Free Speech

Sarah Palin's Libel Lawsuit Against the New York Times Can Go to Trial

There is enough evidence that the Times knew their allegations were false (or at least were likely false) to go to the jury.

|The Volokh Conspiracy |

Sarah Palin had sued the New York Times for libel, over an editorial (following the wounding of Rep. Steve Scalise by James Hodgkinson) that had referred to the 2011 Jared Loughner shooting of Rep. Gabby Giffords and others:

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 other Democrats under stylized cross hairs."

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." 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."

The editorial was in error, as the Times later made clear in a series of correction, such as:

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.

And it turns out an earlier version of the editorial, drafted by Elizabeth Williamson, didn't assert a "link to political incitement"; it was editing by James Bennet, "the editor overseeing opinion journalism at the Times, including masthead editorials by the Times Editorial Board," that included this "link to political incitement was clear" statement.

Today, Judge Jed Rakoff denied defendants' motion for summary judgment, which means the case will go to trial, unless the parties settle. The key issue was whether Palin could show "actual malice," a legal term of art that means knowledge that the statement was false, or recklessness about the statement's being false.

Judge Rakoff began by asking whether there was enough evidence to go to the jury on whether Bennet (and thus the Times) had "actual malice" as to how readers would understand the statement:

Defendants first argue that plaintiff cannot prove that at the time Bennet wrote the allegedly defamatory portion of the Editorial, he knew that, or was reckless with respect to whether, readers would understand his words in the defamatory sense—that is, that the Map had "directly caused Loughner to shoot his victims." …

Where a plaintiff's defamation case depends on a statement that is capable of multiple meanings—one defamatory, the other innocuous—the plaintiff must prove that the defendant acted with actual malice not only with respect to the statement's falsity but also to its meaning…. [T]he plaintiff must show that the defendant "either deliberately cast its statements in an equivocal fashion in the hope of insinuating a false import to the reader or that it knew and acted with reckless disregard of whether its words would be interpreted by the average reader as a false statement."

Of course, because actual malice "is a matter of the defendant's subjective mental state, revolves around facts usually within the defendant's knowledge and control, and rarely is admitted," a defendant cannot "automatically insure a favorable verdict by testifying that he published with a belief that the statements were true." Here, to be sure, Bennet has sworn multiple times that he "did not intend to imply a direct causal link between [the Map] and Loughner's horrific acts." He also avers that "it did not occur to [him] that readers would understand the phrase 'the link to political incitement was clear' as suggesting that Loughner himself was directly inspired or motivated by the [Map] to engage in the shooting, and [he] did not intend for readers to draw such an inference." Instead, he claims that he "intended to advance the idea that overheated political rhetoric can create a climate inducive to violent acts, and [he] mentioned the [Map] as an example of the kind of 'political incitement' that contributes to this atmosphere."

However, … the Court cannot automatically credit this testimony at the summary judgment stage…. [P]laintiff meets her burden of adducing evidence that, taken in the light most favorable to plaintiff, could enable a rational jury to conclude that Bennet either knew, or was reckless not to know, that his words would carry the defamatory meaning. Indeed, at least four items of evidence warrant this conclusion.

First, there is the language of the Editorial's statements themselves, such as the reference to the Map as being a "direct" form of "incitement" to Loughner's shooting…. Bennet's contention that, notwithstanding the words he used, he did not mean to suggest a direct link between the Map and the shooting, may be "so inherently improbable that only a reckless man would have" chosen the words he chose to convey the meaning he (allegedly) sought to convey.

Second, Bennet has himself admitted that he was aware that the term "incitement" could mean a call to violence….

Third, Bennet's decision to substantially revise Williamson's earlier draft, which did not include the allegedly defamatory language and meaning, is, a jury could find, yet more evidence of actual malice. To be sure, Bennet testified that he made these changes because he worried that phrases like "incendiary" or "inflammatory rhetoric" had been "drained of [their] power because [they are] used so often" and that he was searching for "a very strong word to write about the political climate," and so chose "political incitement." But, as discussed above, the credibility of that testimony is for the jury to assess, not for this Court to credit at the summary judgment phase. It is virtually undeniable that Bennet's edits changed the meaning of Williamson's draft, an alteration that a reasonable jury might conclude was intentional.

