bernie Sanders supporter during a baseball practice.
The editorial had revived the attack on Palin that took place after the shooting of then Rep. Gabby Gifford in 2011. The media widely reported that Palin’s political action committee had published a graphic that included the crosshairs of a target on several congressional districts, including that of Gifford.
The message was that the Democratic House members were targeted for defeat in the next election. Some in the media, as well as Gifford’s husband former astronaut Mark Kelly, suggested that the graphic inspired the shooter to open up on an outdoor meeting, wounding Gifford and killing several others.
The problem is that the shooter had never seen the graphic and never heard of Sarah Palin. He was a deranged person who harbored some kind of obsession with Gifford. The fact, when it finally emerged, was also widely reported in the media, including, ironically, the New York Times.
Kelly, it should be noted, has not recanted his accusation nor has offered an apology to Palin. He is currently running for the United States Senate in the state of Arizona.
Palin, because she is a public figure, has a high hurdle to surmount if she is to prevail in her suit. She has to prove that the Times acted in reckless disregard for the truth.
The fact that that the paper had published the story that refuted the claim would seem to prove that. Palin would also have to prove that the Times acted with clear malice.
Legal scholars suggest that may be a higher hurdle, although the newspaper has a liberal bias and has proven to be especially slanted against Palin and her political career.
Palin’s defamation action ran into trouble almost immediately.
“In 2017, United States District Court Judge Jed S. Rakoff held an evidentiary hearing to determine whether Palin’s complaint against the Times properly alleged all the required elements of a defamation claim. Rakoff then relied on the evidence adduced at that hearing to dismiss Palin’s complaint under the Federal Rules of Procedure 12(b)(6), meaning Palin failed to state a claim upon which relief can legally be granted.”
The appellate court found that Judge Rakoff, a Bill Clinton appointee, erred in his ruling. Palin’s case can now go to discovery. Her lawyers will be free to depose editors and reporters at the New York Times and to subpoena documents. The Times has expressed disappointment with the ruling and has vowed to mount a vigorous defense.
While the ruling has elicited some degree of mockery in the media against Palin, the Federalist provided a perhaps more evenhanded evaluation of the appellate court ruling.
“Palin’s win is a victory not only against the Times but also for America’s political discourse. In the wake of mass shootings, the media—and the public on social media—increasingly rush to judgment about the killers’ possible political motives.
The speculation is nearly always motivated by the desire to politically profit from these gruesome tragedies. The Second Circuit has provided an unfortunately timely reminder that this sort of toxic political recklessness may have legal consequences.”
The last sentence suggests a warning for current media and politicians who are linking the shootings in El Paso and Dayton to President Trump’s “racist” rhetoric. The inference is that these accusations may have legal consequences as well.
In the meantime, the majority of legal opinion suggests that the New York Times is in for some uncomfortable public scrutiny unless the newspaper tries to settle.