Case 1:17-cv-04853-JSR Document 29 Filed 07/21/17 Page 1 of 32

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

SARAH PALIN, an individual,

No. 17 Civ. 4853
Plaintiff,
Hon. Jed S. Rakoff
against
ECF Case
THE NEW YORK TIMES COMPANY,
a New York corporation,

Defendant.

PLAINTIFFS MEMORANDUM OF LAW IN

OPPOSITION TO DEFENDANTS MOTION TO DISMISS

BAJO | CUVA | COHEN | TURKEL

100 North Tampa Street, Suite 1900
Tampa, Florida 33602
Telephone: (813) 443-2199
Facsimile: (813) 443-2193

and

GOLENBOCK EISEMAN ASSOR BELL

& PESKOE LLP
711 Third Avenue
New York, NY 10017
Telephone: (212) 907-7300
Facsimile: (212) 754-0330

Attorneys for Plaintiff Sarah Palin

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TABLE OF CONTENTS

I. INTRODUCTION ........................................................................................................... 1

II. MRS. PALIN PLEADED THE NECESSARY FACTS TO ESTABLISH

A CLAIM ......................................................................................................................... 2

A. The False and Defamatory Article ....................................................................... 3

B. The Palin Article Was Of and Concerning Mrs. Palin ..................................... 4

C. The Times Defamatory Statements are Substantially Untrue ........................... 10

1. The Times Admitted That It Made Errors of Fact .................................. 11

2. The Statements are Substantially Untrue ............................................... 11

D. Mrs. Palin Has Alleged Actual Malice .............................................................. 14

1. The Context of the Palin Attack............................................................. 15

2. The Times Fabricated the Defamatory Statements................................. 16

3. The Times Also Had Reason to Doubt the Truth of Its

Statements .............................................................................................. 17

4. The Violation of The Times Journalistic Standards .............................. 19

5. The Times Insufficient and Incomplete Retractions/

Apology.................................................................................................. 20

E. The Special Circumstances Warranting Restitution Damages .......................... 21

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TABLE OF AUTHORITIES

Page(s)
CASES

Alharabi v. The Blaze, Inc., 199 F.Supp.3d 334 (D. Mass. 2016) ........................................... 25

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................... 2, 3

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................ 3

Bi-Rite Enterprises, Inc. v. Button Master, 555 F.Supp. 1188 (S.D.N.Y. 1983) ...................... 23

Biro v. Cond Nast, 963 F.Supp.3d 255 (S.D.N.Y. 2013) ........................................ 2, 15, 16, 20

Biro v. Cond Nast, 807 F.3d 541 (2d Cir. 2015) ..................................................... 3, 15, 16, 17

Bolden v. Morgan Stanley & Co., Inc., 765 F.Supp. 830 (S.D.N.Y. 1991) .............................. 15

Brayton v. Crowell-Collier Publishing Co., 205 F.2d 644 (2d Cir. 1953) ................................. 6

Breen v. Leonard, 198 A.D.2d 392 (2d Dept. 1993) ............................................................... 13

Cardone v. Empire Blue Cross and Blue Shield, 884 F. Supp. 838 (S.D.N.Y.
1995) ........................................................................................................................................ 5, 9

Celle v. Fillipino Reporter Ent. Inc., 209 F.3d 163 (2d Cir. 2000) .................................... 10, 16

Church of Scientology Int'l v. Time Warner, Inc., 806 F. Supp. 1157 (S.D.N.Y.
1992) ............................................................................................................................................ 4

Croixland Props. Ltd. Pshp. v. Corcoran, 174 F.3d 213 (D.C. 1999) ........................................ 5

Dalbec v. Gentlemens Companion, Inc., 828 F.2d 921 (2d Cir. 1987) ...................................... 5

Darby v. The New York Times Co., No. 07-12-00193-CV, 2014 WL 818614 (Tex.
App. Feb. 26, 2014) ............................................................................................................ 13, 14

Elias v. Rolling Stone, LLC, 192 F.Supp.3d 383 (S.D.N.Y. 2016) ........................................... 5, 6

Fetler v. Houghton Mifflin Co., 364 F.2d 650 (2d Cir. 1966) .................................................... 5

Franklin Prescriptions, Inc. v. The New York Times Co., 267 F.Supp.2d 425
(E.D. Pa. June 19, 2003) ............................................................................................................. 7

F.T.C. v. Bronson Partners, LLC, 654 F.3d 359 (2d Cir. 2011) ............................................... 23

Fulani v. N.Y. Times Co., 260 A.D.2d 215 (1st Dept. 1999) ...................................................... 9

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Gacek v. Owens & Minor Dist., Inc., 666 F.3d 1142 (8th Cir. 2012) ....................................... 12

Gelencser v. Orange County Publn. Div. of Ottaway Newspapers, 116 A.D.2d

696 (1986) .................................................................................................................................... 6

Gertz v. Robert Welch, Inc., 680 F.2d 527 (7th Cir. 1982) ....................................................... 19

Gilman v. Spitzer, 538 Fed.Appx. 45 (2d Cir. 2013) .................................................................. 9

Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002) ..................................... 23

Gross v. Cantor, 270 N.Y. 93 (1936) .......................................................................................... 9

Harwood Pharmaceutical Co. v. National Broadcasting Co., 9 N.Y.2d 460 (1961) .................. 5

Hart v. E.P. Dutton & Co., 93 N.Y.S.2d 871 (Sup. Ct. Oneida Cty. 1949) ....................... 24, 25

Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993) ............................................ 12, 13

Holmes v. Curtis Pub. Co., 303 F.Supp. 522 (D.S.C. 1969) ........................................................ 7

Horton v. Guillot, No. 14-CV-1050, 2015 U.S. Dist. LEXIS 25134 (N.D.N.Y.
Mar. 2, 2015) ............................................................................................................................... 5

Hunt v. Liberty Lobby, 720 F.2d 631 (11th Cir. 1983) ............................................................. 19

Immuno AG v. Moor-Jankowski, 74 N.Y.2d 548 (1989) .......................................................... 12

Jankovic v. Intl. Crisis Grp., 494 F.3d 1080 (D.C.C. Cir. 2007) .......................................... 8, 9

Kerwick v. Orange County Publn. Div. of Ottaway Newspapers, Inc., 53 N.Y.2d

625 (1981) ...................................................................................................................... 13, 19, 20

La Luna Ent., Inc. v. CBS Corp., 74 F.Supp.2d 384 (S.D.N.Y. 1999) ....................................... 5

Law Firm of Daniel P. Foster, P.C. v Turner Broadcasting Sys., Inc., 844 F.2d
955 (2d Cir. 1988) ..................................................................................................................... 10

Liberty Life Ass. Co. v. Bahan, No. 09 Civ. 4715(JSR), 2010 US Dist. LEXIS
87446 (S.D.N.Y. Aug. 20, 2010) .............................................................................................. 24

Martin v. Daily News L.P., 990 N.Y.S.2d 473 (1st Dept. 2014) .............................................. 13

Naantaanbuu v. Abernathy, 746 F.Supp. 378 (S.D.N.Y. 1990) .................................................. 6

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .............................................................. 18

Ocean State Seafood, Inc. v. Capital Newspaper, Div. of Hearst Corp., 492
N.Y.S.2d 175 (3d Dept. 1985) ................................................................................................. 13

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Organovo Holdings, Inc. v. Dimitrov, 2017 WL 2417917 (Del. Jun. 5, 2017) ........................ 25

Ostrowe v. Lee, 256 N.Y. 36 (1931) ......................................................................................... 22

