Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 1 of 26

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------x
SARAH PALIN,

17-cv-4853 (JSR)
Plaintiff,
OPINION AND ORDER
-v-

THE NEW YORK TIMES COMPANY,

Defendant.

JED S. RAKOFF, U.S.D.J.

Nowhere is political journalism so free, so robust, or perhaps

so rowdy as in the United States. In the exercise of that freedom,

mistakes will be made, some of which will be hurtful to others.

Responsible journals will promptly correct their errors; others will

not. But if political journalism is to achieve its constitutionally

endorsed role of challenging the powerful, legal redress by a public

figure must be limited to those cases where the public figure has a

plausible factual basis for complaining that the mistake was made

maliciously, that is, with knowledge it was false or with reckless

disregard of its falsity. Here, plaintiff's complaint, even when

supplemented by facts developed at an evidentiary hearing convened

by the Court, fails to make that showing. Accordingly, the complaint

must be dismissed.

Background

In her one-count complaint filed on June 27, 2017, plaintiff

Sarah Palin, an acknowledged public figure, alleged that defendant

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The New York Times Company (the "Timesu) defamed her in an editorial

published on June 14, 2017, the defamatory statements in which were

not corrected until the next day. On July 14, 2017, the Times moved

to dismiss the complaint for failure to state a claim as a matter of

law, and the matter was promptly briefed by both sides.

On its face, the complaint plainly suffered from several

material deficiencies. For example, it failed to identify any

individual at the Times who allegedly acted with actual malice,

positing instead a kind of collective knowledge unrecognized by the

law in this area. But while the Court might have dismissed the

complaint on such grounds, the editorial in question was signed by

"The Editorial Boardu of the Times, and in such a situation the

Court believed it could not carry out its prescribed role of

ascertaining whether the numerous allegations in the complaint to

the effect that "the Timesu knew this, or intended that, could, when

taken most favorably to the plaintiff, be attributed to a specific

individual or individuals without the Court's knowing a modicum of

factual background. Accordingly, the Court ordered a brief

evidentiary hearing on August 16, 2017 to ascertain who was (or

were) the author(s) of the offending statements and other basic

facts that would provide the context for assessing the plausibility

or implausibility of the complaint's allegations.i

By requiring district courts to make plausibility determinations

based on the pleadings, see Ashcroft v. Igbal, 556 U.S. 662 (2009)
and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme
Court has, in effect, made district courts gatekeepers. Evaluating
plausibility is "a context-specific task,u Igbal, 556 U.S. at 679,
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Although, therefore, if the Court were to solely limit its

evaluation to the face of the complaint, it would readily grant the

motion to dismiss, the Court has in5tead evaluated the plausibility

of the complaint in light of such background facts developed during

the evidentiary hearing that, as shown by the parties' post-hearing

briefs, were either undisputed (at least for purposes of the instant

motion) or, where disputed, are taken most favorably to plaintiff.

In brief, the pertinent factual allegations are as follows:

On the morning of June 14, 2017, James Hodgkinson opened fire

on members of Congress and current and former congressional aides

playing baseball at a field in Virginia. Complaint ("Compl.") ~ 2,

ECF No. l; Transcript of Aug. 16, 2017 Hearing ("Tr.") at 4:22. That

same day, Elizabeth Williamson, an editorial writer at the Times,

because a court must have some knowledge of the context in which the
underlying events occurred in order to carry out the function with
which the Supreme Court has tasked it. Thus, the Court here convened
a hearing pursuant to Rule 43(c) of the Federal Rules of Civil
Procedure, which provides that "When a motion relies on facts
outside the record [as the instant motion does in effect by arguing
that the allegations of the complaint are in context implausible],
the court may hear the matter on affidavits or may hear it wholly or
partly on oral testimony or on depositions." Although such a hearing
was somewhat unusual, neither party at any point objected to the
Court's holding the hearing or to the Court's considering (at least
for the limited purpose of deciding this motion) such facts there
developed that are not in dispute. See Transcript of Aug. 16, 2017
Hearing ("Tr.") at 72:15-25; Pl.'s Memo. of Law on Context,
Inferences and Plausibility at 1-2, ECF No. 40 ("Memo. on
Plausibility"); Def.'s Supp. Mem. in Further Support of its Mot. to
Dismiss the Complaint ("Mem. in Further Support of Mot. to Dismiss")
at 1, 4-8, ECF No. 42. As to any disputed fact, however, the Court,
as it advised the parties at the hearing, makes no credibility
determinations, Tr. at 74:1-3, and takes those facts most favorably
to plaintiff.

