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Sarah Palin defamation lawsuit against NY Times dismissed

Sarah Palin defamation lawsuit against NY Times dismissed

Court: “Negligence this may be; but defamation of a public figure it plainly is not”

A federal court in Manhattan has dismissed Sarah Palin’s defamation lawsuit against the NY Times.

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

Analysis to follow:

This is a case where the NY Times Editorial author James Bennet claimed to be so ignorant, so uninterested in doing any research, and so oblivious to his surroundings, that his ignorance turned into legal bliss.

Here are the opening and penultimate paragraphs of the Opinion:

Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States. In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others. Responsible journals will promptly correct their errors; others will not. But if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity. Here, plaintiff’s complaint, even when supplemented by facts developed at an evidentiary hearing convened
by the Court, fails to make that showing. Accordingly, the complaint must be dismissed.

* * *

We come back to the basics. What we have here is an editorial, written and rewritten rapidly in order to voice an opinion on an immediate event of importance, in which are included a few factual inaccuracies somewhat pertaining to Mrs. Palin that are very rapidly corrected. Negligence this may be; but defamation of a public figure it plainly is not.

The Court repeatedly took facts that arguably showed reckless disregard for the truth, and turned them around to argue they created an inference against malice. For example, a hyperlink in the editori8al contradicted the text of the editorial, leading many commenters to argue that this showed recklessness. But to the contrary, the court considered the hyperlink the equivalent of a footnote, presuming it constituted disclosure of the material.

The inclusion of this article through the hyperlink shows, first, that the Times did do some research before publishing the editorial (despite the very limited time available) and, second,
that the allegation of actual malice is even more improbable because the Times included as a hyperlink an article undercutting its own conclusions.

There should be a high bar for alleging defamation against a public figure. But ignorance shouldn’t be bliss, as it was here.

———————————-

Palin v NY Times – Opinion and Order Dismissing Lawsuit by Legal Insurrection on Scribd

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Comments

Democrat Judges protect their own.

The law is not for Conservatives. Liberal Judges will find a reason not to find against their buddies.

I am not surprise. Although, I am saddened.

It appears that incompetence is a get-out-of-jail-free card for libel by the msm. Instead of malicious intent, they can just say that they were incompetent and that’s it! Now if we were talking about a medical doctor or an airline pilot this defense would not work. Funny isn’t it?

    Observer in reply to inspectorudy. | August 29, 2017 at 5:07 pm

    So if the NYT publishes a piece in tomorrow’s paper saying that this judge’s actions caused the rape, torture, and murder of a bunch of pre-school kids, that would not be libel, so long as the writer says he was in a rush to meet a deadline?

    The MSM can publish any type of outrageous, scurrilous accusation against any public figure, so long as they say afterwards that they were in too much of a hurry to actually check the facts?

      Milhouse in reply to Observer. | August 29, 2017 at 5:31 pm

      Observer, NYT v Sullivan is hardly some new pronouncement of law. How is it possible that you were unaware of it until now? The whole point of that case was that the NYT (or anyone else) can publish any type of outrageous, scurrilous accusation against any public figure, so long as they don’t know it’s false, or seriously suspect that it might be.

      As the court writes,

      reckless disregard can be established by “evidence of an intent to avoid the truth”, evidence that the defendant “entertained serious doubts as to the truth of his publication”, or evidence that the defendant acted with a “high degree of awareness of [a statement’s] probable falsity”.

      Of course the more unlikely the accusation the more the defendant ought to suspect that it might not be true, and therefore the more reckless it would be to publish it without making some attempt to find out. A allegation that “this judge’s actions caused the rape, torture, and murder of a bunch of pre-school kids” would likely be regarded as so implausible that the defendant must have entertained serious doubts about it, and therefore was reckless to publish it without looking into it first.

