Federal Court Rules In Favor Of Sarah Palin’s Defamation Lawsuit Against The New York Times

USDCSDNYSarah Palin is about to get all mavericky in court. Indeed, the former Alaskan governor and vice presidential candidate just might be making new law in the area of defamation. Palin’s won a major victory in a decision by Judge Jed S. Rakoff, who ruled that she could go to trial o a particularly outrageous editorial by The New York Times In June 2017.  The editorial suggested that she inspired or incited Jared Loughner’s 2011 shooting of then-U.S. Rep. Gabrielle Giffords, D-Ariz.  The case also involves a curious twist due to the involvement of James Bennet, who resigned in the recent controversy over an editorial by Sen. Tom Cotton.  I supported Bennet’s decision to publish that editorial and denounced the cringing apology of the Times after a backlash.

This ruling comes after Nick Sandmann was able to survive motions to dismiss in his own defamation lawsuits and settled with various news organizations like the Washington Post over false reports of his confrontation with a Native American activist in front of the Lincoln Memorial.

These actions are likely to increase as media plunges headlong into “echo journalism” where stories are framed to reaffirm the bias and expectations of their readers.

The ruling concerns an editorial by the New York Times where it sought to paint Palin and other Republicans as inciting the earlier shooting. The editorial was on the shooting of GOP Rep. Steve Scalise and other members of Congress by James T. Hodgkinson, of Illinois, 66, a liberal activist and Sanders supporter.  The attack did not fit with a common narrative in the media on right-wing violence and the Times awkwardly sought to shift the focus back on conservatives. It stated that SarahPAC had posted a graphic that put Giffords in crosshairs before she was shot. It was false but it was enough for the intended spin: “Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask of the right.”

The editorial was grossly unfair and falsely worded. Indeed, the opinion begins with a bang: “Gov. Palin brings this action to hold James Bennet and The Times accountable for defaming her by falsely asserting what they knew to be false: that Gov. Palin was clearly and directly responsible for inciting a mass shooting at a political event in January 2011.”

The Times stated “the link to political incitement was clear. Before the shooting, Sarah Palin‘s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.”  In reality, the posting used crosshairs over various congressional districts, which included Giffords district.

The ruling represents a reversal of fortune for Palin after an earlier complaint was rejected. In Dec. 2019, Palin filed an amended complaint that just passed judicial muster. A three-judge panel reestablished Palin’s defamation claim in an August decision.

What makes this ruling significant is that it is focused on an editorial about a public figure. Both elements make it difficult to sue. Opinion is generally protected under tort law and public figures have a higher burden to bring any defamation case.

The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, a litigant must show either actual knowledge of its falsity or a reckless disregard of the truth.

Simply saying that something is your “opinion” does not automatically shield you from defamation actions if you are asserting facts rather than opinion. However, courts have been highly protective over the expression of opinion in the interests of free speech. This issue was addressed in Ollman v. Evans 750 F.2d 970 (D.C. Cir. 1984). In that case, Novak and Evans wrote a scathing piece, including what Ollman stated were clear misrepresentations. The court acknowledges that “the most troublesome statement in the column . . . [is] an anonymous political science professor is quoted as saying: ‘Ollman has no status within the profession but is a pure and simple activist.’” Ollman sued but Judge Kenneth Starr wrote for the D.C. Circuit in finding no basis for defamation. This passage would seem relevant for secondary posters and activists using the article to criticize the family:

The reasonable reader who peruses an Evans and Novak column on the editorial or Op-Ed page is fully aware that the statements found there are not “hard” news like those printed on the front page or elsewhere in the news sections of the newspaper. Readers expect that columnists will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere in the newspaper. National Rifle Association v. Dayton Newspaper, Inc., supra, 555 F.Supp. at 1309. That proposition is inherent in the very notion of an “Op-Ed page.” Because of obvious space limitations, it is also manifest that columnists or commentators will express themselves in condensed fashion without providing what might be considered the full picture. Columnists are, after all, writing a column, not a full-length scholarly article or a book. This broad understanding of the traditional function of a column like Evans and Novak will therefore predispose the average reader to regard what is found there to be opinion.