Fourth, the nature of the corrections issued by the Times in the aftermath of the Editorial stand as further circumstantial evidence that Bennet was aware that the Editorial carried the defamatory meaning. As discussed above, upon receiving Douthat's email expressing concern over the Editorial, Bennet reached out to Williamson and other members of the team and asked them to "get to the bottom of this as quickly as possible." The team then looked into whether there existed a direct link between the Map and the Loughner shooting; and when it concluded that no such link had been established, the Times issued a correction which read, in part: "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 fact that Bennet and the Times were so quick to print a correction is, on the one hand, evidence that a jury might find corroborative of a lack of actual malice …. But, on the other hand, a reasonable jury could conclude that Bennet's reaction and the Times' correction may also be probative of a prior intent to assert the existence of such a direct link, for why else the need to correct? Indeed, the correction itself concedes that Bennet's initial draft incorrectly stated that there existed such a link. If, as Bennet now contends, it was all simply a misunderstanding, the result of a poor choice of words, it is reasonable to conclude that the ultimate correction would have reflected as much and simply clarified the Editorial's intended meaning.

Ultimately, while much of plaintiff's evidence is circumstantial, as is often the case when actual malice is at issue, and while there is arguably contrary evidence as well, the Court finds that, taking the evidence in the light most favorable to plaintiff, she has sufficiently pointed to enough triable issues of fact that would enable a jury to find by clear and convincing evidence that Bennet knew, or was reckless not to know, that his words would convey the meaning in the minds of the readers that plaintiff asserts was libelous, to wit, that she bore a direct responsibility for inciting the Loughner shooting.

Judge Rakoff then went on to conclude that a jury could find that Bennet knew or was reckless about the falsity of the incitement allegation:

[P]laintiff must show that defendants published the libelous statement "with knowledge that it was false or with reckless disregard of whether it was false or not." "Mere negligence does not suffice." Instead, "[a] finding of malice must be based on clear and convincing evidence that the defendant in fact entertained serious doubts as to the truth of his publication, or, in the alternative, knew of its falsity."

While mere failure to conduct an investigation before publishing cannot itself establish actual malice, nonetheless, "where there are obvious reasons to doubt the veracity " of the information, that can give rise to an inference of actual malice. Thus, as the Ninth Circuit explained, "where [a] publisher undertakes to investigate the accuracy of a story and learns facts casting doubt on the information contained therein, it may not ignore those doubts, even though it had no duty to conduct the investigation in the first place." That is why, as the Supreme Court has explained, "the purposeful avoidance of the truth is in a different category" from mere failure to investigate….

Plaintiff argues that, construing the evidence in the light most favorable to her, a jury could conclude that (1) Bennet instructed Williamson to research whether there was a link between the Map and the shooting; (2) Bennet conceded, and Williamson confirmed, that her draft embodied the results of that research and did not turn up evidence of a causal link between the Map and the shooting; (3) the hyperlinked article attached to Williamson's draft recognized as much; and (4) therefore, Bennet "knew there was no link but rewrote the draft anyway to say a link existed—consistent with the narrative he already decided to portray."

As a threshold matter, defendants insist there is "no evidence to support these assertions." Specifically, defendants contend that Bennet did not instruct Williamson to research whether there was a link between the map and the shooting; rather, according to defendants, Bennet only "asked for research to determine if the Times' own Editorial Board had previously written anything connecting the Loughner Shooting to incitement … because he wanted to ensure the new editorial was in sync with any prior Board position.

However, taking the evidence in the light most favorable to plaintiff, Williamson acknowledges in her deposition that Bennet specifically asked her to "look for pieces related to the Giffords shooting and whether there was such a connection." Defendants suggest that plaintiff is taking these statements out of context, weaving "two strands of testimony into a fiction." But, again, at the summary judgment phase, the Court finds that Williamson's deposition testimony could allow a juror to conclude that, at some point during the drafting process, Bennet specifically instructed Williamson to research whether there existed a link between the Map and the shooting and learned that there was no material support for such a link.

