Free Speech

Sarah Palin's Libel Case Against New York Times Can Go Forward

So holds a Second Circuit panel this morning.

|The Volokh Conspiracy |

The opinion is here; the court concluded that Palin had adequately alleged "actual malice"—a misleading term meaning that the New York Times editor responsible for the article over which she was suing knew it was false or likely to be false—and the district judge therefore erred in dismissing the case. (This of course doesn't show that Palin has proved such knowledge, only that she should be offered a chance to prove it.)

Here are the facts that led to the lawsuit:

On January 8, 2011, Jared Loughner opened fire at a political rally for Democratic Congresswoman Gabrielle Giffords in Tucson, Arizona ("the Loughner shooting"), killing six people and injuring thirteen others. Representative Giffords was seriously wounded in the attack.

Shortly before the tragic attack, Sarah Palin's political action committee ("SarahPAC") had circulated a map that superimposed the image of a crosshairs target over certain Democratic congressional districts (evoking, in the view of many, images of violence). Giffords' district was among those targeted by the SarahPAC crosshairs map. The image had been publicized during the earlier political controversy surrounding the Affordable Care Act, but in the wake of the Loughner shooting, some speculated that the shooting was connected to the crosshairs map. No evidence ever emerged to establish that link; in fact, the criminal investigation of Loughner indicated that his animosity toward Representative Giffords had arisen before SarahPAC published the map.

Six years later, on June 14, 2017, another political shooting occurred when James Hodgkinson opened fire in Alexandria, Virginia at a practice for a congressional baseball game. He seriously injured four people, including Republican Congressman Steve Scalise ("the Hodgkinson shooting"). That same evening, the Times, under the Editorial Board's byline, published an editorial entitled "America's Lethal Politics" ("the editorial") in response to the shooting.

The editorial argued that these two political shootings evidenced the "vicious" nature of American politics. Reflecting on the Loughner shooting and the SarahPAC crosshairs map, the editorial claimed that the "link to political incitement was clear," and noted that Palin's political action committee had "circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs," suggesting that the  congressmembers themselves had been pictured on the map.2 In the next paragraph, the editorial referenced the Hodgkinson shooting that had happened that day: "Though there's no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask of the right."

The Times faced an immediate backlash for publishing the editorial. Within a day, it had changed the editorial and issued a correction. The Times removed the two phrases suggesting a link between Palin and the Loughner shooting. Added to the editorial was a correction that read: "An earlier version of this editorial incorrectly stated that a link existed between political incitement and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established." The Times also clarified that the SarahPAC map had overlaid crosshairs on Democratic congressional districts, not the representatives themselves.

Twelve days after the editorial was published Palin sued the Times in federal court….

The Times moved to dismiss the case, and the district judge held an evidentiary hearing to decide whether the allegations of "actual malice" against the Times were plausible; the judge concluded that the allegations weren't plausible, based on the testimony of "James Bennet, the editorial page editor at the Times and the author of the editorial":

Bennet was the hearing's only witness. Bennet explained  at the hearing that his reference to Palin in the editorial was intended to make a rhetorical point about the present atmosphere of political anger. He also recounted the editorial's research and publication process and answered inquiries about his prior knowledge of the Loughner shooting six years earlier and any connection to Palin. Bennet testified that he was unaware of any of the earlier articles published by the Times, or by The Atlantic (where he had previously been the editor‐in‐chief), that indicated that no connection between Palin or her political action committee and Loughner had ever been established. In addition to answering questions from the Times' counsel, Bennet responded to questions by Palin's counsel and the district judge.

No, said the court of appeals: Among other things, the district judge's decision "relied on credibility determinations not permissible at any stage before trial." And the court of appeals held that Palin's proposed amended complaint sufficiently alleged knowledge of falsity or likely falsity on Bennet's part:

The [Complaint] alleges that, from 2006 to 2016, Bennet was the editor‐in‐chief of The Atlantic, where "he was responsible for the content of, reviewed, edited and approved the publication of numerous articles confirming there was no link between Mrs. Palin and Loughner's shooting." The complaint references several articles about the Loughner shooting published by The Atlantic during Bennet's tenure, the most notable of which is entitled "Ten Days That Defined 2011." The part of that article discussing the Loughner shooting reads: "… the bad thing to come out of this already terrible story was a round of blame hurling, with people rushing to point at Sarah Palin's infamous target map …. In truth, Loughner is clinically insane and this was not really about politics at all."

At the hearing, Bennet stated that he could not recall reading those articles, and even if he had read them, he did not have them in mind when he published the editorial. The district court, in rejecting Palin's theory as implausible, credited this testimony as truthful when it found that Bennet's failure to read the articles was simply a research failure that did not rise to the level of actual malice.

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. That Palin's complaint sufficiently alleges that Bennet's opportunity to  know the journalistic consensus that the connection was lacking gives rise to the inference that he actually did know.

The [Complaint] also includes allegations suggesting that Bennet in particular was more likely than the average editor‐in‐chief to know the truth about the Loughner shooting because he had reason to be personally hostile toward Palin, her political party, and her pro‐gun stance. Bennet's brother, a Democrat, had served as a United States Senator for Colorado since 2009. In 2010, Senator Bennet was endorsed by two House members whose districts had been targeted by the SarahPAC map. Two days before the Loughner shooting, a man threatened to open fire on Senator Bennet's offices, and thereafter both Bennet brothers became "outspoken advocate[s] for gun control." Also, during the 2016 election, Palin endorsed Senator Bennet's  opponent  and  Representative  Giffords  endorsed Senator Bennet.

The district court gave no weight to these allegations, finding that political opposition did not rise to the level of actual malice. We agree with the district court that political opposition alone does not constitute actual malice, but we conclude that these allegations could indicate  more  than  sheer  political  bias—they  arguably  show that Bennet  had  a  personal  connection  to  a  potential  shooting  that animated  his  hostility  to  pro‐gun  positions  at  the  time  of  the Loughner shooting in 2011. Palin's allegations are relevant to the credibility of Bennet's testimony that he was unaware of facts  published on his watch relating to the Loughner shooting and that he made a mistake when he connected Palin to the that shooting. Palin's allegations present a plausible inference that Bennet's claim of memory loss is untrue.

