August 30, 2017

"A federal judge on Tuesday dismissed former Alaska Gov. Sarah Palin’s lawsuit against The New York Times..."

"... concluding that she had failed to show that the Times had defamed her in a June staff editorial," Politico reports.
Judge Jed S. Rakoff... reasoned that the statements in the Times piece were sufficiently ambiguous, and thus did not qualify as “provably false,” and said there is a lack of evidence that the Times had written the story with “actual malice.”

Palin’s complaint did not identify an individual who might have acted that way, he said, and Bennett’s behavior was “much more plausibly consistent with making an unintended mistake and then correcting it than with acting with actual malice.”
Actual malice, the standard Palin (as a public figure) needed to ascribe to the NYT, means "with knowledge it was false or with reckless disregard of its falsity." Freedom of speech. It gives even the NYT the right to be sloppy and embarrassing in a completely politically slanted way.

How will you exercise your freedom today?

61 comments:

rhhardin said...

It's obviously actual malice, but it's not defamation.

Idiot judge, right result.

rehajm said...

...and thus did not qualify as “provably false,”..

How many Pinocchios is this? Can't we all adopt the same system?

Michael said...

I liked the testimony where the editor claimed he did not read the paper.

Bay Area Guy said...

Bad Leftwing journalism, but not malicious Leftwing journalism, got it.

gspencer said...

With standards like that, it will be basically impossible for a public figure to ever sue for defamation. The MSM wins again.

You're so vain
You probably think this ruling is about you
You're so vain,
I'll bet you think this post is about you…

BDNYC said...

I'm a little confused about the procedural aspect. The NYT filed a motion to dismiss, and the judge held an ecidentiary hearing, which is normally not necessary or even appropriate on a motion to dismiss. After the hearing the judge dismissed the complaint because it failed to satisfy the plausibility requirement of Iqbal. I'm wondering if there was an error in there somewhere. Rakoff is known to find a result he likes and then find a way to back into it.

Quayle said...
This comment has been removed by the author.
Quayle said...

The recklessness is not resident in the decision of the editors regarding the editorial. The recklessness is resident in the presumptions and decisions which form the editors' world view, which reckless world view is then prudently expressed in their editorials.

Bad Lieutenant said...

Who, whom, that's the world we live in now. Thanks Lefties! Now is the suit killed entirely, with this "prejudice" (how truly apt), or has Gov. Palin any options?

Aaron Csicseri said...

Strategy: more people read headlines than corrections. She should have sued author. Subpoena the authors work station. Prove that he read the original article. Call witnesses to attest to the attitude of the author at the time of the writing of the piece in question. Maybe all of this was done. She can see Russia!

iowan2 said...

Its no surprise that the writers that provide content for the media are incurious creatures, never seeking out information. Their only goal is to advance a predetermined narrative.
This is yet another example of a writer for a newspaper that is wholly ignorant of the subject.

Ignorance is Bliss said...

I agree that this suit should have failed due to the statements being ambiguous. I disagree strongly with the separate classification for public figures. If you defame a public figure, even accidentally, they should be able to sue you to recover damages. Maybe there is an enhancement ( such as triple damages? ) if you can show actual malice.

If a restaurant gives you food poisoning, you can sue them for damages, even if it was accidental.

Richard said...

The Sgt. Schultz defense is successful.

cubanbob said...

I suspect that had this gone to trial a jury would have come to a different conclusion.

Bruce Hayden said...

This judge was very likely hand picked by Chuckie Schumer. I don't know why she expected anything different. She should have filed in, maybe, Alaska, or Arizona. Probably any of the "A" states. It's not like the NYT doesn't physically deliver papers in these states. Solicits business.

Matthew Sablan said...

Well, essentially, it is impossible to defame public people after this. The NYT knowingly published false statements that they, themselves, had reported as false.

If that doesn't reach the "with knowledge it was false or with reckless disregard of its falsity" standard, nothing does. Simply fixing it after the damage was done should not be considered acceptable. Otherwise, they might knowingly lie, about, say an affair with a lobbyist or something and wait to print a retraction.

You know, just picking a random example out of the air.

Matthew Sablan said...

"Subpoena the authors work station. Prove that he read the original article."

-- Doesn't matter if the author did. SOMEONE in the editorial review chain should have. Or, if they haven't, then the NYT is literally run worse than school newspapers. When I helped with the college newspaper, I had enough sense to make sure we didn't contradict our own publication, or run the same mistake twice.

Bruce Hayden said...

"I suspect that had this gone to trial a jury would have come to a different conclusion."

Maybe not. She ran against The Light Bringer, Obama, and this is Manhattan, where he was considered almost a god.

President-Mom-Jeans said...

Sources tell me that public figure and all around blithering retard Pinch Sulzberger molests border collies. My editors fact checked this and approved it.

