In 2017, the New York Times ran an editorial that, by any normal standard, libeled Sarah Palin. It harkened back six years to 2011, when Jared Loughner, an insane person who listed the Communist Manifesto among his favorite books and may never have heard of Sarah Palin, murdered six people in Tucson, Arizona. Democrats made the absurd claim that Loughner’s spree was caused by the publication of a map by Palin’s PAC that showed 20 Congressional districts in the “crosshairs” in the 2012 election–a map that Loughner, as far as we know, never saw. The Democrats’ claim was quickly discredited and articles in the New York Times, along with many other publications, acknowledged that it was false.

Nevertheless, the Times editorial board claimed six years later that the “link to political incitement [between the PAC’s map and Loughner’s murders] was clear,” and there was a “direct” connection between Sarah Palin and Loughner’s murders. The Times editorial was greeted with outrage, causing it to rewrite the editorial and correct its libel against Palin within 24 hours. She sued the paper for defamation a few days later, in federal court in New York City.

I wrote about the case here, and in this post, titled “The New York Times is in trouble.” The author of the Times editorial, James Bennet, defended himself by testifying in a hearing conducted by the district court judge that he wasn’t aware of his own newspaper’s articles that said there was no relationship between Palin’s PAC’s map and the Loughner killings; or if he read them, he had forgotten them. He testified that he was similarly unaware of other reporting to the same effect, including articles published in the Atlantic magazine while he was the editor of that journal. The Times editorial, he testified, was an innocent mistake.

Shockingly, the trial court judge, Jed Rakoff, dismissed Palin’s complaint for failure to state a claim. He did this after conducting an unusual hearing at which, as just described, Bennet testified. Rakoff wrote that he found Bennet’s testimony credible, even though credibility of witnesses is a question for juries, not judges. Palin appealed the dismissal of her defamation case to the Second Circuit Court of Appeals, which reversed earlier today, directing that the case proceed with discovery.

The Court of Appeals decision holds, on a relatively narrow procedural ground, that the trial judge improperly converted the Times’s motion for dismissal for failure to state a claim into a motion for summary judgment (one in which material outside the pleadings is considered) without adhering to the requirements of the Federal Rules of Civil Procedure. That holding, I think, is obviously correct. The appellate court went further, holding that the Proposed Amended Complaint that Palin filed in the trial court, which was rejected by Judge Rakoff, plausibly states a claim for libel.

The Second Circuit’s decision is consistent with my initial view of the case. It is notoriously difficult–some say impossible–for a public figure to win a defamation case in the current state of the law. If the law of defamation still exists, Palin’s case should succeed. If she can’t win on the facts we have here, the courts should simply acknowledge that, if you are a public figure, it is open season on you, and no redress for libel or slander is permitted, no matter how egregious the facts.

How could an editor of a major newspaper get a story so wrong? While it doesn’t rely heavily on these facts, this recitation by the Court of Appeals perhaps sheds some light:

The PAC also includes allegations suggesting that Bennet in particular was more likely than the average editor‐in‐chief to know the truth about the Loughner shooting because he had reason to be personally hostile toward Palin, her political party, and her pro‐gun stance. Bennet’s brother, a Democrat, had served as a United States Senator for Colorado since 2009. In 2010, Senator Bennet was endorsed by two House members whose districts had been targeted by the SarahPAC map. Two days before the Loughner shooting, a man threatened to open fire on Senator Bennet’s offices, and thereafter both Bennet brothers became “outspoken advocate[s] for gun control.”32 Also, during the 2016 election, Palin endorsed Senator Bennet’s opponent and Representative Giffords [who was shot and wounded by Loughlin] endorsed Senator Bennet. The district court gave no weight to these allegations, finding that political opposition did not rise to the level of actual malice. We agree with the district court that political opposition alone does not constitute actual malice, but we conclude that these allegations could indicate more than sheer political bias—they arguably show that Bennet had a personal connection to a potential shooting that animated his hostility to pro‐gun positions at the time of the Loughner shooting in 2011.33 Palin’s allegations are relevant to the credibility of Bennet’s testimony that he was unaware of facts published on his watch relating to the Loughner shooting and that he made a mistake when he connected Palin to the that shooting. Palin’s allegations present a plausible inference that Bennet’s claim of memory loss is untrue.

James Bennet is a Democratic Party activist/newspaper editor. His hostility toward Sarah Palin and the Republican Party is obvious. Discovery may shed more light on what happened, but it certainly seems likely that his partisan animus led him to libel Sarah Palin deliberately.

A further question is what led the federal district court judge, Jed Rakoff, to bend the rules of civil procedure in rather blatant fashion, so as to throw Sarah Palin’s case out of court. Is this an instance of a Democratic Party judge striking a blow on behalf of a Democratic Party newspaper, and on behalf of James Bennet, a prominent fellow member of the Democratic Party? That is a plausible inference. Perhaps future proceedings in the case will shed more light on whether Rakoff is capable of presiding in a non-partisan manner.

A footnote: as I have written more than once before, I do not understand why Palin’s lawyers brought this case in New York City. They could have brought it in Alaska, or another more favorable venue. It is doubtful whether a Republican politician can get an unbiased jury in a politically-charged case in New York City. Palin could win the legal battle and lose the ultimate war. That is, a jury consisting entirely or overwhelmingly of Democrats could buy James Bennet’s “innocent mistake” defense, regardless of the facts.