Beyond this, Williamson' s inclusion in her first draft of the hyperlink to the contemporaneous ABC news article that flatly stated there was no such connection would have given Bennet, if he had accessed the article, "obvious reasons to doubt the veracity" of the alleged connection. If so, Bennet's failure to investigate could support an inference that he purposefully avoided the truth.

To be sure, Bennet maintains that he never clicked on the hyperlink. But under all the circumstances, a jury might discredit this testimony.

Nonetheless, even if it were true, it could be evidence of reckless disregard. After receiving Williamson's draft, a reasonable jury might conclude, Bennet had obvious reasons to doubt whether there existed a link between the Map and the Loughner shooting. At that point, Bennet's failure to further investigate or at least just click on the link to the only article Williamson had presented could support the inference that he was purposefully avoiding the truth.

There are other pieces of evidence from the drafting process that further support such a theory. First, as the editors were discussing whether to cover the Hodgkinson shooting, it was Bennet' s idea to focus the editorial on "the rhetoric of demonization and whether it incites people to this kind of violence." Then, during the research phase, Bennet asked a researcher to determine whether the Board had previously written "anything connecting to the Giffords shooting to some kind of incitement." After the researcher sent Bennet an article (written not by the Board but by a columnist at the Times), Bennet replied "Good for us." While Bennet has testified that he does not recall what he meant by that response, a reasonable jury could infer from this response that Bennet felt free to advance his narrative because the Editorial Board had not written on the subject.

In addition, researchers sent to Bennet other articles that disclaimed the idea that Loughner had been motivated by violent rhetoric. Notably, Bennet was sent an earlier editorial entitled "As We Mourn," published in January 2011, which quoted President Barack Obama saying Loughner's shooting cannot be blamed on "a simple lack of civility." Like the hyperlink, Bennet testified that he did not read this article, even after specifically asking for the researcher to dig up articles of this sort. But, as with the hyperlink, a jury could infer from this a purposeful avoidance of the truth.

Once again, there is considerable evidence that defendants mount to support the notion that Bennet simply drew the innocent inference that a political circular showing crosshairs over a Congressperson's district might well invite an increased climate of violence with respect to her. But, taken in the light most favorable to plaintiff, the evidence shows Bennet came up with an ang le for the Editorial, ignored the articles brought to his attention that were inconsistent with his angle, disregarded the results the Williamson research that he commissioned, and ultimately made the point he set out to make in reckless disregard of the truth

Accordingly, the Court concludes that there is sufficient evidence to allow a rational finder of fact to find actual malice by clear and convincing evidence.

NEXT: Defendant Agrees to Bench Trial, But Government Insists on Jury Trial

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  1. Why bother with this fiction? No one believes the jury will now turn around and find for the defendant. At least, not unless it’s stacked with people who particularly dislike Palin. So inevitably both parties will now do the math on how much a jury in the Southern District of New York is likely to dislike Palin, and make their settlement offers accordingly. Why not simply skip the fiction that this case might ever go to a jury and have the court do its job? Decide whether the defendant had actual malice, and skip over the popularity contest.

    1. I’d guess the parties have their own reasons, and the fact that they didn’t consult you indicates they thought your reasoning flawed.

    2. Because the litigation belongs to the parties, not the judge. The judge cannot make them settle the case if they don’t want to. Sometimes, usually to the dismay of the lawyer, a party stubbornly refuses to settle a case out of stupidity, or bullheadedness, or because he or she wants the publicity or wants to make some point by rejecting the settlement offer and going to trial.

      1. You misunderstand. My irritation was with the entire fiction of having a jury trial for civil cases, when in actual fact hardly any cases ever reach the jury, because everything gets sorted out by some combination of summary judgment, other pre-trial decisions, and settlement. And yet everyone involved insists on pretending that they are involved in a process that will eventually end up in front of a jury. Just abolish civil jury trials!