        Observer in reply to Milhouse. | August 29, 2017 at 6:10 pm

        My fabricated story about the judge would be no more “implausible” than the NYT’s fabricated story about Palin being the cause of the Tucson shootings. After all, prior to the publication of the NYT editorial at issue in this case, there were multiple articles published by a variety of reputable news sources all over the U.S. that reported that Jared Loughner was a paranoid schizophrenic who had met and become obsessed with Giffords and specifically written of his intent to kill her years before the 2011 shootings. By contrast, in my hypothetical there were no prior publications reporting that someone other than the federal district court judge was actually the person police suspected to be the kiddie rapist and killer.

        So as long as I say “oops, sorry, the judge probably isn’t really the kiddie rapist and killer” the next day, then I should be in the clear — especially if I testify that I was rushing to meet a deadline. And if in the intervening period between my original smear and my retraction, some group of outraged parents finds the judge and murders him, well that’s just the price we have to pay for robust political debate in this country! Mistakes will be made! (Especially when the media is permitted to simply make shit up to satisfy their political biases).

          Huskers4Palin in reply to Observer. | August 29, 2017 at 11:55 pm

          Ever remember the old saying that, “Not guilty is not always the same as innocent?”

          Sure, the case was dismissed but the NYT shouldn’t be dancing in the isles. Having them go on the record as “incompitant” is not exactly a warm fuzzy.

          Witnessed a case here in Omaha which had a quasi similar feel to it. A certain communications company admitted they “goofed” on a press release which put a client in a bad light. Judge ruled it was an “honest mistake” but the CEO came off as a total boob. Investors left, bad vibes with contemporaries, and the company took a major hit (CEO got ousted 30 days later). They “won” the case but it certainly didn’t feel like a victory.

        nebel in reply to Milhouse. | August 29, 2017 at 7:06 pm

        The NYT was already aware that the accusations against Palin were false given that the NYT had printed and retracted the very same allegations a couple years ago.

          Milhouse in reply to nebel. | August 29, 2017 at 9:20 pm

          Indeed. But Palin “failed to identify any individual at the Times who allegedly acted with actual malice, positing instead a kind of collective knowledge unrecognized by the law in this area.”

          nebel in reply to nebel. | August 30, 2017 at 1:01 am

          I am looking forward to the NYT publishing the exact same malicious lies about Palin again and facing no legal consequences.

          Milhouse in reply to nebel. | August 30, 2017 at 1:29 am

          Next time it happens whoever wrote it would have to testify that they were unaware of this case, or of any controversy surrounding the claim, and therefore did not even suspect that it wasn’t true.

    Milhouse in reply to inspectorudy. | August 29, 2017 at 5:13 pm

    Now if we were talking about a medical doctor or an airline pilot this defense would not work.

    Come on, that’s a stupid and dishonest argument. The standards are obviously very different in the two cases. In the case of defamation of a public figure, you knew going in that the standard is not negligence but either actual knowledge of the statement’s falsity, or reckless disregard for whether it’s true or false. So yes, negligence is a valid defense, and you would have to be grossly negligent not to know that.

      ecreegan in reply to Milhouse. | August 29, 2017 at 5:17 pm

      If this was not reckless disregard then nothing is.

        Milhouse in reply to ecreegan. | August 29, 2017 at 5:37 pm

        Well, that’s precisely what was at issue. It’s black letter law that mere negligence is not reckless disregard. The suit was originally based on the idea that it wasn’t necessary for Mr Bennet himself to have known the claim wasn’t true, it was enough that the NYT as a corporate entity knew this.

        Once it became a question of what Bennet knew or ought to have found out, the argument must be that he must have followed the hyperlink, or remembered or reviewed the previous articles, or that anyone who gave a d**n about the truth of what he was writing would have done so. Bennet claimed he didn’t, and the plaintiff presented no evidence that he did.

          MattMusson in reply to Milhouse. | August 30, 2017 at 8:45 am

          Here is the problem. We all know that the NYT printed this on purpose as a cheap shot at Palin. But then some lawyer at the Paper called the Newsroom and told them to pull it down.