Palmeri v. LG Electronics USA, Inc., C.A. No. 07-5706, 2008 WL 2945985

(D.N.J. July 30, 2008) ................................................................................................................ 24

Paramount Film Distrib. Co. v. State, 30 N.Y.2d 415 (1972) ................................................... 24

Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309 (1977) ...................................................... 9

Peck v. Tribune Co., 214 U.S. 185 (1909) .................................................................................. 5

Price v. Viking Penguin, Inc., 881 F.2d 1426 (8th Cir. 1989) .................................................. 12

Rappaport v. VV Publ. Corp., 618 N.Y.S.2d 746 (Sup. Ct. N.Y. Cty.1994) ............................. 12

Sachs v. Matano, 22 N.Y.S.3d 310 (Sup. Ct. Nassau Cty. 2015) ............................................... 5

Silvercorp Metals, Inc. v. Anthion Mgmt. LLC, 36 Misc.2d 1231(A), 2012 WL

3569952 (Sup. Ct. N.Y. Cty. Aug. 12, 2012) .......................................................................... 25

St. Armant v. Thompson, 390 U.S. 727 (1968) ................................................................... 16, 17

Tavoulareas v. Piro, 817 F.2d 762 (D.C. Cir. 1987) ................................................................ 15

TPTCC N.Y., Inc. v. Radiation Therapy Servs., Inc., 784 F.Supp.2d 485 (S.D.N.Y.
2011) ......................................................................................................................................... 24

Ventura v Kyle, 825 F.3d 876 (8th Cir. 2016) .......................................................................... 25

Von Gerichten v. Long Island Advance, 202 A.D.2d 495 (2nd Dept. 1994) ........................... 10

Wallace v. Media News Group, Inc., 568 Fed.Appx. 121 (3d Cir. 2014) ................................... 7

Wandt v. Hearsts Chicago American, 109 N.W. 70 (Wis. 1906) .............................................. 7

Yohe v. Nugent, 321 F.3d 35 (1st Cir. 2003) ............................................................................. 12

Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) ...................................... 23

OTHER AUTHORITIES

New York Pattern Jury Instructions PJI 3:34 ............................................................................ 10

Restatement 3d of Unfair Competition 49 ............................................................................. 24

Restatement of Torts 563 ......................................................................................................... 9

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I. INTRODUCTION

On June 14-15, 2017, The New York Times Company (The Times) published the

article Americas Lethal Politics (The Palin Article), in which it used Sarah Palin

(Mrs. Palin) as the Conservative archetype for how vicious American politics have become

and the linchpin of a false narrative about a sickeningly familiar pattern of violence against

politicians that emanated from the fabricated existence of a clear and direct link between a

map of targeted electoral districts circulated by Sarah Palins political action committee (the

Palin Map) and Jared Loughners 2011 shooting in Arizona, which resulted in the deaths of 6

people, including a nine-year-old girl, and severely wounded 13 others, including Representative

Gabby Giffords. In support of its bogus assertion about Mrs. Palins link to Loughner, The

Times also falsely stated that the Palin Map put Ms. Giffords and 19 other Democrats under

stylized cross hairs. It did not.

The Times defamatory statements in the Palin Article are demonstrably false assertions

of fact of and concerning Mrs. Palin. The statements identify Sarah Palin by name; they are

(and actually were) reasonably understood to be about her. The statements were not opinion

(The Times does not even claim that they were); they did not speculate or hypothesize about a

possible link between Mrs. Palin and Loughners shooting. Instead, The Times falsely attested

that the link between Mrs. Palin and Loughners shooting existed, was clear and direct, emanated

from the Palin Map that placed crosshairs on individual lawmakers, and was evidence of

vicious politics and political incitement. At the time of publication, The Times knew these

statements about Mrs. Palin were false, but fabricated the link anyway because Mrs. Palin is a

well-recognized target for politically-slanted attacks who inflames passions to drive viewership

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and Web clicks. (Complaint1 29-30, Ex. 4) At bare minimum, The Times published the

Palin Article despite the obvious falsity of its defamatory statements.

While professing to have made a simple mistake, The Times asks this Court to dismiss

Mrs. Palins defamation claim with prejudice. In support of this extraordinary request, The

Times proposes that the Court accept its slanted-version of the facts as the only plausible

explanation of its misconduct, relies on general propositions of law lacking any meaningful

application to Mrs. Palins well-pleaded allegations, and ignores virtually all of the salient facts

in and inferences to be drawn from Mrs. Palins Complaint.

Ultimately, Mrs. Palin has alleged more than sufficient facts to establish that The Times

published demonstrably false statements of fact of and concerning her with actual malice and

that, as a result, Mrs. Palin is entitled to recover damages that should include restitution. The

motion to dismiss should be denied.

II. MRS. PALIN PLEADED THE NECESSARY FACTS TO ESTABLISH A CLAIM

Factually, The Times attacks three elements of Mrs. Palins defamation claim: (1) of

and concerning; (2) falsity; and (3) actual malice. Although The Times acknowledges that all of

the facts alleged in Mrs. Palins Complaint and all reasonable inferences therefrom must be

accepted as true,2 it disregards a majority of those facts and inferences. Instead, The Times filed,

cites to and primarily relies upon extrinsic evidence that actually supports Mrs. Palins claim and

confirms the existence of fact issues which only a jury may decide.

Mrs. Palin has established that each of the elements of her claim is plausible on its face

and that she is not asserting a largely groundless claim. Ashcroft v. Iqbal, 556 U.S. 662, 678

1
The Complaint is hereinafter cited as Comp.
2
Biro v. Cond Nast, 963 F.Supp.2d 255, 264 (S.D.N.Y. 2013) (the Court accepts the
complaints factual allegations as true and draws inferences only in plaintiffs favor.)

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(2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558-59 (2007) (Twombly). Plausible

means that the plaintiff has alleged factual content that allows the Court to draw the reasonable

inference that the defendant is liable for the misconduct alleged and enough facts to raise a

reasonable expectation that discovery will reveal evidence of actual malice. Biro v. Cond

Nast, 807 F.3d 541, 544 & 546 (2d Cir. 2015) (quoting Iqbal, 556 U.S. at 678 and Twombly, 550

U.S. at 556). Mrs. Palins allegations meet this standard.

A. The False and Defamatory Article

On June 14, 2017, The Times entire Editorial Board3 authored the Palin Article, which

falsely stated that a direct and clear link existed between the Palin Map circulated by Sarah

Palins political action committee and Jared Loughners January 8, 2011 shooting rampage (the

Palin Link). (Comp. 1, Ex. 1-2) The Times told millions of people that the Palin Link was

established, evidence of vicious politics and a sign of the political incitement of Loughners

horrific criminal acts. (Id.)

The Palin Article was prominently placed in print and promoted to 39 million people on

Twitter. (Comp. 78, Ex. 16) In the article, The Times exploited Sarah Palins name and status

as a paragon of Conservative politics by fabricating the Palin Link; doing so served The Times

purpose of contrasting initial reports about the possibility that Democratic politics motivated

James Hodgkinson4 to launch a sniper-style attack on June 14, 2017, against Republican

3
According to its NYTimes.com Web page, The Editorial Board is comprised of 16 journalists
with wide-ranging areas of expertise and decades of work in journalism. Their primary
responsibility is to write The Times editorials, which represent the voice of the board, its editor
and the publisher. (See Vogt Declaration (Vogt Dec.) Ex. A).
4
The Times described Hodgkinson as a Bernie Sanders supporter and campaign volunteer
virulently opposed to President Trump whos derangement has found its fuel in politics
(Comp. Ex. 1).