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proposed that the Times editorial board write a piece about the

shooting.; Tr. at 4:22-24, 5:13, 7:17. Before she began writing,

James Bennet - the Times' editorial page editor, id. al 3;24 - ct::oked

Ms. Williamson to look at editorials the Times had previously

published in the aftermath of a January 7, 2011 attack carried out

by Jared Lee Loughner at a political event in Tucson, Arizona. See

id. at 6:5-9, 60:17-18; Compl. ~ 1. In this shooting spree, Loughner

shot nineteen people, severely wounding United States Congresswoman

Gabrielle Giffords and killing six others, including Chief U.S.

District Court Judge John Roll and a nine-year-old girl. Compl. ~ 1.

Mr. Bennet asked a researcher to send Ms. Williamson these

editorials, which the researcher did, copying Mr. Bennet. Tr. at

3
36:14-17, 37:8-13, 61:3-7.

Shortly following Loughner's attack, speculation arose about a

connection between the crime and plaintiff Palin. Compl. ~ 24. This

speculation focused on a map (the "SarahPAC Map") circulated by

plaintiff's political action committee, SarahPAC, prior to the

" Ms. Williamson was not available to testify at the time of the
hearing on August 16, 2017. See Tr. at 72:1-3. After Mr. Bennet's
testimony was completed, the Court advised the parties that it now
saw no need to call Ms. Williamson, unless either party wanted to do
so. Id. at 73:1-3. The Times immediately declared that it saw no
such need. Id. at 72:5-7. The Court then advised plaintiff that if
she would like to call Ms. Williamson as a witness, plaintiff should
file a letter with the court by no later than August 17, 2017 at
5:00 pm. Id. at 73:4-7. Plaintiff chose not to submit such a letter.

j At the request of plaintiff, and with no objection from defendant,

these editorials were furnished to plaintiff subsequent to the
evidentiary hearing but prior to post-hearing briefing by the
parties. See Tr. at 72:8-12; 79:3-80:1.
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shooting. Id. ~~ 24, 45. The map depicted stylized crosshairs placed

over the geographic locations of congressional districts that

Republicans were targeting in an upcoming election, including

Representative Gabrielle Giffords' district, as well as photos

(below the map) of the incumbent Democrats. See Deel. of Jay Ward

Brown, Esq. in Support of Def.'s Mot. to Dismiss the Complaint

("Brown Deel.") Ex. D, ECF No. 26-4. In the end, however, articles

published in the Times and elsewhere stated that no such connection

had been established between the circulation of the SarahPAC Map and

the Loughner shooting. See, ~, Compl. ~~ 42-46 (describing such

articles).

Ms. Williamson sent a first draft of the editorial to Mr.

Bennet around 5:00 pm on June 14. Tr. at 6:16-19; Court's Hearing

Exhibit 1. The original draft stated, in relevant part, that "[n]ot

all the details [of the Hodgkinson shooting] are known yet, but a

sickeningly familiar pattern is emerging: a deranged individual with

a gun - perhaps multiple guns - and scores of rounds of ammunition

uses politics as a pretense for a murderous shooting spree .... Just

as in 2011, when Jared Lee Loughner opened fire in a supermarket

parking lot, grievously wounding Representative Gabby Giffords and

killing six people, including a nine year-old girl, Mr. Hodgkinson's

rage was nurtured in a vile political climate. Then, it was the pro-

gun right being criticized: in the weeks before the shooting Sarah

Palin's political action committee circulated a map of targeted

electoral districts that put Ms. Giffords and 19 other Democrats

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under stylized crosshairs." Court's Hearing Ex. 1. The word

"circulated" was highlighted as above in the manner indicating that

hyperlink would take the reader to an ABC News article published the

day after Loughner's attack, which stated, inter alia, that "[n]o

connection has been made between [the SarahPAC Map] and the Arizona

shooting." Brown Deel. Ex. C at 1, ECF No. 26-3.

After receiving Ms. Williamson's draft, Mr. Bennet "effectively

rewr[o]te the piece." Tr. at 8:25; compare Court's Hearing Ex. 1

(original draft) with Compl. Ex. 1 (original published version). Mr.

Bennet's revised version of the editorial was published online on

the evening of June 14, 2017 and in print on June 15, 2017 under the

title "America's Lethal Politics." Compl. <Jl<Jl 3, 32-33. The two

paragraphs here relevant read as follows:

Was this attack [by Hodgkinson] evidence of how

vicious American politics has become? Probably.
In 2011, when Jared Lee Loughner opened fire in
a supermarket parking lot, grievously wounding
Representative Gabby Giffords and killing six
people, including a 9-year-old g ir 1, the 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 19 other
Democrats under stylized cross hairs.

