Patterico's Pontifications

8/6/2019

Appeals court reinstates Sarah Palin’s Defamation Lawsuit against the NYT

Filed under: Law,Politics — DRJ @ 10:05 am



[Headline from DRJ]

Law & Crime:

In 2017, United States District Court Judge Jed S. Rakoff held an evidentiary hearing to determine whether Palin’s complaint against the Timesproperly alleged all the required elements of a defamation claim. Rakoff then relied on the evidence adduced at that hearing to dismiss Palin’s complaint under the Federal Rules of Procedure 12(b)(6), meaning Palin failed to state a claim upon which relief can legally be granted.

“Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States,” Rakoff wrote in the ruling. “In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others.”

However, according to the Second Circuit’s ruling Tuesday, Rakoff’s reliance on any facts outside of Palin’s original complaint was improper and grounds for reinstating Palin’s claim.

— DRJ

28 Responses to “Appeals court reinstates Sarah Palin’s Defamation Lawsuit against the NYT”

  1. “the able and highly experienced district judge”

    In law school, they taught us that when the appellate opinion referred to the trial court as “the learned judge”, it was the unsheathing of the knife. Is this twisting it?

    nk (dbc370)

  2. Volokh has a much longer piece, with good-sized excerpts from the appeals court ruling. The bottom line is that it should have been up to a jury to decide the plausibility of Palin’s claims, not a federal judge. There’s at least enough out there to suggest that the Bennet & Co. were reckless, inexcusably so IMO.
    This doesn’t mean Palin will win in court, but at least she’ll get a fair hearing.

    Paul Montagu (35419a)

  3. Is this an exoneration take back?

    mg (8cbc69)

  4. Montagu (#2) —

    Reckless is the legal term. I prefer “willing to propagate a lie”.

    Appalled (d07ae6)

  5. I guess this indicates the times doesn’t read their own copy, but their recklessness, even six years later is something to behold, as a result she was subject to death threats, by idiots like titus, a stalker like mcguiness saw fit to draw a path to her back door, her family was attacked,

    narciso (d1f714)

  6. Another career bump for Tina Fey! Expect at lest a skit or guest hosting on SNL this autumn.

    DCSCA (797bc0)

  7. #6

    Palin is the day before yesterday’s news. I doubt she could even score a cabinet position in this administration. Tina is just going to have to find some other politician to spoof to get her mojo back. (Maybe she can do Mike Pence)

    Appalled (d07ae6)

  8. If you want to see some MSM spin, the NY Daily News headlined that the case was resurrected on a “technicality”, which is bulls**t.

    Paul Montagu (35419a)

  9. as sandmann’s is the most proximate target, the goal of the times was to suppress legitimate citizen political activism, whereas they front astroturf movements as genuine,

    narciso (d1f714)

  10. Questions to be answered one day:

    1., Should NYT v. Sullivan- and its “open season” on public figures- holding-survive the unique Civil Rights era facts that accounted for it.

    2. Has immunizing the media from liability for unbelievable sloppiness made decent people more likely or less likely to seek public office?

    3. Has it protected honest journalists, or just allowed media to become sloppy, and diffident about the truth?

    4. Does it require our elected officials to spend inordinate time defending themselves against attacks that perhaps never should have been made, or made more accurate?

    5. Does the license to smear every politician, and the resulting poorly sourced stories make the citizens more involved in major issues of the day? Or does it make them recoil from the stuff, and undermine the willingness of decent citizens to grapple with issues in the first place?

    6. Who is benefitted from this law that was not needed until 1964?

    7. Is our media better now than in 1963?

    Harcourt Fenton Mudd (6b1442)

  11. #11 This would make a great thread. Here’s an article addressing the issue:

    https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2295&context=journal_articles

    I don’t buy all of your assertions, but the advent of social media and its incitement of mobocracy does make one wonder a bit on whether our current libel law does the job of stopping malicious falsehood.

    Appalled (d07ae6)

  12. > Rakoff’s reliance on any facts outside of Palin’s original complaint was improper and grounds for reinstating Palin’s claim.

    seems like a pretty basic procedural rule that at summary judgment stage, allegations in the complaint are assumed to be true. if he’s right that the judge relied on facts outside the complaint to help determine if a claim had been stated, then the judge deserves to be overruled.

    aphrael (e0cdc9)

  13. 12: thanks for that!

    Harcourt Fenton Mudd (6b1442)

  14. Paul at 9: what is, or is not, a technicality? From what I can see, the decision was tossed on the grounds that a key procedural rule for summary judgment hearings wasn’t followed.

