The (Jurisdictional) Fat Lady Had Already Sung; Supreme Court Holds Dismissal of Social Security Claim as Untimely at Appellate Council Level was Final for Purposes of Seeking Federal Judicial Review

Smith v. Berryhill, Acting Commissioner of Social Security, No. 17-1606. May 28, 2019.

Smith spent considerable time and effort making his way through three layers of review of his disability claim, including participating in administrative law judge proceedings. However, at the fourth level of appellate review his claim was dismissed as untimely. There was dispute concerning the Social Security Administration’s receipt of the request for appellate review.. Yet when Smith sought review in federal court, his claim was again dismissed because the federal court agreed with the agency’s view that the dismissal for untimeliness was not final for purposes of seeking federal court review.  The Court of Appeals for the Sixth Circuit agreed. After much effort, Smith would be without remedy.

Although Justice Sotomayor characterized this case as somewhat routine, in many respects it is anything but. The Supreme Court in this case has warned that federal agencies such as the Social Security Administration are not sole arbiters of their own authority.  An Agency cannot require multiple layers of review, including a hearing, and then call dismissal at the fourth level non-final, thereby precluding federal review. Add to this that the government confessed error in its earlier interpretations of the law, requiring appointment of special counsel to represent the government.  

While observing that the Administrative Procedures Act and agency exhaustion of remedies requirements are not identical, the Court underscored that an agency may not serve as an unreviewable arbiter of compliance with its own administrative steps.  This is particularly so where, as in this case, exhaustion is not a jurisdictional prerequisite.

While no doubt the government will make mistakes, the Court was not persuaded by any “floodgates” argument arising because of such errors.  The Court stressed that just because federal jurisdiction property could include a merits determination rather than remand, courts would do well to tread lightly in that regard, as the entire structure of administrative review is intended to permit all concerned to benefit from agency expertise.  

It would be unwise to speculate as to how far interpretations of this case might stretch. It is fair to say, however, that the case will stand for the proposition that a federal agency administering its own programs cannot create a citadel of its of procedures, leaving claimants without remedies while insulating the agency from review.

Smith v. Berryhill 17-1606_868c

1🖼️ = 1K 🕮? Courts Adapt to the Language of Emoticons

Although the yellow smiley face (  😀 ) has had a decades long presence in popular culture, instant communication technologies have precipitated a explosion in the use of multiple pictorial symbols, collectively called emoticons or emojis.  Some decry use of emojis as a perceived regression to hieroglyph, signifying burgeoning illiteracy. Others applaud the utility of the often playful symbols as shorthand expressions of feelings as well as words.

All would be well (even if controversial) but for the tendency of the human animal toward misunderstanding in any form of communication.  This presents courts with novel opportunities to consider the admissibility and meaning of the discourse of emoticons.

While the utility of a symbol is grounded in its ability to prompt instant recognition, symbols themselves are not entirely uniform and may differ in appearance depending on the platform employing the emoticon’s underlying code.  Cosmetic differences are but one facet of the introduction of symbolic speech in the judicial lexicon. Emoticons, like words, have secondary meanings and nuance. Given that multiple meanings may attach to a single, superficially innocuous icon, cavalier use may be incautious.  

Law Professor Eric Goldman of Santa Clara Law School, proprietor of the Technology & Marketing Law Blog, has tracked the presence of emoticons in judicial records, observing remarkable growth.  

A recent overview of case law from the beginning of 2019 to the present provides some indication that the courts are not shrinking from the task of recognizing and interpreting emoji.  While in one case a criminal court obtained the testimony of detectives expert in pandering, pimping, and prostitution to interpret emojis said to represent an invitation to participation in those activities, most of the cases mention emojis as if they were commonplace, or omit them and note that omission as with any other editorial intervention.

While this may be some indication of a willing judicial adoption of this emerging form of communication, in light of ongoing and often charged controversies over the use and meaning of language, it is unlikely that issues attending the emergence and widespread use of emoticons have as yet been explored in full.

What follows gathers from online resources, scholarship, journalism and  case law to illustrate the emerging discourse concerning emoticons. A bit of leaven is included at the end.


Emojopedia   A dictionary of emoticons with articles about the development, usage and meaning of emoticons, called emojiology (after etymology),  and current news.

