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Authors of NY Times Palin Editorial Ordered To Give Testimony In Court (Updated)

Authors of NY Times Palin Editorial Ordered To Give Testimony In Court (Updated)

“defense counsel must produce the author(s) of the editorial, who … will be examined under oath”

Sarah Palin has sued the NY Times for defamation, based on an Editorial regarding Palin’s alleged role in instigating the shooting of Congresswoman Gabby Giffords.

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 papers.

The Court just issued an unusual order on a motion to dismiss, requiring that the authors of the Editorial (presumably one or more members of the Editorial Board, but perhaps others as well) appear in Court on August 16 to give testimony and to be cross examined as to whether they were aware of prior NY Times articles exonerating Palin from any responsibility.

The Order (pdf.) is embedded at the bottom of this post.

The legal issue is “actual malice,” which a public figure like Palin must show.

Here is the Order, in full:

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 Order is unusual because normally motions to dismiss are decided on the papers, and the court must determine all reasonable inferences in favor of the non-moving party (Palin, here). One of the key factual allegations in the Complaint is that the NY Times was aware that Palin’s map had nothing to do with the Giffords shooting, because prior NY Times articles so stated. So, by inference, the authors of the Editorial ignored information available at the NY Times itself.

The Judge appears to be requiring not just imputed knowledge of prior NY Times articles, but actual knowledge by the authors of the Editorial in order to find a reasonable inference of actual malice. That the Judge says the issue is a “close question” based on the pleadings demonstrates that if Palin survives the motion to dismiss, it will turn on who knew what, and when.

Palin’s attorneys will seek not only to demonstrate actual knowledge, but also such reckless disregard for the truth as to establish actual malice. How could the authors of the Editorial not at least do a search of the NY Times itself? And as to the members of the Editorial Board in whose name the Editorial appeared, but who may not have been “authors” of it, why should their knowledge or lack thereof be ignored.

I’m sure there will be further briefing on these issues after the hearing.

Make no mistake, however, this is a gift to Palin’s team. They get what they normally are not entitled to at this stage — testimony. That testimony, though limited in time, could be a goldmine of information.

Media defendants usually win these motions to dismiss on the papers. That the Times has not yet done so should give the Palin team encouragement.


The Times identifies editorial page editor James Bennet as the witness it will produce in court.

A spokeswoman for The Times said in a statement that the news organization would provide the testimony the judge had ordered. David McCraw, deputy general counsel for The Times, said the witness would be James Bennet, The Times’s editorial page editor.

Does that mean Bennet drafted the editorial alone, without any input from anyone? If so, why was the editorial issued in the name of the Board of Editors and not in Bennet’s name?

I have a sense Palin’s lawyers are going to have a field day with this.


Palin v. NY Times – Order for Authors of Editorial to Give Testimony – August 10, 2017 by Legal Insurrection on Scribd


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Sounds like a good, no-nonsense, strict kinda judge.

And it also sounds like this could be the end of this lawsuit…or just the beginning.

    I softly butted heads with Jed Rakoff when he was a prosecutor in SDNY in the late 1970s. He was suspicious of our client, a witness to a bank fraud scheme, and was tough at first, but he let it go when the evidence showed that our client was just another victim.

      legacyrepublican in reply to Rick. | August 11, 2017 at 3:20 am

      Interestingly enough, I read in Wikipedia’s article that Judge Rakoff …

      “He [Rakoff] is well-known among lawyers for showing little patience with delays and moving cases along rapidly.

The Sarah.

Love this woman.

Am I wrong when I say that Palin is suing the NYT not the authors/editors? Corporate knowledge of Palin’s lack of involvement with Giffords’ shooting would seem to be more relevant than an individual author/editor.

    Ragspierre in reply to mluepnitz. | August 10, 2017 at 6:55 pm

    It’s an interesting question, but I don’t see how you prove corporate “actual malice”.

    Some amorphous entity can’t be shown to have that kind of perfect knowledge about what all its organelles know and understand.

      artichoke in reply to Ragspierre. | August 11, 2017 at 11:45 am

      You’re right.

      But writing with the authority of the NY Times, shouldn’t there be a coherence with what that publication has said before? Otherwise it can be used as a battering ram with the writer’s personal cluelessness (or malice they can plausibly deny.) Shouldn’t this possibility be at the risk of the publisher rather than the victim?

Make no mistake, however, this is a gift to Palin’s team. They get what they normally are not entitled to at this stage — testimony. That testimony, though limited in time, could be a goldmine of information.

It could be, and in that sense you could call it a gift. But the ruling itself does not bode well for Palin, because it seems that the judge is not willing to accept the proposition that the NYT as a corporate entity is aware of whatever is published in its pages, so it shouldn’t matter what the individual employee who wrote the editorial knew.

    mluepnitz in reply to Milhouse. | August 10, 2017 at 6:07 pm

    I think you are right. I’m 90% sure that this case is over.

    Arminius in reply to Milhouse. | August 10, 2017 at 6:57 pm

    Concur. All the editorial writers need to do is testify that they don’t read their own paper. And they may well not. But I don’t see how that absolves the corporate entity as to my understanding “actual malice” can be proven by complete indifference to the question of whether or not what they’re saying is actually true.

