Future reporters for Rolling Stone magazine.
Sarah Palin has sued the NY Times for defamation, based on an Editorial regarding Palin’s alleged role in instigating the shooting of Congresswoman Gabby Giffords.[…]
The Court just issued an unusual order on a motion to dismiss, requiring that the authors of the Editorial (presumably one or more members of the Editorial Board, but perhaps others as well) appear in Court on August 16 to give testimony and to be cross examined as to whether they were aware of prior NY Times articles exonerating Palin from any responsibility.
The legal issue is “actual malice,” which a public figure like Palin must show.
Pending before the Court is the motion of defendant The New York Times Company (the “Times”) to dismiss pursuant to Rule 12(b) (6), Fed. R. Civ. P., the claim of plaintiff Sarah Palin that she was defamed by a Times editorial that appeared on or about June 14, 2017. One close question presented by that motion 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 of fact that are the subject of the Complaint 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. This is information peculiarly within the knowledge of defendant; but on it arguably depends the reasonableness vel non of inferring actual malice.
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. At the hearing, defense counsel must produce the author(s) of the editorial, who (or each of whom, if there is more than one author) will be examined under oath by defense counsel for no more than thirty (30) minutes, to be followed by cross-examination of plaintiff’s counsel of no more than forty-five (45) minutes, to be followed by no more than fifteen (15) minutes of redirect by defense counsel. The Court also may question each such witness.
The Order is unusual because normally motions to dismiss are decided on the papers, and the court must determine all reasonable inferences in favor of the non-moving party (Palin, here). One of the key factual allegations in the Complaint is that the NY Times was aware that Palin’s map had nothing to do with the Giffords shooting, because prior NY Times articles so stated. So,by inference, the authors of the Editorial ignored information available at the NY Times itself.
The Judge appears to be requiring not just imputed knowledge of prior NY Times articles, but actual knowledge by the authors of the Editorial in order to find a reasonable inference of actual malice. That the Judge says the issue is a “close question” based on the pleadings demonstrates that if Palin survives the motion to dismiss, it will turn on who knew what, and when.