Appeals court revives Palin libel suit against New York Times

As reported by Politico 

A federal appeals court has revived a libel suit former Republican vice presidential nominee Sarah Palin filed against The New York Times over an editorial linking Palin to the 2011 shooting rampage in Arizona that wounded then-Rep. Gabby Giffords and killed six others.

The 2nd Circuit Court of Appeals said a district court judge in Manhattan erred when he dismissed Palin’s lawsuit over the 2017 editorial prompted by a similar shooting attack in Virginia that badly injured Rep. Steve Scalise as he and other lawmakers practiced for a congressional baseball game.

In a unanimous ruling, the three-judge appeals panel said U.S. District Court Judge Jed Rakoff violated procedural rules when he dismissed Palin’s suit after an initial hearing that featured testimony from Times editorial page editor James Bennet.

Bennet testified he wrote the passage into the editorial and was unaware of numerous stories in the Times and other outlets that said no connection had been established between the Arizona shooting and the cross-hairs graphic released by a Palin political committee. Rakoff said that testimony established that Palin could not prove the “actual malice” required for a public figure to win a libel case.

Holding such a hearing with live testimony at the outset of a suit is unusual. The 2nd Circuit panel decided the approach violated Palin’s rights.

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“The hearing runs headlong into the federal rules,” wrote Judge John Walker, joined by Judges Denny Chin and John Keenan.

Walker called Rakoff “able and experienced” but said he ran afoul of the federal civil court process by accepting Bennet’s testimony as credible before Palin’s attorneys had the ability to take depositions and demand evidence from the Times.

“It is clear to us that the district court viewed the hearing as a way to more expeditiously decide whether Palin had a viable way to establish actual malice. But, despite the flexibility that is accorded district courts to streamline proceedings and manage their calendars, district courts are not free to bypass rules of procedure that are carefully calibrated to ensure fair process to both sides,” Walker added.

Rakoff’s ruling seemed to be an act of judicial pushback against recent Supreme Court rulings that required judges to scrutinize suits more carefully for plausibility. Critics say those decisions prematurely shut down cases where plaintiffs might be able to prove their cases.

Walker said Palin’s suit met that standard of plausibility because the Times’ liability for the editorial, which was later corrected, turned on Bennet’s state of mind and the credibility of his testimony. The appeals judge noted that when Bennet was editor in chief at The Atlantic prior to taking the Times editorial page post, the magazine published numerous stories making clear that there was no known connection between the Palin PAC’s graphic and the shooting spree in Tucson carried out by Jared Loughner.

“By crediting Bennet’s testimony, the district court rejected a permissible inference from the articles: that one who had risen to editor‐in‐chief at The Atlantic knew their content and thus that there was no connection between Palin and the Loughner shooting,” Walker wrote.

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