August 30th, 2017

Judge dismisses Palin defamation lawsuit against Times

Sarah Palin’s defamation suit against the NY Times has been thrown out of court:

This is a case where the NY Times Editorial author James Bennet claimed to be so ignorant, so uninterested in doing any research, and so oblivious to his surroundings, that his ignorance turned into legal bliss.

[From the Opinion]:

Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States. In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others. Responsible journals will promptly correct their errors; others will not. 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 of its falsity…

We come back to the basics. 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. Negligence this may be; but defamation of a public figure it plainly is not.

The key legal standard here is the definition of “reckless disregard” of a statement’s falsity. I’ve skimmed the entire Opinion, and it seems to rest on that element alone.

Here’s how the court put it:

Reckless disregard can be established by evidence of an intent to avoid the truth, Harte-Hanks Comrns., Inc. v. Connaugnton,…defendant entertained serious doubts as to the truth of his publication, St. Anant v. Thompson, 390 U.S. 727, 731 (1968), or evidence that the defendant acted with a high degree of awareness of [a statement’s] probable falsity, Garrison v. State of Louisiana, 379 U.S. 64, 7 (1964). See Dongquk Univ. v. Yale Univ., 734 F.3d 113, 124 (2d Cir. 2013). But even then, a defamation complaint by a public figure must allege sufficient particularized facts to support a claim of actual malice by clear and convincing evidence, or the complaint must be dismissed. Here, as already mentioned, the complaint fails on its face to adequately allege actual malice, because it fails to identify any individual who possessed the requisite knowledge and intent and, instead, attributes it to the Times in general. This will not suffice. When there are multiple actors involved in an organizational defendant’s publication of a defamatory statement, the plaintiff must identify the individual responsible for publication of a statement, and it is that individual the plaintiff must prove acted with actual malice…[T]he state of mind required for actual malice would have to be brought home to the persons in the [defendant’s] organization having responsibility for the publication of the [statement].

One would think that a newspaper publishing an accusation against a public figure without any basis whatsoever for that accusation and without doing any research or even making an attempt to ascertain whether the facts are true or not (the situation here) would be guilty of “reckless disregard” of that accusation’s falsity. But that’s not the way it went, at least not in the US District Court of the Southern District of NY, which handed down the ruling.

It would seem that there’s no requirement for even a very basic due diligence in researching an article or editorial if it’s about a public figure (and certainly the vast majority of such articles probably concern public figures). As I interpret this, newspapers are free to write nearly anything about a public figure as long as there is no recording or memo in which the reporter or editor says “I know, or strongly suspect, that this is false but I hate this public person so much that I want to damage him or her, and therefore I am going to print this known or strongly suspected falsity without checking on whether it’s true or not, because I want to defame this person I hate.”

To defend against any lawsuit by a public figure, all that writers or editors have to do allege is this:

A while back, when I first heard about the Palin lawsuit, I thought it had great merit. But I also thought she would not win:

No wonder Palin is suing. But I don’t think she’ll win. Maybe she doesn’t expect to; maybe she just wants to highlight the devious duplicity of the Times. I don’t think the suit will succeed because the standards for defamation of a public figure are so very high, and this involves a PAC rather Palin herself anyway.

Well, the court ruled that even though a PAC was involved, Palin herself was implicated by the editorial. So that last bit—which I thought might be the basis for a dismissal—was not the basis for the dismissal after all. The court found in favor of Palin in that regard because the way the editorial was worded (for example, not even naming the PAC but specifically naming Palin) was deemed to implicate Palin. It was actually that first part “the standards for defamation of a public figure are so very high” that formed the basis of the suit’s dismissal.

The real question is this, and has been for quite some time: what legal duty does a newspaper have to find out the basic, easily obtainable truth about some action of a public figure before they print an article on the subject? If the paper’s writers or editors make no effort at all, is that malicious or is it just negligent and/or stupid and lazy? Or can they print anything they want out of sheer incompetence and willful ignorance?

The power of the press is profound. Unless there’s a smoking gun where the writers or editors admit to knowing their statements were most likely false, they are home free. The press shouldn’t be burdened with the need to get everything right, of course, or to research things to death in order to protect against an endless series of lawsuits. But shouldn’t some very basic and minimal standards of fact-checking when making a serious allegation of wrongdoing by a public figure be in place? Should the press be virtually free to print whatever it wants and protect itself by claiming ignorance? With the enormous protection the press has under the law—a protection that is extremely important to our liberty, I might add—should there not be some minimal responsibility?

As one commenter at Legal Insurrection wrote: “incompetence is a get-out-of-jail-free card for libel by the msm.”

Here’s one more comment at LI:

In Sullivan, the SCOTUS established an second, totally unequal standard for libel for public figures than for the rest of the citizenry. It essentially rewrote its own libel standards by establishing a lower class of citizen, the public figure who was not protected by the 1st Amendment to the same extent as the rest of the citizenry. NYT v Sullivan was nothing more than the national elite protecting the elitist news media, the NYTs. 53 years later, nothing has changed

Well, I think Sullivan was the elite protecting the news media. But I don’t think it was “nothing more” than that. It was protecting freedom of the press, elite or otherwise. I would not want the press to have too little protection, either.

The problem is that the press has become—and maybe always was—a partisan actor here, and the protection afforded the press therefore gives the side it usually defends (these days, the left) an enormous advantage over the other side. In recent years, so many people have come to distrust the veracity and intentions of the press that they increasingly disregard what it writes as being slanted and misleading and often simply false. Perhaps that’s the proper correction for the whole problem, rather than the courts’ drawing more rigid standards to which the press must adhere. It does not bode well for the country when the press cannot be trusted, but the press has richly earned that judgment from the public.

28 Responses to “Judge dismisses Palin defamation lawsuit against Times

  1. Geoffrey Britain Says:

    A travesty of justice ruling.

    The Judge is an activist liberal judge.

    A Bill Clinton appointee.

    “In 2002, Rakoff declared the federal death penalty unconstitutional”.

    He frequently stands in for an absent judge on the infamous 9th Circuit Court of Appeals. 87% of that courts rulings are routinely reversed by the SC.

    Let the words out of his own mouth convict him;

    “An application of judicial power that does not rest on facts is worse than mindless, it is inherently dangerous. If its deployment does not rest on facts – cold, hard, solid facts, established either by admissions or by trials – it serves no lawful or moral purpose and is simply an engine of oppression.”

  2. Griffin Says:

    Is it any wonder why celebrities, athletes and politicians often hate the media with the fiery passion of a thousand suns?

  3. neo-neocon Says:

    Geoffrey Britain:

    I don’t like the ruling, but that’s because I have some problems with Sullivan and the relevant post-Sullivan case law on which the present ruling is based. The ruling more or less follows much of the case law. SCOTUS has never definitively established the parameters for “reckless disregard of the truth” in cases where media outlets are sued by public figures. But this case’s ruling falls pretty well into many of the post-Sullivan rulings on the subject. It’s not an outlier.

  4. Montage Says:

    Do the same journalistic standards apply to editorials? Should the same standards apply? I read editorials and opinions all over the internet that fall anywhere from dubious to outrageous. There are people who have written that Bill and Hillary Clinton killed people. Others that Obama was not born in America. There are a lot of ugly articles on Democratic Underground and Breitbart.

    At what point does freedom of the press become reckless? It’s an interesting question. But if Palin were to win this suit it would definitely open up many lawsuits of similar nature. Do we want that? Especially when, in this case, the NY Times corrected the editorial within a couple days. Some news outlets [smaller ones no doubt] wouldn’t do that.

  5. neo-neocon Says:

    Montage:

    I read the opinion rather quickly and I’m doing this from memory, but the ruling dealt with the question of whether editorials are included. They are, if they talk about certain happenings the truth or falsehood of which can be ascertained, and this one did.

    I agree with you about being cautious about opening the press up for many lawsuits of this nature.

    However, the Times only corrected the story after a big hue and cry went up in which even its fellow liberal press was criticizing it for its false statements. And even then (as I wrote here), the paper allowed some of its allegations to stand:

    The Times’ later “correction” of the story—published after a large public hue and cry had ensued—corrected the second fact but not the first, which was no longer stated so overtly but was nevertheless still implied as a possibility.

    See the link for more.

  6. Montage Says:

    neo-neocon

    True about the correction coming after a hue and cry. What happens is that NY Times and WaPo tend to lean toward and peddle false stories that complete the kind of narrative they want to present to their readers. I say this as a NYT reader. If presented with dubious facts of a Democrat they would likely pass on it. But a similar fact that concerns a high profile Republican would not get as much scrutiny.

    I appreciate the press going after politicians from both parties when it is warranted. But the NYT and WaPo only make fools of themselves when they jump on every speculative story that implicates politicians they clearly dislike. I’d like to think there was a time in the press when this did not happen but I don’t think that was ever the case. Maybe a bit for a period from the mid to late 20th century at some news outlets?

  7. vanderleun Says:

    “Especially when, in this case, the NY Times corrected the editorial within a couple days.”

    I won’t bore “Montage” with the full “The lie goes around the world three times ” epigram since any decently educated and informed person is expected to know it.

    And understand it and its import.

    Back to school, Montage.

  8. miklos000rosza Says:

    I never thought the case had even the tiniest ghost of a chance, and so haven’t thought about it nor invested any mental energy whatsoever in its ultra-predictable outcome.

    No elaboration seems germane, though I suppose I could self-indulgently talk about what I learned when serving on three juries — two of which I swayed.

  9. Tuvea Says:

    Burying the lede?

    A court determined that the New York Times editorial staff was negligent.

    Next time some wacko – any leftist, but I repeat myself, refers to the Times the answer is: “Oh? You mean the newspaper that a court found was negligent?”

  10. neo-neocon Says:

    vanderleun:

    You are arguing apples and oranges here.

    The question is not whether such a lie is politically effective as propaganda, even with a subsequent correction (or slight correction). It is.

    The question is whether it is legally actionable. They are two quite different things, and from his/her comments, Montage seems quite aware of that fact.

  11. Hmonrdick Says:

    Perhaps someone can explain to me why the knowledge (or lack thereof) of a particular employee of the Times, who is not being sued personally, constitutes a defense for the Times institutionally. It would seem to me that if ANY employee of the Times had knowledge of the false editorial publication, and of the falsity thereof, that knowledge should be imputed to the Times as an institution, regardless of the purported lack of knowledge of OTHER employees of the Times.

  12. Ira Says:

    Hillary and hiding or destroying government email.
    NY Times and libel.

  13. AMartel Says:

    The media is protected because it supposedly performs the important function of keeping track of the powerful. This is an important function so if they’re doing it ineffectively, by passing along false – in this case, immediately provably false – information, isn’t that malpractice? Why shouldn’t that be actionable. The malice standard was not objectively applied in this case. Political judge protected political reporter. But aside from that, the malice standard that was appropriate in the 1970s is no longer appropriate for a couple of reasons:
    1. It’s so easy these days to check the facts that careless fact checking, choosing not to make the effort to look into the other side of the story, is obviously malicious;
    2. The media is openly partisan now whereas back in the days of NYT v. Sullivan there was the presumption of objectivity.

  14. Richard Aubrey Says:

    When busted, the MSM says they’re not crooks, they’re stupid.
    Okay. So far, okay.
    But they don’t seem to think of the result of having a mile-high stack of professions of stupidity.
    Eventually, we’ll have to take their word for that.

  15. Ymar Sakar Says:

    Humans are easy to fool, this is merely one case in point.

    Why do people still trust in humans? Because that’s how they were brought up.

  16. AesopFan Says:

    Wow, this judge works fast.

    After 6 years, Mark Steyn is still waiting for a DC judge to figure out that a satiric paragraph by a journalist in an opinion piece isn’t libel either.

    https://www.steynonline.com/7734/the-vertigo-at-the-top-of-the-stick

  17. Caedmon Says:

    I am a journalist not a lawyer and a journalist who has worked under Draconian British libel laws, so in spite of myself, my instinctive reaction was: “Wow, what a reasonable judge!”
    Editorials are written by bumptious boys fresh out of college, and shouldn’t be taken seriously.

    What seems to be at issue is malice, which is the core of British libel law too, not truth or falsehood as many assume. This is because truth is more damaging to a reputation. If you print that a man is a drunk who beats his wife and it’s true the consequences will be far worse for the man named than if he turns out to be an uxorious tee-totaller.

    So what surprises about me the judgement is the ruling that malice can only come from an individual journalist and that there is no editorial responsibilty at all, even in an editorial.

  18. Manju Says:

    Somewhat pedantic side-point:

    One interpretation of “the press” in the Free Press Clause, is that the original meaning the phrase was in reference to the physical printing press and, by logical extension, modern technologies like TVs.

    I think this is how Thomas and Scalia interpreted it.

    In this paradigm, when we talk of “free press” we are not really talking about protecting journalists as a profession, but rather the act of journalism…or everyone’s right to use technology to disseminate their ideas.

    So Trump’s use of twitter to falsely accuse President Obama of tapping his phones in a Nixon-like Watergate maneuver would also be protected.

  19. Tom G Says:

    (It turns out that, under Obama, many people talking to the Russians DID have their phones tapped. Because they were talking to the Russians. Not false to claim to be tapped, if tapped.)

    I do think the NY Times had malice, as well as ignorance — but this ignorance should be publicized often by Trump and other Reps. NYT says something bad — more Fake News by Dem media which defends its lies by claiming ignorance.

