Palin v. The New York Times Company, No. 17-3801-cv (August 6, 2019).

Former vice-presidential candidate and Alaska governor Sarah Palin sued the New York Times for defamation subsequent to the newspaper’s publication of an editorial on the occasion of the 2017 shooting of Congressman Steve Scalise.  The New York Times revived the discredited allegation that Palin’s Political Action Committee’s (PAC’s) use of cross-hairs on a campaign map was an incitement to political violence, precipitating the 2011 shooting of Arizona Congresswoman Gabriel Giffords.

The United States Court of Appeals for the Second Circuit has vacated dismissal of Palin’s complaint, which may, as amended, now proceed to resolution in the federal court in the Southern District of New York.

The basis for the appellate panel’s determination was largely procedural but not to be taken lightly on that account.  The court of appeals observed that the trial court adduced evidence in a hearing intended to clarify whether Palin had pleaded “actual malice” with sufficiency to withstand dismissal.  In ruling on the defendant newspaper’s motion to dismiss, the judge went beyond matters in the pleadings and, usurping what would ordinarily be a jury function, found facts in favor of the New York Times.  Even had the trial court wished to convert the motion to dismiss into one for summary judgment, this was not done and could not with integrity be done, the court of appeals found, where Palin had not had a fair opportunity to present material supporting her claim.

The bounds of procedural fairness that the Second Circuit has outlined will keep courts and counsel on their toes, but the significance of permitting further proceedings touches on two significant points of the law of defamation that routinely form impenetrable barriers to plaintiff’s success.

Palin is a public figure, and as such she cannot prevail without showing that the allegedly defamatory publication was made with “actual malice,” defined as knowing or reckless disregard of the truth of the statement in issue.  The Second Circuit was unwilling to permit dismissal to stand without exploration of Palin’s support for the position that the New York Times had knowledge that the assertions about her PAC had been discredited.  The sufficiency of review of material on hand that dispelled the ‘incitement’ allegation before publication and any influence on Times’ editorial writer’s arising from family ties to a gun control advocate are matters of credibility for a jury’s determination.

Taken as a whole, the appeals court found that to the extent that these circumstances could give rise to an inference of recklessness, a plausible claim had been stated, and the trial court’s inclination toward the plausibility of the other party is not a consideration in evaluating the sufficiency of the claim.

Of equal significance is that the publication in question is an editorial.  Definitionally, an editorial proffers opinion, and definitionally, an action for defamation cannot be brought to challenge opinions.  Such actions may succeed only where opinion is grounded in or interwoven with falsehoods.  The Second Circuit’s willingness to entertain the notion that linking Palin to the 2011 shooting involved more than opinion permits some latitude in assessing what is necessary to demonstrate “provable fact” that would separate actionable factual defamation from mere opinion.

It is of course unknown whether Palin will prevail in her renewed proceedings.  Even if she does not, however, the claim itself, concerning an opinion published about a public figure, serves notice to publishers that the impenetrability of press protections is not as inviolable as it has heretofore been believed to be.

Palin v. New York Times 2nd Cir. August 6, 2019