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.

That Times Editorial and cryptic correction led to a defamation lawsuit by Palin against the Times, pending in federal court in the Southern District of New York (Manhattan), and assigned to experienced federal judge Jed Rakoff. (All major pleadings as of this date are linked at the bottom of this post.)

The Times, predictably, has filed a Motion to Dismiss, asserting many of the primary defenses you would expect, that Palin has not pleaded sufficient facts to show actual malice. The Times also asserts that Palin cannot prove “falsity” because no one really knows for sure what motivated Loughner.

The motion to dismiss received a lot of press coverage because the Times complained that Palin had served notice she intended to subpoena over 20 Times reporters and editors, and to probe all internal and external emails about her dating back to 2011, the time of the Giffords shooting. The Times included these details in its filings for a legal and strategic reason — to signal to the court that this was no mere defamation lawsuit, but an attempt to disrupt the Times news operations. That goal, the Times argues in its papers, is one of the reasons there is such a heavy burden of pleading falsity and actual malice — otherwise the press would be at the mercy of lawfare tactics.

But there is an interesting aspect of the motion to dismiss that is not getting press coverage and may come as a surprise to you. The Times argues that legally any alleged defamation was not about Palin the person, but at most about Palin’s PAC. Here is an excerpt from the argument in the Memorandum of Law in support of the motion to dismiss (footnotes and case citations omitted):

The Complaint fails to state a viable defamation claim for two threshold reasons, each discernible from the face of the Editorial. First, Mrs. Palin cannot satisfy the “of and concerning” requirement imposed by the law of defamation because the statements she challenges are directed to an entity, not to her personally….

Mrs. Palin, like all defamation plaintiffs, bears the burden of pleading and proving that the allegedly defamatory statements she challenges were “of and concerning” her…. She attempts to plead this element of her claim by alleging that the Editorial falsely accused her personally of inciting the Arizona shooting. See, e.g., Compl. ¶ 1 (alleging The Times falsely stated that “Mrs. Palin incited Jared Loughner’s January 8, 2011, shooting rampage”), ¶ 8 (“Mrs. Palin” challenges statement that “she, a devoted wife, mother and grandmother . . . is . . . responsible for inciting an attack that seriously injured numerous people”), ¶ 93 (defamatory statement was “that she incited a politically motivated attack”) (all emphases added).

The Editorial, however, did not say any of this. It mentions Mrs. Palin’s name just once, stating that the Crosshairs Map had been circulated by an organization affiliated with her:

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.

Id. ¶ 37 (emphasis added). The law does not permit Mrs. Palin to isolate her name from the context in which it actually appears in the Editorial and thereby construct a defamatory meaning that is “of and concerning” her personally.

The Times goes on to discuss the legal standard for determining whether a statement is “of and concerning” an individual, arguing that because the editorial mentioned the political action committee circulating the map, as a matter of law Palin personally can have no defamation claim (case citations omitted):

The “test for whether a statement is ‘of and concerning’ an individual is whether ‘[a]n average viewer would . . ., taking into account the context in which the remark was uttered, perceive that [defendant] was making a factual statement about [plaintiff].” …. The burden “is not a light one,” … and whether a challenged statement reasonably can be understood as of and concerning the plaintiff is a question of law for the Court that “should ordinarily be resolved at the pleading stage.” …. In this case, the plain words of the Editorial refer to “Sarah Palin’s political action committee”—not to Mrs. Palin herself. That committee, which operated under the name “SarahPAC,” was a creature of federal law….

In the absence of any factual allegations to the contrary, the Court is left with a publication that unambiguously refers to the conduct of an entity, not to the actions of the person for which it was named…..

This legal defense, of course, flies in the face of how everyone understood the Editorial, which was an attack on Palin personally.

