Editorial suggesting relationship between gun violence against Republican Congressmen and noted Republican’s activities not actionable notwithstanding editorial’s inclusion of hyperlink to information contradicting conclusions. Rapid correction and insufficiency of evidence concerning actual malice compel dismissal with prejudice. Palin v. New York Times Co., No. 17-cv-4853 (S.D.N.Y.) August 29, 2017.
Hours after an individual opened fire on June 17 2017 on Republican Congressmen practicing baseball in Northern Virginia in anticipation of an annual bipartisan charitable game, the New York Times (“Times“) published an unsigned editorial suggesting a link between former presidential candidate and Alaska governor Sarah Palin’s rhetoric and the violence. The editorial included a hyperlink to an article stating that no relationship had ever been established between a graphic overlaying target crosshairs on political adversaries’ geographic jurisdictions and the 2011 shooting of Congresswoman Gabrielle Giffords and eighteen others near Tucson, Arizona.
The Times backpedaled within a day, publishing two revised editorials and corrections stating that no link had been established between political incitement and the Giffords shooting.
Ms. Palin sued the New York Times Company.
The United States District Court for the Southern District of New York dismissed with prejudice plaintiff Palin’s complaint on August 29, 2017, opining that plaintiff ha failed to allege with sufficient particularity and plausibility facts sufficient to withstand the rigorous standards for liability for defamation of a public figure established by New York Times v. Sullivan, 376 U.S. 254 (1964).
The landmark New York Times v. Sullivan decision created — in order to ensure First Amendment speech and press freedoms — a higher standard of proof in defamation actions by public figures than in those brought by ordinary people. A public figure who seeks redress must establish by clear and convincing evidence that a defamatory statement was made with actual malice. Actual malice is defined as actual knowledge or reckless disregard of the falsity of a published statement.
In Palin’s case, the court noted that her status as a public figure was conceded. The Times’ attempted reliance on the “group libel” doctrine precluding relief, in which relief is precluded where an individual is only a member of a group, is misplaced where the editorial mentioned Ms. Palin by name in connection with her political action committee.
It was at the threshold of the actual malice standard that plaintiff’s complaint stumbled, the court opined. As an initial matter, the court ruled that collective “corporate” actual malice does not merit legal recognition and in any case, cannot be established absent a showing that an individual’s actual malice was directed to a corporate publisher’s attention.
Individual actual malice could not be shown, the federal district court held. Rather than evidencing liability, the rapid revisions and corrections of the editorial acknowledged an unintended mistake.
Neither the Times’ unabashed low regard for Ms. Palin nor its desire for readership concerned the court, nor did the (ultimately identified) responsible editor’s affiliation with liberal institutions and politicians add weight to any argument about the Times’ motivation in publishing the editorial.
The inclusion in the editorial of a hyperlink to published statements negating the Times’ position show not that the Times was unmindful of the truth, but rather that the Times had done some research before publication, the court found.
The editor’s failure to read research provided to him was of no moment, the court observed, as a failure of research cannot establish actual malice. Whether the editor had knowledge of the evidence indicating the absence of connection between the plaintiff’s political action committee’s crosshairs map and mass violence was but a lawyer’s argument, the court found.
If the editor refused to read the contrary view — presumably because it contradicted the editorial’s position — the editor could have removed the link. The editor’s failure to remove the link to contrary information supports an inference against actual malice, the court found.
When rewriting an editorial writer’s submission, the editor had no incentive to read what the editorial writer had reviewed. Any failure to read proffered research material cannot constitute reckless disregard.
Moreover, the federal district court found, the earlier Times editorials made available to the editor were not as contradictory as plaintiff would wish, as they opined that Republicans and Palin were responsible for creating a rancorous atmosphere capable of affecting the behavior of the mentally ill who commit mass gun violence. Thus the Times’ self-corroboration would not necessarily have compelled the Times’ editor to conclude that its June, 2017 editorial was in error.
Dismissal with prejudice was in order, the court concluded, where, in addition to pleadings, matters adduced an evidentiary hearing were considered, where plaintiff’s other arguments were so insubstantial as to not merit consideration, and where a collective assessment of individually deficient assertions could not support an inference of actual malice.
No doubt the Palin decision was welcomed by the New York Times and other publishers. In many respects the case can be seen as testing the limits of liability in defamation at a time of near simultaneity between events and publication of related news and opinions. As such, the court’s refusal to police newsroom shortcomings may be heartily welcomed in those circles.
Yet there are those who may believe that the New York Times v. Sullivan now immunizes publishers to a degree paralleled only by sovereign immunity, where initially the Supreme Court’s holding was intended to offer protection first in service of the constitution, and only consequently in aid of the corporation. In the absence of reliable information concerning whether Palin will appeal, it appears that further consideration of the issues raised in this case must await another day.