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lawmakers practicing for the annual charity Congressional Baseball Game at a field in Virginia.

(Comp. 1, 2, 3, 28, 29, 30, 35, 37)

The Palin Article identifies Sarah Palin as the linchpin of a non-existent pattern of

politically motivated shootings that consisted of two events: the Loughner shooting and the

Hodgkinson5 shooting. The title of the Palin Article, Americas Lethal6 Politics, makes no

reference to what The Times claims in this lawsuit is its main thesis: gun control. (Memo.7 p. 4)

The pull-quote8 in the printed version of the Palin Article reads, A sickening pattern emerges in

the assault on members of Congress at a ball field. (Comp. Ex. 2) The sickeningly familiar

pattern that The Times claimed to be emerging in the wake of Hodgkinsons shooting identified

Sarah Palin as the only established factual example of a link between political incitement and a

mass shooting.

B. The Palin Article Was Of and Concerning Mrs. Palin

The of and concerning requirement of a defamation claim generally is an issue of fact

which the jury alone may decide, although the Court properly may dismiss an action pursuant to

Rule 12(b)(6) where the operative statements are incapable of supporting a jury's finding that

the allegedly libelous statements refer to plaintiff. Church of Scientology Int'l v. Time Warner,

Inc., 806 F. Supp. 1157, 115960 (S.D.N.Y. 1992) (emphasis added). The question for the Court

5
Despite including Hodgkinson as the only other part of this pattern, The Times issued a Fact
Check directed at Partisans for falsely blaming Democrats for Hodgkinsons shooting
(Comp. 4, Ex. 3), thus demonstrating the fabrication of that part of the pattern.
6
Lethal means of, relating to, or causing death; deadly; fatal. See Dictionary.com
Unabridged. Random House, Inc. www.dictionary.com/browse/lethal
7
The Times Memorandum of Law in Support of Motion to Dismiss the Complaint [Doc. 25] is
cited herein as Memo.
8
A pull-quote is (in a magazine or newspaper) an excerpted line or phrase, in a larger or
display typeface, run at the top of a page or in a mid-column box to draw attention to the text of
the article or story from which it is quoted; blurb. See Dictionary.com Unabridged. Random
House, Inc. www.dictionarycom/browse/pull-quote

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is whether the complaint alleges facts sufficient to demonstrate a reasonable connection

between the plaintiff and the alleged defamatory statement. Cardone v. Empire Blue Cross and

Blue Shield, 884 F. Supp. 838, 847 (S.D.N.Y. 1995). Where the defamatory statements at issue

are reasonably susceptible to being of and concerning the plaintiff, the issue should be left to

the jury. La Luna Ent., Inc. v. CBS Corp., 74 F.Supp.2d 384, 390 (S.D.N.Y. 1999); Harwood

Pharmaceutical Co. v. National Broadcasting Co., 9 N.Y.2d 460, 462 (1961) (statements

susceptible to more than one reasonable interpretation should not be decided as a matter of law;

jury should determine whether statement referred to the plaintiff). The plaintiffs burden is to

plead sufficient facts to show that the defamatory statement designates the plaintiff in such a

way as to let those who know [her] understand that [she] is the person meant. Fetler v.

Houghton Mifflin Co., 364 F.2d 650, 651 (2d Cir. 1966); Horton v. Guillot, No. 14-CV-1050,

2015 U.S. Dist. LEXIS 25134, at *7 (N.D.N.Y. Mar. 2, 2015); see also, Elias v. Rolling Stone,

LLC, 192 F.Supp.3d 383, 392 (S.D.N.Y. 2016) (determining whether of and concerning is

sufficiently pleaded is based on whether those who know the plaintiff, upon reading the

statements, would understand that the plaintiff was the target of the allegedly libelous statement);

Dalbec v. Gentlemens Companion, Inc., 828 F.2d 921, 925 (2d Cir. 1987); Peck v. Tribune Co.,

214 U.S. 185, 188-90 (1909) (it suffices that the statements at issue lead the listener to conclude

that the speaker is referring to the plaintiff by description, even if the plaintiff is never named or

is misnamed); Croixland Props. Ltd. Pshp. v. Corcoran, 174 F.3d 213, 216 (D.C. 1999). The

content of the entire publication, its tone and apparent purpose must be examined to determine

whether a reasonable person would consider it as conveying facts about the plaintiff. Sachs v.

Matano, 22 N.Y.S.3d 310, 312 (Sup. Ct. Nassau Cty. 2015).

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Over the five pages of its argument addressing the of and concerning issue, The Times

does not address the entirety of the context of the Palin Article, nor mention the title of the Palin

Article. Instead, it strips out one sentence from the article and then cites to a technical definition

of a PAC and other extrinsic evidence9 to support the argument that Mrs. Palin and her political

action committee must be alter egos in order for her to state a claim (without citation to any

authority to support that assertion). (Memo. p. 7-8) That is not the controlling inquiry. The test

is whether the defamatory statement is capable of supporting a jurys finding that, upon reading

the statement, those who know the plaintiff would understand that she was the target of the

libelous statements. Elias, 192 F.Supp.3d at 392.

Evaluating The Times statements in context, the reference to Mrs. Palins political

activities through Sarah Palins political action committee in an article entitled Americas

Lethal Politics, which makes no reference to SarahPAC by its name, and identifies the Palin

Map and Palin Link as its evidence of vicious American politics, is reasonably susceptible to

being understood by those who know Mrs. Palin as being about her. The Palin Article makes the

explicit reference to Sarah Palin by name (not to her PAC by its name, SarahPAC).10 The

Times recognizes that Mrs. Palin engaged in political activities associated with the Palin Map

and refers to Mrs. Palin and her PAC as eponymous. Importantly, The Times notes11 that the

word circulated in the Palin Article is hyperlinked12 to another article that attributes the Palin

9
It has long been the rule that extrinsic evidence is admissible to buttress the claim that the
defamation is of and concerning the plaintiff, and the fact that resort to such evidence may be
necessary does not defeat the claim. Brayton v. Crowell-Collier Publishing Co., 205 F.2d 644,
645 (2d Cir. 1953); Naantaanbuu v. Abernathy, 746 F.Supp. 378, 381 (S.D.N.Y. 1990).
10
See Memo. p. 8; Brown Declaration Ex. A-B.
11
See Memo. FN 5.
12
There are cases holding that linking back to another article or including a web grab in a
publication can be considered and support the conclusion that a reasonable person would believe
that a statement was of and concerning the plaintiff. Gelencser v. Orange County Publn. Div. of

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Map to Mrs. Palin (not her PAC) in its title, Sarah Palins Crosshairs Ad Dominates

Gabrielle Giffords Debate, (emphasis added) in which appears a prominently placed photo of

Mrs. Palin (the ABC Article).13 The ABC Article proves Mrs. Palins point: Sarah Palin is

synonymous with her PACcertainly as it relates to the Palin Map and Palin Link. So too does

The Times use of Sarah Palin and Sarah Palins PAC interchangeably: another June 14, 2017

Times article addressing the Hodgkinson shooting states, Sarah Palin drew sharp criticism

for having posted a graphic online that showed crosshairs over the districts of several members

of Congress (Comp. 42, Ex. 6)

Even if the explicit reference to Sarah Palin by name in association with her PAC within

the full context of the Palin Article (including the ABC Article hyperlink) were not enough,

additional evidence alleged in the Complaint supports the conclusion that The Times false

statements are of and concerning Sarah Palin. Numerous reader comments within Exhibit 314

of the Complaint demonstrate that the Palin Article was understood to be of and concerning