Matthew Sablan said...

Also, considering the media can turn someone into a public figure, this is an even worse precedent.

Kevin said...

Sources tell me that public figure and all around blithering retard Pinch Sulzberger molests border collies. My editors fact checked this and approved it.

That is exactly where this all leads. We are moving from it's not right to it's not illegal.

At some point the civility shown will be seen as a handicap rather than a strength and the genie won't ever get back into that little bitty bottle again.

Kevin said...

Also, considering the media can turn someone into a public figure, this is an even worse precedent.

Good point, Matthew.

Mac McConnell said...

I feel solidarity with the editors of the New York Times, I don't read that fucking rag either.

Todd said...

President-Mom-Jeans said...
Sources tell me that public figure and all around blithering retard Pinch Sulzberger molests border collies. My editors fact checked this and approved it.

8/30/17, 8:00 AM


HEY Everyone! I just heard that Pinch Sulzberger molests border collies! It must be true! I read it on the Internet!

Ralph L said...

Bad LT, IANAL, but I'm told dismissed with prejudice means she can appeal to a higher court, but she can't just refile with changes.

MikeR said...

I dislike the NYT and their treatment of Palin, but this seems like the right decision. They should be publicly humiliated as a bunch of hypocritical incompetents, though.

Static Ping said...

I plan on exercising my freedom by not buying the New York Times.

Matthew Sablan said...

MikeR: The problem is if you acknowledge they're hypocritical incompetents, that meets the requirement of "with knowledge it was false or with reckless disregard of its falsity." Really, what MORE would they have had to do to meet this requirement? Short of someone telling them, "Hey, don't print that! It isn't true!" and physically restraining them, what more could be expected of them than "basic fact check and reviewing THEIR OWN PAPER?"

David Begley said...

BDNYC above is correct. Very unusual to have evidence on a Motion to Dismiss. It should have been decided on the pleadings only.

Two facts. The editorial writer had to lie. The trial judge wanted this result and wanted it right away.

wendybar said...

The trial judge was a Clinton appointee....BIG surprise there.....NOT!

Ignorance is Bliss said...

[I]f political journalism is to achieve its constitutionally endorsed role of challenging the powerful...

I don't suppose the judge could point out exactly where in the Constitution this role is endorsed?

Fabi said...

This is at least the fourth time I've read that "Pinch" Sulzberger molests Border Collies. What a sick little freak.

DKWalser said...

I believe that the judge erred. One of the precedents involved a newspaper that printed defamatory material and claimed that there was no malice because they didn't know the story was false. The court ruled that the paper had gone out of its way to avoid learning that the story was false (the story was too good to check). Because the paper's ignorance was intentional, ignorance wasn't a defense.

In Palin's case against the NYT, the paper's defense was that its editor was ignorant of the falseness of its assertion that Palin's map had induced violence. Sure, the paper itself had printed articles that debunked the claim made in the editorial, but the editor who had written the editorial was unaware that what he believed was common knowledge had been proven to be false. Palin argued that the editor's claims of ignorance should not be a defense because the evidence showed that he was intentionally ignorant. The editor's staff had given him numerous resources that showed his defamatory assertion against Palin was false. Had the editor merely scanned through the resources, he would have been aware that his charges were false. He chose not to look at the resources. This was a departure from the paper's normal procedures, which are designed, in part, to prevent the paper from printing false claims.

Palin's position is a reasonable inference from the evidence -- which is all that should have been required at this stage! To dismiss, the judge had to find that, looking at the evidence in the light most favorable to Palin, there was no support for her claim that the NYT's ignorance was intentional. Is it wholly unreasonable to believe the NYT's editor departed from normal procedure to avoid any chance of learning his charge against Palin was untrue? No! That may not be the most reasonable inference from the facts, but that wasn't the standard Palin should have been required to meet. In making her meet that standard at this stage, the judge erred.

Left Bank of the Charles said...

How was Sarah Palin in federal court on this, diversity jurisdiction? Maybe she shouldn't have made a federal case of it. She might have grounds to appeal. For a motion to dismiss, shouldn't the evidence be interpreted in the light least favorable to the party asking for dismissal?

Mac McConnell said...

I heard a rumor on the internet that Pinch" Sulzberger is into Border Collie taint. Any word on NY Times' denial?

Martin said...

"How will you exercise your freedom today?"

Living in a very liberal city as I do, I do not have freedom of speech. I can say those things that are approved, but there is PLENTY that if I said it i would risk physical assault. And I am not referring to neo-Nazi or white nationalist stuff, just what some would consider mainstream conservatism

We are in a situation where at best the government will not actively shut you down, but will stand aside, even encourage others to do so, even violently.

That is "freedom of speech" in the pretty much the same way that African-Americans had civil rights under the 13th, 14th, and 15th Amendments, but before the Civil Rights Act of 1964.

