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Despite Procedural Win, Sarah Palin’s Lawsuit Has a Snowball’s Chance


Yes, I’m sure hockey moms everywhere are rejoicing that Sarah Palin just shut down the Big, Bad New York Times, but let’s everyone grab hold of their common sense for a minute. Tuesday’s ruling in favor of Palin may have been a courtroom win, but the only people who stand to gain from this absurd case are those billing by the hour to draw out the charade of Palin’s case. As we reported, the U.S. Court of Appeals for the Second Circuit reversed a lower district court’s decision to dismiss Palin’s complaint. Sure, that sounds very dramatic, but all it really means is that the lawsuit will now actually happen. At the district court level, Judge Jed S. Rakoff had conducted a preliminary hearing to see whether Palin’s complaint even alleged something that could amount to defamation. In other words, Palin got smacked down before the case even started.

Now, the appellate court is giving her a chance to plead – and almost certainly lose – her case. The reversal of dismissal is undoubtedly a brief resurrection of the case – but it doesn’t make Palin any more likely to actually win against the New York Times.

I can’t help but notice that Judge John M. Walker, Jr., writing for the Second Circuit, was trying to clear that up right off the bat. Judge Walker began Tuesday’s opinion by clarifying:

This case is ultimately about the First Amendment, but the subject matter implicated in this appeal is far less dramatic: rules of procedure and pleading standards.

The initial dismissal – and now, the reversal of that dismissal – resulted from a rather unusual path Palin’s case had taken. Palin sued after an editorial appeared in the New York Times titled America’s Lethal Politics. In the editorial, the writers analyzed the shooting in Alexandria, Virginia at a practice for a congressional baseball game. That particular shooting left four victims injured, including a Republican Congressman, Rep. Steve Scalise of Louisiana. The piece discussed the relationship between incendiary political speech, lack of gun control, and shootings like the one in Alexandria.

The Editorial Board also drew a parallel between the Alexandria shooting and the 2011 attack on Democratic Rep. Gabby Giffords, which left six dead and more injured; it said there was a “clear” link between the actions of shooter Jared Lee Loughner (responsible for the Giffords shooting) and speech by Palin’s political action committee. The editorial claimed that Palin’s political action committee had “circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs,” suggesting that the congressmembers themselves had been pictured on the map.

After swift and harsh backlash, the New York Times issued a correction and changed the article’s wording:

Correction: June 15, 2017

An earlier version of this editorial incorrectly stated that a link existed between political incitement and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established.

Later that same day, the correction was again updated:

Correction: June 15, 2017

An earlier version of this editorial incorrectly stated that a link existed between political incitement and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial has also been updated to clarify that in a map distributed by a political action committee before that shooting, electoral districts, not Democratic lawmakers, were depicted beneath stylized cross hairs.

Palin sued, alleging that the editorial was defamatory. The lawsuit faced a clearly uphill battle; in addition to the usual difficulties – packaging an editorial such that it constituted a “statement of fact” and tying direct financial losses to the article’s publication – Palin (obviously, a public figure) would also need to establish that The Times acted with “actual malice.”

The district court opted to cut right to the chase, and hold a pretrial hearing on the issue of whether there was evidence to support a finding of actual malice. The court sought to use the hearing to probe the circumstances of the editorial’s publication. Had it been done with knowledge that it was false, or with reckless disregard of its truth? After the hearing, the court found that no such evidence had been adduced, and that therefore, Palin’s complaint should be dismissed.

On appeal, the Second Circuit was bothered not by the lower court’s finding, but rather by its procedure:  the lower court shouldn’t have even held a hearing in the first place. At that stage in the litigation, the court’s role was simply to rule based on what Palin had alleged – not to probe deeper into those allegations to see if they could be supported by evidence. Indeed, the time to examine evidence would come later, after hundreds of hours have been billed, when summary judgment is what’s at stake.

The difference between a motion to dismiss for failure to state a claim and a granting of summary judgment is something that keeps first-year law students up at night. But federal judges should know the difference – and that’s essentially what the Second Circuit ruled.

Palin’s “win” is almost certainly going to be extremely short-lived. The hearing on actual malice, however improperly timed, more than foreshadows what would happen at trial. If the evidence pointed toward a lack of actual malice then, it’s pretty unlikely that evidence will now magically appear to prove that malice now. Like I said, the only winners here are the lawyers.

[Image by Aaron P. Bernstein/Getty Images.]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos