Palin v. N.Y. Times Co.

• Decision Date: 28 August 2020
• Docket Number: 17-CV-4853 (JSR)
• Citation: 482 F.Supp.3d 208
• Parties: Sarah PALIN, Plaintiff, v. The NEW YORK TIMES COMPANY and James Bennet, Defendants.
• Court: U.S. District Court — Southern District of New York

482 F.Supp.3d 208

Sarah PALIN, Plaintiff,

v.The NEW YORK TIMES COMPANY and James Bennet, Defendants.

17-CV-4853 (JSR)

United States District Court, S.D. New York.

Signed August 28, 2020

Shawn Preston Ricardo, Michael McGee Munoz, Golenbock Eiseman Assor Bell & Peskoe LLP, New York, NY, Kenneth G. Turkel, Shane B. Vogt, Bajo Cuva Cohen Turkel, Tampa, FL, for Plaintiff.

David A. Schulz, Ballard Spahr LLP, Jacquelyn Nicole Schell, Thomas Byrne Sullivan, Ballard Spahr LLP, New York, NY, Jay Ward Brown, Lee Levine, Pro Hac Vice, Michael D. Sullivan, Pro Hac Vice, Ballard Spahr LLP, Washington, DC, David L. Axelrod, Ballard Spahr, Philadelphia, PA, Thomas S. Leatherbury, Vinson & Elkins LLP, Dallas, TX, for Defendant The New York Times Company.

Jay Ward Brown, Ballard Spahr LLP, Washington, DC, David L. Axelrod, Ballard Spahr, Philadelphia, PA, Jacquelyn Nicole Schell, Thomas Byrne Sullivan, Ballard Spahr LLP, New York, NY, for Defendant James Bennet.

OPINION AND ORDER

JED S. RAKOFF, U.S.D.J.

Familiarity with the prior proceedings in this action is here assumed. As relevant here, on December 30, 2019, plaintiff Sarah Palin filed an amended complaint against defendants the New York Times Company (the "Times") and James Bennet, alleging that they had defamed her in an editorial (the "Editorial") published on June 14, 2017. Dkt. 70. After the completion of discovery, both sides filed motions for summary judgment that are now ripe for decision.

Both motions relate to the proposition that a public figure cannot recover for defamation unless the defamatory statement was made with "actual malice." See New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Specifically, plaintiff moves for partial summary judgment on the basis of her assertion that the requirement is no longer good law or at least does not apply to this case. Dkt. No. 95; Plaintiff's Memorandum of Law in Support of Plaintiff's Motion for Partial Summary Judgment ("Pl. Mem."), Dkt No. 100; Plaintiff's Reply Memorandum of Law in Opposition [sic] to Plaintiff's Motion for Partial Summary Judgment ("Pl. Reply"), Dkt. No. 112. Defendants oppose. Defendants’ Memorandum of Law in Opposition to Plaintiff's Motion for Partial Summary Judgment ("Defs’ Opp."), Dkt. No. 104 Conversely, defendants, maintaining that the actual malice standard fully applies here, seek summary judgment on the ground that no reasonable jury could find, based on the evidence of record, that the allegedly defamatory statements were published with actual malice. Dkt. No. 94; Defendants’ Memorandum of Law in Support of their Motion for Summary Judgment ("Defs’ Mem."), Dkt. No. 96; Defendants’ Reply Memorandum of Law in Support of their Motion for Summary Judgment ("Defs’ Reply"), Dkt. No. 113. Plaintiff opposes. Plaintiff's Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment ("Pl. Opp."), Dkt. No. 107.

I. Factual Background ¹

Plaintiff Sarah Palin is the former governor of Alaska and a former vice-presidential candidate. See Defendants’ Statement of Undisputed Material Facts, Dkt. No. 97, ¶ 1; Plaintiff's Response to Defendants’ Local Rule 56.1 State of Material Facts & Counterstatement of Material Facts in Opposition to Defendants’ Motion for Summary Judgment ("Pl. SUMF"), Dkt. No. 108, ¶ 1.² Defendant The New York Times Company (the "Times"), a New York corporation, is a global media organization that publishes The New York Times daily newspaper. First Amended Complaint ("FAC"), Dkt. No. 70, ¶ 6. Defendant James Bennet was at all times relevant to this lawsuit the editor overseeing opinion journalism at the Times, including masthead editorials by the Times Editorial Board. Pl. SUMF ¶ 3.

On June 14, 2017, defendant The Times published the Editorial, authored (in the segments here relevant) by defendant Bennet, which identified a "familiar pattern" of politically motivated violence and criticized members of Congress for supporting permissive gun regulations. Pl. SUMF ¶ 348. The Editorial identified two instances of mass shootings "fuel[ed]" by politics: (1) James Hodgkinson's June 14, 2017 armed attack on members of Congress at a baseball field in Virginia, which seriously wounded

U.S. Congressperson Steve Scalise; and (2) Jared Lee Loughner's January 8, 2011 armed attack in Arizona, which seriously wounded U.S. Congressperson Gabby Giffords.³ Declaration of Thomas B. Sullivan ("Sullivan Decl."), Dkt. No. 99, Ex. 40.

