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. Recent developments have revealed that 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 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?

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.

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.

One of the best (i.e., factual) accounts of the hearing I’ve seen so far is from Newsday:

The New York Times editor responsible for a June 14 editorial linking a Sarah Palin political ad to “incitement” of the 2011 shooting of Rep. Gaby Giffords testified in Palin’s libel suit Wednesday that he read no clips on the shooting before making the claim.

Editorial page editor James Bennet also said in a Manhattan federal court hearing he never looked at the Palin ad which the Times mistakenly said put crosshairs over Giffords herself, and wasn’t “reporting” when he retooled a draft of the editorial on Rep. Steve Scalise’s shooting in Virginia.

“It was late in the day and our deadlines were looming,” Bennet testified at the hearing before U.S. District Judge Jed Rakoff. “I wound up just plunging in and effectively rewriting the piece.” ….

Bennet, a former top editor at The Atlantic magazine and the brother of Colorado’s Democratic Sen. Michael Bennet, said that after he reworked a draft from staffer Elizabeth Williamson and cleared it for publication, he had no knowledge the claims in the editorial were untrue.

“No, I didn’t,” he testified. “I believed them to be true.”

Bennet also said that he never meant “causation” by the word “incitement,” and was instead trying to describe rhetoric that inflamed the political “atmosphere.”

“I was looking for a very strong word to write about the political climate because I wanted to get our readers’ attention,” he testified. Bennet acknowledged, however, that he hadn’t done much checking in advance. He had Williamson pull previous editorials on the Giffords shooting, he testified, but never read them. He used her description of the map, he said, but didn’t look at it…..

He also said he didn’t click on a hyperlink in Williamson’s draft to past ABC stories that said no link had been established between Loughner and the ad, he said, and didn’t consult the Times’ own coverage that day that said “no connection” to Palin was established in the Giffords case.

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.

Politico provides these additional details, which I don’t think help The Times:

In using the phrase “political incitement” in the editorial, which Bennet added to Williamson’s draft and which was later changed in corrections to the piece, Bennet said he originally was “looking for a very strong word to write about the political climate because I wanted to get our readers’ attention.”

Although “incitement” is typically defined as urging someone to engage in a kind of behavior, Bennet said he’d used the word in the sense he observed Palestinians and Israelis using it, when he covered the region for the Times, “to talk about a range of communications, from deliberate orders, to textbooks that elide important facts, to maps that misrepresent the politics of the region.”

Bennet said he hadn’t intended to suggest that the map the PAC circulated in 2011 was “tantamount to complicity in attempted murder,” although many of the Times’ readers interpreted it that way.

Bennet’s subjective description of his own intent is irrelevant, the facts he apparently testified to are that the didn’t use the term “political incitement” in an ordinary sense, and was seeking to get reader attention by using such an inflammatory term. To use such a term without any research is objectively reckless.

But is it legally enough? In the Supreme Court case of Gertz v Welsh, the court held that mere failure to investigate is not enough to show reckless disregard, there has to be a high degree of awareness of probable falsity:

… mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, the publisher must act with a “‘high degree of awareness of . . . probable falsity.'” St. Amant v. Thompson, 390 U.S. 727, 731 (1968); accord, Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 84-85 (1967); Garrison v. Louisiana, 379 U.S. 64, 776 (1964).

In Harte-Hanks Communications v. Connaughton, the Supreme Court elaborated that “purposeful avoidance” of investigation could be enough to show recklessness:

It is also undisputed that Connaughton made the tapes of the Stephens interview available to the Journal News and that no one at the newspaper took the time to listen to them. Similarly, there is no question that the Journal News was aware that Patsy Stephens was a key witness and that they failed to make any effort to interview her. Accepting the jury’s determination that petitioner’s explanations for these omissions were not credible, it is likely that the newspaper’s inaction was a product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of Thompson’s charges. Although failure to investigate will not alone support a finding of actual malice, see St. Amant, 390 U.S., at 731, 733, 88 S.Ct., at 1325, 1326, the purposeful avoidance of the truth is in a different category.

There is a remarkable similarity between this case-and in particular, the newspaper’s failure to interview Stephens and failure to listen to the tape recording of the September 17 interview at Connaughton’s home-and the facts that supported the Court’s judgment in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In Butts the evidence showed that the Saturday Evening Post had published an accurate account of an unreliable informant’s false description of the Georgia athletic director’s purported agreement to “fix” a college football game. Although there was reason to question the informant’s veracity, just as there was reason to doubt Thompson’s story, the editors did not interview a witness who had the same access to the facts as the informant and did not look at films that revealed what actually happened *693 at the game in question.38 This evidence of an intent to avoid the truth was not only sufficient to convince the plurality that there had been an extreme departure from professional publishing standards, but it was also sufficient to satisfy the more demanding [Sullivan v.] New York Times standard….”

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.