Mrs. Palin. While not conclusive evidence, these statements do show that Mrs. Palins claim is

plausible. At a minimum, The Times asked the Court to take judicial notice of other articles,

Ottaway Newspapers, 116 A.D.2d 696 (1986); Franklin Prescriptions, Inc. v. The New York
Times Co., 267 F.Supp.2d 425, 435 (E.D. Pa. June 19, 2003).
13
A plaintiff can fulfill the of and concerning requirement by showing the use of her photo in
connection with a defamatory publication. Wandt v. Hearsts Chicago American, 109 N.W. 70,
71 (Wis. 1906); Holmes v. Curtis Pub. Co., 303 F.Supp. 522, 523 (D.S.C. 1969); Wallace v.
Media News Group, Inc., 568 Fed.Appx. 121, 125 (3d Cir. 2014).
14
Exhibit 3 of the Complaint is The Times Fact Check Tweet about Partisans blaming
Democrats for Hodgkinsons shooting. A highlighted version of that exhibit filed in connection
herewith identifies the relevant reader comments. (Vogt Dec. Ex. B) These comments include,
among others: Your paper blamed 2011 Giffords shooting on Sarah Palin; Yesterday NY
Times blamed Giffords shooting on Sarah Palin; and the times blamed Sarah Palin for
Giffords; Partisans on your editorial board falsely blamed Sarah Palin yesterday; and Fact
Check: Partisan NYT falsely blamed Sarah Palin for the Gabby Giffords shooting yet again.

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cited in footnote 4 of its brief, which also demonstrate that references to the Palin Map are

understood to be of and concerning Mrs. Palin:

4
See, e.g., Dan Balz, Cross hairs: Crossroads for Palin?, Wash.
Post (Jan. 11, 2011) at A.9 (noting that issue of whether Palin
was partly to blame became the top question on Facebook after
shooting); Dana Milbank, A McKinley moment? Wash. Post
(Jan. 11, 2011) at A.21 (opining that heat on Palin for recklessly
playing with violent images was well deserved).

(Memo. p. 4) (emphasis added). The Times also asked the Court to take judicial notice of and

consider the Palin Map,15 which includes the following graphic at the bottom:

This graphic on the Palin Map asking supporters to Join Me Today followed by Mrs. Palins

signature highlights her direct connection to and association with her PAC and the Palin Map.

In short, the statement Sarah Palins political action committee circulated a map of

targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized

crosshairs is capable of being understoodand was actually understoodas being about and

referring to Mrs. Palin.16

The cases and legal principles associated with corporate or group17 defamation cited by

The Times are inapplicable.18 The Times relies heavily upon selective quotes from Jankovic to

15
See Memo. p. 1, Brown Declaration Ex. C-D.
16
Mrs. Palin believes the of and concerning element is sufficiently pleaded. However, if the
Court agrees with The Times assertion that additional factual allegations about Mrs. Palins
specific role in her PAC need to be alleged (Memo. p. 8-9), Mrs. Palin respectfully requests
leave to amend to do so.
17
Significantly, all of the groups or entities in the cases cited by The Times were large. For
example, the group at issue in Jankovic was alleged in the operative pleading to be a global
enterprise with sales through separate companies based in more than fifty countries on five
continents with a network of more than 2500 regular employees, 100,000 sales consultants,

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support the sweeping proposition that defamatory words directed at a corporation or other entity

never give rise to a claim by the individuals associated with it. (Memo. p. 9) However, The

Times omitted the following qualifying language from the end of the passage it quoted:

This principle is not absolute, of course. If, for example, one person is solely in
charge of corporate decision making, an attack on a corporation would vicariously
attack the decision maker.

Id. at 1089 (quotation omitted). Here, the Palin Map was circulated by Sarah Palins eponymous

PAC and contains her signature next to the phrase Join Me Today at sarahpac.com.

This case is an example of defamation that Jankovic recognizes as actionable: When a

statement refers to a group, a member of that group may claim defamation if the groups size or

other circumstances are such that a reasonable listener could conclude the statement referred to

each member or solely or especially to the plaintiff. 494 F.3d at 1090-91 (citations omitted).19

The Peagler v. Phoenix Newspapers, Inc. case is illustrative. There, the publication at issue

referred to the company Dodge City Motors, Inc. as Peaglers Dodge City. 114 Ariz. 309, 316

(1977). The court concluded that the defamatory statements were of and concerning Mr. Peagler

individually because he was so connected in the article with the business practices of the

automobile agency that even the most discriminating reader would not likely distinguish between

the practices of the corporation and Peagler. Id. (citing Restatement of Torts 563).

eight-nine shops, and more than fifty pavilions located in major cities throughout the world.
Jankovic v. Intl Crisis Group, 494 F.3d 1080, 1089 (D.C.C. 2007).
18
In Cardone, supra and Gilman v. Spitzer, 538 Fed.Appx. 45 (2d Cir. 2013), the plaintiffs were
not identified by name in the operative publications, which also contained language exempting
the plaintiffs from the defamatory statements about the groups with which the plaintiffs claimed
affiliation. In Fulani v. N.Y. Times Co., 260 A.D.2d 215, 216 (1st Dept. 1999), the allegedly
defamatory statement did not attribute any specific conduct to the plaintiff, but merely described
her as being part of a group that act[ed] like a cult, and did not in any manner distinguish[]
[her] from any other members of that group.
19
See also, Gross v. Cantor, 270 N.Y. 93, 96 (1936)(quotation omitted) (But if the words may
by any reasonable application, import a charge against several individuals, under some general
description or general name, the plaintiff has the right to go to trial, and it is for the jury to
decide, whether the charge has the personal application averred by the plaintiff.).

{BC00127264:1} 9
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The Times own article, the ABC Article, other publications and The Times readers

demonstrate that Sarah Palins PAC and Sarah Palin are synonymous. Surely, it is plausible that

The Times statements are sufficient to demonstrate a reasonable connection between Mrs. Palin

and the defamatory statements.

C. The Times Defamatory Statements are Substantially Untrue

The Times argument that its defamatory statements are not provably false is factually

misleading and legally unsupported. The Times admittedtwicethat it made an error of fact

when it defamed Mrs. Palin. The Times cannot erase that reality through creative lawyering.

The standard of pleading and proof for the falsity element of a defamation claim is

whether the statement was false, meaning substantially untrue. Celle v. Fillipino Reporter Ent.

Inc., 209 F.3d 163, 182 (2d Cir. 2000) (citing New York Pattern Jury Instructions PJI 3:34, at

276). The accuracy of the statement must be assessed on the publication as a whole, including

evaluation of the headline. See Von Gerichten v. Long Island Advance, 202 A.D.2d 495, 496 (2d

Dept. 1994); Law Firm of Daniel P. Foster, P.C. v Turner Broadcasting Sys., Inc., 844 F.2d

955, 959 (2d Cir. 1988). The language must be given a fair reading, not read in isolation, but

must be perused as the average reader would against the whole apparent scope and intent of the

writing. Celle, 209 F.3d at 177 (quotation omitted). The words are to be construed not with

the close precision expected from lawyers and judges but as they would be read and understood

by the public to which they are addressed. Id. (quotation omitted)

Despite these well-recognized standards, The Times again ignores the entire context of its

article and the plain meaning of the defamatory statements about Mrs. Palin; this time so it can

pigeonhole the statements into the argument that motive or state of mind can never be proven.

This argument ignores the plain meaning of what The Times actually said, the context in which it

{BC00127264:1} 10
 Case 1:17-cv-04853-JSR Document 29 Filed 07/21/17 Page 16 of 32

was said, and The Times own admissions that it made an error of fact and got an important

fact wrong.