Describing Loughner's 2011 attack, the Editorial stated: "[T]he link to political incitement was clear. Before the shooting, Sarah Palin's political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs."⁴ Id.

The Editorial contrasted the Loughner attack with that day's Hodgkinson shooting, where there was "no sign of incitement as direct as in the Giffords attack." Id. The Editorial did, however, include a hyperlink to an ABC News Article titled Sarah Palin's ‘Crosshairs’ Ad Dominates Gabrielle Giffords Debate, published the day after Loughner's 2011 attack, which stated that "[n]o connection has been made between [the Map] and the Arizona shooting." Pl. SUMF ¶¶ 37, 40.

The Editorial was the product of discussions that occurred over the course of June 14, 2017. Soon after the Hodgkinson attack, evidence emerged that Hodgkinson was a supporter of Senator Bernie Sanders and an opponent of President Donald Trump. Id. ¶ 20. In an email thread between Editorial Board members discussing whether and how to cover the shooting, Bennet suggested writing about "the rhetoric of demonization and whether it incites people to this kind of violence." Sullivan Decl. Ex. 11. In particular, Bennet said that "if there's evidence [surrounding the Hodgkinson shooting] of the kind of inciting hate speech on the left that we, or I at least, have tended to associate with the right (e.g., in the run-up to the Gabby Giffords shooting) we should deal with that." Id.

Another member of the Board, Elizabeth Williamson, then researched the Hodgkinson and Loughner shootings and wrote the first draft of the Editorial. Pl. SUMF ¶ 35. Her draft referred to the fact that there had been some debate in the media in the wake of the Loughner shooting regarding whether there existed a connection between the shooting and the Map. See Sullivan Decl. Ex. 24. But Williamson's draft did not affirmatively state that such a connection had been established. See id. The draft also included the hyperlink to the above-mentioned ABC news article. Id. As relevant here, Williamson's draft read:

Just as in 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a nine year-old girl, Mr. Hodgkinson's rage was nurtured in a vile political climate. Then, it was the pro-gun right being criticized: in the weeks before the shooting[,] Sarah Palin's political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized crosshairs.

Bennet received the draft around 5:00 p.m. Pl. SUMF ¶ 335. After reading the draft, Bennet, who was ultimately responsible for the content of such editorials, decided it needed substantial revision and began rewriting it himself. Id. ¶ 51. Around 7:30 p.m., Bennet sent a revised draft back to Williamson, asking her to "[p]lease take a look." Id. ¶ 66. Without further relevant changes, the Editorial, as revised by Bennet, was published around 9:00 p.m. Id. ¶ 73.

Around 10:00 p.m., Ross Douthat, a Times opinion writer, reached out to Bennet via email to express concern over the Editorial. Sullivan Decl. Ex. 21. Douthat explained that there was "no evidence that Jared Lee Loughner was incited by Sarah Palin or anyone else, given his extreme mental illness and lack of any tangible connection to that crosshair map." Id. A few minutes later, Bennet responded that his "understanding [is] that in the Giffords case there was a gun sight superimposed over her district; so far in this case we don't know of any direct threat against any of the congressman on the field. That's not to say that any of it is ok, obviously, or that the violence in either case was caused by the poltical [sic] rhetoric. But the incitement in this case seems, so far, to be less specific." Id.

That night, Bennet reached back out to Williamson to see whether she was available to start investigating Douthat's concerns. Pl. SUMF ¶ 99. Early the next morning, Bennet emailed a larger group of people, instructing them to "get to the bottom of this as quickly as possible." S.D.N.YId. ¶ 101.

Less than a day after the Editorial's publication, after having found no evidence of the "link" to which it referred, the Times revised and corrected the Editorial. The Times published the first revised online version at 11:15 a.m. on June 15, 2017. Id. ¶ 106. In it, the Times deleted the phrases "the link to political incitement was clear" and "[t]hough there's no sign of incitement as direct as in the Giffords attack" and added the sentence "But no connection to that crime was ever established." Id. In addition, the Times published a series of corrections, which ultimately clarified that no link between political rhetoric and the 2011 shooting of Representative Gabby Giffords was ever established. Id. ¶ 109.

Despite these prompt corrections, plaintiff chose to sue the Times, and filed her initial complaint less than two weeks later. Dkt. No. 1. After an evidentiary hearing convened with the consent of both parties,⁵ this Court dismissed plaintiff's complaint in its entirety, holding that she had failed to plausibly allege that the Editorial was published with actual malice, as required by the First Amendment. Dkt. No. 45. The Second Circuit reversed, holding, inter alia, that plaintiff's proposed (though not yet filed) amended complaint had sufficiently alleged actual malice. Palin...