MANHATTAN (CN) – Troubled by an unusual hearing in the case, the Second Circuit breathed new life Tuesday into a suit that says The New York Times defamed Sarah Palin by tying her individually to the trend of heated political rhetoric fueling mass shootings.
“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,” U.S. Circuit Judge John Walker wrote for a unanimous three-judge panel in New York.
With the United States still reeling from a scourge of domestic terrorist attacks, the lawsuit revived today centers around an editorial titled “America’s Lethal Politics,” commenting on a similar mass shooting with a more tangled political backdrop.
For Times editor James Bennet, who wrote the unsigned editorial, Palin’s dissemination of an electoral map with crosshairs over contested districts gave her a “clear” and “direct” connection to a 2011 mass shooting that killed six people and injured then-Rep. Gabby Giffords, an Arizona Democrat.
Holes quickly emerged in that theory. The shooter, Jared Loughner, had a hodgepodge of political ideologies spanning from the far right to the far left, all coalescing around a generalized anti-government paranoia.
After Palin sued over the implication, U.S. District Judge Jed Rakoff scrutinized the Times’ editorial decision-making in advance of ruling on a motion to dismiss. Bennet noted that he corrected the error quickly and prominently, testimony that the judge credited in a ruling passionately defending press freedom.
“Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States,” Rakoff wrote in September 2017. “In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others. Responsible journals will promptly correct their errors; others will not. But if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity.”
Rakoff dismissed the lawsuit two years ago, finding that Palin failed to make the required showing, but the Second Circuit took issue with his approach to the case.
“At bottom, it is plain from the record that the district court found Bennet a credible witness, and that the district court’s crediting his testimony impermissibly anchored the district court’s own negative view of the plausibility of Palin’s allegations,” Walker wrote today.
In ruling on a motion to dismiss, judges do not decide upon on the facts but only whether allegations are plausible enough for a case to proceed to discovery.
Joined by U.S. Circuit Judge Denny Chin and U.S. District Judge John Keenan, sitting by designation from New York’s Southern District, Walker ruled that it did. Palin still faces a heavy burden, however, to ultimately win her case.
“Nothing in this opinion should therefore be construed to cast doubt on the First Amendment’s crucial constitutional protections,” the 21-page ruling states. “Indeed, this protection is precisely why Palin’s evidentiary burden at trial — to show by clear and convincing evidence that Bennet acted with actual malice — is high.”
The ruling falls at a moment when Times readers have been unsubscribing to the paper in droves as Twitter outrage went viral over their recent front-page headline: “TRUMP URGES UNITY VS. RACISM,” accusing the paper of failing to report the president’s scripted remarks in the context of his media-bashing tweets and anti-immigrant Facebook ads.
The Second Circuit noted that the Times’ corrections to its Palin editorial prompted their own online revolt two years ago.
“We agree with the district court that a reasonable reader could view the challenged statements as factual, namely that Palin, through her political action committee, was directly linked to the Loughner shooting,” the opinion states. “The social media backlash that precipitated the correction further suggests that the Times’ readers perceived the false statements as fact‐based.”
A New York Times spokeswoman expressed disappointment in the decision and said the paper will “continue to defend the action vigorously.”
Attorneys for Palin did not immediately respond to requests for comment.