1. The Times Admitted That It Made Errors of Fact

The contention that The Times statements about Mrs. Palin cannot be proven to be

substantially untrue is irreconcilable with The Times real-time admissions of the falsity of its

publication. The Times confirmed in a statement to CNN through spokesperson, James Bennet,

The Times Editorial page editor and head of the Editorial Board, that We made an error of fact

in the editorial (Emphasis added). (Comp. 64) This admission followed an NYT Opinion

Tweet which stated We got an important fact wrong, incorrectly linking political incitement

and the 2011 shooting of Giffords. No link was ever established. (Comp. 58) (emphasis

added) A fact is something that actually exists; reality; truth.20

The admitted error of fact which The Times made in its statements about Mrs. Palin

cannot be re-characterized in hindsight as an opinion, nor generalized as a statement about

Loughners mental state, just so that The Times can make a revisionist legal argument. On this

basis alone, The Times argument concerning the demonstrable falsity of its defamatory

statements should fail.

2. The Statements are Substantially Untrue

The Times argument that the defamatory meaning of its statements is incapable of being

proven substantially untrue also fails because it ignores the plain language of what The Times

actually said. The Times stated that a direct and clear link existed between Sarah Palins

map and Loughners shooting. The Times identified this fact as evidence of violent American

politics and a sign of political incitement. The Times also stated as a matter of fact that the

20
See Dictionary.com Unabridged. Random House, Inc. www.dictionary.com/browse/fact

{BC00127264:1} 11
 Case 1:17-cv-04853-JSR Document 29 Filed 07/21/17 Page 17 of 32

Palin Map put crosshairs over individual lawmakers, including Giffords; a verifiably false

assertion (which The Times completely ignores).

The Times now claims that these facts which it presented as true in the Palin Article are

not capable of being proven true or false and that the entire editorial is speculative, blatantly

contradicting its real-time admissions and its use of the words clear and direct to describe

the link it told millions of people had been established. The sleight of hand The Times uses to

make this argument is to conflate the concept of Loughners motive with The Times

unqualified factual assertion that the Palin Link had been clearly and directly established and

was evidence of political incitement. The statement that a clear and direct link exists is factual.

The cases cited by The Times are distinguishable because they involve situations where a

publication expressed an opinion21 (which The Times is not claiming here). None of those cases

involve the publication of an assertion of fact that there was an established link between the

plaintiff and another persons commission of a crime. The primary case cited by The Times,

Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993), makes this distinction clear.22

The statements in the book at issue in Haynes were specifically represented as conjecture and

21
Price v. Viking Penguin, Inc., 881 F.2d 1426, 1438 (8th Cir. 1989) (opinion about perjury and
failure to investigate crouched as possibilities and likelihoods); Gacek v. Owens & Minor
Dist., Inc., 666 F.3d 1142, 1147 (8th Cir. 2012) (theory and surmise that fellow-employees
complaint pushed [man] over the edge and was final straw before suicide); Yohe v. Nugent,
321 F.3d 35, 41 (1st Cir. 2003) (Police Chiefs belief [plaintiff] was suicidal according to
witness statements was opinion); Rappaport v. VV Publ. Corp., 618 N.Y.S.2d 746 (Sup. Ct.
N.Y. Cty. 1994) (opinion regarding fitness for judicial office based on assignment of cases);
Immuno AG v. Moor-Jankowski, 74 N.Y.2d 548, 558-59 (1989) (letter to editor voicing partisan
groups concerns about animal testing in highly specialized scientific journal), adhered to on
remand, 77 N.Y.2d 235, 255 (1991) (it was plain to reasonable reader of scientific journal that
letter was voicing no more than a highly partisan point of view.).
22
Haynes notes that A statement of fact is not shielded from an action for defamation by being
prefaced with the words in my opinion, but if it is plain that the speaker is expressing a
subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in
possession of objectively verifiable facts, the statement is not actionable. Id.

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 Case 1:17-cv-04853-JSR Document 29 Filed 07/21/17 Page 18 of 32

characterized as speculation because the author drew a natural although not inevitable

inference did not pretend to have the inside dope [and] [did not] claim insight, nor

information the plaintiff might be able to prove false in trial. Id.

Here, in contrast, The Times asserted the existence of objectively verifiable facts that

Mrs. Palin has alleged and can prove (including through The Times own admissions) were never

were established and, therefore, were not evidence or a sign that Loughners crime was incited

by the Palin Link. Equally, the falsity of The Times statements about the Palin Map targeting

individual lawmakers can be verified by the map itself.

The Times did not present its statements about Mrs. Palin as conjecture, speculation or

opinion. The Times does not contend that its defamatory statements are protected opinion

presumably because of The Times error of fact admissions. And even if The Times had tried

to argue that its statements about political incitement were protected opinions,23 they still

would be actionable because statements of opinion based on undisclosed facts are not protected.

See e.g. Breen v. Leonard, 198 A.D.2d 392 (2d Dept. 1993); Ocean State Seafood, Inc. v.

Capital Newspaper, Div. of Hearst Corp., 492 N.Y.S.2d 175 (3d Dept. 1985).

Another case involving The Times is more akin to the facts presented here. In Darby v.

The New York Times Co., No. 07-12-00193-CV, 2014 WL 818614 (Tex. App. Feb. 26, 2014),

the court concluded that The Times statement in an article that an FBI informant encouraged a

plot by two political activists to make firebombs and hurl them at police cars at a political

convention was not speaking of unverifiable fact or proffering vague rhetoric. That court

23
The appearance of the Palin Article in the Editorial Section is not dispositive. Martin v. Daily
News L.P., 990 N.Y.S.2d 473, 480 (1st Dept. 2014); see also Kerwick v. Orange County Publn.
Div. of Ottaway Newspapers, Inc., 53 N.Y.2d 625, 626, 627 (1981).

{BC00127264:1} 13
 Case 1:17-cv-04853-JSR Document 29 Filed 07/21/17 Page 19 of 32

recognized that even [o]pinions may be actionable if they imply false statements of objective

fact. Id. at *3. (citation omitted)

D. Mrs. Palin Has Alleged Actual Malice

The Times next contention is that Mrs. Palin has not and cannot allege actual malice.

The Times predicates this argument upon the misguided notion that its swift corrections to the

Palin Article and the existence of other stories contradicting the defamatory statements about

Mrs. Palin demonstrate that the only plausible inference a reasonable person might draw is that

The Times made a simple mistake. (Memo. p. 13) That is incorrect.

It is equally (if not more) plausible that the Editorial Board knew that its statements about

Mrs. Palin were false, but published them anyway because the board does not like Mrs. Palin or

her political views and needed to use her and those views to mount a counterattack against

Conservatives and right-wing media demand[ing] forceful condemnation of hate speech and

crimes by anti-Trump liberals following Hodgkinsons shooting. (Comp. Ex. 1, p. 2) This

holds particularly true given that The Times Opinion Department acknowledged that such an

attack on Mrs. Palin inflames passions that drive website traffic.

The Times made a very serious charge against Mrs. Palin. The severity of that charge,

combined with the other evidence of actual malice set forth below, demonstrates the

implausibility of The Times suggestion that all of its Editorial Board members had no idea that

the facts in the Palin Article were falseeven more so given that they hyperlinked the ABC

Article and also knew about other Times articles (including some in the Editorial section for

which the Editorial Board is responsible)24 confirming that no link existed. The Times

24
It is reasonable to infer that the Editorial Board was aware of articles published in the
Editorial section.

{BC00127264:1} 14
 Case 1:17-cv-04853-JSR Document 29 Filed 07/21/17 Page 20 of 32

profession of a simple mistake is not just implausible, it is incapable of supporting a reasonable

and rational finding that it is true.