        Specifically, out of the 307,000 civil cases terminated in Federal district court in the 12 months up to 31 March 2019, only 1,645 involved in a jury verdict. Now a whole bunch of those couldn’t have gone to the jury anyway, but either way the fraction that does is tiny.

        https://www.uscourts.gov/file/26390/download

        1. As I’m sure you know, civil jury trials are constitutionally required at the federal level. I’m also not sure I see how bringing in a jury for the unlikely-to-happen trial is of much significance.

          1. You’d be surprised at how many cases settle once the parties see the jurors assembled in the room. It concentrates their minds. It makes them realize that the stakes are really real.

          2. There is no substance to the Seventh Amendment. No one can say why it’s important. It is one of the few provisions in the Bill of Rights that has not been applied to the states.

        2. Federal trials are a tiny, tiny fraction of total trials. Jury trials are alive and well — if mostly on hold due to the Covid pandemic — in state courts across America.

          You misunderstand, too, the relationship between trials and settlement. The reason so many cases settle before trial — whether they’re in state or federal court, or whether they’re jury or bench trials — is because the lawyers advising the litigants have experience from the few cases that have gone to trial, sufficient to make meaningful their predictions about the range of likely results (whether a bench award or a jury verdict).

    3. @ Martinned, who wrote:

      So inevitably both parties will now do the math on how much a jury in the Southern District of New York is likely to dislike Palin, and make their settlement offers accordingly.

      I’ve been involved in jury trials for 40+ years now and don’t share your cynicism that they’re “popularity contests.”

      However, I do agree, as I commented below, that Palin will have a very hard time seating a receptive, fair jury in the Southern District of New York, and that that has a lot to do with the potential settlement value of the case.

      From the NYT’s point of view, the main incentive to settle may not come from concern about having to eventually (after inevitable appeals) pay a money judgment entered upon a jury verdict, but rather the sustained, and probably quite negative, publicity that would affect the NYT even if it won with the jury.

    4. Martinned….Please define what you mean by ‘victory’ for Ms. Palin?

      Is victory an actual judgment against NYT? Or something else? The mere fact that NYT has to keep paying for legal representation (by the hour), keep going to court where their dirty laundry is aired for all to see, continue to have to defend themselves cumulatively wounds the NYT over time…financially and their reputation.

      Will they settle? Who knows. But Ms. Palin does have sufficient resources to bleed NYT. You need to think about what is victory here for Ms. Palin.

      1. Bingo. This is not a case about money. It is about discrediting the NY Times. And on that, Palin and her counsel are doing a good job.

        Consider this excerpt from Judge Rakoff’s opinion:

        To be sure, Bennet maintains that he never clicked on the hyperlink. But under all the circumstances, a jury might discredit this testimony.

        Nonetheless, even if it were true, it could be evidence of reckless disregard. After receiving Williamson’s draft, a reasonable jury might conclude, Bennet had obvious reasons to doubt whether there existed a link between the Map and the Loughner shooting. At that point, Bennet’s failure to further investigate or at least just click on the link to the only article Williamson had presented could support the inference that he was purposefully avoiding the truth.

        Seriously, the defense is, I never clicked on the hyperlink in the draft editorial that linked to an article about the very event the editorial was discussing? That’s what the editor of the most prominent paper in the country does? That’s what I would expect from the editor of the South Succotash Kindergarten Newsletter.

        1. Likely wrongly so, though. The editor of the South Succotash Kindergarten Newsletter is probably very careful about things like that.

  2. Judge Rakoff writes remarkably clearly and concisely for a district court judge. I wish more district court judges had his writing ability.

    1. His decision to issue his opinions in Courier, on the other hand…

  3. This seems like a fair ruling. If someone does a shooting, and you don’t have a shred of hard evidence that Sarah Palin incited him to do that shooting (or any evidence that he ever even heard or read anything by her) — then you shouldn’t write that she clearly incited him.