At a minimum, these allegations give rise to a plausible inference that Bennet was reckless when he published the editorial without reacquainting himself with the contrary articles published in The  Atlantic  six  years  earlier.  And  that  plausible  inference  of recklessness is strengthened when added to Palin's allegations that Bennet had reason to be personally biased against Palin and pro‐gun positions in general. When properly viewed in the plaintiff's favor, a reasonable factfinder could conclude this amounted to more than a mistake due to a research failure.

Second, the PAC also alleges that certain aspects of the drafting and publication process of the editorial at The New York Times permits an inference of actual malice. Elizabeth Williamson, the editorial writer who drafted the initial version of the editorial, had hyperlinked in her draft an article entitled "Sarah Palin's 'Crosshairs' Ad Dominates Gabrielle Giffords Debate." The article stated, contrary to the claim in the published editorial, that "[n]o connection" was made between the SarahPAC map and Loughner. The link was also included in the final version of the editorial, a version that Bennet essentially rewrote. The Times argues that the hyperlink shows the absence of malice. But  the PAC alleges that, by including a hyperlink that contradicted the argument of his editorial, Bennet "willfully disregarded the truth."

The district court, siding with the Times, concluded that including the hyperlinked article was further evidence of simple mistake. After crediting Bennet's testimony that he did not read the hyperlinked article, the district judge concluded that a mistake was the only plausible explanation. But the inclusion of the hyperlinked article gives rise to more than one plausible inference, and any inference to be drawn from the inclusion of the hyperlinked article was for the jury—not the court. In any event, under these circumstances, it was arguably reckless for Bennet to hyperlink an article that he did not read.

Third, the district court concluded that the correction swiftly issued by the Times again demonstrated that the only plausible explanation for the erroneous statements was a mistake. Yet, it is also plausible that the correction was issued after a calculus that standing by the editorial was not worth the cost of the public backlash. Bennet could have published the editorial knowing—or recklessly disregarding—the falsity of the claim, and then decided later that the false allegation was not worth defending.

At bottom, it is plain from the record that the district court found Bennet a credible witness, and that the district court's crediting his testimony impermissibly anchored the district court's own negative view of the plausibility of Palin's allegations.

The district court at one point stated that Bennet's "behavior is much more plausibly consistent with making an unintended mistake and then correcting it than with acting with actual malice." Perhaps so, but it is not the district court's province to dismiss a plausible complaint because it is not as plausible as the defendant's theory. The test  is  whether  the  complaint  is  plausible,  not  whether  it  is less plausible than an alternative explanation.

The jury may ultimately agree with the district court's conclusion that Bennet was  credible— but it is the jury that must decide. Therefore, at the pleading stage, we are satisfied that Palin has met her burden to plead facts giving rise to the plausible inference that Bennet published the allegedly defamatory editorial with actual malice. We emphasize that actual malice does not mean maliciousness or ill will; it simply means the statement was "made with knowledge that it was false or with reckless disregard of whether it was false or not." Here, given the facts alleged, the assertion that Bennet knew the statement was false, or acted with reckless disregard as to whether the statement was false, is plausible.

The case can now go forward. Thanks to Alan Kabat for the pointer.

NEXT: Selling Drugs to Sex Workers Could Be Human Trafficking Under the Senate's New 'PROTECT Act'

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  1. Finally, a small victory in the endless sea of leftist slander.

    The dark cloud of fascism and violence is always descending upon Republicans but it usually turns out to be composed of progressives and Democrats.

    [Dayton Killer]: Twitter Posts on Being a Leftist, Guns

    The Dayton, Ohio mass shooter, was a self-described “leftist,” who wrote that he would happily vote for Democrat Elizabeth Warren, praised Satan, was upset about the 2016 presidential election results, and added, “I want socialism, and i’ll not wait for the idiots to finally come round to understanding.”

    1. Won’t be reported in most of the media.

      1. Huff post is actively claiming the El Paso shooting was a white supremist.

        1. They think they’ve achieved a level of media dominance where they can effectively create their own ‘reality’ for enough of the population, and actual facts won’t matter.

          Scary thing is, they may be right.

        2. He targeted Mexicans and complained of “invasion”. Wonder why anyone would confuse that for what white supremacists like to say?

          1. You may want to read past the narrative. His policy stances in the manifesto was closer to bernie than trump. And he didnt like the invasion because it exacerbated his preferences working. He was an eco fascist, wanted universal healthcare, UBI, etc. But revel in your ignorance and what Vox told you to believe.

            1. er… what WHO told me to believe?

    2. You’re just upset, as is the mass murderer, about being replaced and losing political power. Keep looking to your Bible for guidance, but it won’t help you in your left behind rural backwaters when we have a permanent legislative majority. We might allow you to keep a gun if you bend a knee.

      Choose reason, everytime, and carry on clingers.

      1. Is this Kirkland?

        1. Definitely not, he wouldn’t let you keep a gun if you bent a knee.

        2. Naw. I just wanted to exercise my satire muscle. I think it worked out if I fooled at least one person.

      2. You forgot to log into your Kirkland troll account man.

        1. Please, mad_kalak is not Kirkland. I was just trying to make fun by parody.

          1. Got ya. I figured as much. 🙂

    3. The dark cloud of fascism and violence is always descending upon Republicans. . . .

      Too bad you’ll never win the presidency, control of the Senate, majority of SC justices nominated/confirmed by Republicans, have the majority of governorships, etc.

      It must suck to be you guys.

    4. At this moment, the Washington Post has a brazen lie at the very top of their page, labeling the Ohio shooting “far-right violence” in the headline when it’s actually far left violence.

      This is what they do all day every day.

      1. Link?

        This is what I get when I go to their site.

      2. So you’re lying?

        1. Not at all. Six hours later they had presumably changed their page as they always do mutiple times a day. I didnt take a screen shot for you. Do you know if there is a way to see their previous front pages?

    5. Oh, look – “libertarians” who can’t wait for a future when all independent media has been shut down by well-heeled litigation, and the only sources of news will be state-approved.

      1. ” a future when all independent media has been shut down by well-heeled litigation,”

        You think “all independent media” can’t help but publish a ridiculously false smear about a politician? What the NYT did here would be the equivalent of the WSJ “accidentally” publishing an editorial claiming that Hillary Clinton murdered Vince Foster. The media can do better.

        1. How long would most right-wing media last if the standards cheered by clingers in these comments were rigorously applied to them?

          Clingers’ lack of self-awareness is one more thing that makes them natural casualties of the culture war.