Conservatives and right-wing media were quick on

Wednesday to demand forceful condemnation of
hate speech and crimes by anti-Trump liberals.
They' re right. Though there's no sign of
incitement as direct as in the Giffords attack,
liberals should of course hold themselves to the
same standard of decency that they ask of the
right.

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Id. Ex. 1 at 2; id. ~ 3. The published version of the editorial

retained the hyperlink to the ABC News article. See Def.'s Memo. of

Law in Support of its Mot. to Dismiss the Compl. ("Mot. Lo Dismiss")

at 3 n.5, ECF No. 25.

However, within a day or so of publication, the Times twice

revised (and corrected) the text of the editorial, Compl. ~~ SO-S2,

and separately also issued two corrections online beginning on or

about 11:15 am on June 15, id. ~~ S2, SS, Tr. at 30:9-17. The

corrections were also in the print editions of the Times on June 16.

Compl. ~ 63. Specifically, the Times revised the editorial text

online by deleting the phrases "the link to political incitement was

clear" and "[t]hough there's no sign of incitement as direct as in

the Giffords attack," and adding the sentence "But no connection to

that crime was ever established." Id. ~~ Sl-52. As to the

corrections, published both online and in print, the first

correction read: "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." Id. ~ S2. The second correction read: "An editorial on

Thursday about the shooting of Representative Steve Scalise

incorrectly stated that a link existed between political rhetoric

and the 2011 shooting of Representative Gabby Giffords. In fact, no

such link was established. The editorial also incorrectly described

a map distributed by a political action committee before that

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shooting. It depicted electoral districts, not individual Democratic

lawmakers, beneath stylized crosshairs." Id. ~~ 55, 63.

Despite these corrections, plaintirt, less Lt1an three weekB

later, filed the instant complaint alleging that the Times defamed

her by including within the original version of the editorial the

subsequently-corrected errors. Id. ~ 37. As noted, the Times then

promptly moved to dismiss the complaint. The motion was fully

briefed by both sides, and the Court heard oral argument, after

which it convened the aforementioned evidentiary hearing. The

hearing was followed, in turn, by still more briefing. As a result,

the motion is now fully ripe for decision.

Discussion

On a motion to dismiss, the Court accepts all well-pleaded

factual allegations as true and draws all reasonable inferences in

favor of the non-moving party. See Goldstein v. Pataki, 516 F.3d 50,

56 (2d Cir. 2008). However, conclusory allegations are not entitled

to be assumed true. Ashcroft v. Igbal, 556 U.S. 662, 680-681 (2009)

Moreover, to survive a motion to dismiss, a complaint must contain

"enough facts to state a claim for relief that is plausible on its

face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Additionally, in a defamation case, these standards must be

applied consistently with the First Amendment protections famously

put forward in New York Times v. Sullivan, 376 U.S. 254 (1964) and

its progeny. Thus, in "defamation cases, Rule 12(b) (6) not only

protects against the costs of meritless litigation, but provides

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Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 9 of 26

assurance to those exercising their First Amendment rights that

doing so will not needlessly become prohibitively expensive." Biro

v. Conde Nast, \jbj t'. supp. Zd 2'.J'.J, 279 (:S.D.N.Y. 2013); ;see ctL:Ju

Michel v. NYP Holdings, Inc., 816 F.3d 686, 702 (11th Cir. 2016)

("[A]pplication of the plausibility pleading standard makes

particular sense when examining public figure defamation suits. In

these cases, there is a powerful interest in ensuring that free

speech is not unduly burdened by the necessity of defending against

expensive yet groundless litigation.").

As noted, the complaint here alleges, in a single count, the

tort of defamation. "Defamation is the injury to one's reputation

either by written expression, which is libel, or by oral expression,

which is slander." Idema v. Wager, 120 F. Supp. 2d 361, 365

(S.D.N.Y. 2000) (citing Morrison v. Nat'l Broad. Co., 19 N.Y.2d 453,

458 (1967)). The specific elements of this tort are set forth in

4
applicable state law, here the law of New York. "Under New York law,

a plaintiff must establish five elements to recover in libel: 1) a

written defamatory statement of fact concerning the plaintiff; 2)

publication to a third party; 3) fault (either negligence or actual

malice depending on the status of the libeled party); 4) falsity of

the defamatory statement; and 5) special damages or per se

"'The parties' briefs assume that New York law controls, and such
implied consent . is sufficient to establish choice of law.'"
Chau v. Lewis, 771 F.3d 118, 126 (2d Cir. 2014) (quoting Krumme v.
WestPoint Stevens Inc., 238 F. 3d 133, 138 (2d Cir. 2000)).

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actionability (defamatory on its face)." Celle v. Filipino Reporter

Enterps. Inc., 209 F.3d 163, 176 (2d Cir. 2000).