A reader of this particular Evans and Novak column would also have been influenced by the column’s express purpose. The columnists laid squarely before the reader their interest in ending what they deemed a “frivolous” debate among politicians over whether Mr. Ollman’s political beliefs should bar him from becoming head of the Department of Government and Politics at the University of Maryland. Instead, the authors plainly intimated in the column’s lead paragraph that they wanted to spark a more appropriate debate within academia over whether Mr. Ollman’s purpose in teaching was to indoctrinate his students. Later in the column, they openly questioned the measure or method of Professor Ollman’s scholarship. Evans and Novak made it clear that they were not purporting to set forth definitive conclusions, but instead meant to ventilate what in their view constituted the central questions raised by Mr. Ollman’s prospective appointment.

There is however a difference between stating fact and opinion and the Times blew away that distinction in the rush to shift attention on political violence to Republicans like Palin.

What is not striking about the opinion is how the court clearly lays out the case for  malice by Bennet, the key element under the New York Times v. Sullivan standard. The Court details how internal messages immediately raised the possibility of raising violence on the right.

The case addresses the more insular issue of whether a plaintiff must establish actual malice with respect to meaning as well as falsity. This addresses the use of words that may be misinterpreted as opposed to intentionally making false statements.  The Court ruled that Palin will have to shoulder the burden on both meaning and falsity. That could generate further appellate fights.

I was also struck by how the court suggested that the later correction issued by the Times might be used by the jury to assume or discount malice.  It is rare that such a correction would be raised as substantial evidence on intent:

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.

James Bennet gained national attention after he was forced to resign after pushing the Cotton editorial headlined, “Send In the Troops.”  The op-ed discussed the basis for using troops to quell riots, which has been done repeatedly in history. The Times not only disgraced itself by abandoning its independence but promised to avoid such controversies in the future. (Later, some of the very figures who insisted that the op-ed was factually wrong — without having to explain that allegation — would push bizarre anti-police conspiracy theories). Bennet, who is being sued for bias in this case, was forced out for allowing dissenting conservative views into the paper this year. There is an irony that Bennet’s alleged bias against Republicans did not lead to a push for his removal but his merely publishing the view of a Republican led to his ouster.

The Palin case could create some major new precedent on issues like showing malice on the meaning of terms or words. It is also a standout as a defamation case going to trial on an editorial.

Here is the opinion: Palin v. New York Times

110 thoughts on “Federal Court Rules In Favor Of Sarah Palin’s Defamation Lawsuit Against The New York Times”

  1. The media no longer conducts journalism. They are more like Soviet-era propaganda today.

    For many years, most of the media now edits and crafts its coverage to deliver a pro-Democrat message. This has ramped up. Many media moguls openly stated their goal to oust President Trump and replace him with Joe Biden. Jonathan Turley has often remarked about the blatant anti-Trump and pro-Democrat bias for years now.

    First, the media misrepresents the news. A recent example is the shooting of Jacob Blake. Blake had been allegedly terrorizing his girlfriend, the mother of his three children. She pressed charges against him for sexual assault, a state of affairs with which he was unhappy. He showed up at her house, took her keys, and would not return them. Their 3 children were in his van. I am unclear if the van was running or not, but it’s summer so it’s hot. The girlfriend called 911. There was a warrant for Blake’s address at that house. Cops arrived, and attempted to arrest Blake. He fought the cops. A taser did not bring him down. At this point, the cops drew their weapons. Blake still refused to obey commands. Instead, he walked to the van with his children, with a cop trying to drag him back by his shirt. He threw open the door and reached in. There was a knife on the floorboard. The cops shot him.

    Blake was steering this train wreck since that day he first allegedly assaulted his girlfriend. He traumatized his children by including them in a domestic dispute with their mother, and then gave them a front row seat to watch him fight with cops and get shot.

    What kind of life have these children had with Blake as their father?

    The media reporting has been almost unrecognizable from the truth. “Unarmed black man shot in the back 7 times by white police officers.” It’s tailor made to convince the general public that all police are not only racist, but actively out hunting innocent black men.

    This propaganda seems tailor made to generate riots. People are getting conditioned to riot at this point.

    Follow up reporting inevitably portrays cops as racist, calls rioting mostly peaceful, and claims that rioters are just fighting injustice. I guess torching cars at a dealership is on the same level as Harriet Tubman conducting runaway slaves on the Underground Railroad. Nothing says peace and freedom like wrecking private businesses during a pandemic.