          1. They would last just fine. If the standards were applied fairly, that is. If the enforcers were to follow your spiritual guidance, however, “Reverend,” there would be no end to the lying, cheating, and, eventually, killing by the Left.

      2. Oh look, progressives (I certainly can’t call them liberals) who believe that massive corporations should be able to say whatever they want about private people with no accountability.

    6. Seeing slander everywhere, followed by an off-topic link.

      Vintage.

  2. compare and contrast with Washington post / Sandman
    A) Sandman was not public figure vs Palin who is
    B) The Washington post presented facts which they knew were false (or continued to repeat the false statements once it became known they were false) yet couched the language in a manner that could be construed as “opinion” in order to avoid libel.

  3. “it is the jury that must decide”

    And this is more than some technical rule about federal procedure, I would suggest that it’s required by the 7th Amendment – a jury can only be denied the right to hear a case if, under any version of the facts, the law is against Palin. If judges could simply decide for themselves which version of the facts they prefer, then what exactly is left of the Seventh Amendment as a practical matter?

    1. I have to agree. I disagree with Palin on this, since they did withdraw and correct the article in a timely manner. However, she should be allowed to go to trial and present her case to a jury.

      1. That’s my take as well – this holding is pretty hard to argue with as a matter of law, but defamation is still gonna be a helluva case for her to make.

    2. I wholeheartedly agree.

    3. ” If judges could simply decide for themselves which version of the facts they prefer”

      Are any of the relevant facts disputed? Seems like the dispute is over whether Palin was defamed or not based on how the law applies to the facts, not based on what the facts are.

      1. “The district court (Rakoff, J.), uncertain as to whether Palin’s complaint plausibly alleged all of the required elements of her defamation claim, held an evidentiary hearing to test the sufficiency of Palin’s pleadings. Following the hearing, and without converting the proceeding to one for summary judgment, the district court relied on evidence adduced at that hearing to dismiss Palin’s complaint under Federal Rule of Civil Procedure 12(b)(6). We find that the district court erred in relying on facts outside the pleadings to dismiss the complaint. We further conclude that Palin’s Proposed Amended Complaint plausibly states a claim for defamation and may proceed to full discovery.”

        1. “…the inclusion of the hyperlinked article gives rise to more than one plausible inference, and any inference to be drawn from the inclusion of the hyperlinked article was for the jury—not the court….

          “The jury may ultimately agree with the district court’s conclusion that Bennet was credible— but it is the jury that must decide.”

          Also:

          “Even if the plaintiff had been given notice and the court had explicitly converted the motion to one for summary judgment, we would still have to vacate because the district court’s opinion relied on credibility determinations not permissible at any stage before trial.” FOOTNOTE: “See Soto v. Gaudett, 862 F.3d 148, 157 (2d Cir. 2017) (noting that at the summary judgment stage “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986))).”

  4. Once a newpaper might have been embarrassed to defend their editor with “he just didn’t bother to do any research, he didn’t MEAN to be wrong!”

    1. Must have been before I was around. And I’m 60.

  5. “Bennet’s brother, a Democrat, had served as a United States Senator”

    Not the only media figure who is closely related to an active Democrat politician.

    No possible liberal bias though.

    1. Association isn’t evidence of bias. Otherwise Mitch McConnell and his wife would be up the creek.

  6. 8 years ago. Not even ready for trial.

    Justice delayed is justice denied, right?

    1. This particular lawsuit is for defamation that occurred in 2017, although it used innuendo about 2011.

      1. Sorry, I misread the post.

        1. Therefore: Justice Granted! (Balloons fall from ceiling) 🙂

  7. I hope that Palin’s attorneys are able to get today’s NYT headline cave revision into evidence to demonstrate their dirty hands.

    1. Well, the opinion states pretty clearly that even summary judgment is not proper here, because the evidence can be read either way. So now there is going to be full discovery, and then a trial, unless the Times settles. with Palin.

      And since this is, mostly, not about money, I don’t think there will be a settlement.

      (However, here is a litigator’s trick I would use. Demand Palin provide a computation of her damages. Which is in any event required by the federal rules early in the case. Knocking out someone’s claims based on damages does sometimes work.)

      1. She could show damages pretty easy. Hell a doctor’s note saying she was suffering physical symptoms because of the stress of being slandered would be enough. Your tactic works well in a case involving a large number of separate claims. Then forcing the plaintiff to show some damages often knocks a few of the weaker ones out. But here there is only a single claim involving a single incident. And all she has to show is some reason to believe she has damages in excess of $10,000 and she is good.

        1. The amount for diversity jurisdiction today is over $75,000.

          Was Palin really stressed out by this? More than all the other garbage that was thrown at her over the years?

          Maybe you are right, but I would pursue this line if I were representing the Times.

          1. It is up to $75,000. I don’t do this type of civil litigation. Damn am I getting old. For someone in her position $75,000 would be easy to show. A couple of missed appearances, pain and suffering due to stress. Remember, you only have to produce some evidence of damage not conclusive proof or even preponderance to get to trial.

          2. Not an attorney….But I bet Ms. Palin could claim reputational harm in excess of 75K, arguing that her ability to make a living for the last three years was hindered by the paper’s actions.

            1. Also not an attorney, but I’m pretty sure that if you claim that your ability to earn a living over the past three years is due to something somebody did two years ago, you’re going to lose that one.

      2. I’m fairly certain that saying that someone incited someone to murder is Libel Per-Se. A statement so heinous that you don’t have to prove damages. The Times, after all, essentially called Palin a murderer. That’s the sort of thing that Per-Se libel is made for.

        1. That’s true as far as being liable for defamation. There are some categories of libel that are libel per se.

          But still, as in any civil case, you have to have a basis to claim damages and how much. If I were defending the Times, I would ask, ok, assuming we defamed you, how much were you damaged? How do you arrive at that figure? Give me an answer under oath.

          Not to mention that the federal rules require, very early in the case, that a plaintiff provide:

          a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered

          Amazing how many attorneys miss this, but it can be a great tool in many cases to hem in the plaintiff. It might not work that great in this particular case, but the Times’ lawyers should use that too.

          1. If I were defending the Times, I would ask, ok, assuming we defamed you, how much were you damaged? How do you arrive at that figure? Give me an answer under oath.

            This would be appropriate at the damages stage of the case, but it is not a factual issue at this stage. The issue before the court was whether Mrs. Palin had alleged sufficient facts to overcome a motion to dismiss.