As to the third element, pla1ntirr, becctu~e ~he 1~ a pu~llc

figure," must under federal law "surmount a much higher barrier" and

establish by clear and convincing evidence that the Times acted with

"actual malice," that is, with knowledge that the statements were

false or with reckless disregard of their falsity. Philadelphia

Newspapers, Inc. v. Hepps, 475 U.S. 767, 773, 775 (1986). "Though a

state-based cause-of-action, the elements of a libel action are

heavily influenced by the minimum standards required by the First

Amendment." Celle, 209 F.3d at 176.

In its pending motion, the Times advances three bases for

dismissing the Complaint: first, that the challenged statements are

not "of and concerning" plaintiff; second, that the challenged

statements are not provably false; and third, that plaintiff has not

adequately plead actual malice. See Mot. to Dismiss at 1. The Court

considers each in turn:

1. Whether the Statements are "Of and Concerning" Mrs. Palin

For purposes of the law of defamation, statements alleged to be

defamatory are "of and concerning" a plaintiff where "'the allegedly

defamatory content refer[s] to the plaintiff' such that those

knowing the plaintiff 'understand that [she] was the person meant.'"

0
Plaintiff does not dispute that she is a public figure. See, ~'
Pl.'s Memo. of Law in Opp. to Def.'s Mot. to Dismiss ("Memo. in
Opp.") at 14, ECF No. 29; Compl. ~~ 14-18 (describing plaintiff as a
public figure and former public official)
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Gilman v. Spitzer, 538 F. App'x 45, 47 (2d Cir. 2013) (quoting Brady

v. Ottaway Newspapers, Inc., 84 A.D.2d 226, 228 (1981) and Geiser v.

is "of and concerning" a plaintiff if it "could have been understood

by a reasonable reader as being, in substance, actually about" the

plaintiff. Kirch v. Liberty Media Corp., 449 F.3d 388, 399 (2d Cir.

2006) (emphasis in original).

Here, the editorial in issue stated that "Sarah Palin's

political action committee" circulated the SarahPAC Map. Compl. Ex.

1 at 2 (emphasis added). The Times argues that plaintiff's claim of

defamation is "directed" at plaintiff's political action committee,

SarahPAC, and not plaintiff herself. Mot. to Dismiss at 6-10. "Under

the group libel doctrine, a plaintiff's claim is insufficient if the

allegedly defamatory statement referenced the plaintiff solely as a

member of the group." Church of Scientology Int'l v. Time Warner,

Inc., 806 F. Supp. 1157, 1160 (S.D.N.Y. 1992), aff'd sub nom Church

of Scientology Int' 1 v. Behar, 238 F.3d 168 (2d Cir. 2001).

However, the group libel doctrine is inapplicable where, as

here, "'the circumstances of the publication reasonably give rise to

the conclusion that there is a particular reference to the member.'"

Id. (quoting Restatement (Second) of Torts 564A(b)). Three

circumstances permit the inference that the challenged statements

would be understood by a reasonable reader as being about plaintiff

in particular. First, the political action committee is not

mentioned by name. Second, plaintiff is referenced by name. Third,

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the reference describes plaintiff's relationship to the political

action committee as possessive ("Sarah Palin's political action

other members of the group," the Court finds, for purposes of this

motion to dismiss, that the allegedly defamatory statements are of

and concerning plaintiff. Three Amigos SJL Rest., Inc. v. CBS News

Inc., 15 N.Y.S.3d 36, 41 (N.Y. App. Div. 2015), aff'd 28 N.Y.3d 82

(2016) ."

2. Whether the Statements are Provably False

Falsity is a necessary element of a defamation action. Buckley

v. Littell, 539 F.2d 882, 889-894 (2d Cir. 1976); Gross v. New York

Times Co., 82 N.Y.2d 146, 152-153 (1993). Therefore, "a statement of

opinion relating to matters of public concern which does not contain

a provably false factual connotation will receive full

constitutional protection." Milkovich v. Lorain Journal Co., 497

U.S. 1, 20 (1990). Here, however, although the offending paragraphs

quoted above contain various assertions of opinion, a reasonable

reader could well view them as asserting that there was a "direct"

"link" between the SarahPAC Map and the Loughner shooting. Indeed,

according to Mr. Bennet's testimony, it was the receipt by the Times

of communications from readers complaining about such an assertion

0
Although the Second Circuit stated in 2001 that the "of and
concerning" requirement should "ordinarily be decided at the
pleading stage," Church of Scientology Int'l v. Behar, 238 F.3d 168,
173 (2d Cir. 2001), it is not clear to this Court that this would
have prevented the Times from litigating this issue at trial as a
mixed issue of law and fact if the case had survived the motion to
dismiss.
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that led Bennet to order the corrections thereafter made. See Tr. at

27:9-30:8.

