A Manhattan federal judge on Thursday ordered The New York Times to produce the author of an editorial for testimony under oath next week in Sarah Palin’s lawsuit alleging she was defamed by a false claim that her political committee incited the gunman who shot Rep. Gaby Giffords.
U.S. District Judge Jed Rakoff said he needs to hear from the author or authors of the June editorial to decide whether to allow Palin’s libel suit to proceed over the editorial, which said the 2011 shooting was triggered by a Palin-committee ad with crosshairs over Giffords’ district.
Times lawyers have moved to dismiss the lawsuit, claiming that although the editorial may have been in error, it was an “honest mistake” and Palin has no basis for claiming the paper acted with malice — recklessness or knowledge of falsity — which is required in libel suits by public figures.
After a hearing last month, Rakoff said he concluded the issue turned on the fact that at the same time as the editorial, the Times also had news stories truthfully reporting no clear link between the shooting and Palin’s ad, which her lawyers say show the paper knew the truth and ignored it.
“These prior stories arguably would only evidence actual malice if the person(s) who wrote the editorial were aware of them,” Rakoff wrote. “This is information peculiarly within the knowledge of defendant; but on it arguably depends the reasonableness . . . of inferring actual malice.”
The judge said on Aug. 16 the writer or writers of the editorial will be examined by Times lawyers for up to 30 minutes, and then cross-examined by Palin’s lawyers for up to 45 minutes. Rakoff said he may question the writers as well.
In its motion to dismiss, the Times complained that libel suits could have a chilling effect by giving subjects the ability to question and demand documents from publications, and noted that Palin wanted to collect extensive information from more than 20 Times employees.
The Times said Editorial Page Editor James Bennet would be its designated witness.
Palin’s lawyers did not respond to a request for comment.
The Times editorial on the causes of political violence appeared in the wake of the shooting of Republican congressman Steve Scalise in Virginia.
It incorrectly said the Palin political ad had crosshairs over Giffords’ face instead of just her district, and claimed incitement in the absence of any evidence that shooter Jared Loughner had ever seen the Palin ad or was motivated by it.
The Times ran a correction within 24 hours. In addition to lack of malice, the paper’s lawyers have asked Rakoff to dismiss the suit because the editorial blamed her committee but not her personally, and because it will ultimately be impossible to prove that Loughner was not motivated by the ad.