            Even if this were raised as a jurisdictional question at this stage, the plaintiff does not have to prove (or state under oath) the exact amount she was damaged. She only has to allege that there was sufficient harm for her to suffer those damages.

            And finally, even if we were at the point where the parties were providing such documents, Mrs. Palin would not be the person providing that information, nor would her response in a deposition be dispositive of the issue. The plaintiff can rely on a damages expert to calculate the amount of damages suffered, and this is very common.

            1. This would be appropriate at the damages stage of the case, but it is not a factual issue at this stage. The issue before the court was whether Mrs. Palin had alleged sufficient facts to overcome a motion to dismiss.

              You missed the point. We are now passed the initial pleading stage. The Court of Appeals reversed — her complaint (or, more accurately, her Proposed Amended Complaint) DOES state a claim. Stage 1 is over.

              Next stage is discovery, where the other side gets to take evidence on your claim. Part of that is your basis for damages. And, the federal rules have something called initial disclosures, which REQUIRE you, among other things, to disclose your basis for damages, giving a computation.

              So this now becomes one issue in the case.

        2. I should add here, is that I remember in law school, I took a student clerk course. We worked as student clerks for a federal judge, and once a week met to discuss our experience. Often had a judge come speak to us.

          I remember that one speaker said, you know, lawyers often focus on what someone did wrong — the liability — and give little attention to the remedy — so what do you want me, the court, to do about it?

          IMO, remedies is a neglected subject in law school. Almost all law courses focus on the law and how it regulates what you can and cannot do, and liability if you are on the wrong side.

          But little attention is paid to remedies, both money damages and equitable remedies. In practice, I find, that is a very important part of a litigation.

          1. I went to law school a decade ago, and “Remedies” is an available class. I didn’t take it, perhaps because it isn’t a bar course, nor did it apply to the certificate I was pursuing. But if it’s ignored, I don’t think it’s fair to blame the law schools for the neglect. YMMV.

        3. “The Times, after all, essentially called Palin a murderer.”

          This is a nice reminder that “essentially” means not really. What the Times is alleged to have said was that there was a “clear” “link to political incitement” when SarahPAC (not Sarah Palin herself) “circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.” Finally, it said that the Hodgkinson shooting involved “no sign of incitement as direct as the Giffords attack…”

          So, the statement is not that Sarah Palin incited murder, but that there was a link of political incitement between the SarahPAC add and the later attack that was “clear” and more “direct” than any link in the Hodgkinson shooting.

          I think this Libel Pro Se goes too far. Yesterday the President’s campaign manager said, discussing “inciting violence”, that Castro’s “naming of private citizens and their employers is reckless and irresponsible” and that it was “endangering the safety of people he is supposed to be representing.” Representative Steve Scalise (who was shot by Hodgkinson) echoed those comments, calling Castro’s naming of people “dangerous” and asserting that “lives are at stake”. I don’t think Castro has a libel case, much less a libel per se case.

  8. This is pretty bad for the Times. The opinion essentially says that you can view the facts that the Times deliberately went out to lie about Palin. At best, the Times was very sloppy.
    The most damning part, IMO:

    Second, the PAC also alleges that certain aspects of the drafting and publication process of the editorial at The New York Times permits 16 an inference of actual malice. Elizabeth Williamson, the editorial writer who drafted the initial version of the editorial, had hyperlinked in her draft an article entitled ”Sarah Palin’s ‘Crosshairs’ Ad Dominates Gabrielle Giffords Debate.” The article stated, contrary to the claim in the published editorial, that “[n]o connection” was made between the SarahPAC map and Loughner. The link was also included in the final version of the editorial, a version that Bennet essentially rewrote. The Times argues that the hyperlink shows the absence of malice. But the PAC alleges that, by including a hyperlink that contradicted the argument of his editorial, Bennet “willfully disregarded the truth.”

    So the editor had a hyperlink to an article that directly contradicted what the editor wrote in that very editorial. So either (a) he saw it and decided to lie or (b) did not bother reading it. A knave or a fool.

    And that is who is writing NY Times editorials.

    1. Lazy, incompetent hacks is who is writing these editorials. I can’t believe for a moment that the judge couldn’t tell the difference between a 12B6 motion to dismiss for failure to state a claim and a motion for summary judgement. I also don’t believe that any federal trial judge could think it was appropriate to hold an evidentary hearing at the summary judgement phase and make what amounts to a finding of fact and use it as a justification for granting a motion to dismiss. No one is that incompetent.

      I think what happened here is the judge ruled for the Times knowing that it would be overturned. But did so so that the case would come back and discovery would occur after the case had faded from the news and would be less embarrassing to the Times. I see no other reasonable explanation for the trial judge’s actions here.

      1. Lazy, incompetent hacks is who is writing these editorials.

        Well that seems to be the Times’ defense — since “lazy incompetent hacks” is not actual malice. But a poor position for the Times to be in.

        As for the judge, I have been before him repeatedly. He is very smart, but full of himself. And he likes to think out of the box. I think he thought here he could do a shortcut, but he clearly was wrong on the procedural law.

        1. If you have practiced before him, I defer to your judgement. But, I can’t see how any judge could think they were going to get away with that. I can’t think of a single argument for how he could. He is massively incompetent if he didn’t understand that.

    2. Don’t confuse facts with allegations. Saying that the allegations remain provable isn’t anything like saying they are true.

      1. While technically true, you are missing something here. The judge held an evidentiary hearing, in which he took testimony from Times employees, and there were some documents produced.

        Palin’s lawyers then took that testimony and made it a basis for a Proposed Amended Complaint (the PAC in the opinion). The judge denied her leave to amend.

        The Second Circuit reviewed those proposed allegations for sufficiency and reversed.

        So, true, they are technically just allegations. But they do not come from nowhere, they come from a hearing the court held where Times employees, including the editor, testified. So it does not look great for the Times at this point. We will see what its response is, for example when it files a complaint.

        But I have a hard time believing the the specific allegation — that the draft editorial he got from his underling had a hyperlink to an article that expressly stated the opposite of what he wrote — is false. We will see.

        1. Sorry, meant to say, when the Times files an Answer.

          1. My trial experience is largely academic, but I don’t think the outcome of an evidentiary hearing implies anything about witness credibility.