          Then, everyone involved lied. And, the Judge gave them cover.

          Milhouse in reply to Milhouse. | August 30, 2017 at 11:27 am

          No, we don’t know that. You have absolutely no basis for your supposition that Bennet lied. In fact it comes close (but not close enough) to actionable defamation.

          YellowSnake in reply to Milhouse. | August 30, 2017 at 11:35 am

          @MattMusson Hey, Fox, Limbaugh, Hannity, Breitbart, et al, do it all the time to liberals and they don’t usually issue a retraction. Neither do they have separation between the editorial board and the news staff. The major complaint by the right is that the NYTimes’ news is slanted. That wasn’t at issue in this case, since this was not a news article

          In addition, what were Palin’s damages? Perhaps she could have won and received $1. I guess she could have framed the check or used it in a fund raising letter. But the editorial did not damage her.

          Neither the editorial, nor a judgement for Palin would have changed the opinion of 1 person in this country. This was a stunt paid for by contributors to her PAC. A waste of money. It did put her in the headlines – this site is a case in point. But in the MSM or even public radio there was nary a peep.

          You continue to oversimplify by claiming this or that is ‘black letter law.’

          ‘Black letter law’ is the starting point – exactly what something like ‘reckless disregard’ is, is what a high Court interprets it as.

      Arminius in reply to Milhouse. | August 29, 2017 at 5:38 pm

      Can you stop with that habit of always applying the terms “dishonest” or “liar” every time you dispute with someone? Did you learn that in law school? Sometimes someone is just wrong. That doesn’t make them dishonest or a liar.

      Hey, here’s a thought. Educate them without insulting them.

        Ragspierre in reply to Arminius. | August 29, 2017 at 5:45 pm

        He said the argument is stupid and dishonest. Not the person making it, although it’s often assumed by the person making it that it was.

        Still…valid point in the realm of persuasion….

        Milhouse in reply to Arminius. | August 29, 2017 at 5:55 pm

        I don’t apply it every time I dispute with someone. I apply it only when someone makes an argument that they couldn’t possibly believe.

          Arminius in reply to Milhouse. | August 29, 2017 at 7:13 pm

          You apply it a bit too promiscuously. I hope you take this as a constructive criticism. In the spirit that it’s offered.

        MTED in reply to Arminius. | August 29, 2017 at 8:22 pm

        That’s his MO—not much else there. Certainly no desire or ability to “educate”.

          Milhouse in reply to MTED. | August 29, 2017 at 9:23 pm

          Shut up. Do you dispute anything I’ve written? Can you marshal even one argument against anything I’ve written? No. I provide valuable content; I debate issues, not personalities. All you have ever done on this site is sling meaningless abuse.

          MTED in reply to MTED. | August 29, 2017 at 10:12 pm

          Again, all I get from “Milhouse” is “Shut up”. This individual is a grandstanding fool with no intellectual foundation whatsoever. Just as we have a Tom Friedman column generator (http://thomasfriedmanopedgenerator.com/about.phphttp://thomasfriedmanopedgenerator.com/about.php), LI can produce a “Milhouse” meaningless column generator.

          Milhouse in reply to MTED. | August 30, 2017 at 1:31 am

          All you’ll ever get from me is “shut up” because all you ever write is personal abuse. You have never contributed anything to any discussion. Therefore you have no business butting in.

          MTED in reply to MTED. | August 30, 2017 at 6:58 am

          The Milhouse, yet again, demands silence from his critics. He has no point, no message, no factual accuracy. Keep it up–you’re an amusing little pest!

          Milhouse in reply to MTED. | August 30, 2017 at 11:33 am

          Every word of that is a lie. I have nothing but points, messages, and my factual accuracy is as high as humanly possible, at least as high as that of anybody here. You are not a critic, you are not a legitimate participant, you have never had a single thing of any value to say, all you ever do is sling abuse, and that is why you should shut up. I don’t address you politely because you do not deserve politeness; you have never done anything at all to deserve it.

