The last we checked in on Sarah Palin’s defamation lawsuit against the NY Times over a false editorial blaming an electoral map used by Palin for the shooting of Congresswoman Gabby Giffords by Jared Loughner. As we reported at the time of the shooting, there was no connection, it was a fabrication of left-wing bloggers that made its way into the mainstream.

The Second Circuit Court of Appeals reinstated the lawsuit after it was dismissed by the District Court Judge Jed Rakoff, and denied the Times’ petition for rehearing. (See those links for more details on the lawsuit.)

The suit then went back to the District Court, and the NY Times moved for summary judgment. That is a procedure where the court can grant judgment for a party where there are no material facts in dispute and the law is in the party’s favor. The reports of the oral argument on summary judgment were fairly gloomy, though that doom and gloom now seems like journalistic wishful thinking.

The District Court just denied the NY Times motion for summary judgment, ordering the case to go to trial.

The Order (pdf.) details the timeline of the Times editorial process that gave rise to the editorial, including the removal of material from the first draft that would have cast doubt on Palin’s responsibility. After publication, people within the Times, including columnist Ross Douthat, internally notified the editors that there was no evidence to support the claim against Palin. (The internet also errupted with criticism, something not reference by the Judge.)

Less than a day after the Editorial’s publication, after having found no evidence of the “link” to which it referred, the Times revised and corrected the Editorial. The Times published the first revised online version at 11:15 a.m. on June 15, 2017…. In it, the Times deleted the phrases “the link to political incitement was clear” and “[t]hough there’s no sign of incitement as direct as in the Giffords attack” and added the sentence “But no connection to that crime was ever established.” Id. In addition, the Times published a series of corrections, which ultimately clarified that no link between political rhetoric and the 2011 shooting of Representative Gabby Giffords was ever established….

After covering the law, the court concluded that Palin met her burden:

But in the end plaintiff meets her burden of adducing evidence that, taken in the light most favorable to plaintiff, could enable a rational jury to conclude that Bennet either knew, or was reckless not to know, that his words would carry the defamatory meaning. Indeed, at least four items of evidence warrant this conclusion.

First, there is the language of the Editorial’s statements themselves, such as, e.g., the reference to the Map as being a “direct” form of “incitement” to Loughner’s shooting. As defense counsel conceded at oral argument, in determining actual malice, the finder of fact is “entitled to consider the wording of the alleged defamatory statement.” Transcript of Oral Argument, July 27, 2020 (“Tr.”) at 10: 20-11: 1; see also id. at 12: 9-12 (“I agree that the language of the publication is part of the mix” in determining actual malice). Here, Bennet’s contention that, notwithstanding the words he used, he did not mean to suggest a direct link between the Map and the shooting, may be “so inherently improbable that only a reckless man would have” chosen the words he chose to convey the meaning he (allegedly) sought to convey. 11 Dalbec, 828 F.2d at 927; cf. id. (“[T]he plain language of the . statement strongly supports the inference that it was made with knowledge of its falsity.”)

Second, Bennet has himself admitted that he was aware that the term “incitement” could mean a call to violence. Indeed, at his deposition, Bennet conceded that the term “incitement” means “different things to different people” and that “some people could interpret [the term] as a call to violence.” See Sullivan Deel. Ex. 2 (Bennet Dep.) at 112-14. Bennet’s general awareness of the fact that “incitement” could be construed as a call to violence is further evidence in favor of actual malice. See Sprague, 2003 WL 22110574, at *5 (knowledge “that the average reader of the journal would be familiar with both” the defamatory and nondefamatory meanings of the word at issue counts in favor of finding actual malice).

Third, Bennet’s decision to substantially revise Williamson’s earlier draft, which did not include the allegedly defamatory language and meaning, is, a jury could find, yet more evidence of actual malice. To be sure, Bennet testified that he made these changes because he worried that phrases like “incendiary” or “inflammatory rhetoric” had been “drained of [their] power because [they are] used so often” and that he was searching for “a very strong word to write about the political climate,” and so chose “political incitement.” Defs’ Mem. at 18 (quoting Pl. SUMF ~~ 56, 58-59). But, as discussed above, the credibility of that testimony is for the jury to assess, not for this Court to credit at the summary judgment phase. It is virtually undeniable that Bennet’s edits changed the meaning of Williamson’s draft, an alteration that a reasonable jury might conclude was intentional….

Fourth, the nature of the corrections issued by the Times in the aftermath of the Editorial stand as further circumstantial evidence that Bennet was aware that the Editorial carried the defamatory meaning….

The fact that Bennet and the Times were so quick to print a correction is, on the one hand, evidence that a jury might find corroborative of a lack of actual malice, as discussed later. But, on the other hand, a reasonable jury could conclude that Bennet’s reaction and the Times’ correction may also be probative of a prior intent to assert the existence of such a direct link, for why else the need to correct? Indeed, the correction itself concedes that Bennet’s initial draft incorrectly stated that there existed such a link. If, as Bennet now contends, it was all simply a misunderstanding, the result of a poor choice of words, it is reasonable to conclude that the ultimate correction would have reflected as much and simply clarified the Editorial’s intended meaning. 12

The court then went over, and rejected as legally insufficient, other defenses.

Trial is set for February 1, 2020 [sic – 2021], “pandemic permitting.”


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