Legal Cheek:  Twelve Famous Cases in Emoticons

Netlingo   A dictionary of internet terms and symbols, including news and usage data. Some entries merit the acronym NSFW (not safe for work).

The Smiley Company  History and development of an array of smileys, from a global licensing  company.

The Smiley Dictionary  An apparent user created contribution to the resources of Computer Science House, a special interest group of Rochester Institute of Technology.

Twitter:  @emoticoncaselaw

Wikipedia:  List of Emoticons    Provides an overview of types of emoticons and the underlying coding languages in use in producing them.  


Goldman, Eric.  Emojis and the Law. 93 Wash. L. Rev. 1227 (2018)

Goldman, Emojis and the Law Worksheet, 2019.

Kirley and McMahan:  The Emoji Factor: Humanizing the Emerging Law of Digital Speech (2018 SSRN Advance Copy of Tennessee Law Review)

Media Discussion

2015 01 29 New York Times:  At Silk Road Trial, Lawyers Fight to Include Evidence they Call Vital: Emoji.

2015 12 07 ABC (Australia)  Emoji and The Law: Threatening Violence

2016 03 18 Wall Street Journal Law Blog:  The Supreme Court Emoji Challenge (Paywall)

2016 10 16 Yahoo Finance:  Your Silly Emojis are Going to Court

2018 01 30 9to5Mac: Court Ruled Emoji Constituted Rental Contract

2018 05 03 Lawyers Mutual Byte of Prevention Blog:  How an Emoji Can Land You in Court

2018 06 27 Wired:  Academics Gathered to Share Emoji Research, and it was Hot

2019 01 31 Technology and Marketing Blog:  Emoji Law 2018 Year in Review

2019 02 07 Recorder:  Getting Ready for the Emoji Law Revolution

2019 02 11 Technology and Marketing Blog:  What’s New in Emoji Law? An Interview

2019 02 18 The Verge:  Emojis are Showing Up in Court Cases Exponentially, and Courts are Not Prepared

2019 02 19 Legal Cheek:  Why Courts Need to Become Fluent in Emoji    

2019 02 19 9to5Mac: More and More Cases Require Courts to Interpret the Meaning of Emoji  

2019 02 19 Gizmodo:  How Would You Like Having Your Emoji Messages Read Out Loud in Court?

2019 02 19 Mystal, Above The Law:  Is Emoji Law Going to be a Thing2019 02 19  Number of Emoji References in U.S. Court Cases Growing Exponentially

2019 02 19 Futurism:  The Byte: Judges Are Struggling to Interpret Emoji in Court Cases

2019 02 20 EDiscovery Daily Blog:  Emoji are Showing Up in Court Cases More and More

2019 02 22 Washington Post:  Your Honor It Is an Eggplant: Lawyers Call for Guidance on Interpreting Emoji

2019 02 24 The Tartan:  Courts are Unprepared for the Appearance of Emojis in Cases

2019 02 25 CNBC (Mystal) Emojis Can Now Be Used as Court Evidence:  Here’s What to Expect

Recent Case Law

Blount v. State, NO. 14-17-00988-CR (Tex. App.).  April 22, 2019.       Text emojis noted in brackets without description, in the same fashion as deleted expletives.

Cannon v. Southern University Board of Supervisors, No. 17-527 – SDD – RLB (M.D. La. April 12, 2019)  Use of emoji in response to request for admissions as well as threatening language part of evidence indicating sanctions appropriate.

DeLucia v. Castillo, CASE NO. 3:19-CV-7 (CDL) (D. Ga.) April 23, 2019.  Emojis included in evidence of communications with child in abduction case.

Commonwealth of Pennsylvania v. Hackenberger, J-S72014-18 No. 120 MDA 2018 (Superior Court) April 16, 2019.   Unpublished opinion.  Text messages using emoticons relevant in child sexual exploitation case.

Commonwealth v. Hunt, 18-P-106 (Mass. App.) February 22, 2019.  (Unprecedential.) Discussion of evidence suggesting witness bias in domestic assault case includes texts, including emojis.

Doe v. University of Kentucky, 5:17-cv-00345-JMH (E.D. Ky.) January 18, 2019.  Post-encounter text, including emoji, part of evidence in case alleging university negligence in investigation and presentation of Title IX complaint.

