Sarah Palin’s lawsuit claiming that The New York Times defamed her was dismissed by a federal judge in New York in August.
But Palin, the former Alaska governor and 2008 GOP vice-presidential candidate, isn’t giving up without a further fight.
Last week, she filed a notice of appeal to take the case up to the 2nd U.S. Circuit Court of Appeals.
And one can expect Palin to claim that the judge didn’t let her amend her complaint and therefore denied her a fair day in court.
Palin’s suit, filed in June, was based on a June 14 editorial The Times published following a gunman’s shooting spree at a Northern Virginia baseball field that wounded four, including Rep. Steve Scalise, R-La.
The editorial said there was a link between political incitement and the 2011 Arizona shooting that severely wounded U.S. Rep. Gabrielle Giffords and killed six, including a federal judge and a 9-year-old girl.
The editorial linked the baseball shooting with the statement that Palin’s political action committee had circulated a map with Democratic representatives in the crosshairs.
The Times later corrected that statement, first in a tweeted apology, thanking readers for calling the newspaper on the mistake. Then a printed statement was appended to the editorial saying that no link between political rhetoric and the Giffords shooting had been established, and "a map distributed by a political action committee" depicted electoral districts, not individual lawmakers.
Those efforts didn’t satisfy Palin, who sued.
U.S. District Judge Jed S. Rakoff handled the case, ruling that Palin had failed to plead a defamation case against a public figure such as herself.
“Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States,” he wrote. "In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others,” he said.
“But if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously, that is, with knowledge it was false or with reckless disregard to its falsity,” Rakoff wrote.
But that didn’t happen in this instance, the judge found. Rakoff noted that Palin did not identify anyone specifically at The Times who had the actual malice necessary to support a defamation claim against a public figure.
The judge took the added step of holding an evidentiary hearing in the case in August, instead of just ruling on the pleadings. James Bennet, the editorial page editor at The Times, was mostly responsible for the writing of the editorial, Rakoff wrote.
A claim for defamation by a public figure must allege “sufficient particularized facts” by clear and convincing evidence, or it will be dismissed, the judge said. The failure to identify any individual with the knowledge or intent wasn’t enough, the judge said.
The judge noted that when mistakes in the editorial were brought to Bennet’s attention, he “immediately corrected the errors,” not only in the editorial itself but also in publishing corrections in print and online.
“Such behavior is much more plausibly consistent with making an unintended mistake and then correcting it than with acting with actual malice,” Rakoff said.
After the August decision, Palin’s legal team filed a motion for reconsideration, which was denied by Rakoff, that provides a preview of the arguments one can expect to see before the 2nd Circuit.
Rakoff dismissed the complaint outright, without granting leave to amend. He wrote that he had reviewed a series of various additions Palin “even remotely suggested” she might include in an amended complaint and found them wanting.
Palin no doubt will claim that she was denied a further day in court as a result.
Also, the reconsideration brief argued that Palin’s lawyers, with the addition of new information about Bennet, had established a claim for actual malice in their amended complaint. But Rakoff wouldn’t hear it.
Expect the 2nd Circuit to have its say sometime next year.
