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, 1 alleged that defendant Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 2 of 26 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 were) the author(s) (or 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, 2 Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 3 of 26 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 ECF No. l; Transcript of Aug. 16, 2017 Hearing ("Compl.") ("Tr.") ~ 2, 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. 3 Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 4 of 26 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. shot nineteen people, ~ 1. In this shooting spree, Loughner 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, 36:14-17, 37:8-13, 61:3-7. copying Mr. Bennet. Tr. at 3 Shortly following Loughner's attack, speculation arose about a connection between the crime and plaintiff Palin. Compl. speculation focused on a map ~ 24. This (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. 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. j 4 Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 5 of 26 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 5 Case 1:17-cv-04853-JSR Document 45 Filed 08/29/17 Page 6 of 26 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.