When we last checked in Sarah Palin’s lawsuit against the New York Time over false claims that Palin’s 2011 electoral map was connected to the shooting of then congresswoman Gabby Giffords, the lawsuit had been reinstated by a panel of the 2nd Circuit Court of Appeals, after a trial court dismissal.

For full background on the false claims, the lawsuit, the trial court dismissal, and the 2nd Circuit reinstatement, see our August 6, 2019, post, Sarah Palin defamation lawsuit against NY Times reinstated by appeals court. The Court ruled, in pertinent part:

This case is ultimately about the First Amendment, but the subject matter implicated in this appeal is far less dramatic: rules of procedure and pleading standards. Sarah Palin appeals the dismissal 4 of her defamation complaint against The New York Times (“the Times”) for failure to state a claim. The district court (Rakoff, J.), uncertain as to whether Palin’s complaint plausibly alleged all of the required elements of her defamation claim, held an evidentiary hearing to test the sufficiency of Palin’s pleadings. Following the hearing, and 9 without converting the proceeding to one for summary judgment, the district court relied on evidence adduced at that hearing to dismiss Palin’s complaint under Federal Rule of Civil Procedure 12(b)(6). We find that the district court erred in relying on facts outside the pleadings to dismiss the complaint. We further conclude that Palin’s Proposed Amended Complaint plausibly states a claim for defamation and may proceed to full discovery.

Subsequently, the Times filed a Petition for Rehearing, and Rehearing En Banc (pdf.) Rehearing en banc would be by the full court, not just the three judges on the original panel.  (Side note, The Times was represented by the same lawyers from Ballard Spahr law firm Oberlin College recently hired for its appeal of the Gibson’s Bakery case.) The Times was supported by a coalition of media outlets, who filed an Amicus Brief (pdf.) in support of rehearing.

Along the way, the original panel filed an Amended Opinion (pdf.) It’s not clear to me what was amended, but the result was the same.

A reader recently alerted me that rehearing was denied.

By Order dated November 7, 2019, the 2nd Circuit denied rehearing or rehearing en banc:

Appellee, The New York Times Company, filed a petition for panel rehearing, or, in the alternative, for rehearing en banc. The panel that determined the appeal has considered the request for panel rehearing, and the active members of the Court have considered the request for rehearing en banc.

IT IS HEREBY ORDERED that the petition is denied.

So the lawsuit goes forward.


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