    1. I agree, but I think that’s a bit too simple as a statement of the law.

      1. I disagree. Simply being truthful and decent in what you say is 99% of defamation law. Also, your comment earlier that judges should not let cases go to juries, because juries are popularity contest, and the parties settle before letting the jury decide anyway, reveals a fundamental misunderstanding of the American judicial system. In America, justice isn’t decided by a small cabal of elite judges . It’s decided buy a mix of judges and juries. Judges can’t just take cases away from juries.

        The me-too movement shows you what happens when a small cadre of elites take justice into their own hands and eliminate the jury system. Victims will just go to social media, which acts as a jury of sorts, and stop using the justice system altogether, and the American legal system will become as irrelevant as the legal systems of some other countries.

    2. Did the NYT write (as matter of fact) that Palin clearly incited (specifically) Loughner?

      1. The exact quotes were:

        (In the original story) “[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 other Democrats under stylized cross hairs.”

        (In the correction) “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.”

        * * *

        If they had some evidence, anything, linking the shooter to something Palin said it would be one thing. Like if they found that map at his house, or maybe even if they had proof that he followed Sarah Palin (that might not be enough but it would be something). But here it appears as if they had nothing.

        This is not like the Sandmann case, where the Washington Post quoted a statement from Phillips, who said he felt like Sandmann was blocking his path.

        1. In short, the answer to my question is, “No, it didn’t happen.” The opinion that incitement occurred was based on a reference to multiple districts, of which Giffords’ district was but one. I get that the clumsy correction is now confusing the right-trending commenters, but the alleged libel was not libel, because it was unambiguously a statement of opinion made in the context of a general assertion.

          The general assertion, by the way, although only opinion, strikes me as accurate. It is my opinion, too, that for several years Republican office holders and candidates—not to mention VC commenters—have been attempting to intimidate political opponents with threats of armed violence just around the corner. Republicans ought to cut that out, because it is entirely reasonable to conclude doing that may incite nut-job shooters to target political opponents of Republicans.

          If they had some evidence, anything, linking the shooter to something Palin said it would be one thing. Like if they found that map at his house, or maybe even if they had proof that he followed Sarah Palin (that might not be enough but it would be something). But here it appears as if they had nothing.

          That is a reasonable-sounding rebuttal to a claim that seems not to have been made by the NYT.

          1. Sigh. Stephen, the short answer to your question is “Yes, the NYT wrote (as matter of fact) that Palin clearly incited (specifically) Loughner.” That’s why they’re in court.

            1. TwelveInch, I haven’t followed this closely enough to be sure. My question was not rhetorical. Can you show me the NYT saying what you claim they said? Blogger AMG failed to deliver.

              1. No, he succeeded.

              2. “[T]he link to political incitement was clear.”

        2. “This is not like the Sandmann case, where the Washington Post quoted a statement from Phillips, who said he felt like Sandmann was blocking his path.”

          That’s HOW publishers lie: By finding somebody who’s telling the lie they want to tell and quoting them. If they’d wanted to tell the truth about what had happened, they had plenty of witnesses available who wouldn’t have lied.

          But, of course, the issue in the Sandmann case, is that the WaPo was certainly aware within hours, (If they hadn’t been from the start.) that Philips was lying about what happened, and they stuck by their preferred version of events for weeks.

  4. This is a blast from the past. I forgot about this incident of real media bias because something like this occurs every single day in 2020. Back then it was maybe only a few times a month.

    1. Go ahead, give us an example from the last 24 hours.

      1. MSNBC pulled a story that appeared call the WI kid a white supremacist based upon a Facebook comment.

        1. If they pulled the story, that means it was most likely run by mistake rather than by bias. if they were biased, they’d have found a reason to refuse to pull it.

          1. If they were unbiased, they wouldn’t have run it in the first place.

            1. So their bias suddenly changed?

                1. Krychek_2 is talking about pulling the story.

                  You changed the scope to running the story in the first place, which does not address Krychek_2’s original point. A purely biased organization would not have pulled the story.

                  1. “Purely Biased”?

                    Suppose Sean Hannity were to run a story about Hillary running a ring of kiddy-fiddlers out of the basement of a pizza shop and then he pulled the story.

