New York Times Must Face Sarah Palin’s Defamation Lawsuit, Court Says

(Bloomberg) -- New York Times Co. must face a defamation lawsuit by former Alaska governor Sarah Palin over an editorial that linked her to the shooting of Arizona lawmaker Gabrielle Giffords, a federal appeals court said.

The ruling is a win for the 2008 Republican vice presidential candidate, though the court said the bar remains high for Palin to ultimately prevail in the case. The 2017 editorial linked her to the 2011 shooting in Tucson, Arizona, that seriously wounded Giffords, a Democrat then in the House of Representatives.

The 21-page decision, which reinstated a lawsuit dismissed by a lower-court judge, is largely procedural, with the New York-based appeals court saying Palin's complaint “plausibly states a claim for defamation.” But it now allows her to obtain documents from the media company and question editorial page editor James Bennet.

"This is -- and has always been -- a case about media accountability," Libby Locke and Ken Turkel, lawyers for Palin, said in a statement. "We are pleased with the court's decision, and we look forward to starting discovery and ultimately proceeding to trial.”

"We are disappointed in the decision and intend to continue to defend the action vigorously," Times spokeswoman Danielle Rhoades Ha said in an email.

Click here to read the opinion

The editorial, which ran under the headline “America's Lethal Politics,” appeared on June 14, 2017, hours after a shooting at an Alexandria, Virginia, baseball field that almost killed Representative Steve Scalise, a Louisiana Republican.

It noted that Palin's political action committee, SarahPAC, had circulated a map that superimposed a target over some Democratic congressional districts prior to the 2011 attack and suggested that certain representatives had been placed on the map. After a backlash, the Times corrected the editorial within a day to note that no link was established between political incitement and the 2011 shooting and removed two phrases suggesting a link between Palin and the attack.

Palin sued for defamation 12 days later.

High Hurdle

The appeals court didn't rule on the merits and said Palin still faces a “high” bar to prove that Bennet acted "with deliberate or reckless disregard for its truth." But in the preliminary stage, where a judge must decide whether Palin had alleged enough facts for the suit to proceed, the court said Palin had met the test and that U.S. District Judge Jed Rakoff had erred in finding that Bennet made an "unintended mistake" by including erroneous facts.

A jury could find that Bennet, who edited The Atlantic magazine before joining the Times, knew it was false to claim that Palin and her PAC were connected to the 2011 shooting, the court said. Pointing to Palin's complaint, the court noted that Bennet published stories in The Atlantic that said as much, and that his brother, Colorado Senator Michael Bennet, was endorsed by two House members whose districts had been targeted in the SarahPAC map.

Senator Bennet had also been threatened with violence in the days before the attack, the court said.

“Political opposition alone does not constitute actual malice, but we conclude that these allegations could indicate more than sheer political bias -- they arguably show that Bennet had a personal connection to a potential shooting that animated his hostility to pro‐gun positions at the time of the” Arizona shooting, the court said.

Linked Article

The court also raised questions about the publication process, in which the Times linked the editorial to a story stating there was no connection between the Arizona shooting and the SarahPAC map. Bennet testified at a court hearing that he hadn't read the linked article, while Palin pointed to the linked article as proof of Bennet's disregard for the truth.

“The inclusion of the hyperlinked article gives rise to more than one plausible inference, and any inference to be drawn from the inclusion of the hyperlinked article was for the jury -- not the court,” the panel said. “In any event, under these circumstances, it was arguably reckless for Bennet to hyperlink an article that he did not read.”

The panel faulted Rakoff for finding that Bennet made an "unintended mistake" by including erroneous facts about Palin, and it took issue with his decision to hold a hearing where Bennet testified as the judge weighed whether to dismiss the suit.

“Nothing in this opinion should therefore be construed to cast doubt on the First Amendment's crucial constitutional protections,” the court said.

“At the pleading stage, however, Palin's only obstacle is the plausibility standard,” it added. “She has cleared that hurdle.”

The case is Palin v. New York Times Co, 17-3801, U.S. Court of Appeals for the Second Circuit.

To contact the reporter on this story: Chris Dolmetsch in Federal Court in Manhattan at cdolmetsch@bloomberg.net

To contact the editor responsible for this story: David Glovin at dglovin@bloomberg.net

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