        When you can’t win on the law, argue equity.

        When you can’t win on equity, insult someone.

        When you can’t win by insulting someone, scream and yell.

        When you can’t win by screaming and yelling, insult someone again.

        And after all that, if you can’t win, say your feelings are hurt.

      inspectorudy in reply to Milhouse. | August 29, 2017 at 6:23 pm

      Wow! Have a swelled ego much? Of course, it is the same thing. If we are talking about professionals and their particular line of work, why would one professional be held to a much lower standard than another professional? Why would one professional be able to weasel out of their responsibility and other pros not? The consequences of their action might not be the same but the claim of being a professional journalist has some responsibilities that must go with it. But according to you and this halfwit judge, being a professional journalist has no responsibilities.

        Milhouse in reply to inspectorudy. | August 29, 2017 at 7:20 pm

        It is not the same thing at all, and you know it. Doctors and pilots have responsibilities. Reporters do not. There is no such thing at law as “journalistic malpractice”. There is no “standard of care”. On the contrary, the first amendment lets reporters — just like anyone else — say whatever they like about public figures, so long as they think it’s likely to be true, and don’t recklessly disregard a significant chance that it might not be.

        BTW, despite reporters’ self-aggrandizing PR to the contrary, reporting is a trade, not a profession, and I don’t like to play along with their pretence. They also claim to have a special position in law, and a special role in our system of government, which they go so far as to call a “fourth estate”, though hardly any of them could correctly name the first three. We should always remember that this is blatant puffery, and should not let ourselves fall for it.

          gmac124 in reply to Milhouse. | August 30, 2017 at 10:45 am

          Your argument is correct for how the judge interpreted the law. That doesn’t mean that the argument using doctors and pilots as examples is invalid in one aspect, they are all considered professionals. Being a professional in any field should raise the bar on what you can pass off as ignorance. A citizen writing a letter to the editor could and should get a pass. An editor at a paper rehashing old talking points that were already retracted by the same paper should not be given a pass at this stage.

          Ragspierre in reply to Milhouse. | August 30, 2017 at 11:50 am

          They weren’t “given a pass”. The Palin lawsuit failed. Nobody “gave them a pass”.

          Second point, it is accepted wisdom here, chanted as though it is sagacity itself, that the “process is the punishment” (which is a shibboleth). But IF that were true, the NYT has been punished.

          Milhouse in reply to Milhouse. | August 30, 2017 at 12:06 pm

          No, they are not professionals. They pretend to be, but I will not go along with that pretence. They are tradesmen, and not respectable ones like carpenters or plumbers.

          The point here, though, is that inspectorudy compared their liability for errors to that of doctors or pilots, and that comparison is dishonest. Even if reporting were a profession, with its own standards, reporters would still have no responsibility or liability for the consequences of their errors, any more than professors (whether the academic or musical kind).

          Ragspierre in reply to Milhouse. | August 30, 2017 at 12:26 pm

          Well, I disagree on several counts.

          First, there is a code of ethics for journalists, if not for editorial writers.

          Journalism is a profession in the same sense that teaching is a profession.

          Second, BOTH journalists and editorial writers are liable under certain circumstances. Just not here.

          gmac124 in reply to Milhouse. | August 30, 2017 at 3:23 pm

          “No, they are not professionals. They pretend to be, but I will not go along with that pretence. They are tradesmen, and not respectable ones like carpenters or plumbers.”

          They are paid for their work. That makes them professionals. I even consider carpenters, plumbers, and mechanics professionals. Why would a plumber that didn’t check his work and a pipe broke be held accountable for his failure and a journalist that failed to check his resources be considered any differently? Sloppy work in all other professions has consequences. Why should journalism be any different?

          Ragspierre in reply to Milhouse. | August 30, 2017 at 5:19 pm

          Your views are all fine and small d democratic, but have little to do with reality.

