In Sarah Palin Case NYT
Lawyer Says Bennet Negligence Is Not
Defamation in SDNY
By Matthew
Russell Lee, Patreon
BBC
- Guardian
UK - Honduras
- The
Source
SDNY COURTHOUSE,
July 27 –
In the ongoing case 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:
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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