If these readers were reasonably reading the sentences here al

issue to suggest that, as a factual matter, distribution of the

SarahPAC Map was directly causally linked to Loughner's shooting,

then, as even the Times appears to concede, that is a factual

statement that can be proved false, and, according to the complaint,

has already been so proven, since, among other things, there is no

evidence that Loughner ever saw the SarahPAC Map. Compl. ~ 47. But

even if, on the Times' somewhat strained reading, the statements

here at issue should be read to suggest no more than that the

SarahPAC Map helped foster "political incitement" (albeit seemingly

directed at the specified incumbents), which in turn was

"direct[ly]" and "clearly" linked to Loughner's shooting, these are

still factual assertions that can be demonstrated to be false and,

according to the complaint, were made in reckless disregard of their

falsity. Id. ~~ 25, 47-48.

As to the first assertion, that circulation of the SarahPAC Map

helped foster political incitement, this is akin to the kind of

factual assertion that juries in effect have to resolve regularly in

false advertising cases that assess the effect of a given

advertisement on consumers. See Johnson & Johnson * Merck Consumer

Pharm. Co. v. Smith Kline Beecham Corp., 960 F.2d 294, 297-298 (2d

Cir. 1992); Mylan Pharm., Inc. v. Proctor & Gamble Co., 443 F. Supp.

2d 453, 459-460 (S.D.N.Y. 2006). As to the second assertion, that

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the political incitement directed at the incumbents was directly

linked to Loughner's shooting, the Times argues that this is really

claims, can never be proved false. See Mot. to Dismiss at 10-12

("What motivated or influenced Loughner is unknown - even by him.")

But, as the courts have so often noted, "the state of a man's mind

is as much a fact as the state of his digestion," Siegelman v.

Cunard White Star Ltd., 221 F.2d 189, 198 (2d Cir. 1955), though

such mental states are often proved or disproved circumstantially.

Indeed, the Times itself stated in its published correction that "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." Compl. 11 58; see also id. 11 58 ("We got an important

fact wrong, incorrectly linking political incitement and the 2011

shooting of Giffords. No link was ever established."). As this very

statement suggests, the link in question can, as a factual matter,

either be "established," i.e., proved, or disproved.

That the offending statements appeared in an editorial, which

by its nature presents an overall opinion or opinions, is relevant,

but hardly dispositive. See Brian v. Richardson, 87 N.Y.2d 46, 52

(1995). Unlike statements in cases relied upon by the Times that

voiced editorial opinions about connections that "appeared to be" or

"could well happen," see, ~' Immuno v. Moor-Jankowski, 77 N.Y.2d

235, 255 (1991), the statements here complained of stated

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unequivocally that there was a "direct" and "clear" link between the

SarahPAC Map and the Loughner shooting, albeit a link created by

_lflLE:CLmeU_LdL_l!llj --f:JU_l_LL_l<..;al _lJJL-1LClllCl!L.,, I'l. L\._;LlOUllUL1-c..: 1-L-UJL,j_ vvulJ

well infer that the Times was in possession of objective evidence

that the SarahPAC Map incited Mr. Loughner's shooting, whereas,

according to the complaint, the Times had no evidence of either a

direct or indirect link.

In short, some or all of the statements here at issue are fact-

laden statements that can be proven false, and the complaint

adequately alleges evidence sufficient to enable a reasonable juror

to find them false if the juror so chose."

3 . Actual Malice

Public figures who seek damages for defamatory statements must,

however, do more than prove that the statements about them were

false. They must also prove by "clear and convincing evidence" that

the statements were made with "actual malice" - that is, with

knowledge that the statements were false or with reckless disregard

as to their falsity. Sullivan, 376 U.S. at 279-280; Masson v. New

Yorker, 501 U.S. 496, 508 (1991); Biro v. Conde Nast, 807 F.3d 541,

7
Plaintiff also argues that still another false statement in the
editorial was the statement that the SarahPAC Map "put Ms. Giffords
and 19 other Democrats under stylized cross hairs," when in fact, as
the Times' second correction noted, it was the geographic districts
of the incumbents that were placed under the cross hairs. However,
this misstatement was authored by Ms. Williamson, not Mr. Bennet
(who testified that he never saw the SarahPAC Map, Tr. 21:5-9), id.
20:6-16, and plaintiff has presented no material evidence that Ms.
Williamson acted with actual malice, and, indeed, plaintiff declined
the Court's invitation to have Ms. Williamson testify.
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544-545 (2d Cir. 2015). Reckless disregard can be established by

"evidence of an intent to avoid the truth," Harte-Hanks Comrns., Inc.

v. connaugnton, 4'.11 u.o. G:J7, usi:i (1:70:7), c..:vlclc:11Gc.: LLuL LL'-'

defendant "entertained serious doubts as to the truth of his

publication," St. Anant v. Thompson, 390 U.S. 727, 731 (1968), or

evidence that the defendant acted with a "high degree of awareness

of [a statement's] probable falsity," Garrison v. State of

Louisiana, 379 U.S. 64, 74 (1964). See Dongquk Univ. v. Yale Univ.,

734 F.3d 113, 124 (2d Cir. 2013). But even then, a defamation

complaint by a public figure must allege sufficient particularized

facts to support a claim of actual malice by clear and convincing

evidence, or the complaint must be dismissed.