Gonzalez v. State, 3-CRNo. 08-14-0029  (Tex. App. 2019). April 9, 2019.  Court omits emojis and editorial remarks concerning language where the parties have placed no emphasis on the emojis.  

People v. Jamerson  A153218 (Cal. App. 2019).  February 6, 2019. (Unpublished.) Detectives offer expert testimony concerning the meaning of crown and other emojis in pimping and pandering case.

State v. Bey,  2019 Ohio 423 (2019)  Gun emojis posted on Facebook page part of evidence in criminal trial.

State v. Polchert, Appeal No. 2018AP849-CR  (Wis. App., 2019) March 26, 2019.  Emoji showing ‘broken heart’ included in evidence of online exchanges in case charging use of computer to commit sex crime.

State v. Berrios, AC 40043 (Conn. App. 2019).  February 5, 2019. Emojis noted as redacted in transcript of text exchange in witness intimidation case.

State v. Foster, No. E2018-01205-CCA-R3-CD (Tenn. Crim. App.) April 10, 2019.  Emojis noted in transcripts of exchanges in case of aggravated rape of a minor.

State v. Potter,  No. E2015-02261-CCA-R3-CD (Tenn. Crim. App. 2019) February 5, 2019. Smiling emoji noted and redacted in transcript of email exchange in first degree murder case.

…and some comedic observations (NSFW):

2012, Season 37:  Saturday Night Live:  Embarrassing Text Message Evidence Proves a Man’s Innocence

The Electronic Public Square: The President’s Twitter Account Is Public Forum. In Permitting Political Commentary on Twitter, the President May Not Preclude or Banish Authors Offering Criticism

Knight First Amendment Institute at Columbia University, et al. v. Donald J. Trump, et al.No. 17 Civ. 5205 (NRB) (May 23, 2018).

The United States District Court for the Southern District of New York required seventy five pages with which to examine the nature of Twitter, Tweets, and Retweets, the nature of the President’s actions in creating and posting to a Twitter account, and the constitutional limits on inhibiting speech in a virtual public forum.  

In short:  a Twitter account operated by the President is a public forum in which protected political speech occurs.  Precluding critical views is unconstitutional viewpoint discrimination.

No doubt the seventy five page exegesis was crafted with an eye toward further review. Whether this will occur is not known, but what is of note is not entirely the federal district court’s primary determination, which has the virtue of appealing to a commonsensical “come one, come all” view of public debate in the new millennium, but rather some of the court’s supporting determinations are somewhat intriguing.

The trial court declined to opine concerning whether the judiciary could enjoin the executive, a matter wisely sidestepped as, the court offered, it is not necessary in declaratory proceedings.  More interesting, however, is the court’s view that even if the President could not be enjoined, his staff could, which some may perceive to be something of a topsy-turvy view of agency. In addition, the court noted that it had at hand recourse to the All Writs Act.  With the person considered to be suitable for induction before the court, and thus subject directly to the court’s orders, it is not easy to apprehend why the All Writs Act would be needed.

Most beguiling is the notion of “readership standing” found to support the claims of the Knight Institute.  The outer limits of such a concept of standing, envisioning injury occasioned by not being able to read a Twitter poster as often or as clearly as wished, remain for exploration, but this does seem to be, at best, quite an expansive view of what sort of interest or injury may support standing.  In this case, however, the Knight Institution’s claim may be worthy of merit by virtue of some semblance of concreteness, there having been alleged an existing relationship with one of the banished readers. However, it is not inconceivable that future cases will test this notion: time will tell.  

Knight Foundation, et al. v. Trump, et al., 2018.05.23 Order on Motions for Summary Judgment

Signs of (Criminal) Times: Relevant Evidence Suggesting Ethnic Hatred Admissible

United States v. Mikhel and Kadomovas, Nos. 07-99008, 07-99009 (9th Circuit) May 9, 2018.

Foreign national defendants tortured and killed five individuals and dumped their bodies in a reservoir near Yosemite National Park.  

Without asserting any identifiable protected belief or association concerning Nazism, defendant Kadamovas claimed error in the introduction in evidence of a weapon bearing symbols of Nazism and in introduction of a disparaging remark about a Jewish murder victim without mentioning the victim’s name.  

