Tuesday, August 15, 2017

These Legal Minds And Major Web Sites Find Much To Consider With Palin VS New York Times

First published at Conservatives4Palin

"Can a housewife from Wasilla, Alaska prevail in a libel case against the liberal New York Times in front of a Federal Judge appointed by Democratic president Bill Clinton in overwhelmingly Democratic New York?'

I wrote the above as part of an article on July 28th, three days before Judge Rakoff was to make his decision on whether Governor Palin's libel case could proceed to jury trial which I, frankly, thought was a purely rhetorical question as the claim proceeding seemed unlikely given venue, defendant, judge.

However Judge Rakoff surprised many perhaps by ruling that he would consider the matter further and would rule at the end of August. What seems an insurmountable block to the expected quick dismissal is the fact that the New York Times printed that Palin was connected to the shooting of Gabby Giffords when on the same day they ran an article advising she had no connection whatsoever.

No matter how any judge in any venue leaned towards the Gray Lady to dismiss the complaint under those circumstances would seem unseemly, to say the least. Where we are now is that Judge Rakoff has given the Palin team leave to call any or all of the Times staff connected with their editorial for cross examination (but, perhaps significantly has disallowed discovery) New York Times editorial page editor James Bennet will testify at a court hearing.
It seems clear that the only defense The Times has is that they are so significant that they don't read their own paper before writing something they had to retract. Common sense says this is insupportable but acting dumb may prove not to be a crime and may give the judge an escape.
If that eventuates, as with the establishment in the dock the odds are in their favor, Palin will have won a major victory in the court of public opinion and the Times will look foolish and of course appeal to a higher court would be open.
As would be expected with all things Palin there has been much media coverage including, no doubt to their chagrin even from the New York Times itself. The basic summary of the new rulings from Judge Rakoff has been set out by The New York Daily News without commentary.
Trained professional legal minds, and informed commentators have not be so reticent and a selection shows, to my mind, a common view that Palin's case on moral and common sense grounds is clear, but that the defendant, and the judge,also have a clear path to dismissal. Hopefully justice is blind, if not in New York then at the Supreme Court if required.
Noted legal mind Prof. William A. Jacobson who runs the 'Legal Insurrection' website commented;

"The Court just issued an unusual order on a motion to dismiss...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.
Palin’s attorneys will seek not only to demonstrate actual knowledge, but also such reckless disregard for the truth as to establish actual malice. How could the authors of the Editorial not at least do a search of the NY Times itself? And as to the members of the Editorial Board in whose name the Editorial appeared, but who may not have been “authors” of it, why should their knowledge or lack thereof be ignored.
Make no mistake, however, this is a gift to Palin’s team. They get what they normally are not entitled to at this stage — testimony. That testimony, though limited in time, could be a goldmine of information.Media defendants usually win these motions to dismiss on the papers. That the Times has not yet done so should give the Palin team encouragement.
Huffington Post, no friend of Palin's to the extent they dredged up a Palin/Couric interview from 9 years ago postulated;
"Palin, a public figure, has to prove the Times acted with malice to defame her ― a legal threshold much higher than simply a good-faith mistake."
John Sexton at Hot Air opined;

Let’s just step back and admire this situation for a moment. One or more editorial writers at the NY Times, the folks who speak with the paper’s voice of authority on every subject you can imagine, will plead with a judge to believe they did not know the basic facts of a story they were writing about, including facts reported in their own paper! The Times’ defense is: We so dumb. 
 I find this indescribably delicious, especially given that it was Paul Krugman who used his perch at the NY Times to lead this false charge against Palin back in 2011. There were certainly many who echoed him at the time, but Krugman was the most high profile voice making this claim after the shooting. In fact, if the editorial writers are asked to explain where they got the dumb idea that Palin had been definitively linked to the Tucson shooting, the most likely explanation will be that they got the idea from Paul Krugman. There’s a certain justice to having the paper that mainstreamed this lie face the music over it, albeit belatedly.

