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Court Shuts Down New York Times Request for Rehearing on Decision That Revived Sarah Palin Lawsuit


The U.S. Court of Appeals for the Second Circuit shut down The New York Times’s request for an en banc rehearing of the decision previously reached by the court’s three-judge panel, a decision that revived Sarah Palin’s defamation lawsuit against the newspaper.

“Appellee, The New York Times Company, filed a petition for panel rehearing, or, in the alternative, for rehearing en banc. The panel that determined the appeal has considered the request for panel rehearing, and the active members of the Court have considered the request for rehearing en banc,” the order said. “IT IS HEREBY ORDERED that the petition is denied.”

The three-judge panel ruled in August that the district court erred by employing an “unusual method” to evaluate Palin’s defamation claim, vacating the decision and sending the case back to the lower court for discovery. The Times countered with a petition for a rehearing en banc. En banc means “all judges of a particular court hear a case.”

Palin initially filed her lawsuit against the Times in 2017 based on an editorial published by the newspaper immediately after a gunman in Northern Virginia opened fire at a practice for a congressional baseball game wounding four people, including Rep. Steve Scalise (R-La.). Palin alleged that the editorial falsely linked her “political incitement” to a 2011 mass shooting in Arizona where former U.S. Rep. Gabrielle Giffords (D-Ariz.) was severely injured. Shortly before the Arizona attack, Palin’s political action committee (SarahPAC) had put out an ad that superimposed an image of crosshairs targeting Democratic congressional districts, including Giffords’s district, leading some to speculate that the shooting was connected to the crosshairs.

The Times’s petition, which you can read here, argued that the three-judge panel made a decision in conflict with settled legal precedent. The Times claimed that the panel failed to properly evaluate Palin’s complaint under the proper definition of “actual malice” required to properly allege defamation.

“The ‘reckless disregard’ prong of the actual malice standard focuses squarely on the defendant’s state of mind and requires, at a minimum, facts demonstrating that the defendant published despite a ‘high degree of awareness’ of the challenged statements’ ‘probable falsity,” the Times argued, before arguing in favor of a more rigorous standard. “Contrary to these well-established legal standards, the Panel premised its analysis on allegations that the author’s purported political differences with Palin led him to engage in objectively ‘reckless’ conduct such as failing to ‘reacquaint’  himself with previously published articles or to read a news report to which his Editorial hyperlinked.”

In its second primary argument, the Times claimed that the panel used the incorrect standard of evaluation to determine whether the editorial was an expression of opinion.

“[I]n rejecting the argument that Palin failed adequately to plead defamation because the challenged statements constitute non-actionable expressions of opinion, the Panel failed to apply the controlling constitutional standard—instead finding it sufficient that a ‘reasonable reader’ could ‘view the challenged statements as factual,’” attorneys for the Times wrote. “Both the Supreme Court and this Circuit have definitively held that, to be actionable, an allegedly defamatory statement must be the type that is ‘provably false.'”

The petition also warned that allowing the suit to be reinstated would alter both of the aforementioned standards in a way that could have a chilling effect on the freedom of the press.

“The Panel’s opinion conflicts with the Supreme Court’s and this Circuit’s prior decisions, materially altering both the actual malice standard and the constitutional protections afforded expressions of opinion. If not corrected, it will inevitably ‘dampen the vigor and limit the variety of public debate’ in a manner directly ‘inconsistent with the First and Fourteenth Amendments,’” the Times cautioned.

Despite these concerns, the Second Circuit denied the en banc rehearing request. It’s not clear at this time if the Times will attempt to get the Supreme Court involved. Even if they don’t, it remains unclear if the procedural win for Palin will lead to success at the district court level.

Jerry Lambe contributed to this report.

[Image via Aaron P. Bernstein/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.