(Reuters) - U.S. District Judge Jed Rakoff of Manhattan devised an extraordinary procedure this summer in Sarah Palin’s defamation case against The New York Times, calling an early-stage evidentiary hearing to obtain testimony from Times witnesses. The judge said he called the hearing to give Palin, the former Alaska governor and Republican vice-presidential candidate, a fighting chance to establish that the Times acted with actual malice, a requisite for defamation claims against a public figure. Rakoff concluded not long after the evidentiary hearing that Palin couldn’t plausibly allege the Times’ ill will, even with the procedural bootstrap he had provided. He dismissed her case with prejudice.
In a new motion for reconsideration, Palin’s lawyers at Bajo Cuva Cohen Turkel and Golenbock Eiseman Assor Bell & Peskoe suggest that Judge Rakoff’s usual process went awry, leading the judge to speculate – and reach speculative conclusions – about what Palin might have asserted in an amended complaint. The motion raises an interesting question: Once a judge has reached evidence-based opinions about the plausibility of a plaintiff’s allegations, how can he or she assume the truth of the allegations, as judges are bound to do when ruling on dismissal motions?
Here’s the backstory on the case. On June 15, the Times ran an editorial prompted by the baseball field shooting of Republican Congressman Steve Scalise. The unsigned piece, "America’s Lethal Politics," said the attack appeared to be additional proof of the viciousness of our political climate, recalling a 2011 shooting in Arizona that killed six people and injured Congresswoman Gabby Giffords. The Times erroneously linked the Arizona shooting to an advertisement from Palin’s political action committee. A day later, the paper corrected the editorial to point out that there is not proof of a connection between the Arizona gunman and the Palin ad.
The editorial was not signed so Palin’s defamation case alleged malice by The New York Times as an organization. Judge Rakoff, as he said in his Aug. 29 opinion, was dubious about what he called the “collective knowledge” theory, which he said was “unrecognized by the law in this area.”
Rather than dismiss Palin’s case for that fundamental failing, Judge Rakoff called an evidentiary hearing. His intention, he said, was to obtain “a modicum of factual background” in order to provide “context for assessing the plausibility or implausibility of the complaint’s allegations.”
Rakoff oversaw the Aug. 16 evidentiary hearing, which revealed that New York Times editorial page editor James Bennet was effectively the author of the editorial, since he substantially revised another writer’s first draft of the piece. (Bennet testified at the hearing; the piece’s original writer, Elizabeth Williamson, was not available on the day of the hearing and neither side subsequently called for her testimony.) After the hearing, Judge Rakoff allowed additional briefing on the Times’ motion to dismiss the suit.
His Aug. 29 opinion said Palin’s complaint satisfied the first two requirements for a defamation suit: She plausibly alleged the Times editorial contained factual statements about her that could be proven false. But he said that even with the benefit of testimony from the evidentiary hearing, Palin could not show Bennet acted with actual malice in reckless disregard of the truth.
Judge Rakoff prodded Palin’s assertions of Bennet’s malice based on the evidentiary record. “The best that plaintiff can muster is that Mr. Bennet has a long association with liberal publications and that his brother is the Democratic senator from Colorado who was endorsed by Congresswoman Giffords’ political action committee in his 2016 election and whose opponent was endorsed by Mrs. Palin in that same election,” the judge wrote. That’s no more proof of malice, Rakoff said, than Palin’s assertion that Bennet slurred her to goose subscriptions.
“There is not a shred of factual support, either in the complaint or in the evidentiary hearing, for the supposition that considerations of attracting readership ever entered Mr. Bennet’s mind when he was drafting this particular editorial,” Rakoff said.
Palin argued that in his previous job as editor of The Atlantic, Bennet undoubtedly edited and read articles disclaiming a link between Palin’s PAC and the attack on Giffords. In his opinion, Rakoff pointed to Bennet’s testimony that he didn’t remember reading any such articles and didn’t have them in mind when he rewrote the Times editorial. The judge also said Palin’s alternative argument – that if Bennet didn’t remember the stories, he acted with willful blindness in failing to conduct research – was a “lawyers’ argument” that could not substitute for factual allegations.
“The fact is that all these articles appeared years earlier, and there is no reason to suppose that, even if Bennet had read them at the time, he would necessarily remember their conclusions,” Judge Rakoff wrote.
The judge was careful to say in his opinion that he was required to accept all well-pled allegations as true and that he had drawn all inferences in Palin’s favor. But it seems obvious that he was swayed by evidence from the hearing. Based on the facts, he said, “what we have here is an editorial, written and rewritten rapidly in order to voice an opinion on an immediate event of importance, in which are included a few factual inaccuracies somewhat pertaining to Mrs. Palin that are very rapidly corrected,” the judge wrote. “Negligence this may be; but defamation of a public figure it plainly is not.”
He said there was no point in allowing Palin to file a revised complaint because he had already considered and rejected every argument she had suggested, however remote that argument might be.
But her lawyers said in the motion for reconsideration that the judge leaped to a conclusion based on his assessment of Bennet’s testimony. That’s not what is supposed to happen at the dismissal stage of litigation, they said. “At this stage, the court is duty-bound to ignore Mr. Bennet’s professions of good faith and to accept as true Mrs. Palin’s allegations,” they wrote. “Accepting Mr. Bennet’s self-serving, untested testimony over Mrs. Palin’s allegations would allow him and The New York Times to be impervious to defamation suits simply by professing at the dismissal stage that they did not remember knowing that their defamatory statements were false — even where circumstantial evidence belies that self-serving contention.”
Even if Judge Rakoff believes the Times’ version of events seems more plausible than Palin’s allegations, the brief said, that’s not the standard for judging dismissal motions. “The only fact that The New York Times might dispute (Mr. Bennet’s actual knowledge) is an issue only a jury could decide and, regardless, must still be presumed in favor of Mrs. Palin at this stage of the case,” the brief said.
It’s a good argument, though I don’t think the new proposed complaint advances allegations of actual malice that are substantially different than those Judge Rakoff has already rejected. The only way Palin’s revised complaint could be anything other than a waste of paper would be if the reconsideration brief persuaded the judge that he overweighed Bennet’s hearing testimony.
I called and emailed the Times’ lawyer, David Schulz of Levine Sullivan Koch & Schulz but didn’t hear back.