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2nd Circuit: Sarah Palin's Libel Suit Against NYT Should Go to Discovery

WASHINGTON, DC - SEPTEMBER 09:  Former vice presidential candidate Sarah Palin addresses a rally against the Iran nuclear deal on the West Lawn of the U.S. Capitol September 9, 2015 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)
By Joseph Fawbush, Esq. on August 14, 2019 12:46 PM

It is notoriously difficult to win a libel suit when you are a public figure. That common knowledge, along with an improper reliance on testimony from an evidentiary hearing, may have led a district court judge to incorrectly dismiss a libel lawsuit former Alaska Governor Sarah Palin brought against The New York Times. While the substance of the lawsuit includes important First Amendment considerations and the incendiary rhetoric often found today in many media outlets, the 2nd Circuit’s decision was based on procedural grounds. Not that it stopped some from diving headlong into the issue of biased reporting.

In 2017, several members of Congress came under attack while playing baseball. The New York Times subsequently published an editorial, “America’s Lethal Politics,” about gun violence and mass shootings in our politically charged atmosphere. It recalled the critical injuries Representative Gabrielle Giffords sustained in a similar mass shooting event in 2011. According to a correction The New York Times issued two days later, the editorial “incorrectly stated that a link existed between political rhetoric and the 2011 shooting of representative Gabby Giffords.” 

Shortly before the 2011 shooting, Sarah Palin’s PAC had issued a map of congressional districts Republicans could target, using crosshairs. Again, according to its own correction, The New York Times improperly described this map as showing individual members of Congress in crosshairs. No link has ever been established between the PAC’s map and the Giffords shooting.

Not about the Merits

While the 2nd Circuit decision was unanimous, it specifically noted that its decision was about how district courts evaluate pleadings, not about whether Governor Palin’s lawsuit was likely to succeed. 

The 2nd Circuit held that the case should proceed to full discovery, since the district court judge improperly relied on testimony from a hearing in dismissing the lawsuit, rather than the pleadings itself. The district court had taken the unusual step of having a hearing on the “close” question of whether Palin’s suit established that actual malice existed, a requirement in libel cases under New York law. 

Lessons Learned?

An opinion piece about the 2nd circuit’s decision, titled “Another Headline the New York Times Has to Rewrite” appeared in The Wall Street Journal on August 6. That same day, the New York Daily News published an article titled “Sarah Palin defamation suit against New York Times revived by appeals court on technicality.” 

Perhaps that juxtaposition is the best summary possible of why this case is of interest to many news and media outlets.

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