                    I’d assume that he initially ran it because his political bias led him to be overly credulous of such a story, and then pulled it because he realized it was unsupportable. I wouldn’t take the fact that he pulled the story as evidence that he wasn’t biased.

                    Same thing here.

              1. Are you a simpleton or do you just play one on TV?

                Every news organization has to balance bias against credibility. If they sounds like complete nutcases, then they will lose out. The fact that they believe something initially with no evidence (really, Facebook posts are a news source?) is biased. That they pull it when the realized it was bogus only shows they know how to do CYA.

                Would they have the same level of credulity if the politics ran the other way? Say a Facebook post claimed that Floyd George had died of an overdose of Fentanyl? I am dubious.

  5. So, an editorial writer who “…. simply drew the innocent inference that a political circular showing crosshairs over a Congressperson’s district might well invite an increased climate of violence with respect to her” is now being sued for making an obvious, but perhaps mistaken inference. And the reason to find for the plaintiff is that his “angle for the Editorial, ignored the articles brought to his attention that were inconsistent with his angle”

    MY GOD!!! His angle is inconsistent with other commentators’ angle(s). Fetch my smelling salts and escort me to the fainting couch.

    Remind me again who’s engaged in suppression of free speech?

    1. “…simply drew the innocent inference that a political circular showing cross-hairs over a Congressperson’s district…”

      The Daily Kos had claimed that Giffords had a bullseye on her district.

      Then the left had to humiliate itself trying to argue about how a bullseye was different than cross-hairs.

      Make no mistake, this is QAnon-level BS. And the NYT prints QAnon-level BS.

  6. It’ll be interesting when Trump sues The NY Times, the Washington Post, and the major networks for the same thing.

    1. Or Obama suing the birthers, Or Biden or Pelosi or AOC suing, well, we all know the likely targets.

      Sauce for the goose, and careful what you wish for.

      There’s a good reason why the legal standard is high for “public figures.”

      1. “Or Obama suing the birthers,”

        Have any of the “likely targets” claimed that Obama was clearly born in Kenya?

        1. Birthers are among my favorite bigoted, bitter clingers.

          And still the audience most coveted by the Volokh Conspiracy.

    2. Trump is probably the only person alive who is even less likely to find an unbiased jury in the Southern District of New York than Sarah Palin.

      Also, he’d have to prove that the defendant lied, which would be awkward…

      1. Not only that, but think how much fun the Times would have taking Trump’s deposition.

  7. Is there a limit to the damages that Palin can get?

    I’m thinking of a NYT that is owned by Sarah Palin with her in charge of it.

    🙂 🙂 🙂 🙂 🙂 🙂 🙂 🙂 🙂 🙂 🙂

    1. The limit is what her consul can negotiate as a settlement as it becomes increasingly clear they are going to lose. It’s very difficult to prove intent. Now that her attempt to get the court to ignore clear precedent (ie “actual malice”) has failed, her best option is to settle.

      And in the highly speculative event that she prevails in court, the damages would be commensurate with the (further) damage to her reputation. Something like attorney’s fees plus a chili dog and an 8×11 glossy photo of Sean Connery.

      1. @ Clem: You meant “counsel” of course, but I did laugh at the idea that Sarah Palin, at least as perceived in New York, might need a consul; she’s certainly very foreign.

        Also: Ordinarily one can’t recover attorneys fees for tort claims like defamation. As for the photo, are we talking 1960s-era Connery? Because that has a lot to do with its value.

        1. Perhaps you are correct that ordinarily one can’t recover attorneys fees for tort claims like defamation. But it happens:

          https://www.usatoday.com/story/news/politics/2020/08/22/stormy-daniels-donald-trump-ordered-pay-legal-fees/3421640001/

          As for the which photo, that’s subject to negotiation. As is the quality of the chili dog.

      2. “It’s very difficult to prove intent.”

        They said that the clearly incited the shooting. There’s no evidence outside of QAnon-level batshit conspiracy theories that she incited the shooting. That shows intent.

