August 10, 2017

JUDGE NOT SO SURE IN PALIN’S NEW YORK TIMES LIBEL SUIT: This afternoon Judge Jed Rakoff — a jurist of impeccable integrity — did not dismiss Sarah Palin’s libel suit against the Times, but instead took the highly unusual step of ordering an evidentiary hearing on what the Op/Ed writers knew.

This is unusual, because in libel cases, under a doctrine called “Iqbal/Twombly”, plaintiffs are required to show in their complaint more than a naked assertion of wrongdoing and have to set out a “plausible” claim with some degree of specificity. Here, most media lawyers thought the Times had it in the bag, because under a motion to dismiss, external fact-finding is not allowed, and the judgment is made within the four corners of the pleadings. But Rakoff was not convinced that Palin failed to make a plausible claim, and instead noted that:

One close question presented by that motion [to dismiss] is whether the Complaint contains sufficient allegations of actual malice, an essential element of the claim. To a large extent , determination of that issue may turn on what inferences favorable to the plaintiff are reasonable given the circumstances alleged in the Complaint. For example, the Complaint alleges that the allegedly false statements[…] were contradicted by information already set forth in prior news stories published by the Times. However, these prior stories arguably would only evidence actual malice if the person(s) who wrote the editorial were aware of them…Accordingly, to help inform the Court of what inferences are reasonable or unreasonable in this context, the Court, pursuant to Rule 43(c), will convene an evidentiary hearing on Wednesday, August 16 at 2:00 PM EST.

Normally, judges unsure of who knew what (the key question in this libel case) will deny a motion to dismiss, and after discovery, and a motion for summary judgment, if a genuine issue of material fact remains, they send it to a jury. Here, Rakoff seems to be short-circuiting that procedure, and will decide for himself, hearing testimony as to whether it was plausible that the Op/Ed writers knew that other sections of the paper had already debunked a connection between Palin and the shooting of Rep. Giffords. Hard to read tea leaves here, given that he could have dismissed the case, and it would appear he is giving Palin an extra chance (through cross-examination) to raise triable questions about what the editorialists knew or didn’t know. Stay tuned.