Will the judge believe that NY Times editorial writers are ignorant rubes who don’t read their own paper? I won’t guess at the outcome, but I will say that the author(s) certainly wrote as if the facts were crystal clear.Either the author of this piece was a malicious liar or he/she is too ill-informed to be writing editorials for a newspaper. Either way, it looks pretty bad for the NY Times and quite possibly for the future employment of the author(s). It also makes one wonder what other things the NY Times editorial board opines about without a complete familiarity with the facts."

John Hinderaker at PowerLine is scathing;

'You Heard It Here First: NY Times Editors Deny Reading Their Own Newspaper'

I wrote here that Palin has a strong case, despite the extraordinary burden of proof imposed on public figures who sue for defamation. This is true, in part, because the Times’s own reporting debunked the idea that Palin had anything to do with Laughlin’s murders (which was a crazy idea in the first place). I wrote:

Ms. Palin can make a strong argument that the Times editorialists knew that their smear was a lie, based on reporting done by the Times itself. (The editorialists’ defense likely will have to be that they don’t read their own newspaper.)
That last observation was prophetic. The Times’s lawyers have moved to dismiss Palin’s case on the ground that her complaint fails to state a claim. This means that even if you assume everything in the complaint is true, she still doesn’t have a case. In response to that motion, the presiding judge, Jed Rakoff, has ordered an evidentiary hearing. You can read his order here. Judge Rakoff writes that whether Palin has sufficiently alleged actual malice is a “close question.” I disagree, I think her complaint is plainly sufficient. But Judge Rakoff continues:
[T]he 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.
So, as I predicted, the Times won’t admit that its editors read their own paper. Judge Rakoff’s order requires the Times to produce for depositions all people who were involved in writing the editorial, so that Palin’s lawyer can ask them under oath whether they knew about the paper’s reporting on Jared Laughlin’s crime.

The interrogation will take place in front of Judge Rakoff, who may ask questions of his own.
Be that as it may, the Times editorialists have no choice but to testify that they wrote their editorial blaming Sarah Palin for an insane person’s murders without even bothering to check their own paper to see what news about the shootings had been reported. The context is macabre, but it will be highly entertaining to read the Times editorialists’ depositions when they are made public."

Breitbart which one would expect to be strongly gung ho for Palin is instead very precise in setting out the details of the upcoming court battle, perhaps Steve Bannon's White House position makes a slightly distant approach more seemly.

However there are no such constraints in the comment section where the armchair lawyers vent obviously happily.

Tuesday, August 1, 2017




Hyperlink Looms 

Large in Palin Fight With NY Times;

— During 90 minutes of sharp questioning Monday, a federal judge asked why a New York Times editorial tying Sarah Palin to a mass shooting appeared to be contradicted by a hyperlink posted in its online version.


Federal Judge Jed  Rakoff today reserved his decision in the Palin vs New York Times slander lawsuit until the end of August. This is highly significant on many levels.
Firstly the challenge, even before the case commenced was, on the face of it, massive;
“Can a housewife from Wasilla, Alaska prevail in a libel case against the liberal New York Times in front of a Federal Judge appointed by Democratic president Bill Clinton in overwhelmingly Democratic New York?”

Secondly the barrier to a successful suit for slander has been insurmountable since “New York Times vs Sullivan”
“But Palin’s lawsuit is different.  Why?  Because the newspaper’s own published stories demonstrate that the editorial it ran was false.  A reasonable journalist would know it was false.  You’d have to be a complete idiot not to know it.”

Clearly Judge Rakoff, even though beloved by the radical leftists Matt Taibbi is no idiot and no matter what his subsequently ruling is the fact that he did not summarily dismiss Palin’s case is of much significance. This lack  of dismissal shows that “Sullivan” if not breached, has been scaled to some degree.
On the other hand what is Indicative of a dismissal later this month is the judge sees no reason why discovery should go forward at this time

Even if the case is dismiss under “Sullivan” in August the fact that it went to a reserved decision gives solid ground for appeal up to the Supreme Court with it’s now conservative majority. This may give the NY Times legal team even further cause for considering a settlement.
Indeed, the New York Times legal team has some hard thinking to do now. 