Actual malice can be proven, of course, by direct evidence. More often, however,

actual malice is inferred through circumstantial evidence. Biro v. Cond Nast, 963 F.Supp.3d

255, 277 (S.D.N.Y. 2013). Actual malice can be inferred at the pleadings stage from allegations

that refer to the nature and circumstances of the alleged defamation or previous dealings with

the defendant. Biro, 807 F.3d at 546. Courts have noted various circumstances that may be

probative of actual malice, including where: a story was fabricated; the defendants allegations

are so inherently improbable that only a reckless person would have published; obvious reasons

to doubt the veracity; motive for defaming plaintiff; defendant knows or suspects it made an

error and refuses to acknowledge; and the words or acts of defendant before, at, or after the

publication indicate defendant knew its statement was or may well have been false. Biro, 963

F.Supp.3d at 277-78. Whether actual malice can plausibly be inferred will depend on the facts

and circumstances of each case. Biro, 807 F.3d at 545. Mrs. Palins Complaint is replete with

factual allegations about the context of the defamatory publication and the predicate facts from

which to infer actual malice, all of which should be considered in the aggregate. Tavoulareas

v. Piro, 817 F.2d 762, 794 (D.C. Cir. 1987); Bolden v. Morgan Stanley & Co., Inc., 765 F.Supp.

830, 834 (S.D.N.Y. 1991).

1. The Context of the Palin Attack

Members of the media, including The Times,25 perceive Mrs. Palin as a convenient target

for attacks against Conservative policies and a subject likely to spark readership interest.

25
The Times recognized this phenomenon in Charles M. Blows December 3, 2010 column She
Who Must Not Be Named, which states: Yet the left continues to elevate her every utterance so
that they can mock and deride herYes, shes about as sharp as a wet balloon, but we already

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 Case 1:17-cv-04853-JSR Document 29 Filed 07/21/17 Page 21 of 32

(Comp. 28) Thus, in the Palin Article, The Times used Mrs. Palin as the traffic-driving

Conservative archetype for vicious politics to countervail early supposition that Democratic

political rhetoric26 was to blame for Hodgkinsons attack on Republican lawmakers, as well as to

counter the resulting outcry from Conservatives and right-wing media against liberal hate

speech. At a minimum, The Times decision to use Mrs. Palin as the proverbial patsy supports an

inference that The Times was blinded to the obvious falsity of its claims about her.

The facts pleaded by Mrs. Palin go much farther than mere ulterior motive or profit

motive, as suggested by The Times. (Memo. p. 18-19) Her allegations demonstrate a

specifically identified intent to fabricate facts about Mrs. Palin to fit a false narrative or,

alternatively, a purposeful avoidance of the truth because she is a reviled 27 and easy target for

attacks against Conservative policies who inflames passions and drive Web traffic. Biro, 963

F.Supp.2d at 277-78 (relationship of the parties can be relevant to determination of actual

malice).

2. The Times Fabricated the Defamatory Statements

A plaintiff can satisfy the actual malice standard by alleging that a story was fabricated

by the defendant. St. Armant v. Thompson, 390 U.S. 727, 732 (1968) (professions of good faith

will be unlikely to prove persuasive, for example, where a story is fabricated by the

defendant); Biro, 807 F.3d at 545. Fabrication can be established where the defendant

know that. How much more time and energy must be devoted to dissecting that? How is this
constructive, or even instructive at this point? What purpose does it serve other than inflaming
passions to drive viewership and Web clicks? (emphasis added) (Comp. 29-30)
26
This Democratic rhetoric is described in Exhibit 7 (p. 3) of the Complaint (Kathy Griffin and a
bloodied decapitated Trump and Trump as Shakespeares murdered Caesar in Central Park).
27
Evidence of ill will combined with other circumstantial evidence indicating that the
defendant acted with reckless disregard of the truth or falsity of a defamatory statement may
support a finding of actual malice. Celle, 209 F.3d at 183 (citations omitted).

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 Case 1:17-cv-04853-JSR Document 29 Filed 07/21/17 Page 22 of 32

provides no source for the allegedly defamatory statements or if the purported source denies

giving the information. Id. (emphasis added)

Mrs. Palin alleges that The Times fabricated its statements and cited no sources

establishing Mrs. Palins clear and direct link to Loughners shooting. (Comp. 67) Mrs. Palin

further alleges that The Times and its Editorial Board had actual knowledge of facts that

established that there was no link between Mrs. Palin and Loughners crimethe Editorial

Board and staff followed Loughners highly-publicized criminal case28 and the facts it revealed;

the paper reported regularly about the case. (Comp. 47) The absence of any source or

supporting evidence, coupled with The Times knowledge of the facts and records surrounding

Loughners case plausibly establishes that The Times fabricated its statements.

3. The Times Also Had Reason to Doubt the Truth of Its Statements

Actual malice also is established, despite professions of good faith, when a story is the

product of [ ] imagination so inherently improbable that only a reckless man would have put

[it] in circulation [and] where there are obvious reasons to doubt the veracity of the

source of the story. St. Amant, 390 U.S. at 732. At bare minimum, The Times had reason to

doubt the truth of its statements about Mrs. Palin and the Palin Map. Its own articles29 at the

28
Loughners criminal proceedings failed to unearth any evidence that Loughners actions were
politically motivated, let alone incited by Mrs. Palin or the Palin Map. (Comp. 47) There is no
evidence to suggest that Loughner ever saw the map of targeted electoral districts that the Palin
Article references. (Id.)
29
Shooting Is Latest Eruption in a Grim Ritual of Rage and Blame (no connection to the
crime was established.) (Comp. 42, Ex. 6); The Indigenous American Berserk Strikes
Again (Comp. 43, Ex. 7); Rhetoric and Bullets (Comp. 44, Ex. 8); The Tucson Witch
Hunt ( there was no evidence then, and even now, that overheated rhetoric from the right
had anything to do with the shooting)(Comp. 45, Ex. 9); and Looking Behind the Mug-Shot
Grin (no direct or clear link between political rhetoric and Loughners actions could be
claimed) (Comp. 46, Ex. 10).

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 Case 1:17-cv-04853-JSR Document 29 Filed 07/21/17 Page 23 of 32

time of Loughners shooting and when the Palin Article was published help establish this

ultimate fact.

Here, The Times argument employs a tortured reading of New York Times Co. v.

Sullivan, 376 U.S. 254 (1964) (Sullivan), selectively quoting an excerpt from the case while

ignoring the distinguishable factual scenario. (Memo. p. 14-15) The omitted portion of the

quoted passage explains why, in Sullivan, the failure to check the accuracy of an advertisement

against news stories in The Times own files was insufficient to establish actual malice:

With respect to the failure of those persons to make the check, the
record shows that they relied upon their knowledge of the good
reputation of many of those whose names were listed as sponsors
of the advertisement, and upon a letter from A. Phillip Randolph,
known to them as a responsible individual, certifying that the use
of the names was authorized. There was testimony that the persons
handling the advertisement saw nothing in it that would render it
unacceptable under The Times policy of rejecting advertisements
containing attacks of a personal character; their failure to reject
on this ground was not unreasonable.