    The irritating thing is that entities such as the NYT brags that they’re more reliable than bloggers because they have “layers and layers of fact checkers.” Apparently not, if they’re defense is going to be the left hand doesn’t know what the right hand is doing.

    I don’t see how any testimony before discovery can lead to discovery. Should the judge rule, as it appears he wants to rule, that there is no reason to believe that the editorial board new what the news desk was up to then no one will ever really know if that’s true. Emails, etc., could well prove otherwise.

      Sam in Texas in reply to Arminius. | August 11, 2017 at 6:42 pm

      But “reporters” don’t go directly from “Journalism” School to the editorial page. Suppose all or some of them covered the 2008 campaign before being promoted.

ugottabekiddinme | August 10, 2017 at 6:08 pm

The suit is against the Times. I guess that the news desk and opinion desk may be separate departments, but they all work for and speak in the name of the Times, so I wonder why knowledge of the previous contradictory articles published by the Times is not simply imputed to the editorialist(s)?

OTOH, maybe if the author(s) did know of them, it would be evidence of actual malice. Conversely, if the author(s) did not know of such articles and did not bother to check, it would evince reckless disregard of the truth or falsity?

    Ragspierre in reply to ugottabekiddinme. | August 10, 2017 at 7:04 pm

    Under agency theory, you get to the Times ONLY via its agents…employees here.

    THEY individually have to have had the level of malice under Sullivan.

    Seems to me.

      Arminius in reply to Ragspierre. | August 10, 2017 at 10:09 pm

      Well, that seems an easy standard to avoid. Precisely my complaint.

      Arminius in reply to Ragspierre. | August 10, 2017 at 10:11 pm

      Layers and layers of fact checkers, right, Rags? That’s what they want you to believe their selling point to be.

      kenoshamarge in reply to Ragspierre. | August 11, 2017 at 10:27 am

      It seems to me that some adolescent people who visit the comment section like to down arrow you just because they can. They don’t engage in discussion like adults would do.

      Whatever their problem I wish they’d get over it. This is an interesting and informative blog and their juvenile silliness demeans it.

      I’m sorry you are so often their target. Perhaps now I will be too.

        Ragspierre in reply to kenoshamarge. | August 11, 2017 at 10:54 pm

        They’re just haters. It’s all they can do to me.

        And that’s just nothing, really. Water off a duck’s back, except when I choose to mock them with their irrational-ism and hatred. And all because I oppose them. Kinda reminds you of the campus fascists, dunnit…???

Seems obvious that the editorial writer(s) will deny that they had actual knowledge of the prior Times articles, but if they testify that they didn’t even bother to do a quick computer search of their own paper’s prior articles on Palin and the Tucson shootings before writing the editorial blaming her, then surely the jury could make a reasonable inference of actual malice from that admission. They didn’t bother to check because they didn’t care whether their editorial was factually accurate or not; they just wanted to slander Palin.

Get ready for,

“I can’t remember”

“Not that I can recall”

“It was so long ago I’ve forgotten what I did in preparing the editorial”

“My notes are no longer in existence. I routinely cull my files”

And so forth.

    Hillary Clinton is not on trial here.


    Observer in reply to pfg. | August 10, 2017 at 7:38 pm

    Sure, but computer memories are not as faulty (or as malleable) as human memories. If the writers did conduct a search before writing the editorial, there would be a dated record of that search in the Times’ computer. And if they did search the prior articles, and wrote the editorial blaming Palin anyway, then they had actual knowledge of the falsity of the libelous statement in the editorial, and that’s actual malice.

    On the other hand, if they didn’t bother to search the Times’ prior articles on the shootings before writing the editorial blaming Palin, then Palin can argue that that failure demonstrates a reckless disregard for the truth or falsity of the libelous statement.

    Either way, it should be enough to avoid a 12-b-6 dismissal.

It should not be lost on readers that if the Times succeeds it will be because they convince the court that they are not malicious, just incompetent; this from the country’s Newspaper Of Record.

    Arminius in reply to harkin. | August 10, 2017 at 8:05 pm

    As I said earlier, they just have to claim their editorial board doesn’t even read their own newspaper and they don’t have the “layers and layers” of fact checkers they have claimed in the past makes them more reliable than bloggers.

    Bloggers couldn’t get away with arguing they’re too large a corporate entity for the editorial board to possibly know what the hell is going on in other parts of the building. Not sure, but that admission could be just as valuable as winning a lawsuit outright.

“If you don’t read the newspaper, you’re uninformed. If you read the newspaper, you’re mis-informed.”

Mark Twain

So if they are factcheckers (but of course, this hit-smear had nothing to do with checking any facts) & this got thru anyway, seems to me they’d have some kind of chain of emails to prove they valiantly fact-checked this piece. And if not, then, that’d be worth something, wouldn’t it? Smear by neglect or something? Smear by opinion?

If Judge Rakoff can’t dismiss on the papers, shouldn’t he let it go to full trial and allow Palin to get their testimony in that setting?

I’m not exactly sure how this helps. Can’t the editorial writers plead ignorance of what their own newspaper has published? There is a popular meme that Palin ‘targeted’ Giffords but that doesn’t make it true. The same could be said for claiming Palin could see Russia from her porch. Tina Fey said that in a skit about Palin yet some people seem to think Palin said it. Can the writers claim that a common misperception is not slander?