          Many actual professions (which are not trades) have very different treatment under the law. I know. I’m in one, and try cases respecting others.

        YellowSnake in reply to inspectorudy. | August 30, 2017 at 11:43 am

        Is any judge whose opinion you disagree with necessarily a ‘halfwit’? Consider the possibility that he merely followed the law which places a large burden on a public figure.

        While it is not relevant to the case, consider how many times Palin could have be sued for reckless and defamatory statements about many people and organizations including The New York Times.

American Human | August 29, 2017 at 4:37 pm

Well I can see now that someone at the NYT is in for a promotion. Lies, slander, and incompetence? Well that’s how to get ahead at the Times isn’t it?

    Milhouse in reply to American Human. | August 29, 2017 at 5:38 pm

    Well, it cost the NYT a fair bit of money and embarrassment, which could easily have been avoided, so I would guess the answer is “no”.

This proves, to this layman at least, that the simple fact of a judicial opinion being well written does not inevitably lead to it being correct. Mr. Bennett’s action in writing a correction – more of a “mea culpa” actually – does not prove good faith; it could as easily be viewed as an effort to cover his rear after it became clear that his readers correctly interpreted his motives!

Viewed in toto a reasonably intelligent person would likely agree that Ms Palin was defamed by the editorial.

    Milhouse in reply to Walker Evans. | August 29, 2017 at 5:40 pm

    Of course she was defamed. The judge totally agreed with that. A non-public figure would have won this case. But a public figure can’t recover just for having been defamed. “Actual malice” is required.

      Lewfarge in reply to Milhouse. | August 29, 2017 at 5:50 pm

      I think that almost everyone here THINKS THE NYT HAS NOTHING BUT MALICE against Sarah Palin !

        Milhouse in reply to Lewfarge. | August 29, 2017 at 5:52 pm

        Sigh. “Actual malice” has nothing to do with the degree of the defendant’s dislike for the plaintiff, and you d*mn well know it.

          nebel in reply to Milhouse. | August 29, 2017 at 7:14 pm

          Who actually believes that the NYT author thought that Palin incited the Gifford shooting? The fact that author made such an implausible accusation without any evidence constitutes prima facie malice.

          Milhouse in reply to Milhouse. | August 29, 2017 at 7:26 pm

          He very probably did think it. He vaguely remembered the hysterical allegations that the left made at the time, and took it for granted that they were correct, for the same reason they were made in the first place — he bought the insane caricature of Palin that his colleagues painted during the 2008 campaign, which was the first time any of them had heard of her.

      Arminius in reply to Milhouse. | August 29, 2017 at 7:29 pm

      Common use is different than a legalism.

        Milhouse in reply to Arminius. | August 29, 2017 at 9:30 pm

        Indeed it is. But right here and now we are discussing the term in its peculiar legal meaning, not in its common one.

        This is not the only such term. For instance the Supreme Court has ruled that the common meaning of “traitor” is much broader than its legal meaning, and therefore calling someone a traitor does not necessarily mean they have either taken up arms against the USA or else adhered to their enemies, and the person so called can’t prove a defamation case by showing that (the defendant knew) they didn’t do these things. But in the context of legal charges it does have that narrow legal meaning; if someone hasn’t done those things you can call them a traitor but you can’t say they should be charged with treason.

      Actual malice was in the eye of the beholder: a liberal judge, Jed S. Rakoff

      Rolling Stone Magazine wrote in 2011, “Federal judge Jed Rakoff, a former prosecutor with the U.S. Attorney’s office here in New York, is fast becoming a sort of legal hero of our time.”

      What more do you need to know? The guy is a total harvard lib. He probably one of those oblivious libs who thinks obama actually taught constitutional law.

      Against his hero the ny times? Palin ever had a chance with this guy.

      https://en.wikipedia.org/wiki/Jed_S._Rakoff

VERY SAD ! This judge must have gone to “school” with the “judges” that ruled against the voter id laws or immigration restrictions. just lefties/progs that have black robes.
I say school because a hell of a lot of these “judges” really don’t care what LAW is !

