Outside Counsel

 Sarah Palin's PAC posted this map in 2010, back when she was sort of relevant. In 2017 the New York times referenced this following several shootings, including the one at a Congressional baseball team practice which wounded Rep. Steve Scalise (R-La.) and others.  The Times editorial used the word "incitement" and Ms. Palin has sued the Times for defamation. The trial is ongoing at present. 

The standard for defamation of a public figure is that the false statement must have been made with "actual malice", which means that the Times either knew the claims in the editorial were false at the time it was published or they recklessly disregarded indications the assertions were false. The case had been dismissed on a motion to dismiss for failure to state a claim upon which relief could be granted- notably, not on summary judgment,* but the Second Circuit reversed on appeal. Writing for the Court the Hon. John M. Walker, Jr., a senior judge appointed to the Southern District by Reagan and promoted to the Second Circuit by Bush pere, focused on a procedural issue: the trial court had held an evidentiary hearing on the motion to dismiss, without converting it to a summary judgment motion. The district judge "stated that the hearing was to assess the plausibility of the '[o]ne close question' presented by the Times’ motion to dismiss: whether Palin had sufficiently pled the actual malice element of her defamation claim."

The hearing was a mistake, and it was the mistake that this case turns on. The Second Circuit found that the complaint made a plausible claim of defamation. Maybe so- a jury will now decide that. The real concern here is whether this case will end up re-writing the actual malice rule of New York Times v. Sullivan. I have no doubt that Ms. Palin would welcome whatever money she recovers, if she recovers. She has demonstrated that if there is a grift to be had she is not above getting in on the grift. It does seem to me, however, that what's really happening here is an attempt to re-write First Amendment jurisprudence to more closely resemble what goes on in the United Kingdom. The lunatic Republican Party has already created its own propaganda system. Muzzling the mainstream press would finish the job.

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FRCP 12(b)(6), if you are keeping score at home.

// posted by Bill @ 3:42 PM