  8. I remain puzzled as to why in the world Palin sued the NYT in the Southern District of New York, when she could have sued in Alaska. Yes, I know she’s not as popular in her home state now as she was when John McCain picked her as his running mate. But the chances of her getting a receptive jury in the Southern District of New York strike me as slim and none. Suing there may prove outcome-determinative against her.

    1. Yes, I was wondering that too. (See above.) I know that American rules for personal jurisdiction are crazy lax, so presumably the New York Times can be sued everywhere where its newspaper is sold. Any chance she tried that and got unlucky with a judge who told her to go sue the NYT in its home jurisdiction? That might explain what they’ve been doing for the last 8 years…

    2. Although I believe they still own some property in Alaska, the Palins mostly relocated to Arizona shortly after the 2008 election.

      1. @ Noscitur a sociis: I don’t think that’s right. Her divorce was completed in Alaskan courts in 2019. And checking on PACER, I see that when her complaint was filed in 2017, she alleged that she was “an individual who resides in and is a citizen of the State of Alaska.”

  9. If I’d been her lawyer, I’d have sued in state court in Alaska, and added whoever the NYT’s resident distributor is as a non-diverse defendant to prevent removal to federal court.

    1. Not sure why you’re advocating for fraudulent joinder.

  10. The reasoning seems to be that if the NYT concludes, as a matter of opinion, that Republican candidates and office holders have attempted to incite violence generally, to intimidate political opponents, then the NYT cannot publish that, because someone who just committed violence might not have been specifically incited. That would chill a lot of opinion publishing. Surprised there is no comment indicating disagreement from EV.

    1. “The reasoning seems to be that if the NYT concludes, as a matter of opinion, that Republican candidates and office holders have attempted to incite violence generally,”

      Sigh. The NYT concluded that Sarah Palin attempted to incite violence by publishing stylized cross-hairs over Giffords and other Democrats. This was false. And they further concluded that the Gifford shooting was clearly linked to this map. This was also false.

    2. Agree that this would chill a lot of opinion publishing. And that’s the point. See the comments above for commenters rubbing their hands with glee at the prospect of the Times being buried with lawsuits.

      Why this would be celebrated on a purportedly libertarian blog is a mystery.

  11. It was obvious from her answers to a reporter that she didn’t read any newspapers. Let alone the NYT.

  12. It is amusing, in a depressing way, that Bennett didn’t get fired over this (or even disciplined AFAIK), but he permits a GOP Senator to run an op-ed piece, and Off With His Head!

    1. We don’t know just why Bennett was fired, though I suspect there was no single reason. He was never any good at his job, got the Times into legal trouble, and published an op-ed he didn’t even read. A lot of straws for the poor camel.

      1. ” and published an op-ed he didn’t even read.”

        Is that actually established? Cotton claims that the op-ed was extensively reviewed and revised before publication, and he can apparently prove that with email chains. I know they claim “a breakdown in the editing process”, but the only “breakdown” seems to be publishing an op-ed that they didn’t agree with, which is kind of what the “op” in op-ed means.

        1. It’s established that Bennet says that he didn’t read it. (If he did and lied about it, it doesn’t make him look better.)

  13. Here’s an idea. Let a smart law firm initiate a class action suit on behalf of all descendants of slaves and demand reparations for the tort of slavery. Why hasn’t that been done already? Apart from the fact that slavery was legal until it was not, also because the current class would not have standing, they have not been damaged by slavery per se. Any damage done to them by this society is due to “racism” which may or may not be a residue of past slavery in America. Is the residue of racism from slavery a tort? Not legally, as yet, and you’d have to identify the particular perp racists. Good luck with that — I’m pretty sure Prof Volokh is not a racist in any way shape or form. So, such a law suit would have zero chance in our courts today. In other words, it’s not a legal issue. It’s a purely political one. Just another tax imposed by the legislature, if they can figure out a constitutional way to channel the proceeds to some relevant class based on race or heritage. I don’t see how that could possibly be done but don’t underestimate the inventiveness of pols who want to tax you.

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