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Tuesday, August 29, 2017

Palin v. NYT dismissed

Judge Rakoff of the Southern District of New York has dismissed Sarah Palin's defamation action against The New York Times, concluding that the allegations of actual malice, in conjunction with the testimony heard in questionable evidentiary hearing, showed that Palin had not pled facts plausibly showing that the editorial-page editor knew or recklessly disregarded the truth of statements about the connection between Palin's PAC publications (which featured gun-sites over "targeted" congressional races) and the Gabby Giffords shooting.

The order includes a lengthy footnote explaining the use of the evidentiary hearing. He justified it because a "court must have some knowledge of the context in which the underlying events occurred in order to carry out the function with which the Supreme Court has tasked it" --the "context-specific task" of evaluating plausibility. Also, neither party objected, the facts established by the testimony in the hearing are not in dispute, and no credibility determinations were made. And although he did not mention it, it appears that none of the testimony contradicted anything in the complaint. The testimony in the hearing was combined with the facts in the complaint and used to measure whether the facts showed actual malice.

But all this ignores FRCP 12(d), under which a court converts a 12(b)(6) to a motion for summary judgment when materials beyond the four corners of the complaint are used. Iqbal did not overrule or repeal 12(d), so the need for knowledge of the context cannot necessitate such hearings. It also would have been simple enough for the court to take the evidentiary hearing and convert to summary judgment (although perhaps the parties would have demanded some discovery, if only on actual malice). In short, obtaining and using information beyond the allegations of the complaint cannot be justified under the current rules without converting.

The merits discussion also appears to make the hearing unnecessary, because much of the analysis suggest that the problem with the complaint was legal insufficiency rather than plausibility-factual insufficiency. The problem was not a dearth of facts or the conclusoriness of the facts, but that the facts alleged, even if detailed, could not establish actual malice. For example, allegations of hostility towards Palin, economic motive to criticize Palin, and failure to comply with journalistic practices--alleged, in varying degrees of conclusoriness--all are insufficient, as a matter of law, to show actual malice.

All-in-all, a good First Amendment decision (I should add that there is some great language about the First Amendment, political speech, and the narrowness of actual malice), but reached in a procedurally incorrect way.

Posted by Howard Wasserman on August 29, 2017 at 06:30 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


I don't know this "Senator Doe" but there is generally a reason to think some random member of the Senate isn't a spousal batterer. There isn't some 50/50 chance of that happening, is there? Unless there is some actual reasonable evidence, just saying that to me is a "reckless disregard" of the truth.

A regard for the truth would require some minimum degree of evidence before printing that someone beats his wife. I think there actually is a "reason" to think it's not true -- past experience suggests few members of the Senate beat their spouses & specifically in most cases there is evidence for individual members. But, positive evidence too has to be provided.

Posted by: Joe | Sep 6, 2017 11:06:57 PM

That does seem to be the law. But I'm having trouble wrapping my head around it. Could I just go and make something up about a public figure, as long as I have no reason to think it's not true? For example, "Senator Doe beats his wife." I have no knowledge of any reasons to think it's not true, but I have no reason to think it is true. In Sullivan, the NYT received its information from someone who had supplied them with accurate information before, so they had something to rely on.

Posted by: biff | Aug 30, 2017 7:22:54 PM

I find the look of the copy a bit charmingly quaint myself.

Posted by: Joe | Aug 30, 2017 10:54:40 AM

but even then I can't imagine why the clerk wouldn't just merge the scanned signature page with a clean pdf of the rest of the opinion instead of copying the whole thing on an evidently defective machine.

This would surely be preferable. (No need here to even contemplate the ideal.) But, when I was a law clerk on CIT several years ago, and we took many cases from SDNY by designation, what I quickly learned was that this court was so wildly over-whelmed and under staffed, given its case load (both in size and complexity), that we just had to be happy that anything managed to happen at all, rather than just grind to a complete halt. It's a court that is clearly in need of a massive influx of resources, including more judges, more staff, and better equipment. Until that happens, I'm willing to overlook what would be gross errors in any other jurisdiction, given the unbearable caseload and under-staffing.

Posted by: Matt | Aug 30, 2017 8:48:12 AM

In regards to basic intent v. specific intent, this chart is helpful:


Posted by: N.D. | Aug 30, 2017 8:31:58 AM

Just clarification to my comment above ( and partly replying to Wasserman , later the rest ) :

If there is , a statutory demand for an individual to be held accountable for defamation , then , it is in that case the editor simply , whether , the chief editor , or the one acting on duty , while published actually .

Also : one should notice , that corrections , were based simply on swift deletion , of the essential texts published . Overnight deleted , and not peripheral information , but the essence . Clearly contributing to the observation of clear malice as stated .


Posted by: El roam | Aug 30, 2017 7:35:39 AM

Reckless disregard means the person had actual knowledge of some reasons to believe something was false and published anyway without further checking. Bad journalism is not enough. And the swift correction actually works in favor of the defendant-- once presented with the information that he lacked pre-publication, he retracted the statements. And it isn't "the newspaper as such," because it is the state of mind of individual actors, not the entity, that matters. This was one problem with the complaint--it alleged the newspaper's state of mind, while Judge Rakoff insisted that the relevant state of mind was the person responsible for the piece. That was, purportedly, why Rakoff held the evidentiary hearing--to gain some facts about the states of mind of the two or three individuals responsible for writing the piece.

Posted by: Howard Wasserman | Aug 30, 2017 7:18:06 AM

Thanks for that post , well , I certainly disagree here . Clear malice has been demonstrated here , I quote from the opinion :

" maliciously, that is, with knowledge it was false or with reckless
disregard of its falsity. "

And based among others on swift corrections of the newspaper , to exclude malice . But the swift corrections , and the actual cause for it , suggest clearly : " reckless disregard of its falsity " and anyway suggest : clear malice . This is because , some comments of angry readers , swiftly changed the course of action , but not clear new factual configuration , that hadn't been known and revealed suddenly , has caused such corrections by publications of it later . This is the ultimate demonstration of such degree of recklessness , that does amount to malice actually .

And also , dismissed due to the fact , that the defamation act , couldn't be attributed to one individual ( journalist ) . But , she has sued the newspaper , and as such . One journalist can commit error , but , when the newspaper as such , under the direct control of the highest professional official , that is the editor , then , it is clearly , aggravating the recklessness . For , He is the ultimate professional instance there .

Link to the opinion :



Posted by: El roam | Aug 30, 2017 5:37:58 AM

I don't think it is so clear-cut that a newspaper writing something which is clearly incorrect and easily ascertainable as being incorrect is not a case willful disregard for the truth.
What would reckless disregard for the truth look like? Are you aware of any cases which have found that there was willful disregard, as opposed to knowingly false.

Posted by: biff | Aug 29, 2017 8:51:42 PM

First of all, though this isn't unusual in the Southern District, which seems to want to digitally replicate the look and feel of opinions in the 1950s, this opinion looks like it was written on a typewriter and then scanned with a broken scanner. Of course it's a result of the needless hand-signature on the last page, but even then I can't imagine why the clerk wouldn't just merge the scanned signature page with a clean pdf of the rest of the opinion instead of copying the whole thing on an evidently defective machine. Look at the third line of page 6 and pages 8 through 25, especially page 16. You literally can't read the thing. How is Westlaw supposed to report this?

Second, that's not just procedurally incorrect, it's bizarre. Has any district court ever done this before post-Iqbal? Only a brilliant judge could think of an evidentiary hearing on a motion to dismiss for implausibility.

Posted by: Asher Steinberg | Aug 29, 2017 7:53:02 PM

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