Update: Sarah Palin v. New York Times

A federal appeals court decided Sarah Palin’s defamation lawsuit against The New York Times can move forward. Although the decision came out of the Second Circuit Court of Appeals in New York, the lawsuit’s roots stretch back to 2011 in Tucson, Arizona.

On January 8, 2011, a gunman shot then-Congresswoman Gabrielle Giffords before firing at people waiting in line to see her at a constituent event. Ms. Giffords and seventeen others injured in the attack survived, but six people were killed.

Soon after the shooting, attention fell on Sarah Palin for a graphic that came out of a political action committee, SarahPAC. The now-infamous graphic showed what looked like crosshairs or gun sights over congressional districts SarahPAC was focusing on. The graphic did not show crosshairs over any individual, but it did name Gabrielle Giffords and two of her colleagues. According to Mrs. Palin’s lawsuit, it took her “years to overcome the detrimental impacts of the false speculation that she caused [the Tucson shooter] to commit murder.” See Complaint, Docket # 1 at ¶ 27.  

In 2017, another gunman targeted members of congress. On June 14, 2017, a shooter attacked members of Congress and staff during a practice for the annual Congressional Baseball Game for Charity in Alexandria, Virginia. The shooter was killed and six people were injured. It was later determined the shooter had expressed and circulated political opinions that supported Bernie Sanders and opposed President Trump.

Following the incident, The New York Times ran an editorial entitled “America’s Lethal Politics.” The piece asked whether the 2017 attack was “evidence of how vicious American politics has become.” It referenced the map SarahPAC had published as an example. The original piece stated that with respect to the 2011 shooting in Arizona, “the link to political incitement was clear.” The piece stated that “Sarah Palin’s political action committee circulated” the map graphic which was described as putting Gabrielle Giffords “and 19 other Democrats,” as opposed to their congressional districts, “under stylized cross hairs.” See Complaint at ¶ 37.

Within a few days, The Times edited the piece and posted a correction notice that remains online today. The notice clarified there was no connection established between the Tucson shooter and SarahPAC’s graphic.

Sarah Palin sued for defamation soon after. She alleged The Times published “a statement about her that it knew to be false: that Mrs. Palin was responsible for inciting a mass shooting at a political event in January 2011.” See Complaint at ¶ 1.

The Times moved to dismiss the case, citing various grounds.

The Times argued that the gist of the allegedly defamatory statements “could not be proven true or false” because ultimately, “[w]hat motivated or influenced [the shooter] is unknown—perhaps even by him.” See Motion to Dismiss, Docket # 25 at 17-18.

The argument that appeared to resonate with the district court the most was that The Times argued Mrs. Palin, as a public figure, could not prove The Times published any statements with actual malice. See Motion to Dismiss at 19.

Proof of actual malice would require proof The Times knew its statements were false when it published them, or that it published the statements while harboring serious doubts about whether the statements were true. See Motion to Dismiss at 19.

Before deciding the motion, the district court held an evidentiary hearing and required that the lead author of the editorial, James Bennet, testify about what he knew and his state of mind when he published the piece. See Order re: Motion to Dismiss, Docket # 35. The court considered the testimony and concluded Mrs. Palin could not plausibly establish actual malice, even assuming, as Mrs. Palin alleged, the author, Mr. Bennet, had hostility toward Mrs. Palin. Mrs. Palin alleged Mr. Bennet, whose brother is a Democrat and Colorado Senator, operated with both liberal and personal biases against her.

The Second Circuit Court of Appeals reversed the dismissal, primarily because it concluded the district court should have evaluated Mrs. Palin’s complaint differently.

Typically, a motion to dismiss is decided on the pleadings alone, which usually consist of the complaint and its exhibits. The complaint’s facts are presumed true as the court determines whether, if true, the facts could support a claim for relief.

According to the Appeals Court, the district court was only given two options. It could have ignored Mr. Bennet’s testimony and ruled only on the complaint itself. Or, if the court wanted to consider the testimony, it should have changed the motion to dismiss to a motion for summary judgment, a very different kind of motion, and ruled on the motion only after allowing Mrs. Palin and The New York Times the chance to present evidence. See Order at 21.              

With the case re-instated, the parties may begin discovery and move toward trial. At the motion to dismiss stage, the claim survived with a showing it was probable The Times acted with actual malice. If the case goes to trial, Mrs. Palin faces heavier burdens. She will have to prove it was more likely than not the editorial’s statements were about her, were false, and were damaging to her reputation. She will also have to prove by a higher standard of evidence, clear and convincing evidence, that The New York Times, at a minimum, recklessly disregarded the truth when it published the 2017 editorial.

By Alexandra Tracy-Ramirez, HopkinsWay PLLC. | © HopkinsWay PLLC 2019. All rights reserved.

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