  9. This is nothing compared to the Great Charlottesville Hoax perpetrated by all of the mainstream media. They should all be sued into bankruptcy.

    https://www.realclearpolitics.com/articles/2019/08/06/america_is_drowning_in_the_lefts_lies_about_trump_140950.html

    1. That article and the Youtube video it links to (featuring Steve Cortes, a CNN commentator of all things) would be much more impactful if they could point to a mainstream media article that claimed Trump said that neo-nazis are fine people. I have looked and so far not found one.

    2. 1. Dennis Prager is a jackass.

      2. Nobody has claimed Trump said specifically that there were fine Nazis or Klansmen, so what exactly is the BFD?

      Trump said there were “very fine people” on both sides. I don’t think there were a lot of very fine people among the gang of white supremacists, neo-Nazis, Klansmen, neo-Confederates, and whatever other scum came to a rally organized by Jason Kessler for the purpose of uniting white nationalists.

      If there were some misguided souls who just, for whatever bizarre reason, admired Robert E. Lee, they would have, if “fine people,” left when they saw who they were associating with.

      1. Respectfully, I think you’re misunderstanding the details. The impression that has been created is what you’ve described; that Trump was referring specifically to the white supremacist demonstration which ANTIFA showed up to and that he said there were some very fine people on both sides, implying that some white supremacists and some ANTIFA members were good people. But if you read the transcript of the speech, it’s very clear that he wasn’t talking about the white supremacists nor ANTIFA when he was discussing who the “very fine people” were.

        The speech was actually a question and answer session, and they jumped around a few times. But the general takeaway is that Trump drew a distinction between people of good faith on both sides of the “should we take down the Robert E. Lee statue” issue and the far-left and and far-right douche canoes who coopted the discussion, made it about themselves, and then got violent with one another. It was the people of good faith who were debating the issue of that statute that he said had “very fine people” on both sides. He also referred to the far-left and far-right nutjobs and said that both sides were violent. The news is very clearly trying to mash these statements together to create the impression that he was saying that neo-Nazis were one of the groups which contained “fine people”. That’s clearly not the case.

        Moreover, Trump specifically and unequivocally condemned the white supremacists, the scumbag who ran over the girl with his car, and anyone who harbors racist sentiment. For a guy who can usually only speak in meandering, poor-man’s Dickensian sentence structures. He was surprisingly explicit and to the point. I’m not sure how anyone could come away thinking he was mincing words about his position on white supremacy.

        I am not a big fan of Trump, to put it lightly. But fair is fair, and this has not been reported fairly.

        1. Trump is almost never reported on fairly. And when he is…well, the NYT is forced to retract its headline by protesters who disagree with it.

          1. I think you should afford the Congresswomen the respect of getting their titles correct.

            It’s a little more damning to point out that the NYT retracted a headline under pressure from Congress.

          2. By protesters who point out that it is inaccurate.

            1. The headline was accurate the first time dumbfuck. They amended it to state what they wish he said. It is as dishonest as every post you make.

        2. “…and this has not been reported fairly.”

          If you’re trying to make a point about how the mainstream media reported something unfairly, it might help to have an example of what you’re talking about.

          1. CNN is lying to the American people, reporting many times in the past several weeks that President Donald Trump called neo-Nazis “very fine people” in the wake of riots in Charlottesville, Virginia, in August 2017 — even though its own reporting at the time disproves that claim…

            For the last several weeks, major anchors, reporters, and contributors at CNN have falsely reported that the “very fine people” comment referred to neo-Nazis. Chris Cuomo, Anderson Cooper, and others have even edited video deceptively for the purpose, showing footage of white supremacists marching in Charlottesville, then cutting to footage of President Trump talking about “very fine people” as if he were referring to them.

            In addition, when Democrats like Sen. Kamala Harris (D-CA) have made false claims about Charlottesville on CNN shows, the network’s hosts have not bothered to correct them. (They are not shy to correct the president or his surrogates, even when they are arguably in the right.) ..

            The latest example occurred Thursday evening, when CNN’s Erin Burnett hosted Republican Steve Cortes and Democrat Keith Boykin. When Boykin said, “When violent people were actually marching with tiki torches in Charlottesville, the president said they were ‘very fine people’,” Cortes tried to correct him: “No, he did not say that … No, on both sides of the monument debate. That’s an incredibly important dissociation.”

            Burnett, looking disgusted, shook her head and said: “He didn’t say it was on the monument debate at all. No. They didn’t even try to use that defense. It’s a good one, but no one’s even tried to use it. So you just used it now.”

            Perhaps Burnett simply does not know: perhaps she has never read the transcript of Trump’s remarks, or CNN’s own reporting at the time. Regardless, her response was wrong — but consistent with network policy.

            The lie about “very fine people” in Charlottesville is not an ordinary factual error. It is a hoax, one of the most divisive myths in American politics, scaring millions into believing their president sides with violent right-wing extremists.

            The normally hyperactive media “fact-checkers” are also complicit in their silence about CNN’s fraudulent reporting. It has gone on too long.

            “Facts first” CNN must retract the Charlottesville hoax.

            https://www.breitbart.com/the-media/2019/03/15/blue-state-blues-cnn-must-correct-retract-charlottesville-hoax/

            1. So when one side is Unite the Right, which was indeed a white supremacist event started by a white supremacist, and you say there are fine people on both sides…

              This whole hoax narrative is deeeep in the fever swamps. The Dilbert Guy is maybe not the best source.

              1. Nope. In fact, folks were there to protest the removal of Confederate monuments. https://www.nytimes.com/2017/08/16/us/politics/trump-republicans-race.html (Focus on the bits of actual reporting rather than the parroting of hyperventilating commentators.)

                Also in Charlottesville at that time were a few freaks playing dress-up. There are no more than probably a couple hundred “Nazis” and so on in this country of 330 million people. They would be irrelevant but for the media’s hateful tactics of trying to smear right thinking people as Nazis.

                No idea what you are talking about with “Dilbert Guy.”

                1. The idea that Trump’s playing footsie with white supremecists was actually a false memory originated in Scott Adams’ blog.
                  The right-wing blogosphere picked it up recently as they scrambled to deal a shooter who seemed to adopt Trump’s more exclusionary invasion language.

                  It’s…not a very well vetted story. Lets leave it at that.

                  1. Its amazing how fuckig intentionally ignorant you choose to be.

                    1. It’s amazing how you just gotta pepper your posts with raging insults, to the point that in this one it’s edged out all actual content.

                2. “In fact, folks were there to protest the removal of Confederate monuments.”