Do they take a chance that Judge Rakoff allows the case to go to a jury trial where there would then be the possibility of a multi-million dollar award against the newspaper or do the go for a settlement out of court with a payment and an apology. The latter may seem to be the safest course for the paper unless they are utterly confident the judge will rule for dismissal. The fact that he did not do so initially may give them pause.

Judge Rakoff’s background may give them further pause for thought especially as “Palin’s legal team has served notice that she plans to subpoena “twenty-three non-party current and former Times reporters, editors and other employees — most of whom had nothing to do with the editorial at issue.”The subpoenas are part of Palin’s effort to obtain “documents that might reveal, among other things, their ‘negative feelings’ toward her,” the Times told the judge”

Given this background, the venue and the Establishment on trial that Judge Rakoff reserved his decision Palin may indeed end up winning at a higher court.

”He's a judicial activist who ruled the death penalty unconstitutional in 2002, and was overturned by the Appeals Court. The New York Times said some very nice things about him in regard to that case. From Wikipedia:

The New York Times called the ruling "a cogent, powerful argument that all members of Congress - indeed, all Americans - should contemplate".
Last year Rakoff ruled that transgender kids under 18 cannot be denied medicaid coverage for hormone therapy and transition surgery. The NYT called that ruling a "health care milestone."
Groundbreaking Decision in Cruz v. Zucker

Also last year he wrote a piece in the New York Review of Books decrying the lack of access for average citizens to the courts in ordinary lawsuits because of the costs involved. Of course the Palin case is a whole different situation.

Why You Won’t Get Your Day in Court
I haven't been able to find anything about his thoughts on the case law surrounding New York Times v. Sullivan, the landmark ruling in cases such as Palin's.

Rakoff is a leading authority on the securities laws and the law of white collar crime, and has authored many articles on the topic, as well as leading treatises on RICO and corporate sentencing. 

Speaking about the federal mail fraud statute, Rakoff wrote, "To federal prosecutors of white-collar crime, the mail fraud statute is our Stradivarius, our Colt .45, our Louisville Slugger, our Cuisinart -- and our true love. We may flirt with other laws and call the conspiracy law 'darling,' but we always come home to the virtues of [mail fraud], with its simplicity, adaptability, and comfortable familiarity. It understands us and, like many a foolish spouse, we like to think we understand it."[14] 

Judge Rakoff is also co-editor, with Judge Leonard B. Sand, and others, of Modern Federal Jury Instructions.

Rolling Stone magazine Matt Taibbi wrote in 2011, "Federal judge Jed Rakoff, a former prosecutor with the U.S. Attorney's office here in New York, is fast becoming a sort of legal hero of our time."[15]
In addition to pushing back against what he has described as superficial punishment by the SEC for companies accused of fraud, Rakoff has held the federal death penalty unconstitutional, sharply criticized the U.S. sentencing guideline, inserted himself into corporate governance reform at WorldCom, and pushed for the public release of documents.[16][17]

He is well-known among lawyers for showing little patience with delays and moving cases along rapidly. The judge says he feels bad taking lawyers and others to task, but he saw in private practice how delays and gamesmanship made the American legal system too slow and expensive for the average person. "The price of being a nice guy is too high—much too high—in terms of the system of justice", Rakoff added.[18]

14. Jed S. Rakoff, The Federal Mail Fraud Statute (Part 1), 18 Duq. L. Rev. 771 (1980)
15. Matt Taibbi,"Finally, a Judge Stands up to Wall Street", Rolling Stone, November 7, 2011.
16. Rothfeld, Michael (2011-11-09). "No Mr. Nice Guy—Just Ask Wall Street". WSJ. Retrieved 2016-12-10.
17. Louise Story, "Plain Talk From Judge Weighing Merrill Case", The New York Times, August 23, 2009.
18. Rothfeld, Michael (2011-11-09). "No Mr. Nice Guy—Just Ask Wall Street - WSJ". Online.wsj.com. Retrieved 2016-12-10.

 H/T "Al B"