Updated August 21, 2019: On Tuesday, August 20th, the New York Times petitioned the U.S. Circuit Court of Appeals for the Second Circuit for a rehearing of a panel decision to revive Sarah Palin’s defamation suit.
A federal appeals court reinstated Sarah Palin’s 2017 defamation suit against The New York Times. Palin had sued the paper for an editorial that she alleges incorrectly linked her and her PAC to the 2011 shooting of Rep. Gabby Giffords of Arizona.
A Times editorial, written on June 14, 2017 after a shooting at a practice for a congressional baseball game, argued that the two shootings underscored the “vicious” nature of American politics. The editorial referenced the fact that shortly before the Giffords attack, Palin’s PAC had circulated a map that superimposed crosshairs over several Democratic congressional districts, including Giffords’s. The editorial said that the “link to political incitement was clear,” suggesting a connection between Palin’s PAC and the Giffords shooting.
Palin sued for defamation, and the newspaper filed a motion to dismiss.
According to the decision by a three-judge panel for the U.S. Court of Appeals for the Second Circuit, “the case took an unusual procedural turn: the district judge held an evidentiary hearing on the motion to dismiss.” The hearing, the decision states, was to assess “whether Palin had sufficiently pled the actual malice element of her defamation claim.”
In defamation claims, public figures such as Palin must show that a media company published false information “with knowledge that it was false or with reckless disregard of whether it was false or not.”
In August 2017, U.S. District Court for the Southern District of New York Judge Jed Rakoff asked James Bennet, the author of the editorial, to testify at the evidentiary hearing. Bennet testified that his reference to Palin in the editorial was intended to make a rhetorical point about the political climate at the time. He also said that he was unaware of past articles in the Times and The Atlantic, where he’d been the editor-in-chief, which stated that there wasn’t a connection between Palin’s PAC and the Giffords shooting.
Based on Bennet’s testimony, Judge Rakoff granted the Times’ motion to dismiss.
“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,” reads the unanimous decision by the federal appeal court judges.
The circuit judges determined that Rakoff “erred in relying on facts outside the pleading to dismiss the complaint,” so they reinstated the defamation suit and sent it back to the Federal District Court in Manhattan.
On Tuesday August 20th, the Times petitioned the federal court for an en banc rehearing. The Times’ lawyers argued that the Second Circuit’s decision to reinstate Palin’s case “misapprehended two bedrock First Amendment principles.” The petition critiques the kind of evidence the court accepted when considering whether the reporter acted with ‘reckless disregard,’ as well as disagrees with the standard they used to evaluate whether the editorial was a statement of fact or expression of opinion.