                  Some people who self-identify as white supremacists also protest the removal of Confederate monuments.

                  1. And some (most) people who protest the removal of Confederate monuments are not white supremacists.

            2. Your link says that CNN did accurately report the President’s comments. Click the hyperlinks (1) “reported by CNN” and (2) “CNN’s own reporting”.

              The Breitbart article is (predictably) misleading. “CNN’s Erin Burnett hosted Republican Steve Cortes…” CNN pays Steve Cortes. He’s a political commentator for CNN. CNN is spreading a lie by paying a CNN political commentator to come on to CNN’s shows and tell the story Breitbart says should be told.

              1. Read again. The article details how CNN reported accurately at times and then contradicted itself at other times.

      2. Here, read the transcript for yourself: https://www.latimes.com/politics/la-na-pol-trump-charlottesville-transcript-20170815-story.html

        Also, I think you’re overstating the Unite The Right event. The public demonstrations about the Robert E. Lee statue had been going in for some time. The white supremacists then used that setting for their loser-fest. Not to be out-losered, ATIFA showed up and demonstrated that they suck only slightly less. In other words, he wasn’t referring only to the Unite The Right event, but was discussing at different points the events leading up to it and the event itself.

        1. Your facts are wrong – the whole thing was a white supremacist rally as intended by the organizer.

          1. Nope. You are wrong.

              1. Lol, Wikipedia.

                I hope you don’t cite them in your legal briefs.

                1. LoL it’s kind enough to provide lots of citations there to keep you busy before you dismiss it.

            1. Jason Eric Kessler (born September 22, 1983) is an American white supremacist.[1][2][3] Kessler organized the Unite the Right rally held in Charlottesville, Virginia on August 11–12, 2017[4][5][6] and the Unite the Right 2 rally held on August 12, 2018.

              Kessler is a supporter of Neo-Nazism,[7][8][9] far-right politics,[10][11][12][13] and the alt-right.

              1. It’s cute that you think Kesler was the only organizer at the event. This is dumb even by your low standards. So much fucking dishonesty.

          2. “Excuse me, they didn’t put themselves down as neo-Nazis, and you had some very bad people in that group. But you also had people that were very fine people on both sides. You had people in that group – excuse me, excuse me, I saw the same pictures you did. You had people in that group that were there to protest the taking down of, to them, a very, very important statue and the renaming of a park from Robert E. Lee to another name.”

            “I’m not talking about the neo-Nazis and white nationalists because they should be condemned totally.”

            “Racism is evil, and those who cause violence in its name are criminals and thugs, including the KKK, neo-Nazis, white supremacists, and other hate groups that are repugnant to everything we hold dear as Americans.”

            1. Saying white supremecists are cool and then saying you’d never say they are cool doesn’t actually let you off the hook.

              1. You’re a liar or just very deliberately ignorant and obtuse.

                Consider the fact that in this thread, Voize of Reazon and NToJ expressed doubt that the MSM had actually made the false claims that you are repeating here. Apparently they’re not familiar with the coverage and they think it’s too far fetched that the media would actually do this.

                1. My claim is that Trump said both sides had good people when one of those sides was white supremacist. That’s entirely in alignment with NToJ et al.

                  My issue with your comments are that you deny the white supremacist side was white supremacist.

                  Sorry, you’ll have to look for your nemesis elsewhere.

                  1. No, most of the people protesting removal of Confederate monuments are not white supremacist. And you continue to deny the factual matter of what Trump actually said.

                    1. Interesting change of scope from the protest in question to protesting monument removal generally.

                      Kinda shows you’ve ceded the field.

                      What do you think I’m arguing Trump actually said?

                    2. “Saying white supremecists are cool and then saying you’d never say they are cool”

                2. I didn’t express doubt, I asked for evidence. An extraordinary claim–the entire MSM is selling a lie to the American public–requires extraordinary evidence. And yet the people making the claim have very little by way of evidence. Your own example (from Breitbart) reinforces that.

                  NBC editing the Zimmerman tape (resulting in people getting fired at NBC) is an example of a lie. If you have the goods on the MSM, let’s see it. I’ll follow the evidence wherever it goes.

                  1. Fair enough. If you follow the links there is abundant evidence of multiple instances at least in the case of CNN. I can’t chase down more media examples at the moment. Perhaps not ALL of the MSM has explicitly made this false claim. What’s clear is that the 2020 Dems and countless Dem figures keep repeating it and they don’t get called on it by the media, and you have people believing it, such as Sarcastro, and thousands of people on twitter underneath every one of Trump’s tweets.

                3. No, ML, I expressed a desire to see evidence. There was a specific charge in that PragerU video, that the NY Times, ABC, NBC, npr, CBS, and the WP had charged the President with saying that neo-Nazis were very fine people.
                  On this thread, the closest we have seen to evidence is your Breitbart quote. It acknowledges that CNN news reported the press conference accurately, then describes a segment with Erin Burnett hosting Keith Boykin and Steve Cortes (CNN provides the transcript here) where Boykin mischaracterizes the statement, Cortes refutes, and Burnett acknowledges that Cortes’s argument is a good one so why is he the first to use it? That isn’t evidence of bias, it is evidence of CNN reporting faithfully and making an effort in its opinion coverage to provide both sides with a voice. I only with they would do it more often, their interviews with politicians are far more often with Democrats that with Republicans.

                  1. Honest, I didn’t see NToJ’s response before posting my own, though they are eerily similar. Maybe the VC should engage Bob Mueller to look for COLLUSION!

                  2. Again. Fair enough. Certainly everything I recall seeing was very misleading in suggesting if not asserting outright that the President claimed Nazis were “fine people.” And this has been believed and repeated by countless politicians and other non-media public figures, as well as regular people I know in everyday life.

                    1. When you start telling people what they believe, it may be time to pause and examine your own position.

                    2. Im not telling anyone what they believe. I am referring to what people wrote in this thread.

              2. Saying white supremecists are cool and then saying you’d never say they are cool doesn’t actually let you off the hook.

                Come on, after receiving heavy criticism for not doing so, he kind of expressed mild perfunctory disapproval of them at 1/1000th of the frequency and 1/1000th the vehemence with which he denounced Jim Comey, Robert Mueller and Andy McCabe. That proves he’s totally not a white supremacist himself.

        2. My impression from Trump’s statements was that he wasn’t well informed on it and gave a very generic answer. He didn’t seem like he was referring to anything in specific.