The Ninth Circuit found no prejudicial error implicating any First Amendment right.  

Although the Supreme Court has found introduction of irrelevant evidence of association with racially identified groups to be violative of Fifth Amendment rights, the introduction of the weapon had bearing on defendant’s participation in a conspiracy and the introduction of the disparaging statement was relevant to identifying a victim.  Where there was no improper use of evidence to inflame the jury: no Fifth Amendment violation could be found.

United States v. Mikhel (9th Cir., 2018)

(Un)Fair Notice? California’s Reproductive Services Notice Legislation Faces Opposition Before the United States Supreme Court

National Institute of Family and Life Advocates v. Becerra, et al., No. 16-1140 (S. Ct.).  Oral argument scheduled for March 20, 2018.

California has enacted legislation intended to notify women of the availability of aid in accessing contraception or abortion services.  Article 2.7, Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, 123470 to 123473. California Code (2018 Edition). The statute appears to apply widely. However, through a series of exemptions, the FACT Act actually requires only that pregnancy centers that are not medically licensed by the state provide notice of that status to clients and that pregnancy centers that do not offer abortion provide notice to clients about available services and how to access those services.

Pregnancy centers and their advocates are challenging the FACT Act in the United States Supreme Court, demanding that the Court hold the FACT Act unconstitutional in violation of the First Amendment as it, in their view, compels speech contrary to the purpose of the pregnancy centers..  The pregnancy centers sense that they have been compelled to advertise for that which they find contrary to conscience. California and its supporters demur, arguing, among other matters, that the FACT Act is a neutral generally applicable law deserving of no special constitutional protection even if it imposes a minor burden in compliance with its provisions.  Moreover, this general law does not discriminate on the basis of pregnancy center’s points of view concerning abortion. In the state’s view, petitioners are not hampered in their ability to speak nor does the provision of the notice the state requires constitute an endorsement.

Both parties contest the proper standard of judicial review:  Petitioners argue strict scrutiny is required, while the state argues a more lenient standard ought to apply, as in the state’s view, the act may be analogized to state regulation of commercial speech.  

Petitioners decry what they foresee as adverse consequence if a lesser standard of review is adopted: petitioners see this as opening the door state regulation of speech in unprecedented, and unwelcome, forms.   The state’s supporters argue that the public must know and in particular pregnant women must be made aware, of choices during pregnancy, particularly as, in their view, pregnancy centers are not clear in their purposes, and that the time-sensitive results of not being fully informed about choices can be life altering.

If the instant case were not challenging enough, amici remind the court that similar issues are percolating in lower federal and in state courts.  Whether the Supreme Court will be impressed by a recent Fourth Circuit opinion disfavoring notice requirements similar to those in issue here is impossible to predict.  The Court has no obligation to follow the reasoning of an inferior court yet neither need the Court ignore a determination that does not square with the Ninth Circuit opinion that paved the way for the Supreme Court to grant certiorari in this case.

Contentiousness concerning reproductive issues does not appear to have diminished in the decades following the Supreme Court’s recognition of privacy interests attaching to such decisions in Griswold v. Connecticut  381 U.S. 479 (1965) and Roe v. Wade,  410 U.S. 113 (1973 ).  Time appears only to have amplified such concerns, perhaps not without good cause, as technology has evolved to aid in health choices but with it has come new dimensions of choices to be encountered at the beginning and end of life.  Interstitial legal arguments over enunciated and implied First Amendment guarantees have ensued, and continue. The professionalization of views on reproductive matters is readily apparent upon even a cursory review of the number of advocacy organizations submitting as amici in this case.

There is little doubt that oral argument will be lively.  In anticipation thereof, the merits briefs are linked below.  An overview of amicus submissions is also attached. The principal briefs were obtained through ScotusBlog, a site without which there would be general unawareness of developments at the Supreme Court.  The overview of amicus submissions is Just Lawful Blog’s own.

