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On Palin Judge Rakoff Rules For NYT Citing New NY Anti SLAPP Law on Malice

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, Dec 29 – In the ocase of Sarah Palin versus New York Times and James Bennet, on July 24 U.S. District Court for the Southern District of New York Judge Jed S. Rakoff held oral arguments. Inner City Press live tweeted them, below.

 On August 28, Judge Rakoff issued an order denying summary judgment and finding, inter alia, that "there "there is sufficient evidence to allow a rational finder of fact to find actual malice [by NYT / Bennet] by clear & convincing evidence." So, trial Feb 1, 2020. Inner City Press will cover it - having previously reported Judge Rakoff jokingly perhaps offering that time slot to a criminal case and saying, Ms. Palin may just have to wait.

On November 25, the NYT and Bennet filed notice of motion to seek reconsideration in light of NYS' after-arising anti-SLAPP law.

  And now on December 29, Judge Rakoff has ruled for the NYT under this new law, saying Palin could not reasonably rely on US Supreme Court precedents being overruled: "Now before the Court is defendants’ motion, pursuant to Federal Rule of Civil Procedure 54(b), for an order modifying the Opinion to reflect the fact that on November 10, 2020, New York amended its “anti-strategic litigation against public participation” (“anti-SLAPP”) law to expressly require that public figures prove actual malice by clear and convincing evidence. Dkt. No. 120. Plaintiff opposes. Dkt. No. 123. For the reasons set forth below, the motion is granted. ...To the extent plaintiff invokes such a reliance interest, her claim would seem to be that, in first bringing this lawsuit in 2017, she relied on the prospect that the Supreme Court would overturn New York Times Co. v. Sullivan and allow her to recover damages without a showing of actual malice. While courts might, in some contexts, credit the “objectively reasonable reliance on binding appellate precedent,” cf. Davis v. United States, 564 U.S. 229, 231 (2011), there is no case law or principle of constitutional adjudication that would credit a litigant’s wishful reliance on the prospect that binding appellate precedent will one day be overturned. If anything, the retroactive application of § 76-a will protect the reliance interests of defendants, who published the Editorial in a media landscape long-governed by the actual malice rule, against possible changes of constitutional law at the federal level. For the foregoing reasons, defendants’ motion is granted. The Court holds that N.Y. Civil Rights Law § 76-a, as amended on November 10, 2020, applies to this action and requires plaintiff, Case 1:17-cv-04853-JSR Document 125 Filed 12/29/20 Page 12 of 13 -13- as a matter of state law, to prove by clear and convincing evidence what she had already been tasked with establishing under the federal Constitution: that defendants made the allegedly defamatory statements in the Editorial “with knowledge of [their] falsity or with reckless disregard of whether [they were] false” -- that is, with actual malice. See § 76-a(2). The Clerk of the Court is directed to close the entry at docket number 119." Watch this site.

In July, NYT lawyer, Jay Brown of Ballard, says Bennet - since ousted or resigned - is able to bring this motion. Judge Rakoff: I was not persuaded by plaintiff's argument on that. NYT lawyer: This is Palin's contention that a jury might disbelieve Mr Bennet's testimony

 NYT: There's no need for the court to make credibility determinations. There's no dispute of material fact. Let me turn to the merits. Did Bennet act with actual malice when he wrote the sentences? Did he accuse her of inciting shooting? We say no, not with malice

 NYT: Bennet was unaware that his words would be interpreted that way. Judge Rakoff: Isn't it partly a function of what a reasonable jury could infer where the language is essentially unambiguous, like if the Defendant  said, "Mr Jones is a cold blooded murderer"

 Judge Rakoff: .. the jury could draw an inference. NYT: The defamatory statement can't be considered in isolation. "Under NYT v. Sullivan, the statement must be judged entire based on what the publisher intended it to mean."

 Judge Rakoff: But I'm to follow case law, and not treatises, no? Let me go back to my rather over-simple hypo. Supposing the defendant at his deposition, When I said Jones was a cold blooded murderer, I didn't mean that literally, I just meant he's nasty

 Judge Rakoff: Cannot a jury say, That's preposterous. The words were so without qualification we don't believe you didn't mean it literally? Can't that be part of the mix?

NYT: The language of the publication is part of the mix -- [then NYT lawyer is cut off]

 Judge Rakoff [after NYT lawyer is cut off]: I interpret that to mean he thought his rhetoric was so electric...

 NYT is back: Elizabeth Williamson prepared a draft of the editorial... In her draft, she said, "Just as in 2011, the rage in Virginia was nurtured," etc. Mr. Bennet removed the Virginia reference, there, but kept in "link to political incitement was clear."

NYT lawyer: Let's consider the 5:08 am email by Bennet: "I don't know what the truth is here... We may have relied too much on our own earlier editorials."

Judge Rakoff: Plaintiff says Bennet committed at his deposition that he had read a report in The Atlantic   Judge Rakoff: Why couldn't a jury infer that he had read it, and knew what he wrote was false, but after criticism was trying to cover his read end? NYT: Let's compare what Mrs. Palin said and what the Second Circuit ruled.

 lawyer: Mr. Bennet did not click on hyperlinks in [his] editorial... He relied on fact checkers to ensure his editorials were accurate

 Palin's lawyer: There's nothing binding from the Supreme Court imposing the defendant's standard here. Judge Rakoff: Even under your approach you have to show reckless disregard, no? Palin's lawyer: Correct.

 Palin's lawyer: The decision was already made to write about gun control, and "hate speech" of people on the Right.  Judge Rakoff: You're saying he started with a bias? Palin's lawyer: Yes, your Honor.

 Palin's lawyer: The NYT was already under fire, sponsoring Shakespeare in the Park portraying Trump as Caesar, some advertisers were pulling out. So Bennet was back pedaling. Palin's lawyer: They resorted to framing, to pre-conceived notions.

This is a case of willful avoidance of the truth. He published the editorial without re-acquainting himself with what the Atlantic [he is or was affiliated with] published

 Palin's lawyer: Bennet has a narrative he wanted to tell and he didn't care what the fact checkers said. It's purposeful avoidance of truth. Bennet insisted on persisting with narrative even after corruption came out, he told CNN it didn't undercut the editorial

Palin's lawyer: Bennet was still insisting that the piece was justifiable. The international edition cut out the defamatory terms, but Ms. Cohen claimed it still conveyed the same message. So Bennet was engaged in political score-keeping

Palin lawyer: There were 3 to 4 other editorials ready that could have run that day. All of this could have been avoided. But this falls in line with Bennet's pre-determined narrative. There was recklessness. So the summary judgment motion should be denied.

Judge Rakoff: I'll give the defendant nine minutes, then I have to head up to my courtroom for a proceeding.

NYT's lawyer: This may have been negligence, but it is not defamation of a public figure.

Judge Rakoff tells the lawyer the history of "malapropism," promises an end of August ruling before Feb 2021 trial.

 The case is Palin v. The New York Times Company, 17-cv-4853-JSR (Rakoff)


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