As detailed extensively in prior posts, Sarah Palin sued the NY Times for defamation based on an Editorial regarding the 2011 shooting of Congresswoman Gabby Giffords. James Bennet, Editorial Page Editor, was the primary author of the Editorial, working off a draft prepared by a news staffer.

I discussed the suit and the motion to dismiss filed by The Times in a prior post, NY Times defense: Palin Crosshairs Editorial Wasn’t Actually About Sarah Palin. Please read the prior post for background and links to pleadings and motion to dismiss papers.

On August 16, 2017, the Court held an unusual hearing on the NY Times’ motion to dismiss. In anticipation of that hearing, I asked, Can NY Times really win Sarah Palin case by proving Editorial Author didn’t read the NY Times?

After the hearing, until today, we only had news reports to go on as to what happened. In my post, I cautioned against relying on news reports, Palin v. NY Times – Sure looks like a case of “reckless disregard” for the truth:

Unfortunately, as of this writing I only have news reports as to what happened at the hearing and what the testimony was. That’s no substitute for transcripts, or even partial transcripts. At some point the parties will submit further briefs to the Court, at which point we likely will get transcript excerpts.

The problem with news reports about testimony is that such reports focus on what is newsworthy, rather than what is legally significant. That means we are reading what the reporters think their editors will want to publish.

Based on the facts that could be gleaned from the news reports, I concluded:

Assuming the Newsday summary accurately reflects the testimony, WOW.

This seems to me to be a clear case of reckless disregard for the truth:

  1. NY Times own files: Didn’t check.
  2. Hyperlink in Editorial to ABC News article: Didn’t check.
  3. Map That Was Focus of Editorial: Didn’t even look at it.
  4. Reason Didn’t Check Anything: Rushing to meet deadline.

…. At this stage of the proceeding, Palin doesn’t need to prove that the Times recklessly disregarded the truth, she simply needs to show that there are sufficient reasonable inferences that the case can proceed beyond the motion to dismiss.

If and when the parties file post-hearing briefs and transcript excerpts my analysis could change, but based on news reports I don’t see how the Judge dismisses on the “actual malice” standard after evidence that Bennet purposefully avoided doing the basic research necessary to reveal the truth contradicting the Editorial about Palin.

We still don’t have transcripts, but we do have additional briefs submitted by the parties after the hearing, which just became available on the PACER electronic docket:

Palin v. NY Times – Plaintiff Post-Hearing Memo on Context Inferences and Plausibility (pdf.)
Palin v. NY Times – Plaintiff Post-Hearing Afft of Shane Vogt Attaching News Articles (pdf.)
Palin v. NY Times – NYT Post-Hearing Supplemental Memo in Support of Motion to Dismiss (pdf.)
Palin v. NY Times – Plaintiff Post-Hearing Response to Defendant’s Supplemental Memorandum (pdf.)
Palin v. NY Times – NYT Post-Hearing Reply Memo in Support of Motion to Dismiss (pdf.)

The briefs don’t really expand much on the facts of the testimony beyond what the news reports indicated. Transcripts are not available on PACER, and no one attached transcripts to their papers.

One thing becomes clear from reading the post hearing briefs – the issue troubling the court is the issue of “plausibility.”

It is the only issue addressed by the parties in their briefs, which means that’s what the Judge considers significant and likely asked for briefing to be limited to that issue. Here is how the Times described the Judge’s focus in a footnote to its main post-hearing brief:

6 As the Court correctly noted throughout the hearing, see 8/16/17 Tr. 72:15-25, its purpose was not to assess the credibility of Mr. Bennet’s testimony. Rather, it was to determine whether that testimony provided a basis for the Court to conclude that the Complaint could reasonably be read to make plausible allegations of actual malice….

The question of “plausibility” was not one flagged by the Judge in his Order scheduling the hearing. He used the term “reasonableness” (emphasis added):

Pending before the Court is the motion of defendant The New York Times Company (the “Times”) to dismiss pursuant to Rule 12(b) (6), Fed. R. Civ. P., the claim of plaintiff Sarah Palin that she was defamed by a Times editorial that appeared on or about June 14, 2017. One close question presented by that motion is whether the Complaint contains sufficient allegations of actual malice, an essential element of the claim. To a large extent, determination of that issue may turn on what inferences favorable to the plaintiff are reasonable given the circumstances alleged in the Complaint. For example, the Complaint alleges that the allegedly false statements of fact that are the subject of the Complaint were contradicted by information already set forth in prior news stories published by the Times. However, these prior stories arguably would only evidence actual malice if the person(s) who wrote the editorial were aware of them. This is information peculiarly within the knowledge of defendant; but on it arguably depends the reasonableness vel non of inferring actual malice.