Palin’s attorneys have jumped on this in their Opposition to Motion to Dismiss (emphasis added, footnotes and case citations omitted):

Over the five pages of its argument addressing the “of and concerning” issue, The Times does not address the entirety of the context of the Palin Article, nor mention the title of the Palin Article. Instead, it strips out one sentence from the article and then cites to a technical definition of a PAC and other extrinsic evidence to support the argument that Mrs. Palin and her political action committee must be alter egos in order for her to state a claim (without citation to any authority to support that assertion). (Memo. p. 7-8) That is not the controlling inquiry. The test is whether the defamatory statement is capable of supporting a jury‘s finding that, upon reading the statement, those who know the plaintiff would understand that she was the target of the libelous statements.

Evaluating The Times’ statements in context, the reference to Mrs. Palin‘s political activities through ―Sarah Palin‘s political action committee‖ in an article entitled ―America’s Lethal Politics,‖ which makes no reference to ―SarahPAC‖ by its name, and identifies the Palin Map and Palin Link as its evidence of “vicious American politics,” is reasonably susceptible to being understood by those who know Mrs. Palin as being about her. The Palin Article makes the explicit reference to ―Sarah Palin by name (not to her PAC by its name, ―SarahPAC‖). The Times recognizes that Mrs. Palin engaged in political activities associated with the Palin Map and refers to Mrs. Palin and her PAC as ―eponymous. Importantly, The Times notes that the word “circulated” in the Palin Article is hyperlinked to another article that attributes the Palin Map to Mrs. Palin (not her PAC) in its title, ―Sarah Palin’s ‘Crosshairs’ Ad Dominates Gabrielle Giffords Debate, (emphasis added) in which appears a prominently placed photo of Mrs. Palin (the ―ABC Article). The ABC Article proves Mrs. Palin‘s point: Sarah Palin is synonymous with her PAC–certainly as it relates to the Palin Map and Palin Link. So too does The Times’ use of Sarah Palin and Sarah Palin‘s PAC interchangeably; another June 14, 2017 Times’ article addressing the Hodgkinson shooting states,”Sarah Palin… drew sharp criticism for having posted a graphic online that showed crosshairs over the districts of several members of Congress…” (Comp. ¶ 42, Ex. 6)

Even if the explicit reference to Sarah Palin by name in association with her PAC within the full context of the Palin Article (including the ABC Article hyperlink) were not enough, additional evidence alleged in the Complaint supports the conclusion that The Times’ false statements are ―of and concerning‖ Sarah Palin. Numerous reader comments within Exhibit 3 of the Complaint demonstrate that the Palin Article was understood to be of and concerning Mrs. Palin. While not conclusive evidence, these statements do show that Mrs. Palin‘s claim is plausible….

In short, the statement ―Sarah Palin‘s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized crosshairs‖ is capable of being understood—and was actually understood—as being about and referring to Mrs. Palin.

I don’t know how this will end up, but the wording of the Times editorial, in context, certainly seemed to be about Palin.

Palin’s political action committee is called Sarah PAC, but the Times editorial does not name it as such. The exhibits to the complaint show the public and media reaction as recognizing the Times Editorial as being about Palin personally. If reasonableness is the standard, then Palin should prevail on the “of and concerning” defense.

Logic tells me this defense shouldn’t be a problem on the motion to dismiss. My gut is telling me otherwise.

Palin v NY Times – Complaint (pdf.)
Palin v NY Times – Exhibits to Complaint (pdf.)
Palin v. NY Times – Memo in Support Motion to Dismiss (pdf.)
Palin v. NY Times – Declaration of Jay Ward Brown in Support Motion to Dismiss (pdf.)
Palin v. NY Times – Memo in Opposition Motion to Dismiss (pdf.)
Palin v. NY Times – Declaration Shane Vogt in Opposition Motion to Dismiss (pdf.)
Palin v. NY Times – Reply Memo in Support Motion to Dismiss (pdf.)
Palin v. NY Times – Supplemental Decl of Jay Ward Brown incl Notice of Subpoenas (pdf.)