    At the same time, I do hope Palin amends her suit and appeals, with naming the editor as well as the author, and taking off the NYT as a defendant.

    And maybe defamation law should change to have some threshold of income for news ($10 million? $100 million / per year? Having paid editors?), where there is a higher risk of losing libel lawsuits under a preponderance of evidence standard.

    It’s the lies from the Big News that are the real problem — because they’re mostly Dem. And Fox is becoming more Dem friendly. (Glad that Toni is going there, tho.)

  20. M J R Says:

    In somewhat related news . . . [ snicker ] . . .

    BEGIN PASTE

    Journalism’s Temple to Itself on ‘Death Watch’ After ‘Stunning Decline’

    Journalism’s temple to its own self importance, the Newseum in Washington D.C., is on a “death watch,” according to the Washington Post. The 250,000 square foot museum is in such bad shape that even Politico thinks it “deserves to die.” Post journalist Peggy McGlone on Wednesday delivered the bad news: “The Newseum has been on a death watch before, but Monday’s announcement that its parent foundation is considering selling the sprawling Washington museum devoted to journalism is a stunning acknowledgment of its long-standing struggles.”

    What are some of the problems? Well, for one, $500 million has been spent on the monument to journalism. McGlone explained just how expensive that made the Newseum for the general public: “Adult admission is set at $24.95 and youth tickets cost $14.95, making it one of the costliest museums in a city with many world-class institutions — such as the National Gallery of Art across the street — that are free.”

    To put it another way, a family of four visiting Washington D.C. would be paying almost $100, just for the chance to see and hear journalists compliment themselves.

    END PASTE

    https://www.newsbusters.org/blogs/nb/scott-whitlock/2017/08/30/journalisms-temple-itself-death-watch-after-stunning-decline

  21. n.n Says:

    The NYT may claim ignorance or incompetence the first time, but every close association thereafter was either evidence of their malicious intent or a progressive condition such as dementia.

  22. Richard Aubrey Says:

    Manju. Trump was quoting the NYT–a dumb idea, but still–which had reported the feds were listening to—somebody–in Trump Towers.

  23. Richard Aubrey Says:

    In Sullivan issues, “malice” isn’t the only way to get yourself in trouble.
    Thinking bad thoughts and demonstrably lying are wrong, of course.
    But so is reckless disregard of truth, which can be a thing by itself, or an excuse for the actual malice. In this case, the excuse worked.
    Nobody could prove this clown had the brains to come in out of the rain, so his incompetence was excusable.

  24. Ymar Sakar Says:

    A lot of people who read the NYTimes and quote it are dumb, including Bush II’s father.

  25. Ymar Sakar Says:

    AesopFan Says:
    August 31st, 2017 at 1:35 am

    Ever see the power of a Benjamin bill in Latin America?

    Powerful and fast.

  26. Manju Says:

    Manju. Trump was quoting the NYT–a dumb idea, but still–which had reported the feds were listening to—somebody–in Trump Towers.

    Richard, I’m sure the Feds were listening to somebody in Trump Tower. Now all you have to do is find a NYTimes article stating that Obama ordered this surveillance, that the surveillance he ordered was on Donald Trump and his phones (or any other communication device) during the election period, and that such surveillance was illegal.

    Here’s the article in question:

    https://www.nytimes.com/2017/01/19/us/politics/trump-russia-associates-investigation.html?smid=pl-share

    Either Trump is stupid or lying. But the point is, that’s not for the courts to decide.

  27. Richard Aubrey Says:

    Manju
    Why do I need to find the NYT saying this? The paper said Trump Towers was being tapped. That means Trump is well within the realm of logic to think it’s he and his doings that are the targets.
    Why does it need to be illegal to be remarked upon by the guy who thought he was the target?
    Your critiques would be reasonable if Trump were going to make a legal case of it.
    To make an analogy, if the cops are hanging out in front of your house, it’s reasonable to think they have some reason regarding you or your family as their interest. If they say it’s because they have biker’s mirrors on their sunglasses and they’re actually looking at the guy across the street behind them, you’re not likely to be mollified. But if your name is Trump, you’d be accused of publicity-seeking and unfounded paranoia.

  28. Manju Says:

    Why do I need to find the NYT saying this?

    Because you just said; “Trump was quoting the NYT”

    The paper said Trump Towers was being tapped.

    No. They never said Trump Towers was being tapped.

    That means Trump is well within the realm of logic to think it’s he and his doings that are the targets.

    Since this conclusion is dependent on the NYTimes saying that Trump Tower was tapped, and since they never said that, I assume there’s no need to proceed any further.

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