    Arminius in reply to Lewfarge. | August 29, 2017 at 5:41 pm

    I’m paraphrasing Orwell, but some ideas are so stupid only a highly educated person could possibly hold them.

      Ragspierre in reply to Arminius. | August 29, 2017 at 5:49 pm

      …and some are so true to their oaths, they are constrained by and true to the law.

      Whether they like the particular law or not.

A few points, AND I’ve read the opinion.

1. I opined that you can’t have “organizational malice”.
That was correct.

2. I opined that you only get to the “Times” via agency theory.
That was correct.

3. Per the argument that inspectorudy makes, incompetence here is irrelevant. Even in regular malpractice cases, a mistake is not malpractice. That requires a showing of a deviation from the standard of care for the profession; not an error. The judge here allows as how THAT standard was plausibly met (negligence), but that is never enough in this matter. There has to be actual malice. He treats what that is at some length, fair and square.

4. The showing of evidence required to survive the motion to dismiss was on Palin’s attorneys. They failed.

5. They FURTHER failed when given another bite at the apple, which the judge notes he reviewed PRIOR to making this dismissal “with prejudice”, meaning he’s seen everything they HOPED to show him, and the matter is just done.

6. The ruling as I read it was tight, unbiased, and grounded totally in the law as exists under “Sullivan” and its progeny. It is wrong to go all “tribal” on this judge.

7. Others may disagree, and know more than me. This is just my (somewhat) learned opinion.

“…This is a case where the NY Times Editorial author James Bennet claimed to be so ignorant, so uninterested in doing any research, and so oblivious to his surroundings, that his ignorance turned into legal bliss.”

Forcing the NYT to admit all the above was a victory.

It failed to identify any individual at the Times who allegedly acted with actual malice, positing instead a kind of collective knowledge unrecognized by the law in this area.

[…]

“When there are multiple actors involved in an organizational defendant’s publication of a defamatory statement, the plaintiff must identify the individual responsible for publication of a statement, and it is that individual the plaintiff must prove acted with actual malice.” Dongguk Univ., 734 F.3d at 123; see Sullivan 376 U.S. at 287 (“[T]he state of mind required for actual malice would have to be brought home to the persons in the [defendant’s] organization having responsibility for the publication of the [statement].”)

See, this is the core of the decision. I’d have thought that if corporations are to be regarded as having first amendment rights, then they ought also to be regarded as having actual knowledge of whatever they publish. But evidently the precedents say otherwise.

Paul In Sweden | August 29, 2017 at 6:06 pm

The NY Times has a long history of things up to paste a headline and make a buck.

Debunking the myth of Kitty Genovese | New York Post
The murder of Kitty Genovese shifted from crime to legend a few weeks later, when The New York Times erroneously reported that 38 of her neighbors had seen the attack and watched it unfold without calling for help.

The Times piece was followed by a story in Life magazine, and the narrative spread throughout the world, running in newspapers from Russia and Japan to the Middle East.
http://nypost.com/2014/02/16/book-reveals-real-story-behind-the-kitty-genovese-murder/

I’m sorry, but there is really no comparison between Sullivan and this case.

In the first place, the Sullivan law suit only got to the SCOTUS because the Alabama courts rendered a decision favorable to Sullivan. And, in typical SCOTUS fashion, the justices went far beyond the bounds of the case.