    Democrat controlled cities and states tell police to stand down. They encourage rioters, sometimes even ceding entire city blocks. They allow anti-capitalist, anti-police, pro-crime BLM activists to paint “BLM” on city streets, while refusing to allow other activists to paint over it. When crime and riots explode, cities burn, and businesses are destroyed, then the Democrat politicians refuse help from the Feds. They stymy law and order, and refuse all help from Trump.

    Then they claim that this is Trump’s America. The HELL it is. This is the rotten fruit of the Democrat Party.

    They even blame Trump for cops shooting Blake, which simultaneously presupposes that the shooting was unjustified and racist, and that the entire incident was Trump’s fault.

    Rinse. Repeat.

    The same Democrats who have hurled the most vicious slurs at conservatives for twenty years, claim that divisiveness is Trump’s fault. Have they not heard what has come out of their own mouths?

    Look at the cess pool Democrats have made of the territory they control. Homeless defecating on the streets and leaving dirty needles. Businesses fleeing the high taxes and regulations long before the pandemic. The constant hatred and harassment of conservatives. Defunding police. Anti-police bigotry. Calling conservative blacks racist slurs. Sitting back while their cities burn, and then refusing federal help.

    Do you really want to give them the entire country to burn?

    When the economy is suffering from a global pandemic, you don’t call in the people who create anti-business climates that drive businesses out of their states. You don’t choose leaders from those who threw away law enforcement.

        1. I guess you’d better start fact-checking her.

          And while you’re at it, dust off your dictionary.

    1. Here is a list of enemies of the People

      1. the mass media tycoons who own and print lies in such dreck as the NYT, the Wapoo, and CNN.

      2. the global financiers like Soros and the comprador financial elites

      3. the academic dons who indoctrinate students in every form of idiocy and perversion

      4. the Democrat party leadership at the highest federal level especially Pelosi and the little fat guy and Schumer. The list is probably 1000 names long but there’s a few.

      5. the mercenaries like the BLM and ANTIFA organizers.

      6. foot dragging Republicans who have conspired with bureaucratic elites to undermine the people’s quest for law and order and free trade and sovereignty.

      Enemies of the people. Lock them all up and give them due process trials for the sort of thing that we use against other mobsters. RICO, wire fraud, tax evasion, obstruction, perjury, you get the idea. A mass purge of about 10,000 criminal leadership such as this, all locked up, would be a good start. Move the potsmokers out of jail and give their cells to such as these.

      1. 7. the predatory types in our intelligence agencies and elsewhere who are participating in and and covering up the stalking and harassment of American citizens, using the tactics of Cointelpro

    1. They are free to say what they like but if they maliciously lie and cause damage they will pay for the harm they intentionally caused. Same rules you and I have lived under all along.

        1. David,

          Federal court probably because of diversity jurisdiction. In diversity jurisdiction federal court only provides a forum but the case is based on state law except for federal constitutional issues that would also be applicable in state court.

          If I were to defame you in a way that caused you harm you would have a right to sue me to recover the damages I caused. Very much as if I damaged your fence by losing control of my car and hitting it.. You could sue to recover the loss I caused you. Same if I defamed you and my lies caused you to lose your job. I have maliciously, or carelessly, injured you and you would have a right to sue me to recover damages for the losses I caused insofar as money could make you whole again.

          The 1st amendment prevents the government from controlling your speech but if you use that right to wrongfully injure others they can try to recover from you. The government isn’t involved but for providing a forum, an arena, in which you can fight it out with the other guy.

          Poorly expressed but I have had a long day and need a nap.

  2. Chairman of the Joint Chiefs of Staff General Mark Milley receives and obeys orders from his Commander-In-Chief.

    Chairman of the Joint Chiefs of Staff General Mark Milley does not issue orders to the Commander-In-Chief.

  3. The New York Times should simply have a disclaimer on everything they publish, featured prominently, wherever the name “New York Times” appears. Here’s a suggestion:

    “This publication is the product of lies, deceipt, deception, disinformation, dishonesty, material omissions of fact, fabrications, falsehoods, inaccuracies, misinformation, misrepresentations, canards, or prevarications. Names, businesses, organizations, institutions, places, actions, events, locales, and incidents referred to herein within this publication are not to be relied upon as true or correct. Any resemblance to actual persons, living or dead, or actual actions, incidents, or events may or may not be coincidental.”