          1. Evergreen analysis.

      3. 2. Nobody? Only if one calls all the MSM aka Progressive Propagandists nobody. Hell, they are now using that lie to claim Trump was lying when he spoke about the El Paso & Dayton shootings.

      4. You’re the jackass and delusional to boot. People were there protesting the removal of confederate monuments, period. And they are right to do so.

        There are just a few dozen “Nazis”, ie some whackos who like to play dress-up and get attention, who were among those people. The supposed “Klansmen” in this country are like a few dozen illiterates deep in the woods who the propagandist media is fascinated with.

        1. Shut up, M.L.

          You’re a liar and a fool.

          And monuments to traitors should have no place in US public spaces.

          1. “And monuments to traitors should have no place in US public spaces.”

            This logic is already being extended to the US Flag, George Washington and the rest of the founders. That’s the aim behind all of this.

          2. George Washington and the Founding Fathers were all traitors to the British Crown…

        2. You story is convenient and wrong.

          I’ve said it before and I’ll say it again, ML, you need to read countervailing sources. Because if that’s what you think you need to get out more.

          The Unite the Right rally[4] was a white supremacist[5][6][7][8] rally that occurred in Charlottesville, Virginia, from August 11 to 12, 2017.[9][10] Protesters were members of the far-right and included self-identified members of the alt-right,[11] neo-Confederates,[12] neo-fascists,[13] white nationalists,[14] neo-Nazis,[15] Klansmen,[16] and various right-wing militias.[17] The marchers chanted racist and antisemitic slogans, carried semi-automatic rifles, Nazi and neo-Nazi symbols (such as the swastika, Odal rune, Black Sun, and Iron Cross), the Valknut, Confederate battle flags, Deus Vult crosses, flags and other symbols of various past and present anti-Muslim and antisemitic groups.[18][8][9][19][20][21][22] Within the Charlottesville area, the rally is often known as A12[23] or 8/12.[24] The organizers’ stated goals included unifying the American white nationalist movement[11] and opposing the removal of the statue of Robert E. Lee from Charlottesville’s Lee Park.[21][25]

          I leave it to you to contemplate the many citations included.

          1. Yes, there was a bunch of these weird yahoos there, making things very interesting for the media who obsess over these rare curiosities. I already said that.

            Meanwhile, the rest of the people there were normal people protesting the removal of monuments. This is quite unsurprising, since only a very small minority of Americans nationwide support removing such monuments, and even far less in the South. This is all as plain as the nose on your face but haters just can’t see what they refuse to see.

            1. The founder of the rally was a white supremacist. He invited lots of white supremacists. If there were normal people, they were the sort who was cool with an explicitly white supremacist rally.

              Get your facts straight, then talk about monuments.

            2. “Meanwhile, the rest of the people there were normal people protesting the removal of monuments.”

              How do you know this? Did you poll the crowd? Did you go? What’s the factual basis for you calling the white supremacists “rare curiosities” relative to “the rest of the people”? Who told you there were only a “few dozen”?

              Are you sure you aren’t letting the fact that you agree with the object of the protest (anti-removal of confederate statues) interfere with your analysis of how the people there self-identify?

            3. “only a very small minority of Americans nationwide support removing such monuments, and even far less in the South.”

              Tell that to Silent Sam.

            4. Meanwhile, the rest of the people there were normal people protesting the removal of monuments.

              There is no evidence of a single other such person in Charlottesville that weekend.

              Not surprising, since non-white supremacists don’t support the honoring of traitors who fought to defend slavery and killed hundreds of thousands of Americans in so doing.

              1. “Not surprising, since non-white supremacists don’t support the honoring of traitors who[…]”

                Yes, some of them do.

              2. “There is no evidence of a single other such person in Charlottesville that weekend.”

                Incorrect. Try the NYT article I cited above, for example.

                “Not surprising, since non-white supremacists don’t support the honoring of traitors who fought to defend slavery and killed hundreds of thousands of Americans in so doing.”

                Incorrect again. As I noted, polls show the vast majority of Americans don’t want to remove confederate monuments.

                1. Incorrect. Try the NYT article I cited above, for example.

                  That story contains this passage:

                  “Good people can go to Charlottesville,” said Michelle Piercy, a night shift worker at a Wichita, Kan., retirement home, who drove all night with a conservative group that opposed the planned removal of a statue of the Confederate general Robert E. Lee.

                  After listening to Mr. Trump on Tuesday, she said it was as if he had channeled her and her friends — all gun-loving defenders of free speech, she said, who had no interest in standing with Nazis or white supremacists: “It’s almost like he talked to one of our people.”

                  But I didn’t say that everyone who supports the statues calls themselves white supremacists. I said that everyone who supports the statues are white supremacists. (What does “defending free speech” — if that’s what she was actually there to do — have to do with whether the government maintains a statue?)

                  Incorrect again. As I noted, polls show the vast majority of Americans don’t want to remove confederate monuments.

                  Googling, I see one poll on the subject, showing 54% of Americans — not a “vast majority” — think the statues should remain. Another poll says 49%. But we’re not talking about people who abstractly answer the question, “Do you think the statue should be taken down?” with a “No.” We’re talking about people who go to a rally to protest the statue being taken down.

                  1. There have been some “vigilante” monument-removers, taking down Confederate monuments in a manner that suggests they watched footage from Iraq after the US deposed Saddam.

                    In that context, being “against the removal of monuments” is a bit different. There are several subsets under the “against removal of monuments” that range from “active, virulent white supremacist” to “don’t give in to the violent protesters” to “keep the monuments, but maybe in a more discreet location.”

                  2. “everyone who supports the statues are white supremacists.”

                    Ok dummy.

      5. Biden is saying it almost daily dumbass. He even got into a tiff with a Breitbart reporter today about the claim. You’re such a dishonest hack.

  10. Let’s keep in mind that this is the paper that had to stop publishing political cartoons because it couldn’t prevent itself from publishing anti-Semitic propaganda.

    1. Let’s also keep in mind this is the paper that supported Jason Blair’s lies & plagiarism. Not to mention hiring Sarah Jeong with her history of racism & hate.

      1. Journalism pointers from fans of Breitbart, Instapundit, Stormfront, FreeRepublic, RedState, and Fox Nation are always fascinating.

