Sarah Palin has sued the New York Times for defamation, on account of a Times editorial that falsely claimed there was a “clear” and “direct” causal connection between Palin’s PAC’s “targeting” of Gabrielle Giffords’ district and Jared Loughner’s murder of six people in Tucson. The paper now calls its smear of Palin an “honest mistake.”
I wrote here that Palin has a strong case, despite the extraordinary burden of proof imposed on public figures who sue for defamation. This is true, in part, because the Times’s own reporting debunked the idea that Palin had anything to do with Laughlin’s murders (which was a crazy idea in the first place). I wrote:
Ms. Palin can make a strong argument that the Times editorialists knew that their smear was a lie, based on reporting done by the Times itself. (The editorialists’ defense likely will have to be that they don’t read their own newspaper.)
That last observation was prophetic. The Times’s lawyers have moved to dismiss Palin’s case on the ground that her complaint fails to state a claim. This means that even if you assume everything in the complaint is true, she still doesn’t have a case. In response to that motion, the presiding judge, Jed Rakoff, has ordered an evidentiary hearing. You can read his order here. Judge Rakoff writes that whether Palin has sufficiently alleged actual malice is a “close question.” I disagree, I think her complaint is plainly sufficient. But Judge Rakoff continues:
[T]he 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.
So, as I predicted, the Times won’t admit that its editors read their own paper. Judge Rakoff’s order requires the Times to produce for depositions all people who were involved in writing the editorial, so that Palin’s lawyer can ask them under oath whether they knew about the paper’s reporting on Jared Laughlin’s crime. The interrogation will take place in front of Judge Rakoff, who may ask questions of his own.
This is a weird procedure. It effectively turns the motion into one for summary judgment, but without Palin’s lawyers being provided the opportunity for full discovery. Therefore, I question whether Judge Rakoff’s order complies with Rule 12(d):
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
Be that as it may, the Times editorialists have no choice but to testify that they wrote their editorial blaming Sarah Palin for an insane person’s murders without even bothering to check their own paper to see what news about the shootings had been reported. The context is macabre, but it will be highly entertaining to read the Times editorialists’ depositions when they are made public.
One last observation: it may be shocking that members of the Times editorial board don’t read their own newspaper, but I can guarantee that very few Times reporters read the paper’s editorials–the most boring, predictable, ill-informed left-wing screeds in print. If their current ploy fails, the Times may try a second line of defense: Ms. Palin shouldn’t be awarded much in damages, since hardly anyone reads their lame editorials.
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