Here, as already mentioned, the complaint fails on its face to

adequately allege actual malice, because it fails to identify any

individual who possessed the requisite knowledge and intent and,

instead, attributes it to the Times in general. This will not

suffice. "When there are multiple actors involved in an

organizational defendant's publication of a defamatory statement,

the plaintiff must identify the individual responsible for

publication of a statement, and it is that individual the plaintiff

must prove acted with actual malice." Donqguk Univ., 734 F.3d at

123; see Sullivan, 376 U.S. at 287 ("[T]he state of mind required

for actual malice would have to be brought home to the persons in

the [defendant's] organization having responsibility for the

publication of the [statement].")

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Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 17 of 26

But even assuming, in light of the evidentiary hearing, that

the complaint should now be construed as asserting actual malice on

Lile j-.JC!LL UL l"1L. Llt:Jlllt:L - Lile j-.JL1-lllctLy, j__[ llUL ;:;ult: ClULl!UL UL Lile

sentences in question and the Times' editorial page editor -

plaintiff still fails to meet the actual malice standard. That

standard is grounded in "a profound national commitment to the

principle that debate on public issues be uninhibited, robust, and

wide-open, and that it may well include vehement, caustic, and

sometimes unpleasantly sharp attacks on government and public

officials." Sullivan, 376 U.S. at 270. Sullivan and succeeding cases

"have emphasized that the stake of the people in public business and

the conduct of public officials is so great that neither the defense

of truth nor the standard of ordinary care would protect against

self-censorship and thus adequately implement First Amendment

policies." St. Amant, 390 U.S. at 731-732. "[S]peaking out on

political issues is a core freedom protected by the First Amendment

and probably presents the 'strongest case' for applying 'the New

York Times [v. Sullivan] rule.'" Schatz v. Republican State

Leadership Comm., 669 F.3d 50, 51 (1st Cir. 2012) (quoting Harte-

Hanks, 491 U.S. at 666 n. 7, 686-687)).

Coupling this protective overlay with the more technical

requirement that a public figure, in order to survive a motion to

dismiss a claim of defamation, must allege specific facts that

plausibly evidence actual malice in a clear and convincing manner,

it is plain that plaintiff has not and cannot meet this standard,

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Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 18 of 26

even with the benefit of the facts brought forth by the evidentiary

hearing. n

lU )-JUL Lile llldLLC.L o_i_lll]:-'ly, LlCilllC.:L Llo L.l1c:: u11U..iu,l:JUL1.._.U L1.._.uL_i_llLu11y

shows - wrote the putatively offending passages of the editorial

over a period of a few hours and published it very soon thereafter.

Shortly after that, his mistakes in linking the SarahPAC Map to the

Loughner shooting were called to his attention, Tr. 27:8-17, and he

immediately corrected the errors, not only in the editorial itself

but also by publishing corrections both electronically and in print,

Tr. 28:19-29:10; Compl. ~~ 50-55, 63. Such behavior is much more

plausibly consistent with making an unintended mistake and then

correcting it than with acting with actual malice.

Plaintiff's response is, first, to posit that the Times in

general, and Mr. Bennet in particular, had a motive to defame Mrs.

Palin. As to the Times in general, the complaint alleges that "there

is existing hostility toward Mrs. Palin" and "her name and attacks

upon her inflame passions and thereby drive viewership and Web

clicks to media companies." Compl. ~ 30. As to the alleged

"hostility," it goes without saying that the Times editorial board

is not a fan of Mrs. Palin. But neither the fact of that opposition,

nor the supposition that a sharp attack on a disfavored political

figure will increase a publication's readership, has ever been

'For these purposes only, the Court has taken as true plaintiff's
interpretation of the evidence that emerged at the evidentiary
hearing, on the supposition that plaintiff could amend her complaint
to include such a gloss.
18
Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 19 of 26

enough to prove actual malice. See, ~, Harte-Hanks, 491 U.S. at

665 ("[A] newspaper's motive in publishing a story - whether to

cannot provide a sufficient basis for finding actual malice."). For

"it is hardly unusual for publications to print matter that will

please their subscribers; many publications set out to portray a

particular viewpoint or even to advance a partisan cause. Defamation

judgments do not exist to police their objectivity." Reuber v. Food

Chem. News, Inc., 925 F.2d 703, 716 (4th Cir. 1991).