Sullivan should have been dismissed at the state level. Nowhere was Sullivan directly named. And, it was only through the most liberal interpretation of the language of the NYT add that anyone would think that it was being critical of him. Finally, none of the “mistakes” made in the advertisement was defamatory in and of itself. This should have been a very simple case and it should have been dismissed on the basis that Sullivan had no standing to sue and that he had shown no damages arising due to the running of this add; period! But, the SCOTUS decided to make ANOTHER political statement. In Sullivan, the SCOTUS established an second, totally unequal standard for libel for public figures than for the rest of the citizenry. It essentially rewrote its own libel standards by establishing a lower class of citizen, the public figure who was nmot protected by the 1st Amendment to the same extent as the rest of the citizenry. NYT v Sullivan was nothing more than the national elite protecting the elitist news media, the NYTs. 53 years later, nothing has changed

DouglasJBender | August 29, 2017 at 6:12 pm

Lawyerly gnat-picking aside, I think it’s eminently obvious that the NYT and it’s writers/editors HAVE “actual malice” towards Sarah Palin and it’s eminently clear that the author/editor of the article in question knew, or didn’t want to know, about any evidence contradicting his intended smear against Palin.

DouglasJBender | August 29, 2017 at 6:13 pm

“its”

DouglasJBender | August 29, 2017 at 6:15 pm

I wish I could edit that post to change the second “it’s” to “its”, and to remove “any”. Oh well.

I don’t see how the judge rules this a group action since it was put together by one man who had the ultimate responsibility to ensure that it was correct and accurate. Trying to see the law from a layman’s point of view is extremely difficult and commenting on this may appear to be ignorant, but how this situation cannot be an example of “Malice” is beyond me. Bennet is basically saying that he is in a high position at the NYT but has no responsibility to uphold the papers ethical standards. And that to proceed with a scurrilous article that he knew would be inflammatory and harmful went ahead anyway. I do not know the definition under the law of what malice is but in layman’s terms that meets it.

    Ragspierre in reply to inspectorudy. | August 29, 2017 at 6:58 pm

    “I don’t see how the judge rules this a group action since it was put together by one man who had the ultimate responsibility to ensure that it was correct and accurate.”

    It’s good you can’t see that, because it’s reversed from the law.

    You can read the discussion of the judge as he takes the case through the law of “Sullivan” malice. He expressly states that this is a case where negligence could reach a jury (not that he’s finding negligence), but there’s no EVIDENCE of actual malice (according to the legal use of the term here) that Palin’s team put forth.

Subotai Bahadur | August 29, 2017 at 6:37 pm

If the Podunk Gazette had done the exact same thing to a Democrat politician, said politician would own the Podunk Gazette, and all the assets of every employee and subscriber. Because . . . reasons. The law may read a certain way, but it will only be applied to benefit one side.

That is something that non-lawyers/bureaucrats are figuring out.

We already know that electing Republicans to control of Congress means that the Democrats run things still. We know that in Democrat controlled areas, that the police will protect Democrat thugs as they beat anyone who is not a Democrat in the streets. We should have learned long ago that Democrat judges rule based on political ideology and not the law. This confirms the last.

And other than fear of death for ourselves and our families, why should we obey the government? And if force and fear of death exclusively determines legitimacy, does not superior force and ability to inflict death make you more legitimate than your opposition?

I will leave those questions for the Gentle Readers to ponder, publicly or otherwise.

For the law to be considered as a means to what society sees and accepts as justice and equity, it has to actually produce what society accepts as justice and equity at least sometimes. Otherwise, Hobbes’ State of Nature, red of tooth and claw will re-emerge.

With street violence protected by the State becoming the norm, nature is awful close to re-emerging.

Subotai Bahadur

    Ragspierre in reply to Subotai Bahadur. | August 29, 2017 at 7:03 pm

    “That is something that non-lawyers/bureaucrats are figuring out.”

    That’s simply bullshit, and you either know it and say it anyhow, or you just like that “war” fantasy you wallow in so much you’ve become delusional.

    How many times have you seen Barracula bench-slapped by a unanimous Supreme Court? That’s just one aspect of the proof you should exercise yourself to find.

    LibraryGryffon in reply to Subotai Bahadur. | August 29, 2017 at 7:08 pm

    A Nation of Laws or a Nation of Men? It’s pretty clear that the latter is becoming the norm.