        1. Let’s keep in mind that this is the newspaper of Walter Duranty, who supported and covered for Soviet Russia’s murder of millions:

          http://en.wikipedia.org/wiki/Walter_Duranty#The_Holodomor_(1932-1933)_and_the_1938_Moscow_Show_Trials

          1. Not super relevant to the Times today.

            1. To the contrary, Sarcasto….very apt, I’d say. Progs, like leopards, do not change their spots (or their means to advance their agenda).

              1. Ipse dixit doesn’t make something more relevant, Atlas.

                1. The NYT just defended the Soviet Union as better than the United States over their “diverse” space program.

                  The Paper of Walter Duranty lives on, in both spirit and body.

                  1. Do you think that means the NYT just endorsed Stalin or something?

                    Red-baiting in this day and age. Communism isn’t a thing anymore.

                    1. “Communism isn’t a thing anymore.”

                      Rephrase, this time in Mandarin.

                  2. “The NYT just defended the Soviet Union as better than the United States over their ‘diverse’ space program.”

                    The US has been paying the Russians to deliver payloads to space, because we no longer have the capability ourselves. Having one sounds better than not having one. (Will our approach of privatization pay off? We’ll see, when the private organizations that control space launch decide NOT to orbit a satellite that will carry Fox News on it.)

                    1. You’re off by 50 years for the time period the article was talking about, but thanks for pretending to participate in the discussion.

        2. Chuckling at this one, Rev.

  11. When I first heard about the 2017 NYT piece blaming Palin for the Giffords shooting, my reaction was, Holy Smoke [or words to that effect], that claim was made and refuted way back when this happened! Why is the Times republishing a debunked story? My first guess was that they thought they could get away with it, because most of their readers wouldn’t remember the debunking. My second thought was, The Times doesn’t give a rip whether it’s true or not; they just want to smear a right-wing figure. Either way, isn’t that reckless disregard? I say this with sadness, because I used to have great respect for the Times, but this is just one more example of how the Times has destroyed its own reputation.

    1. Slight correction.

      Most of the NYT readers don’t believe the debunking.

      1. Ouch. Probably true.

  12. About Times (pun intended) the drive by media be held accountable!

    1. I get it!

  13. I read the first half of the story, and there’s nothing in it that shows that Ms. Palin even alleges actual damages here.

    Hope she doesn’t spend the whole $1 nominal award (if she can win) in one place.

    1. I’m going to reject asking, but why would you expect this story to discuss Sarah Palin’s damage claim? That’s not why the case was dismissed, and that’s not what the appeal was about.

      1. “why would you expect this story to discuss Sarah Palin’s damage claim?”

        Because actual damages are part of a defamation claim, perhaps.

        1. What does that have to do with this story? “That’s not why the case was dismissed, and that’s not what the appeal was about.”

          1. You’re right. What does the nature of a defamation case have to do with a story about a defamation case’s progress in the courts?

            1. Of course I’m right.

              And if you had read the rest of the comments, you should know that your assumption that Palin only requested nominal damages is very unlikely to be correct.

              1. ” you should know that your assumption that Palin only requested nominal damages is very unlikely to be correct.”

                I know this will severely tax your reading ability, but your assumption that I made an assumption about what Palin requested is based purely upon your imagination. I made (and make) no such assumption.

        2. In fairness, they also didn’t discuss their jury selection strategy, who their expert witnesses will be, or what color pants suit Mrs. Palin intends to wear to trial. In other words, they’re not there yet.

          1. ” In other words, they’re not there yet.”

            Except that, yes, they already filed the complaint, and they have to make out all the elements of the tort they allege in the complaint.

            In other words, if they’re not there yet, the lawyers are incompetent.

            1. “Except that, yes, they already filed the complaint, and they have to make out all the elements of the tort they allege in the complaint.”

              Again, “[w]hat does that have to do with this story? “That’s not why the case was dismissed, and that’s not what the appeal was about.””

              1. What does the nature of the lawsuit have to do with a story about a lawsuit? You actually need this explained for you? Seems easier to just have to go back to school, around 5th or 6th grade, and pay attention this time.

    2. For Palin specifically, just getting a dollar out of the Times would be considered a win. A dollar plus court costs would be a landslide. She gets to be in the news and gets to be right. Her personal brand greatly increases in value.

  14. Does anyone seriously doubt the author and editors at the New York bear Sarah Palin “actual malice”? Frankly, it almost rises to the level an indisputable fact of which a court may take judicial notice.

    1. As Prof. Volokh explained – it’s literally in the first sentence – “actual malice” is a term of art that doesn’t actually mean actual malice.

      1. If there is a worse name for a legal doctrine, I’d be hard pressed to figure out what it would be.

        1. “Real honest-to-goodness malice.”

      2. This is certainly true — actual malice relates to your relationship to the falsity of the libel. You either have to know what you are saying is false, or act in reckless disregard of the truth.

        However, an interesting thing about this Second Circuit opinion is that it uses the editors bias against Palin as a support for the inference of actual malice. IOW, if there is some evidence that the editor disregarded the truth, the fact that he has it in for Palin would be additional evidence the jury would be entitled to consider to infer that in fact he acted with disregard for the truth.

        I don’t know if that is novel in the law of defamation, but it is interesting.

        1. “I don’t know if that is novel in the law of defamation”

          It sounds like the way things work in every type of case where some specific state of mind has to be proven as an element of the crime/tort/breach.

  15. If it somehow makes it to scotus, the more important question is do more justices jump on the clarence thomas bandwagon, that private speech is a state tort question and therefore sullivan should be thrown out?

  16. No way this should stand. It’s clearly protected opinion, if wrongheaded.

    1. So I’d have the right to say something like:

      “In my opinion, your posts have a direct link to Justin Bieber becoming popular.”

      1. Yes.

        Noticing that you did, in fact, feel free to post that, you must ALSO feel that the lawsuit should not stand.

        See, it’s not so hard to find common ground, if you’re willing to look for it.

        1. There is only one thing wrong with your reasoning – it is silly.

          1. It is also yours.

            1. If you can find anyone who, as a result of my post, believes nicmart was responsible for Justin Bieber, I will personally recognize you as a person of at least moderate intelligence.

              1. But perhaps I can see why you would double down on this silly game, since it is easier than defending your claim above:

                “Are any of the relevant facts disputed? Seems like the dispute is over whether Palin was defamed or not based on how the law applies to the facts, not based on what the facts are.”

    2. Both the district judge and the Court of Appeals rejected this very argument.

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