    That ought to protect the New York Times from future such lawsuits. And while the New York Times is at it, they need to bring back Jayson Blair. At least he knew how to write fiction well.

  4. Judith Miller … National Security, War(s) of Aggression, War Crimes, War Criminals …

    No!, a Pulitzer Prize winner!?

    Jason Blair … stories of fact, real people and dramatic events and the reality of life and the human experience …

    No!, completely and utterly made up, imaged and lies.

    No!, no Pulitzer Prize, not even for fiction?! But, the adulation of reader, managers and the owner of the New York Times.

    The list starts before the “Korean Police” action and continues to Iraq, Syria and Libya and the present day.

    The buyers and subscribers to the New York Times have biases in favor of particular “principles” and “values” and prejudices against particular “principles” and “values.”

    The managers and owner of New York Times hold the same biases and prejudices as its readers.

    Those biases and prejudices create a successful financial and warm and comfortable zeitgeist, which makes, no proves!, the New York Times buyers, subscribers, “writers,” managers and owner know “they” are better than the rest.

    dennis hanna

  5. “Federal Court Rules In Favor Of Sarah Palin’s Defamation Lawsuit Against The New York Times”

    – Professor Turley

    Why stop there?

    Democrat prevarication and lies constitute unassailable egregious, actionable defamation, from constructs as grand as Mueller’s illicit, fraudulent and malicious prosecution of non-existent Russian collusion and Christine Blasey Ford’s melodramatic, affected, preposterous, circus-like fabrications against Justice Kavanaugh, to the arbitrary partisan derogatory censorship of Twitter, Facebook, AOL et al.

    Social media defame to the detriment of a particular individual when they expunge truth and deny free speech through censorship. Democrats in politics and social media must be sued into indigence for willful and malicious, deliberate misrepresentations as defamation. President Trump, who was defamed by a nation full of psychotic democratic functionaries, absolutely did not hire women to expel aqueous corporeal substances in an accommodation in Russia.

    It’s time to pay the piper.

      1. I’ll take that as a compliment although, considering the source, that is going to be an extremely difficult endeavor.

        Funfact: The language of the Constitution is far less complex and you can’t understand a word of that, which, incidentally, makes the entirety of your American welfare state irrefutably unconstitutional. Perhaps an appropriate definitive solution would be for you to remediate regarding English and Comprehension 101.

        And thanks for reading…again!

        1. LOL!!!

          So True George, now days lawyers think that they are so smart that if they write hundreds of thousands of pages of laws & regs then they can explain away the clearly explained sentence or 2 of a Right contained in the rest of the Rights & Restrictions placed on all of the govt.

          If they can’t expect the simple meaning of the words then they should expect Millions other Kyle Rittenhouse try to speak to them.

          I see guns sales are up recently 72% a report said, is that why Gen. Millie, former Green Beret, finally pulled up his big girl panties against the Demo/Rino Coup Plotters?

          1. Typo correction:

            “So True George, now days lawyers think that they are so smart that if they write hundreds of thousands of pages of laws & regs then they can explain away the clearly explained sentence or 2 of a Right contained in the rest of the Citzen’s Rights & the Restrictions placed on all of the govt. to Protect the Citizens.”

            maybe that’s a bit better.

    1. George,

      Gen. Millie, head of the Pentagon wrote a letter the other day on behalf of the US military told the Democratic Party & their RINO Traitors to the US that the US Military will not participate in their Coup against the citizen’s Govt & our president, Trump.

      AKA: Go Piss Up a Rope Commie Bas.tards!

      Good for Millie!

      Breaking News Alert! Pentagon Exposes Dem Coup Plot Against Trump
      Meanwhile, blue states announce COVID-19 checkpoints and forced testing — watch now and spread the live link!
      Infowars.com – August 29, 2020 ”


      Infowars has been kicking Azz lately.

      Most all their videos are reposted at Banned.Video

      Very interesting to me this week was the report showing how certain health depts are Faking massively the number of Commie Flu cases.

      Collin county Tx audited their case numbers over 4600 were actually less the 100 cases. It’s up on that last site from above.

      1. Chairman of the Joint Chiefs of Staff General Mark Milley receives and obeys orders from his Commander-In-Chief.

        Chairman of the Joint Chiefs of Staff General Mark Milley does not issue orders to the Commander-In-Chief.

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