Accordingly, to help inform the Court of what inferences are reasonable or unreasonable in this context, the Court, pursuant to Rule 43(c), will convene an evidentiary hearing on Wednesday, August 16 at 2:00 PM EST. At the hearing, defense counsel must produce the author(s) of the editorial, who (or each of whom, if there is more than one author) will be examined under oath by defense counsel for no more than thirty (30) minutes, to be followed by cross-examination of plaintiff’s counsel of no more than forty-five (45) minutes, to be followed by no more than fifteen (15) minutes of redirect by defense counsel. The Court also may question each such witness.

The lawyers got pretty deep in the weeds on the case law as to what “plausibility” means in this context of a motion to dismiss.

Here is the short version of Palin’s argument:

On their face, these allegations [in the Complaint] must be taken as true and plausibly establish actual malice. 17 The additional facts developed through and in connection with the Court’s efforts to examine the context of the publication only solidified Mrs. Palin’s case. The draft of the offending article, the explanation of how and why the article was written, the other editorials gathered by and available to the authors when it was written, and the circumstances surrounding the author who penned the defamatory statements about Mrs. Palin, all confirmed what Mrs. Palin has already alleged: “when it comes to Mrs. Palin, The Times is willing to operate with a purposeful avoidance of the truth marked by a deliberate decision not to acknowledge facts confirming the falsity of its charges against Mrs. Palin.”18

* * *

Mr. Bennet claitns that he did not review the Palin Map, the hyperlinked ABC article, nor The Times’ editorials and column compiled by his research staff, and did not recall The Atlantic’s numerous writings on the subject-all of which raised serious doubts about the veracity of the charge Mr. Bennet was making about Mrs. Palin. Even if this were true, actual malice can be inferred because Mr. Bennet was willfully blind to all of the available information refuting the sole “fact”33 upon which his theory rested.34 (Ex. 34 48:4-24; 49:1-16) At best, Mr. Bennet engaged in selective reporting35 to support his pre-determined conclusions, which also constitutes actual malice.

Here’s the short version of the Times argument:

The significance of the Rule 43(c) hearing for the pending Rule 12(b)(6) motion lies entirely in what did not take place: Not a single fact adduced through the testimony of Editorial Page Editor James Bennet, or in any of the documents produced by The Times at the Court’s request, moved the Complaint’s allegations of actual malice across the line from the merely possible to the plausible. Actually, the reverse is true.

The Court conducted the evidentiary hearing for the narrow purpose of establishing context for evaluating the plausibility of the Complaint’s allegations of actual malice. Specifically, the hearing was convened to determine who authored the Editorial, and whether the author(s) had knowledge of earlier or contemporaneous publications that, according to Mrs. Palin, directly contradicted the challenged statements. See, e.g., 8/16/17 Tr. at 76:2-14; 8/10/17 Order at 1. In effect, the hearing afforded Mrs. Palin an additional opportunity to develop a factual predicate for a plausible allegation of actual malice.

The hearing, however, served only to underscore that the Complaint’s allegation of a deliberate lie is as implausible as it appears from the face of the pleading itself. Mr. Bennet’s uncontroverted testimony established that he was the sole author of the statements in the Editorial referring to a “link” between “political incitement” and the attack on Rep. Giffords, and that, at the time he authored them, he had not read and was not aware of any of the purportedly conflicting reports on which the Complaint relies to establish knowledge of falsity. 08/16/17 Tr. at 20:23-21:9, 21:19-22:5, 26:1-9, 26:17-22.2 Mr. Bennet’s testimony demonstrates that any effort to amend the Complaint to address the author’s state of mind rather than continuing to rely improperly on the Complaint’s allegations about The Times’s institutional knowledge would be futile.3

What does this focus on “plausibility” mean?

I could make the argument either way.  From the negative view, even if Palin alleged facts giving rise to reasonable inferences of actual malice, Palin has to jump through the additional hoop of the inferences being “plausible.” From the positive view, arguing over plausibility presumes that there are otherwise reasonable inferences.

If — and it’s a big if — this is the crucial issue to the Judge, we are in fairly narrow legal territory.