Chuck said...

Left Bank of the Charles said...
How was Sarah Palin in federal court on this, diversity jurisdiction? Maybe she shouldn't have made a federal case of it. She might have grounds to appeal. For a motion to dismiss, shouldn't the evidence be interpreted in the light least favorable to the party asking for dismissal?

Yes, it was diversity jurisdiction. I haven't heard anyone questioning the choice of federal court, but I have read several anti-NYT conservative legal experts who think it was a mistake to select New York's Southern District as a venue. I don't understand that choice myself. I expect that there was some reason; I just haven't heard it.

This will now go -- I presume -- to the Second Circuit. And while there were lots of conservative and liberal legal experts all predicting that the Times would get out of this on motion, just as they did, I have read some really convincing columns arguing that the Times escaping a trial on this case effectively means that the Times is nearly immune for defamatory publications. And that appellate courts ought to think differently.

Based on what I've seen and read, I would not have granted summary judgment. I hope there is an appeal, just because I'd like to see this case get appellate-level attention and a published decision.

Matthew Sablan said...

I actually agree with Chuck.

Maybe the NYT can make a solid argument, but what we saw was basically: "We're dumb and incompetent, but not TOO dumb and incompetent."

Chuck said...

BDNYC said...
I'm a little confused about the procedural aspect. The NYT filed a motion to dismiss, and the judge held an ecidentiary hearing, which is normally not necessary or even appropriate on a motion to dismiss.

That's just not true. A Rule (FRCP) 12(b)(6) motion can and usually is determined on the pleadings. So that much is true. But a request for summary judgment pursuant to FRCP 56 can and will be decided on the pleadings, plus other evidence. And there are whole sections of legal writing devoted to the circumstances in which federal district judges will look behind the pleadings to determine whether there exist facts which establish or dispute and genuine issue of material fact that would be determinative of summary judgment.

I have been counsel in at least a dozen, and maybe more, evidentiary hearings on summary judgment motions under federal and Michigan state law. (In Michigan, "summary judgment" is known under the court rules as "summary disposition." There are a few different wrinkles, but the principles are largely the same. MCR 2.116.)

A lengthy article could be written on this subject and its bearing on this case. And that is part of why I am looking forward to an appeal. But please don't get hung up on any supposed trial court error in having held an evidentiary hearing. Having taken such evidence might make it easier (appellate courts generally defer to trial courts' hearing evidence) or harder (the Times and the District Court are now trapped into a rather limited defense of the judgment) to maintain the NYT's win on appeal.

This is actually a really interesting case for the law of defamation, media law, and the First Amendment.

n.n said...

It was wrong originally, and wrong in repetition. NYT establishing close association through ignornance.

Mark O said...

I predict NYT v. Sullivan will be modified.

Chuck said...

btw; I know that Prof. Althouse occasionally links to the Legal Insurrection blog. They have featured a dozen or so posts on the Palin v. NYT case, and they are virtually all pro-Plaintiff Palin.

I've had trouble finding the one online column that had me the most convinced that any grant of summary judgment for the Times in this case would be tantamount to immunity for all defamation actions by public figures, irrespective of the negligence, irresponsibility or malice of the defendant publisher. I just cannot remember the author or the webpage where I saw it. The writing at Legal Insurrection comes pretty close to what I was searching.

Amadeus 48 said...

NYT gained no credibility with this outcome. Their editorial writers were revealed as uninformed political hacks who don't bother to understand what they write about.

Alexander Ignatiev said...

And yesterday, I learned that my defense of yellow journalism in Mississippi succeeded on appeal.

https://courts.ms.gov/Images/Opinions/CO122877.pdf

Todd said...

Amadeus 48 said...
NYT gained no credibility with this outcome. Their editorial writers were revealed as uninformed political hacks who don't bother to understand what they write about.
8/30/17, 10:44 AM


You see that, I see that, most intelligent people see that but that is not the audience of the NYT. The NYT audience sees how the NYT "pulled one over" on that vile Palin. They all likely think that the NYT lied to the court and they are fine with that because an EVIL person got got. Just as with antifa, it is OK to punch a Nazi and if Palin doesn't rate a good punch after all the things she has done, well then, there is just no talking with you...

tim maguire said...

Even by the generous standards of public figure defamation law, this is a surprising result. Judge Rakoff effectively read reckless disregard right out of the law.

MikeR said...

'The problem is if you acknowledge they're hypocritical incompetents, that meets the requirement of "with knowledge it was false or with reckless disregard of its falsity." Really, what MORE would they have had to do to meet this requirement?'
I am personally sure that they did not have knowledge that it was false. I'm not sure about reckless disregard, but I'm guessing that that means that the true information was provided to the person and he chose to ignore it because of his unreasonableness. Not that the true information escaped him because he filtered his news several years before. A lot of us do that.