Here, moreover, as previously noted, it is not the Times'

collective knowledge and intent that is relevant but rather Mr.

Bennet's. As to hostility, the best that plaintiff can muster is

that Mr. Bennet has a long association with liberal publications and

that his brother is the Democratic senator from Colorado who was

endorsed by Congresswoman Giffords' political action committee in

his 2016 election and whose opponent was endorsed by Mrs. Palin in

that same election. Tr. at 34:17-19, 68:20-22, 70:24-71:17; see also

Memo. on Plausibility at 5-6 & n.22. If such political opposition

counted as evidence of actual malice, the protections imposed by

Sullivan and its progency would swiftly become a nullity.

As for the alleged economic motive, there is not a shred of

factual support, either in the complaint or in the evidentiary

hearing, for the supposition that considerations of attracting

readership ever entered Mr. Bennet's mind when he was drafting this

particular editorial. Indeed, if that were his goal, one would have

19
Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 20 of 26

expected him to mention Mrs. Palin's name more than once in the

editorial or use her name in the social media promoting the

eU_l_ LUL _l_d_l_, JJC:_l_ Lllt::.L U.L WILLl;]J W0:5 UUllC. occ t,_;urnpl. LAO. i, l (j.

In her complaint, plaintiff also relies on her allegations that

the Times cited "no source" for the challenged statements and failed

to conduct an adequate investigation into their veracity,

allegations that plaintiff now suggests apply to Mr. Bennet as well.

Memo. in Opp. at 16-19; Transcript of July 31, 2017 Hearing at

19:20; Memo. on Plausibility at 8-10. As to the Times in general,

this allegation is undercut by the fact that the original draft of

the editorial that Ms. Williamson sent Mr. Bennet, as well as the

version published, included a hyperlink to an article that described

in some detail the SarahPAC Map and its circulation and concluded

that there was no proven link between that circulation and the

Loughner shooting. Tr. at 20:6-25; Compl. Ex. 1 at 2; Brown Deel.

Ex. C (ABC News article). "The hyperlink is the twenty-first century

equivalent of the footnote for purposes of attribution in defamation

law." See Adelson v. Harris, 973 F. Supp. 2d 467, 484 (S.D.N.Y.

2013). The inclusion of this article through the hyperlink shows,

first, that the Times did do some research before publishing the

editorial (despite the very limited time available) and, second,

that the allegation of actual malice is even more improbable because

the Times included as a hyperlink an article undercutting its own

conclusions.

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Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 21 of 26

Once again, however, it is Mr. Bennet's knowledge and intent

that are ultimately at issue so far as actual malice is concerned,

article when rewriting the editorial nor do any further

investigation of his own (though he was copied on a communication

sent by the researcher that he had directed to find and examine

prior Times editorials regarding Mrs. Palin and the Loughner

shooting). See Tr. at 20:20-21:14, 61:3-7. But it is well-

established that supposed research failures do not constitute clear

and convincing evidence of actual malice, even of the "reckless"

kind. Indeed, in Sullivan itself, the Supreme Court recognized that

the editorial advertisement there at issue contained facts

contradicted by earlier news stories printed in the New York Times.

376 U.S. at 287. The Court held that the existence of these prior

stories did not establish actual malice in part because failure to

investigate "supports at most a finding of negligence in failing to

discover the misstatements." Id. at 288.

Similarly, failure to comply with journalistic policies - which

the complaint here also alleges, although in wholly conclusory

fashion, Compl. ~~ 69-72 - cannot establish actual malice absent

allegations supporting an inference of reckless disregard. See,

~' Harte-Hanks, 491 U.S. at 665 ("[A] public figure plaintiff

must prove more than an extreme departure from professional

standards" to demonstrate actual malice).

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Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 22 of 26

Alternatively, plaintiff argues that Bennet actually knew, or

recklessly disregarded, that his editorial statements were false,

Bennet was editor-in-chief for many years) that he presumably read

and that disclaimed any link between the SarahPAC Map and the

Loughner shooting. At the evidentiary hearing, Bennet testified

that he did not remember reading any of these articles or, if he did

read them when they appeared years earlier, he did not have them in

mind when he wrote the editorial. Tr. 21:19-22:3, 22:22-26:3, 58:14-

67:14. Plaintiff's position is that either Mr. Bennet, contrary to

his testimony, read and remembered these sources, in which case he

knew the challenged statements were false, or else, consistent with

his testimony, he did not read and/or remember these sources, in

which case he acted with willful blindness in publishing the

editorial. See Memo. on Plausibility at 5-9; Memo. in Opp. at 17-19.