20180108123359506_2018.01.08 NIFLAvB Brief of Petitioners FINAL

20180108124518914_2018.01.08 NIFLAvB Joint Appendix FINAL


20180220120759477_16-1140 Brief For Respondent


20180313112437769_2018.03.13 NIFLAvB MERITS Reply Brief

20180316160703572_16-1140 BS Letter

NIFLA v. Becerra, No. 11-1160 Amicus Submissions 2018 03 18

Power and Process: Supreme Court Distinguishes Jurisdictional and Statutory Limitations

Hamer v. Neighborhood Legal Services of Chicago, No. 16-658, 583 U.S. ____ (November 8, 2017).

Determining the time for initiating appeal ought to be perfectly clear, such that no party need fear forfeiture of rights because of untimely filing of a notice of appeal.  

Not so!  Where both statutory substance and procedural rules provide incongruent time limitations for filing appeals, or for relief from those limitations, legal catastrophe may ensue.  

While there may be some leniency available if a procedural (“mandatory claims processing”) rule is involved, failure to conform to a jurisdictional measure will forfeit appeal.  

The Supreme Court has reiterated in Hamer that only Congress can confer jurisdiction on federal courts.  Accordingly, where Congress has provided by statute a time limitation for filing an appeal, that provision is jurisdictional.  Failure to adhere to jurisdictional statutory limits is fatal to appeal.  Where a court lacks power to adjudicate a matter, no relief can be granted.

In contrast, courts may arrange the order of their affairs through procedural rules for processing claims.  Those rules are not jurisdictional and may, at times, be relaxed as circumstances may require.

Practitioners may find this guidance of some assistance, but no one with any sense would rest easy without scouring both statutes and rules to determine and to document decisions about appellate procedure.

16-658 Hamer v Neighborhood Legal Services 2017 11 08

All Politics Is Global: Federal Court in Northern California Enjoins Enforcement of Canadian Order Directing Google to Complete a Global Take Down of Canadian Enterprise’s Links

Google, LLC v. Equustek Solutions, et al., No. 5:17-cv-04207-EJD (N.D. Cal.).  Order granting injunctive relief entered November 2, 2017.  

Two Canadian computer hardware sales and distribution entities became embroiled in a trade secrets controversy.  Defendant here, Equustek Solutions, was successful as plaintiff in Canada against its rival Datalink, but was not successful in locating Datalink to pursue the remedies it had secured.  

In Canada, Equustek sought an order directing Google to remove website links relating to Datalink.  Google refused.  However, when Equustek obtained injunctive relief against Datalink, Google removed more than three hundred Canadian-based result links regarding Datalink.

Equustek sought and was granted an injunction directing Google to delist globally all links to Datalink.  Google appealed to the highest levels of Canadian courts.  Google lost.  

Google initiated an action for declaratory relief in federal court in the Northern District of California, seeking to enjoin enforcement of the Canadian order.  Google argued that the Canadian order ought to be unenforceable in the United States because it disregards the immunity afforded Google by the Communications Decency Act Section 230, which immunizes interactive service providers from liability for content provided by others.  

The Canadian courts saw Google as the primary source of information provided about Datalink, which would make Google a content provider for Section 230 purposes.  The addition or subtraction of information such as datalinks is an editorial function.  However, as Google is not a content provider but has been treated by Canada as such, the Canadian order directing Google to remove links to Datalink globally may be enjoined, as it is in derogation of the immunities provided by Section 230.  

The federal district court noted that the Ninth Circuit has rejected the characterization of service providers as publishers:  

                   “The Ninth Circuit has held that, regardless of the underlying cause of action, a claim treats an intermediary as a publisher when it requires the intermediary to remove third-party content. Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1103 (9th Cir. 2009). The Barnes panel held that “removing content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher of the content it failed to remove.” Id. at 1103. The Canadian order treats Google as a publisher because the order would impose liability for failing to remove third-party content from its search results.”

                  The federal court was unhesitating in what it perceived to be the perils of the Canadian court’s conclusion, which in its view eviscerates Section 230.  Requiring internet service providers to remove third party content would transform them into content providers and strip them of the protections of Section 230, which protections are intended to foster diverse exchanges of information.  

Not shirking from its perception of danger, the United States District Court concluded that Canada’s order “threatens free speech on the global internet.”


