The New York Times is defending itself against a defamation lawsuit brought by former Alaska Governor and Republican vice presidential candidate Sarah Palin, as the newspaper asserted in a recent motion to dismiss that the statements alleged as defamatory in Palin’s complaint are not actionable as defamation and that Palin has not plausibly pled actual malice.

The dispute in Palin v. The New York Times Co., Case No. 1:17-cv-04853 (S.D.N.Y.), centers on an editorial published on June 14, 2017, following the mass shooting of Republican lawmakers at a baseball field in which Rep. Steve Scalise and several others were wounded. In describing the shooting and making a connection to previous gun-related violence in Arizona that wounded former Rep. Gabrielle Giffords, the newspaper’s editorial board wrote that the “link to political incitement was clear.” The editorial provided background on the 2011 Arizona shooting by stating that “Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.”

The New York Times published a correction and apology the following day, in which the newspaper clarified that the map published by the political action committee placed certain electoral districts under stylized crosshairs but did not place the actual Democratic politicians representing those districts under crosshairs themselves. The newspaper’s correction also stated that “no such link was established” between political rhetoric and the 2011 shootings.

Despite the correction and apology, Palin filed her lawsuit against the newspaper on June 27, 2017, contending that she was unlawfully defamed based on the editorial’s use of her name as a link to the shootings. The complaint alleged that The Times “falsely stated as a matter of fact to millions of people that Mrs. Palin incited Jared Loughner’s January 8, 2011 shooting rampage.” Moreover, according to the complaint, The Times had knowledge when it published the editorial that no connection existed between Palin’s political activities and the Arizona shooting, based on a series of articles previously published by the newspaper suggesting that the violent attack was not politically motivated.

In its motion to dismiss, The Times countered the allegations by asserting that (1) the complaint fails to state a viable defamation claim because challenged statements are neither “of and concerning” Palin nor actionable as defamation, and (2) Palin has not adequately pled “actual malice” – a required showing given that Palin clearly is a public figure. U.S. District Judge Jed S. Rakoff set oral argument for July 31, 2017 and stayed discovery until then.

Failure to State a Viable Defamation Claim

First, The Times contends that, as a defamation plaintiff, Palin must plead and prove that the allegedly defamatory statements were “of and concerning” her. According to its motion, the complaint wrongfully alleges that the editorial falsely accused Palin personally of inciting the Arizona shooting when, in fact, the editorial only mentions Palin’s name in stating that the crosshairs map at issue had been circulated by a political action organization affiliated with her. Because the plain language of the editorial mentions “Sarah Palin’s political action committee” and not Palin herself, The Times argues that the editorial refers only to the conduct of an entity and not to the actions of the person in question.

As to the alleged defamation itself, The Times claims that Palin’s fundamental contention – that there is “no link” between the crosshairs map and Loughner’s shooting – is just as speculative as the editorial. Because Loughner’s true motivations for the shooting remain unknown, The Times contends that whether he was influenced by the crosshairs map or by any other political discourse is not capable of being proven true or false – and therefore the meaning attributed to the editorial is not actionable in defamation.

Failure to Plead Actual Malice

As a public figure, Palin faces a heavy burden for proving defamation. According to the motion to dismiss, the Second Circuit has specifically held that a public figure must plead “plausible grounds” to infer actual malice by alleging “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of” actual malice.” See Biro v. Conde Nast, 807 F.3d 541, 546 (2d Cir. 2015). Because the newspaper has published other articles reporting that there was no connection between the Arizona shooting and crosshairs map, and because it published a correction the following day, The Times argues that Palin’s argument contending that the newspaper deliberately sought to defame her is baseless.

Although Palin’s complaint contends that the newspaper failed to follow its own journalistic policies and such errors serve as proof of actual malice, The Times rebuts that assertion by arguing that even an “extreme departure from professional standards” is insufficient to demonstrate actual malice. Relating to the correction published the next day and whether it was adequate to correct the challenged statements, The Times claims that because actual malice is measured at the time of publication, any subsequent correction is not probative of the defendant’s state of mind at the time of publication. Moreover, the newspaper’s decision to publish any correction serves to undermine any claim of actual malice, according to the motion to dismiss.

Disgorgement Damages

Palin’s complaint requested disgorgement of the newspaper’s “ill-gotten gains” in the form of advertising revenue derived from the editorial. The Times contends that this request is improper, claiming that the only remedy for defamation is an action for damages – the “actual harm caused to the reputation of the person defamed.” The newspaper argues that there is no precedent for seeking disgorgement of advertising revenue as an element of damages in a defamation action and that such an award would be precluded by the First Amendment as it would serve as “gratuitous” recovery.