But these kinds of lawyers' arguments do not substitute for the

requisite factual showing. The fact is that all these articles

appeared years earlier, and there is no reason to suppose that, even

if Bennet had read them at the time, he would necessarily remember

their conclusions, especially since, as the complaint itself notes,

there were also articles that appeared shortly after the Loughner

shooting that drew contrary conclusions. Compl. ~ 24. As the Supreme

Court stated in Sullivan, "The mere presence of stories in the

files does not, of course, establish that the Times 'knew' the

[publication at issue] was false." 376 U.S. at 287.

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Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 23 of 26

Plaintiff argues, however, that Bennet's failure, at the very

time he was preparing the editorial, to read either the hyperlinked

evidence of reckless disregard. As for the hyperlinked article,

however, the inclusion of the article along with the editorial cuts

against any inference of actual malice. If Bennet purposely failed

to read it because he knew it would undercut his thesis, why would

he not have removed the hyperlink, which he had full power to do.

See Tr. 22: 11-15 (no "substantive changes" were made to the

editorial following Bennet's work on it, and he "authorized

publication of the editorial") .

As for the editorials emailed to Ms. Williamson and copied to

Mr. Bennet by the Times' researcher, Bennet knew by the time he

rewrote the editorial that Ms. Williamson had likely reviewed them,

so there was little incentive for him to read them as well. See Tr.

60:1-9. Plaintiff claims that, if Bennet had read them, he would

have seen that at least two of them contradicted his erroneous

statements. See Memo. on Plausibility at 6. But this is doubly

wrong: it does not matter what they contained unless his failure to

read them reasonably suggests reckless disregard, which it does not;

and, in any event, they do not contradict his thesis nearly as much

as plaintiff suggests.

The first article, Bloodshed and Invective in Arizona, states

in relevant part:

23
Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 24 of 26

Jared Loughner . appears to be mentally ill.

It is facile and mistaken to attribute
this particular madman's act directly to
Republicans or Tea Party members. But it is
leylLlllLClLt::: LU !1ulLl r\C:l:-JUUllLUllu UllU l-'Ll.L Llc.,ulu.L l y

their most virulent supports in the media

responsible for the gale of anger that has
produced the vast majority of these threats,
setting the nation on edge.

Memo. on Plausibility Ex. 29. The second article, an op-ed by Frank

Rich entitled No One Listened To Gabrielle Giffords, states in

pertinent part:

Did Loughner see Palin's own most notorious

contribution to the rancorous tone her March
2010 Web graphic targeting Congressional
districts? We have no idea - nor does it matter.
That Loughner was likely insane, with no
coherent ideological agenda, does not mean that
a climate of antigovernment hysteria has no
effect on him or other crazed loners out there.

Id. Ex. 33.

As is evident, both articles contain some language tending to

corroborate parts of the challenged statements. For example, Frank

Rich's piece stated that even if Mr. Loughner was insane, that "does

not mean that a climate of antigovernment hysteria has no effect on

him." Id. And the other editorial indicates that people (not

including the author) had drawn a connection between the SarahPAC

Map and Mr. Loughner's shooting. Id. Ex. 29. So Bennet, even if he

had read these articles (which he claims he did not), would not

automatically have been led to conclude that his editorial was

erroneous.

24
Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 25 of 26

The Court has considered plaintiff's other alleged evidence of

actual malice and finds it too inconsequential to be worth further

of supposed evidence of actual malice discussed above, even if

individually insufficient to support an inference of actual malice,

are collectively sufficient to support an inference of actual

malice. But, as the foregoing discussion demonstrates, each and

every item of alleged support for plaintiff's claim of actual malice

consists either of gross supposition or of evidence so weak that,

even together, these items cannot support the high degree of

particularized proof that must be provided before plaintiff can be

said to have adequately alleged clear and convincing evidence of

actual malice.

We come back to the basics. What we have here is an editorial,

written and rewritten rapidly in order to voice an opinion on an

immediate event of importance, in which are included a few factual

inaccuracies somewhat pertaining to Mrs. Palin that are very rapidly

corrected. Negligence this may be; but defamation of a public figure

it plainly is not.

For the foregoing reasons, the Court grants defendant's motion

to dismiss. Because, moreover, this Court has canvassed in the

discussion above all the various additions that plaintiff has even

remotely suggested it would include in an amended complaint, the

dismissal is ~with prejudice," that is, final. Clerk to enter

judgment.

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Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 26 of 26

SO ORDERED.

Dated: New York, NY

August 29, 2017

26