376 U.S. at 287.

Mrs. Palin has alleged the oppositethat no sources were relied upon (let alone

responsible ones), and that the Editorial Board (not the advertising department) failed to check

articles (including those published by its own Editorial section) that were easily obtainable

online30 (as opposed to a manual search necessary in 1964, when Sullivan was decided). Worse,

The Times hyperlinked the ABC Article31 which, unlike Sullivan, gave The Times obvious reason

to doubt the veracity of its charges against Mrs. Palin. Here, there is considerably more reason

30
A query for Jared Lee Loughner on The Times website quickly compiles 136 articles.
(Vogt Dec. Ex. E)
31
Notably, the ABC Article was published in January 2011 which does not support The
Times assertion that the hyperlink to the ABC Article recognizing the absence of a link over
seven years ago somehow absolves The Times from liability. It does, however, demonstrate that
the Editorial Board had even more reason to doubt the validity of its June 14, 2017 factual
assertions.

{BC00127264:1} 18
 Case 1:17-cv-04853-JSR Document 29 Filed 07/21/17 Page 24 of 32

beyond the mere presence of the stories in the files to establish that The Times knew that its

statements about Mrs. Palin were false. Certainly, The Times failed to investigate32 in the face of

known facts calling into doubt the truth of its charges against Mrs. Palin.

Mrs. Palin pleaded actual knowledge and recklessness based not only on The Times own

articles, but also upon her allegations that the Editorial Board followed Loughners criminal case

closely and compiled research about Loughners case. (Compl. 46, 67) The Times also had a

copy of the Palin Mapa cursory review of which would have demonstrated that crosshairs

were not placed over individual lawmakers. These facts combined with the rest of the facts

Mrs. Palin alleges set forth a plausible claim and support a reasonable inference that The Times

recklessly published the Palin Article with actual malice.

4. The Violation of The Times Journalistic Standards

Further evidence that The Times acted with actual malice towards Mrs. Palin is the fact

that the Editorial Board violated The Times own policies and procedures. The violation of

standards of journalism is evidence of actual malice. Kerwick, 53 N.Y.2d at 626. In fact, such

violations combined with an admission of the falsity of a statement in an editorial is sufficient to

require a trial on actual malice even when a retraction is made. Id. at 627. In Kerwick, the

publisher claimed an honest mistake: Reliance on memory rather than search of material, or

organic research. Id. Nevertheless, the court concluded that a jury trial on actual malice was

required.

32
Although a publisher does not have an absolute duty to investigate, a publisher cannot feign
ignorance or profess good faith when there are clear indications present which bring into
question the truth or falsity of defamatory statements. Gertz v. Robert Welch, Inc., 680 F.2d
527, 538 (7th Cir. 1982) (citations omitted) (prior articles were edited by the same person who
reviewed the defamatory publication); see also, Hunt v. Liberty Lobby, 720 F.2d 631, 645 (11th
Cir. 1983) (an inference of actual malice can be drawn when a defendant publishes a
defamatory statement that contradicts information known to him).

{BC00127264:1} 19
 Case 1:17-cv-04853-JSR Document 29 Filed 07/21/17 Page 25 of 32

Mrs. Palin alleges that The Times violated its policies.33 Those policies require truthful

reporting supported by fact-checking and testing the accuracy of information, compliance with

which was non-existent. The Times policy violations, combined with the admitted falsity of the

statements about Mrs. Palin and its own articles and research files contradicting its statements,

set forth a plausible claim of actual malice.

5. The Times Insufficient and Incomplete Retractions/Apology

The Times spin on the facts giving rise to its insufficient corrections does not defeat

Mrs. Palins actual malice allegations. In fact, no retractionregardless of how swift or

complete it may beovercomes the necessity of a jury trial on actual malice. Kerwick,

53 N.Y.2d at 627. However, words and actions after publication can be relevant to actual

malice. Biro, 963 F.Supp.2d at 278.

The Times assertion that it made its corrections in response to reader concerns and that it

promptly, fully and directly addressed each of the statements about which Mrs. Palin

complains contradicts Mrs. Palins well-pleaded allegations. At most, this raises fact issues.

Public backlash caused The Times to make edits and two woefully insufficient

corrections to its fabricated story, along with half-hearted Twitter apologiesnone of which

sufficiently corrected the falsehoods that the paper published. (Comp. 51-56) Most notably,

none of these corrections or apologies mentioned Mrs. Palin or acknowledged that there was no

link between Sarah Palin and Loughner. (Id.) The fact that The Times did not issue a full and

33
These policies include, among others: tell the complete, unvarnished truth as best we can
learn it, and that those who knowingly or recklessly provide false information for publication
betray our fundamental pact with our readers; we observe such rudimentary professional
practices as the importance of checking facts; test the accuracy of information from all
sources and exercise care to avoid inadvertent error. Deliberate distortion is never permissible;
and Distinguish between advocacy and news reporting. Analysis and commentary should be
labeled and not misrepresent fact or context. (Comp. 69-71)

{BC00127264:1} 20
 Case 1:17-cv-04853-JSR Document 29 Filed 07/21/17 Page 26 of 32

fair retraction of its defamatory Palin Article, and did not issue a public apology to Mrs. Palin, is

additional evidence of actual malice that should be considered.

Given that the entire premise of the Palin Article was the pattern of politically incited

violence emanating from the Palin Link, which The Times conceded did not exist, the entire

Palin Article should have been retracted not minimally and inadequately corrected and

The Times should have apologized to Mrs. Palin. (Comp. 54) Incredibly, when The Times

acknowledged that the Palin Article falsely stated that the Palin Map placed stylized cross hairs

on Gabrielle Giffords and other lawmakersindividuallyit referred only to a political action

committee (not Sarah Palins political action committee), thus demonstrating the papers

steadfast refusal to acknowledge that it had defamed Mrs. Palin. (Comp. 56)

Worse, in its print edition of The New York Times, The Times merely re-published at the

bottom of its Editorial page the same two prior, inadequate online corrections. (Comp. 63)

The printed corrections are completely ineffective because they were not made within the

context of the entire articlethus making the reference to a political action committee rather

than Sarah Palins political action committee even more egregious than in the on-line

corrections.

These facts support the inference that, in publishing the Palin Article and the way in

which The Times handled it in the days following its publication, The Times put profit and

politics above its self-professed principles. (Comp. 73)

E. The Special Circumstances Warranting Restitution Damages

In addition to the defamation damages Mrs. Palin seeks, this case presents a unique

factual scenario in which equitable principles should be applied to also permit the recovery of

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 Case 1:17-cv-04853-JSR Document 29 Filed 07/21/17 Page 27 of 32

restitution. The cases cited by The Times merely demonstrate that the law has not caught up with

the digital age in which modern defamation occurs.

Mrs. Palin alleges that The Times appreciates that in the increasingly competitive digital

media landscape in which it finds itself, attacking Mrs. Palin brings an economic benefit to its

business. (Comp. 31) In recent years, The Times has been transitioning from its celebrated

past as a great American print newspaper to a subscription-first, mobile-first34 news provider that

is increasingly dependent upon click-based digital advertisements to generate revenue. (Comp.

22)

The Times actively promoted the Palin Article on social media, including on its Twitter

feed, which has over 38 million followers; as did The Times Editorial Board, whose Twitter feed

has nearly 600,000 followers. (Comp. 78, Ex. 16) The online version of the Palin Article

included several advertisements, which generated revenue for The Times. (Comp. 39, Ex. 5)

The Times generates advertising revenue from banners, video, rich media and other interactive

ads on its web and mobile platforms, such as those that accompanied the Palin Article. (Comp.