Michael McNeil said...

Not So Fast, Why Palin Could Win on Appeal Against The New York Times

“Two reasons Palin may win on appeal. First, the Judge appears to contradict himself on a critical issue of law. Second, the Judge appears to engage in weighing the evidence, rather than interpreting the evidence in every means favorable to Palin, often denying her the benefit of the doubt while repeatedly extending it to The New York Times, the behemoth newspaper who could do a lot more damage to a judge’s reputation than public figure Palin.”

Read the whole thing.

The Godfather said...

Here's what perplexes me. As I understand from press reports [OK, yes that's ironic], the writer of the editorial and the editor who reviewed and approved it were ignorant of the fact that Loughner had never seen the "target" map, and they honestly thought that it was "clear" that the map had caused the shooting. But the suit was not against the writer and editor, it was against the New York Times, and the Times KNEW, that is, it had institutional knowledge, that the map had NOT caused the shooting. Is it the law that a newspaper, magazine, etc. is immune from liability for defaming a public figure simply because they assign a story to someone who is ignorant of facts that many others in the company know, and that are a matter of public knowledge? If this is now the law, it provides news organizations with a virtual safe harbor to defame public figures: Just assign stories to staffers you know have the right ideology and are ignorant of inconvenient facts.

Krumhorn said...

Another Clinton leftie judge manages to find a bizarre rationale for supporting his fellow librul travelers. The writer made an unintended mistake when there have been years of discussion about her intent in making Dem congressmen political "targets". The only certainty in this case is that the result would have been very different if the party affiliations had been reversed.

Political hacks on the Court are all the lefties have left....after establishment Republicans, of course.

- Krumhorn

hombre said...

Their are no questions of fact for juries in federal court now that federal judges are divine. They achieved divinity by forgiving the transgressions of Democrats, criminals and, apparently, newspapers.

Please forgive the redundancy.

Big Mike said...

No one who reads the New York Times can possibly doubt the their position towards Sarah Palin is raw, drooling, slobbering malice.

Darrell said...

No one who reads the New York Times can possibly doubt the their position towards Sarah Palin is raw, drooling, slobbering malice.

Aforethought!

Paul Ciotti said...

I think the NY Times editor never thought to check the claim that Palin caused the Giffords shooting because in his circles it was "common knowledge" that she had.

MaxedOutMama said...

"Reckless disregard" does seem to describe the NYT's rhetoric in this instance. It will be interesting to see if she appeals.

Chuck said...

Darrell said...
No one who reads the New York Times can possibly doubt the their position towards Sarah Palin is raw, drooling, slobbering malice.


As is the case with Rush Limbaugh, Sean Hannity and Donald Trump, toward Barack Obama and Hillary Clinton. And between them, they have made some crazy, baseless, false claims about Obama and Clinton. Trump in particular claimed that his "investigators" had found some "amazing things" about Obama's birth in Hawaii. And that Hillary Clinton should have been charged with a crime and jailed.

I don't want the government, even through the backdoor of private civil lawsuits, to start deciding whether speech like that is allowable. I want more, good quality speech to be the method to police disparaging speech.

And yet, we do have rules for pursuing defamation claims and if carefully crafted and carefully enforced, I do want there to be an avenue to pursue damages for injuries resulting from defamation.

It's a hard case and an interesting case and I'd like to see how it gets resolved.

pacwest said...

Thanks for the neutral informed comments on this Chuck. Not a lawyer here, nor planning on playing one on TV, so will follow your directions to Legal Innsurection to learn more.

JaimeRoberto said...

Proving malice would be difficult since it's possible, likely even, that NYT writers really are that stupid.

Static Ping said...

"Amazing things" is very non-committal. It also difficult for Obama to claim defamation when he intentionally refused to release his birth certificate, despite the fact that was a normal thing Presidential candidates did. Barack was intentionally "damaging" himself for whatever reason. With these set of facts, it is doubtful that a court would allow such a libel/slander case to go forward for a private citizen, much less the President. Maybe if Trump had sad "he eats puppies" that would get somewhere, except Obama actually already admitted something similar. Kittens might be actionable.

If Trump had done something like "Obama is not a natural born citizen," then Obama revealed that he was indeed naturally born, then Trump said "Obama is a natural born citizen," and then without any new information went back to the "no he ain't argument" then we would have something vaguely comparable. The fact that the New York Times defense basically revolves around "our editors are ignorant idiots that do not read newspapers" is certainly novel. In a more perfect world, that would be the complete end of the New York Times credibility.

Ray said...

Chuck - thanks for the well written comments that added to the discussion.

My gut feeling was the decision was more politically on where to file, and the expectation was they would lose the lower court, and would be appealing. That removes from The NY Times the excuse of a biased against them court.

Mark said...

The NYT displays, at best, a reckless disregard for the truth every day.