Sarah Palin's defamation suit back in play after circuit court reversal

From the Powerline Blog

I wrote about the case here, and in this post, titled “The New York Times is in trouble.” The author of the Times editorial, James Bennet, defended himself by testifying in a hearing conducted by the district court judge that he wasn’t aware of his own newspaper’s articles that said there was no relationship between Palin’s PAC’s map and the Loughlin killings; or if he read them, he had forgotten them. He testified that he was similarly unaware of other reporting to the same effect, including articles published in the Atlantic magazine while he was the editor of that journal. The Times editorial, he testified, was an innocent mistake.

Shockingly, the trial court judge, Jed Rakoff, dismissed Palin’s complaint for failure to state a claim. He did this after conducting an unusual hearing at which, as just described, Bennet testified. Rakoff wrote that he found Bennet’s testimony credible, even though credibility of witnesses is a question for juries, not judges. Palin appealed the dismissal of her defamation case to the Second Circuit Court of Appeals, which reversed earlier today, directing that the case proceed with discovery.

The Second Circuit’s decision is consistent with my initial view of the case. It is notoriously difficult–some say impossible–for a public figure to win a defamation case in the current state of the law. If the law of defamation still exists, Palin’s case should succeed. If she can’t win on the facts we have here, the courts should simply acknowledge that, if you are a public figure, it is open season on you, and no redress for libel or slander is permitted, no matter how egregious the facts.

This is really the same sort of argument that was played out in the Oberlin College lawsuit. Both the Times and Oberlin are pushing the idea that no matter what you write or say about someone, it is always an issue of "opinion" and therefor protected by "free speech". The problem with that argument is that it excludes the very concept that there are actual libel and slander laws on the books. There has to be certain situations where cannot just argue away false statements as "opinions" or you are pretty much conceding that there is no such thing as libel or slander anymore.

The specific issue with this case isn't that the NY Times wrote about possible links between a shooter and Sarah Palin's PAC map. The reason for this particular lawsuit is that the original allegation was shown to be a false claim (the shooter had no awareness of these ads), but the NY Times continued to print the claim (which they should have been known to be untrue). The Times basically argued that they had "forgotten" that the claim had been debunked and that the editorial written that attempted to reattach her to the killings was just an innocent mistake.

At what point do we hold the media accountable for making false claims against people? The case against CNN from Nick Sandmann was tossed on the grounds that CNN reporters were only reporting the "claims" that were made by the antagonist Nathan Phillips. The fact that Phillips misrepresented the facts means that the mistake was not CNN's (or so ruled the Judge). CNN and others were allowed to print those allegations because they were deemed to be the "opinion" of Phillips and there was not enough information at the time to repute them. Whether or not CNN is responsible for taking a minute and getting the actual facts appears to be not at issue in that case (or so ruled the Judge).

But arguably, if CNN decided to reprint the Phillips allegations regarding Sandmann harassing him and getting in his face as if they were true (knowing what they know now) then it could be considered defamation. In this case they would be knowingly pushing a false narrative that causes distress or other harm to the person in question.

This is the same argument that Palin is making. So while it apparently is okay "legally" for media to simply jump the gun and get things wrong (if there is a reasonable manner to suggest that they didn't know any better), it should not be okay to continue to get things wrong once they know that their original storyline was incorrect. This appears to be why this original ruling was tossed, and Palin's lawsuit is reinstated, and the Parties will move on to the discovery stage. I am quite certain that the NY Times is not happy about providing discovery on this.