    I’ve been a very peripheral player in the Brett Kimberlin saga (or rather one of the side shows) for the last five years or so, and it’s incredibly disheartening watching judges allow some participants to skate with no consequences whatsoever for submitting forged documents, forging a federal court summons, commiting perjury on the stand, failing to appear for show cause hearings, etc., etc., while the people harmed by these behaviours are basically told to suck it up. I have lost pretty much all faith in the judicial system.

    If the Podunk Gazette had done the exact same thing to a Democrat politician, said politician would own the Podunk Gazette, and all the assets of every employee and subscriber. Because . . . reasons

    That isn’t actually true. You can’t cite any example of it happening, because it hasn’t.

So in summary:
Palin: The NY Times libeled me.
Times: No, we’re just horribly incompetent.
Judge: That makes sense. Case dismissed.

So there is now a legal finding that the New York Times not only is ignorant about what it asserts in its pages, it doesn’t even make a minimal effort to determine accuracy.

This day started with epic levels of crazy, and yet it is ending on an even more insane note.

Well, we’ll see about the soundness of the ruling here.

Will it go up on appeal?

Will it be reversed? In whole or in part?

My reading, unless the judge got some case-law tangled up, it’s a solid holding.

We’ll see…

The law is the law. I do want somebody, eventually, to royally whatever the NYT. But I want it to be a fair decision.

LibraryGryffon | August 29, 2017 at 9:51 pm

Interesting how many (and which) comments are getting down dings.

Colonel Travis | August 29, 2017 at 11:03 pm

Judge is only following the ruling in NYT v. Sullivan, and in that one the paper pretty much claimed the same thing – hey, we’re too stupid to know if what we printed was all true. Damaged reputation? Sorry.

Agree with Prof. Jacobson about a high bar for free speech but can you get a lower, more idiotic bar than claiming ignorance?

The media understand they can get away with a lot and suffer zero consequences. Why police themselves to the highest of standards? They clearly do not matter.

    Joe-dallas in reply to Colonel Travis. | August 30, 2017 at 2:01 pm

    Agree that the judge was following NYT v Sullivan. Further agree that proving actual malice or known falsity of statement is very difficult hurdle. Additionally, being a NY jury, the hurdle is even more difficult.

    However, it I find it highly implausible that the author did not know the statement was false.

Huskers4Palin | August 29, 2017 at 11:21 pm

In normal parlance we wall this the “SGT. Schultz defense”.

NYT: “Hey, we beat the rap. All we had to do was admit the obvious…we’re stupid, incompetent and we don’t check our sources. BRILLIANT.”

Oh I bet that’s going to go over well at the annual share holders meeting. The editor should get a reminder from time to time on his quote. Not exactly the kind of company PR to attract investors. Then again, didn’t they just fire a whole bunch of staff and close several floors at corporate HQ?

Though I must admit, the court of public appeal is an entirely different matter.

Unfortunately, the NY slimes admitting incompetence will do no damage to them. Their readers are as incompetent as they.

Palin should sue the NY Times in England. Their libel laws are stricter. Liberace won a defamation lawsuit against an accusation that he was a homosexual.

    Milhouse in reply to scrubjay. | August 30, 2017 at 12:11 pm

    It may have escaped your attention that the New York Times is published in New York, not in England and Wales. Nor is Mrs Palin either English or Welsh. How exactly do you suppose she could sue there?

Anyone besides me recall when Der Donald, Knight Defender Of The Bill Of Rights (HA!), promised to make suing for liable easier?

Yeeeeeeah. That bauble of boob-bait has lost its luster, at least for the moment.

Heh…!!!

The NYT v Sullivan makes it very difficult to overcome the actual malice/known falsity of the statement. The testimony/ evidenciary hearing failed to demonstrate that author knew the statements were false, and therefore the ruling would appear to be correct.

However, I find it incredibly implausible that the author did not know the statement was false.

Therefore, the ruling which essentially prohibited the production of emails, was very pro defendant.

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