“This case is ultimately about the First Amendment, but the subject matter implicated in this appeal is far less dramatic: rules of procedure and pleading standards.” So began Judge Walker’s opinion reversing the district court’s dismissal of Sarah Palin’s defamation suit against the New York Times (“the Times”). The Second Circuit’s decision did turn on a procedural question: whether Palin’s complaint adequately stated a defamation claim. But, the court’s approach to that question could have more “dramatic” implications than the opinion let on. Specifically, the court’s conclusion that Palin alleged sufficient facts to support a finding of actual malicecould be read as lowering a deliberately high bar for defamation suits of public figures.
On June 14, 2017, after a shooting at a congressional baseball game, the Times published an editorial connecting that day’s events to the 2011 shooting by Jared Loughner that killed six and seriously wounded Representative Gabby Giffords. The editorial argued that both attacks manifested “how vicious American politics has become.” In doing so, it also suggested a connection between the Loughner shooting and a map circulated by Sarah Palin’s political action committee (“SarahPAC”) that had been criticized for “inciting violence.” The map depicted crosshairs targets superimposed over various Democratic congressional districts—including Giffords’s. In response to significant backlash, the Times issued a prompt correction to the editorial and removed the phrases suggesting a link between Palin, the map, and the Loughner shooting. Less than two weeks later, Palin sued the Times for defamation in the Southern District of New York.
After holding an “unusual” evidentiary hearing, the district court granted the Times’ motion to dismiss. The court held the hearing because it felt it could not assess whether Palin had sufficiently pleaded the actual malice element of her defamation claim without more information about the individual who authored the editorial (the named author was the “Editorial Board,” but James Bennet wrote the piece). Having analyzed the complaint and the hearing, Judge Rakoff determined that the evidence was more suggestive of an “unintended mistake” on Bennet’s part than of actual malice, and he dismissed Palin’s claim.
The Second Circuit vacated and remanded. Writing for the panel, Judge Walker first held that the district court erred in considering evidence from the hearing when evaluating the Times’s motion to dismiss. Per Federal Rule of Civil Procedure 12(d), the court was obligated to either treat the motion as one for summary judgment or decline to consider material outside the pleadings.
Next, the court reviewed Palin’s amended complaint to determine if she stated a plausible claim for defamation. The central question was whether Bennet acted with actual malice: was the statement “made with knowledge that it was false or with reckless disregard of whether it was false or not?” In making its determination, the court heavily weighed Bennet’s previous position as editor-in-chief of The Atlantic, which had published articles about the absence of a connection between Palin and the Loughner shooting—articles that Bennet presumably read. The court also alluded to the possibility of Bennet’s personal hostility towards Palin and her party, and it referenced his outspoken stance on gun violence. It held that these facts rendered “plausible” the assertion that Bennet acted with actual malice, and did not just make a mistake. After affirming the district court’s rejection of the Times’s other objections (that the editorial did not concern Palin, and that the statements were not “provably false”), Judge Walker concluded that Palin had satisfied the Twombly/Iqbal pleading standard and remanded the case for further proceedings.
In New York Times Co. v. Sullivan, a case that has been dubbed to be “at the core of our modern First Amendment rights,” the Supreme Court deliberately set a high bar for defamation suits of public officials—deliberately because, as Judge Walker acknowledged, such claims inevitably come head to head with freedom of speech and of the press. Judicial respect for those values, and a recognition that they are particularly salient when public figures and issues are concerned, motivated the establishment of the “actual malice” requirement at issue in Palin’s case. This is a demanding standard: it requires plaintiffs to not only show actual malice, but to do so by “clear and convincing” evidence.
In this context, the circuit’s analysis of the actual malice requirement was troublingly vague. Unlike the district court, for example, the Second Circuit did not define the standard for “reckless disregard” before concluding that Bennet plausibly met that standard. And the court relied on precisely the type of evidence that Sullivan sought to make less relevant—Bennet and Palin’s political differences—to infer the former’s reckless disregard of the truth. By applying the actual malice standard in a somewhat fuzzy way at the pleading stage, and by giving weight to the relative political views of the challenger and the challenged, the court may have widened the path to defamation suits—a path that precedent has deliberately sought to keep narrow.
Judge Walker began and closed his decision by urging that the court’s holding not be read as “cast[ing] doubt on the First Amendment’s crucial constitutional protections.” But the judiciary’s role as a gatekeeper for litigation at the pleading stage, and specifically its ability to set the standard for how easily a defamation suit can get into court, has major First Amendment implications. To cast this as a procedural issue thus may hide the ball a bit. After all, the threat that litigation will not be dismissed at the pleading stage may be enough to subliminally affect how the press approaches its treatment of public figures, thus producing precisely the result Sullivan hoped to avoid.