    “the proper procedure wasn’t followed and so we’re going to act on the procedural failure and not comment on the merits” strikes me as being *definitionally* a technicality.

    aphrael (e0cdc9)

  15. @15

    First of all this was not a summary judgment, it was a motion to dismiss the complaint, which is even more restrictive. For that kind of motion, you can only look at the allegations of the complaint, and anything the complaint writer relied on to bring it. (For example, you sue on a contract. The Court is allowed to read the contract when ruling on a motion to dismiss.)

    Second, the Court of Appeals made clear this was not amenable to summary judgment, as the evidence could be read either way, and that makes it a jury question. So the Times is not getting summary judgment, either.

    Bored Lawyer (998177)

  16. if he’s right that the judge relied on facts outside the complaint to help determine if a claim had been stated, then the judge deserves to be overruled.

    The judge held an evidentiary HEARING to rule on whether there was a claim stated. It’s not really something you can say “Ooops!” about. The judge should be censured.

    Kevin M (21ca15)

  17. DRJ’s link has the entire opinion.

    nk (dbc370)

  18. 6… as if anyone watches that show…

    Colonel Haiku (c49ed8)

  19. I said the same things the Court of Appeals said way back when.

    nk (dbc370)

  20. OT… hit Zion Canyon yesterday and just got back from the North Rim of the Grand Canyon today. It’s a religious experience, the natural beauty is simply breathtaking.

    Colonel Haiku (c49ed8)

  21. Col. H. — if you can manage your route to drive through Capitol Reef N.P. on Hwy 24, it’s a superb scenic drive.
    https://utah.com/scenic-drive/capitol-reef-national-park

    Stop at the Visitors’ Center & check out the tabletop representation of the phenomenal geography.
    https://www.nps.gov/care/index.htm

    ColoComment (89c82f)

  22. Thx, much!

    Colonel Haiku (c49ed8)

  23. From what I can see, the decision was tossed on the grounds that a key procedural rule for summary judgment hearings wasn’t followed.

    Then you could say that any violation of a rule that denies due process or a case to be heard is a “technicality”. It’s media spin and a backdoor way of saying that her claim was illegitimate, that she got away with the decision over some quirk in the law. And I’m saying this as a non-fan of Ms. Palin.

    Paul Montagu (35419a)

  24. The Court of Appeals ruled substantively on Palin’s complaint as well as on Rakoff’s jackassery. It said the complaint does state a cause and the case should proceed. Rakoff does not get a do-over on the motion to dismiss.

    And I do think that the “the able and highly experienced district judge” remark was a message that the Court of Appeals recognized that this was not an innocent mistake on the part of Rakoff, and that he was bending over for his tribe with full knowledge that it was illegal.

    nk (dbc370)

  25. Paul Montagu — conservatives have been complaining for years about criminals being let loose on technicalities like this. If the word technicality is appropriate in that context, why isn’t it appropriate in this context?

    aphrael (3f0569)

  26. …conservatives have been complaining for years about criminals being let loose on technicalities like this.

    I won’t speak for this unnamed blob of complaining “conservatives”. I can only speak for myself as a strongly-opinionated moderate conservative who reveres due process and the rule of law. And I reject the notion that it’s a mere “technicality” that allowed Ms. Palin the opportunity to present a plausible case before a jury. Also, I’ve said before that nk is smart, funny and formidable. If you won’t listen to me, listen to him, a guy who’s actually versed in the law (I think). The district court judge really effed it up.

    Paul Montagu (35419a)

  27. Aphrael — you seem to have the point of technicality backwards.

    The complaint about technicalities has to do with denying a full hearing in court on the merits. Everyone agrees that an accused criminal should have his day in court, and the State or the government have to prove he is guilty with strong evidence, beyond a reasonable doubt.

    “Technicalities,” in laymen’s terms, have to do with denying that chance to both sides. In the vast majority of cases, it is due to what is known as the exclusionary rule, which the country survived without for 150 years. Under that rule, the cops gathered evidence improperly, so we keep out the evidence and the would-be criminal gets off. The objections is, the court did not focus on the real question — did he do the crime — but on a different question, did the cops mishandle the evidence. As Cardozo, hardly a right wing zealot, famously put it, “the criminal is to go free because the constable has blundered.””

    In this case, in contrast, the procedural rules were used to DENY Palin her day in court. The judge decided to hold a hearing, decided the Times’ witness was credible, and dismissed her claim with prejudice, all without either discovery or a jury trial. That is not his function, as the Court of Appeals correctly ruled.

    The rules do allow judges to weed out plainly meritless claims before trial. If Palin had alleged libel because they called her a “ninny,” that would properly have been dismissed at a very early stage. But such dismissals are the exception — most of the time, you are entitled to a trial, on both civil and criminal cases.

    So, no, it’s not a technicality to say that Palin is entitled to her day in court, as is the Times. That is what, on a high level, the Court of Appeals decided.

    Bored Lawyer (998177)


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