Some offhand editorializing:  the court appears to have been more than a little feisty, given that Equustek did not submit a brief in opposition to  Google’s motion for injunctive relief.  One defendant wrote to Google’s counsel and to the clerk of the court to stating that there would be no defense to Google’s suit, but also opining that Google’s motion for injunctive relief was unfair.

And a note about what was not reached:  because Google was successful on its Section 230 motion, the court did not find it necessary to consider questions of international comity.  

Google LLC v. Equustek Sols. Inc. (N.D. Cal., 2017)

Tenure Delayed May Be Justice Denied: Federal Court Denies Summary Judgment In Race, Gender and Age Discrimination by Faculty Member Against the University of Mississippi

Wigginton v. University of Mississippi, et al., No. 3:15CV093-NPP-RB

Wigginton joined the faculty of the University of Mississippi as an assistant professor of Legal Studies in 2008, and thereafter received excellent reviews and was awarded for his work. When the time came to apply for tenure, his tenure committee recommended tenure, as did his dean and external reviewers, yet other deans recommended denying tenure, disregarding external reviews and citing a dearth of scholarship, contrary to Wigginton reviews.

In 2014, a review committee found deficiencies in the tenure application review process and recommended the award of tenure and promotion.

Nevertheless, the University Provost recommended against tenure and promotion.

Wigginton prevailed on appeal and an extension of his probationary period was recommended.

Instead, the university’s chancellor rejected the application for tenure and promotion and terminated Wigginton effective in May, 2017.

The Mississippi Board of Trustee of Institutions of Higher Learning denied review. The Board terminated the chancellor in 2015,

The federal district court in Mississippi has denied dismissal on the basis of qualified immunity and denied summary judgment where genuine issues of material fact exist concerning whether Wigginton was discriminated against in denial of promotion and tenure, whether there was arbitrary and capricious review, and whether there was retaliation where Wigginton exercised constitutionally protected speech rights.

Wigginton v. Univ. of Miss. (N.D. Miss., 2017)


No Longer Wrong, No Further Rights: RLUIPA Complaint Moot Following Settlement Between Islamic Center and County Government

United States v. County of Culpeper, No. 3:16-cv-00083 (W.D. Va.) September 1, 2017.

The federal government and the Islamic Center of Culpeper, Virginia both initiated federal litigation against the Culpeper County government to vindicate violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA).

The Islamic Center of Culpeper, seeking to construct a new facility, alleged that the county added bureaucratic hoops and subsequently denied a permit routinely granted to others.  This occurred in the context of objections to the project to which local officials expressed concern about bias.

Culpeper County and the Islamic Center settled:  the permit was awarded, a promise that further permitting would not be hindered was made, and  were awarded.  The county undertook remedial measures by posting non-discrimination notices, including non-discrimination provisions in contract documents, and training staff in fair practices. The parties agreed that redress in federal court could be sought in case of any violation of the agreement.

The federal district court for the Western District of Virginia dismissed the federal government’s’ case as moot, declining continued federal presence to assert undefined “broader’ relief than that already agreed upon or to permit the federal government to monitor any assumed but unproved bad faith on Culpeper County’s part.  Where the private and federal cases against the county made the same claims and complete and enforceable relief had been attained, and the policy changes instituted by the county met the safe harbor provisions of RLUIPA, precluding judgment against it.

Where only injunctive and declaratory relief could be sought by the federal government, the federal district court lacked continuing subject matter jurisdiction of the federal government’s claims.  Mootness, the court opined, exists where no order the court could fashion could afford relief:  any declaration that the law had been violated would be retrospective and impermissible as advisory.

The presence of an enforceable settlement agreement and the provision of remedial measures addressing religious discriminationn precludes as moot the continued involvement of the fedeeral government in the federal courts relating to the very same matter against the county.

While this result appears facially straightforward, and while it is not known whether appellate review will be sought, the court’s opinion does intimate a refusal to permit the federal government, by means of retained federal court jurisdiction, to assume the role of ongoing monitor of settled claims.  It may be that the mootness rationales advanced by the trial court will be employed in other cases to inhibit the federal government from lingering in court, hovering over local governments “just in case” review appears desirable.

u.s. v. culpeper county w.d. va. 20170901

A Big Oops, But No Case: New York Times Shielded from Public Figure’s Defamation Claim

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.

20170829 SDNY Palin Opinion