40)

Accepting as true Mrs. Palins allegations that The Times posted the Palin Article with

actual malice and knowledge that stories attacking her inflame passions to drive viewership and

Web clicks, equitable principles should be applied to prevent The Times from retaining the ill-

gotten benefits of its malicious attack. Nearly a century ago, Justice Cardozo recognized that

the spoken word dissolves, but the written one abides and perpetrates the scandal. Ostrowe v.

Lee, 256 N.Y. 36, 39 (1931) (internal quotation and citation omitted). The harm Justice Cardozo

34
As part of this transition, The Times and its Editorial department maintain their own social
media accounts, such as Twitter and Facebook, on which they actively promote articles. (Comp.
23)

{BC00127264:1} 22
 Case 1:17-cv-04853-JSR Document 29 Filed 07/21/17 Page 28 of 32

recognized is even greater in the digital age, when publishers such as The Times instantaneously

transmit and promote articles on the Internet and through mobile apps and social media to

millions of people, securing advertising revenue as soon as web pages are viewed. The realities

of modern libel require remedies commensurate with the equities involved.

To be clear, Mrs. Palin seeks the equitable remedy of restitution, not disgorgement.35

[D]isgorgement is a distinctly public-regarding remedy, available only to government entities

seeking to enforce explicit statutory provisions. F.T.C. v. Bronson Partners, LLC, 654 F.3d

359, 372 (2d Cir. 2011). [R]estitution is a unifying theory of private-law liability akin to tort

or contracta descriptor of a class of wrongs rather than of any particular remedy. Id. at 370.

[C]ourts and commentators often use the term restitution as a metonym for the class of remedies

particularly identified [as sounding in] unjust enrichment. Id. [T]he rubric of restitution

embraces several historically distinct private law claims, some of which evolved at law and

others of which evolved in equity. Id. at 371 (citing Great-West Life & Annuity Ins. Co. v.

Knudson, 534 U.S. 204, 212 (2002)). A range of disparate rights and remedies can be explained

in terms of the common objective of preventing unjust enrichment. Id. at 370.

No cases, including those cited by The Times, have considered the concept of restitution

within this framework as a means of redressing the wrongs occasioned by digital defamation. In

other situations involving non-physical violations of an individuals rights, however, the remedy

is allowed. Restitution is an available remedy in privacy cases and Lanham Act cases. See e.g.

Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 576 (1977); Bi-Rite Enterprises,

Inc. v. Button Master, 555 F.Supp. 1188, 1198 (S.D.N.Y. 1983), superseded by 578 F.Supp. 59

35
Mrs. Palin recognizes her use of the term disgorge in Paragraph 84 of the Complaint, but
clarifies herein that her intent is the seek restitution. The labels affixed to disgorgement and
restitution are often interchanged but, as set forth herein, mean different things.

{BC00127264:1} 23
 Case 1:17-cv-04853-JSR Document 29 Filed 07/21/17 Page 29 of 32

(S.D.N.Y. 1983); Restatement 3d of Unfair Competition 49. An action based on invasion of

privacy may be said to resemble, in many respects, an action based on libel. Hart v. E.P.

Dutton & Co., 93 N.Y.S.2d 871, 876 (Sup. Ct. Oneida Cty. 1949).

The essential inquiry in any action for unjust enrichment or restitution is whether it is

against equity and good conscience to permit the defendant to retain what is sought to be

recovered. Paramount Film Distrib. Co. v. State, 30 N.Y.2d 415, 421 (1972) (citations omitted)

(emphasis added). This Court is familiar with the essential elements of restitutionall of which

Mrs. Palin pleaded.36 This Court also has noted that the equity and good conscience element

provides broad discretion. Liberty Life Ass. Co. v. Bahan, No. 09 Civ. 4715(JSR), 2010 US Dist.

LEXIS 87446, at *6 (S.D.N.Y. Aug. 20, 2010); TPTCC N.Y., Inc. v. Radiation Therapy Servs.

Inc., 784 F.Supp.2d 485, 502 (S.D.N.Y. 2011).

At the pleadings stage, Mrs. Palin has alleged sufficient facts to meet the Twombly

standard and raise her right to restitution above a speculative level. Palmeri v. LG Electronics

USA, Inc., C.A. No. 07-5706, 2008 WL 2945985, *5 (D.N.J. July 30, 2008) (applying New

Jersey law). Mrs. Palin has alleged that the defamatory and unnecessary use of her name in the

Palin Article was occasioned with actual malice and knowledge that such use would inflame

passions to drive traffic, thereby conferring a benefit upon The Times in circumstances under

which it would be inequitable for The Times to retain that benefit. In this day and age, it is

inconceivable that the law would allow an online publisher to retain the benefits of advertising

adorning a defamatory article published with actual malice. At minimum, permitting

Mrs. Palins restitution theory to proceed to the discovery phase to further develop the facts is

not contrary to controlling law and does not run afoul of the First Amendment.

36
Comp. 76-78, 84-85, 96.

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The authorities cited by The Times do not apply to the unique facts of this case and the

broad equitable reach of restitution. The mere absence of attempts to bring an action similar to

the instant one is not ipso facto proof that an action does not lie, which was the strained logic

employed in Hart, 93 N.Y.S.2d at 879. Moreover, the profits attributable to an entire book are

distinguishable from advertising profits arising from one on-line defamatory article. Id. The

Ventura case analyzed unjust enrichment under Minnesota law and only from a quasi-contract-

based perspective. Ventura v Kyle, 825 F.3d 876, 887 (8th Cir. 2016). Alharabi merely

followed Venturas logic. Alharabi v. The Blaze, Inc., 199 F.Supp.3d 334, 361 (D. Mass. 2016).

Silvercorp. involved diminution in value of stock and specifically noted that the plaintiff failed to

allege the conferance of a benefit. Silvercorp Metals Inc. v. Anthion Management LLC, No.

150374/2011, 2012 WL 3569952, *12 (Sup. Ct. N.Y. Cty. August 16, 2012). Delaware has

recognized that disgorgement is theoretically available in a defamation case, but did not

make sense in a case involving stock. Organovo Holdings, Inc. v. Dimitrov, C.A. No. 10536-

VCL, 2017 WL 2417917, *20 (Del. Jun. 5, 2017) (citing Silvercorp.)

Equity and good conscience support the viability of a restitution theory of recovery in this

case.

CONCLUSION

Based on the foregoing, Palin respectfully requests that the Motion to Dismiss be denied.

Dated: July 21, 2017. Respectfully submitted,

/s/ Shane B. Vogt

Kenneth G. Turkel (admitted pro hac vice)
Email: [email protected]
Shane B. Vogt (admitted pro hac vice)
Email: [email protected]
BAJO | CUVA | COHEN | TURKEL
100 North Tampa Street, Suite 1900
Tampa, Florida 33602

{BC00127264:1} 25
 Case 1:17-cv-04853-JSR Document 29 Filed 07/21/17 Page 31 of 32

Telephone: (813) 443-2199

Facsimile: (813) 443-2193

S. Preston Ricardo
E-mail: [email protected]
GOLENBOCK EISEMAN ASSOR BELL
& PESKOE LLP
711 Third Avenue
New York, NY 10017
Telephone: (212) 907-7300
Facsimile: (212) 754-0330

Attorneys for Plaintiff Sarah Palin

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CERTIFICATE OF SERVICE

I hereby certify that the foregoing Memorandum of Law in Opposition to Motion to

Dismiss was filed electronically on the 21st day of July 2017. This Memorandum of Law will be
sent by operation of the Courts electronic filing system to counsel of record for all parties as
indicated on the electronic filing receipt. Parties and their counsel may access this filing through
the Courts system.

/s/ Shane B. Vogt

Attorney

{BC00127264:1} 27