As detailed extensively in prior posts, Sarah Palin has sued the NY Times for defamation based on an Editorial regarding the 2011 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.

In an unexpected development, the Authors of NY Times Palin Editorial Ordered To Give Testimony In Court:

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 following language in the Court Order explains the Court’s reasoning for the hearing:

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 Times has stated that it will produce James Bennet, the Times Editorial Page Editor:

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.

I find it hard to believe Bennet alone, with no input from anyone else including those on the Board of Editors, drafted and published the Editorial in the name of the Board of Editors. So I would expect a fight at the hearing over what the meaning of the term “author” is. I would not be surprised if the Times ends up having to produce additional witnesses.

Regardless of whether Bennet is the only witness, the Times has experience with this issue of what the Times itself previously published. In the seminal case of Sullivan v. NY Times, 376 U.S. 254 (1964), the Supreme Court discussed a similar issue (emphasis added):

Finally, there is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times’ own files. The mere presence of the stories in the files does not, of course, establish that the Times “knew” the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times’ organization having responsibility for the publication of the advertisement. With respect to the failure of those persons to make the check, the record shows that they relied upon their knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement, and upon the letter from A. Philip Randolph, known to them as a responsible individual, certifying that the use of the names was authorized. There was testimony that the persons handling the advertisement saw nothing in it that would render it unacceptable under the Times’ policy of rejecting advertisements containing “attacks of a personal character”; their failure to reject it on this ground was not unreasonable. We think the evidence against the Times supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice. Cf. Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 618, 116 A. 2d 440, 446 (1955); Phoenix Newspapers, Inc., v. Choisser, 82 Ariz. 271, 277-278, 312 P. 2d 150, 154-155 (1957). [footnotes omitted]

The language in the Court Order, seemingly invoking the Sullivan case, has led to some snarky analyses that the Times can win its motion to dismiss by proving that the Times Editors didn’t read the NY Times.

Ignorance, however, may not be bliss for the Times.

As the Palin attorneys pointed out in their opposition to the motion (pdf.), the Sullivan case involved review of an advertisement prepared by someone else, not an Editorial prepared in the name of the Board of Editors. Discussing the Sullivan case, Palin’s attorneys write:

With respect to the failure of those persons to make the check, the record shows that they relied upon their knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement, and upon a letter from A. Phillip Randolph, known to them as a responsible individual, certifying that the use of the names was authorized. There was testimony that the persons handling the advertisement saw nothing in it that would render it unacceptable under The Times‘ policy of rejecting advertisements containing ‘attacks of a personal character‘; their failure to reject on this ground was not unreasonable.

The Palin lawyers continued:

Mrs. Palin has alleged the opposite—that no sources were relied upon (let alone responsible ones), and that the Editorial Board (not the advertising department) failed to check articles (including those published by its own Editorial section) that were easily obtainable online (as opposed to a manual search necessary in 1964, when Sullivan was decided). Worse, The Times hyperlinked the ABC Article which, unlike Sullivan, gave The Times obvious reason to doubt the veracity of its charges against Mrs. Palin. Here, there is considerably more reason beyond the ―mere presence of the stories in the files‖ to establish that The Times knew that its statements about Mrs. Palin were false. Certainly, The Times failed to investigate in the face of known facts calling into doubt the truth of its charges against Mrs. Palin. [footnotes omitted]

I think this is right. Palin is a controversial figure, and Bennet must have known of the controversy surrounding her alleged role in instigating the Giffords shooting.

If Bennet pleads complete ignorance and that he didn’t bother to check even NY Times sources, such ignorance should give rise to an inference of reckless disregard for the truth, which is sufficient to show actual malice.

So I don’t see any good answers for Bennet. He either checked the Times’ own sourcing (in which case there was actual knowledge) or he was reckless in not doing so.

So no, I don’t think the NY Times can win the case by proving the author of the NY Times Editorial didn’t read the NY Times.