“defense counsel must produce the author(s) of the editorial, who … will be examined under oath”

Sarah Palin has sued the NY Times for defamation, based on an Editorial regarding Palin’s alleged role in instigating the shooting of Congresswoman Gabby Giffords.

I discussed the suit and the motion to dismiss filed by The Times in a prior post, NY Times defense: Palin Crosshairs Editorial Wasn’t Actually About Sarah Palin. Please read the prior post for background and links to pleadings and motion papers.

The Court just issued an unusual order on a motion to dismiss, requiring that the authors of the Editorial (presumably one or more members of the Editorial Board, but perhaps others as well) appear in Court on August 16 to give testimony and to be cross examined as to whether they were aware of prior NY Times articles exonerating Palin from any responsibility.

The Order (pdf.) is embedded at the bottom of this post.

The legal issue is “actual malice,” which a public figure like Palin must show.

Here is the Order, in full:

Pending before the Court is the motion of defendant The New York Times Company (the “Times”) to dismiss pursuant to Rule 12(b) (6), Fed. R. Civ. P., the claim of plaintiff Sarah Palin that she was defamed by a Times editorial that appeared on or about June 14, 2017. One close question presented by that motion is whether the Complaint contains sufficient allegations of actual malice, an essential element of the claim. To a large extent, determination of that issue may turn on what inferences favorable to the plaintiff are reasonable given the circumstances alleged in the Complaint. For example, the Complaint alleges that the allegedly false statements of fact that are the subject of the Complaint were contradicted by information already set forth in prior news stories published by the Times. However, these prior stories arguably would only evidence actual malice if the person(s) who wrote the editorial were aware of them. This is information peculiarly within the knowledge of defendant; but on it arguably depends the reasonableness vel non of inferring actual malice. Accordingly, to help inform the Court of what inferences are reasonable or unreasonable in this context, the Court, pursuant to Rule 43(c), will convene an evidentiary hearing on Wednesday, August 16 at 2:00 PM EST. At the hearing, defense counsel must produce the author(s) of the editorial, who (or each of whom, if there is more than one author) will be examined under oath by defense counsel for no more than thirty (30) minutes, to be followed by cross-examination of plaintiff’s counsel of no more than forty-five (45) minutes, to be followed by no more than fifteen (15) minutes of redirect by defense counsel. The Court also may question each such witness.

The Order is unusual because normally motions to dismiss are decided on the papers, and the court must determine all reasonable inferences in favor of the non-moving party (Palin, here). One of the key factual allegations in the Complaint is that the NY Times was aware that Palin’s map had nothing to do with the Giffords shooting, because prior NY Times articles so stated. So, by inference, the authors of the Editorial ignored information available at the NY Times itself.

The Judge appears to be requiring not just imputed knowledge of prior NY Times articles, but actual knowledge by the authors of the Editorial in order to find a reasonable inference of actual malice. That the Judge says the issue is a “close question” based on the pleadings demonstrates that if Palin survives the motion to dismiss, it will turn on who knew what, and when.

Palin’s attorneys will seek not only to demonstrate actual knowledge, but also such reckless disregard for the truth as to establish actual malice. How could the authors of the Editorial not at least do a search of the NY Times itself? And as to the members of the Editorial Board in whose name the Editorial appeared, but who may not have been “authors” of it, why should their knowledge or lack thereof be ignored.

I’m sure there will be further briefing on these issues after the hearing.

Make no mistake, however, this is a gift to Palin’s team. They get what they normally are not entitled to at this stage — testimony. That testimony, though limited in time, could be a goldmine of information.

Media defendants usually win these motions to dismiss on the papers. That the Times has not yet done so should give the Palin team encouragement.

UPDATE:

The Times identifies editorial page editor James Bennet as the witness it will produce in court.

A spokeswoman for The Times said in a statement that the news organization would provide the testimony the judge had ordered. David McCraw, deputy general counsel for The Times, said the witness would be James Bennet, The Times’s editorial page editor.

Does that mean Bennet drafted the editorial alone, without any input from anyone? If so, why was the editorial issued in the name of the Board of Editors and not in Bennet’s name?

I have a sense Palin’s lawyers are going to have a field day with this.

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Palin v. NY Times – Order for Authors of Editorial to Give Testimony – August 10, 2017 by Legal Insurrection on Scribd



