New York Times editorial page chief to testify under oath on Palin lawsuit next Wednesday

I am worried.  The New York Times may be able to short-circuit Sarah Palin's lawsuit.  Its response to a court order to provide testimony looks to my layman's eyes like a plausible escape via the "actual malice" requirement that the author knew or should have known that the assertion was untrue.   

The New York Times Company responded to Palin's defamation lawsuit with a motion to dismiss, which is fairly routine in lawsuits.  But I am not sure they expected the unusual response from U.S. District Court judge Jed S. Rakoff, who required the company to identify the editor or editors who wrote the editorial and submit them to pretrial testimony under oath next week.

The order states that the author or authors must appear when the court:

... will convene an evidentiary hearing on Wednesday, August 16 at 2:00 PM EST. At the hearing, defense counsel must produce the author(s) of the editorial, who (or each of whom, if there is more than one author) will be examined under oath by defense counsel for no more than thirty (30) minutes, to be followed by cross-examination of plaintiff's counsel of no more than forty-five (45) minutes, to be followed by no more than fifteen (15) minutes of redirect by defense counsel. The Court also may question each such witness.

In its coverage of the order, the Times fingered the recently arrived (from The Atlantic) editorial page honcho as the person it would supply for testimony:  

A spokeswoman for The Times said in a statement that the news organization would provide the testimony the judge had ordered. David McCraw, deputy general counsel for The Times, said the witness would be James Bennet, The Times's editorial page editor.

This language, handling the subject with tongs, is not a direct claim that James Bennett is the author.  It identifies him as the witness to be supplied.

Here is why the Times may be successful in killing the suit, if it claims he is the sole author.  The issue is Palin's claim that "actual malice" can be inferred from the fact that the editorialists knew or should have known that the paper's news pages had made it clear she had no connection to the shooting of Gabby Giffords.  But because Bennet is a new kid on the block on the editorial board, having been brought in 13 months before the editorial was published, the legal team can claim he cannot be reasonably held to the standard of having read the Times' coverage of the Giffords shooting, because he was working elsewhere at the time.  No one could master the Times' archive in such a short time, they can quite reasonably state.

They can also plausibly claim that no one else on the editorial board saw or consulted with him on the editorial because, as boss, he probably did not need to seek review.

But keep in mind that the 45 minutes of cross-examination by the Palin team can get into lots of important (and entertaining) questions that might establish the contention that Bennet reasonable "should have been aware" that the information was false. 

Who edits the editor?  Does the New York Times Company authorize a person to publish editorials with no editorial review for fact-checking?  What is the difference between an editorial and an op-ed?  Should readers assume that an editorial is just an anonymous post of a member of the editorial board, subject to less review than an op-ed from an outsider?

Where does Bennet get his information?  Does he check his facts when reviewing his own output, if he is the only one editing his own work?

Details of his work patterns, as well as Times policies on review of material that goes out in the name of the entire editorial board, are up for grabs.

Depending on what is discovered, the judge will rule on whether the matter can proceed. 

Here is the Times' profile of Bennet:

James Bennet, Editorial Page Editor

·       @JBennet

James Bennet, the editorial page editor of The New York Times, is in charge of the Opinion department. He oversees the editorial board and the Letters and Op-Ed sections.

Mr. Bennet became editorial page editor in May 2016. Before this role, Mr. Bennet was the president and editor in chief of The Atlantic. Under Mr. Bennet, who was named editor in 2006, The Atlantic substantially increased its editorial reach and impact while returning to profitability for the first time in recent history. Adweek named Mr. Bennet editor of the year in 2012 and Ad Age did the same in 2009. The Atlantic was honored with the National Magazine Award four times during his tenure, including Magazine of the Year and best website, for

Before joining The Atlantic, Mr. Bennet worked for The Times for 15 years in several roles, including Detroit bureau chief, White House correspondent and Jerusalem bureau chief. He also served as a staff writer for The Sunday Magazine. Before joining the Times, Mr. Bennet was an editor with The Washington Monthly. He and his wife have two sons.

The estimable Professor Jacobson of Legal Insurrection is my go-to source for understanding the legalities of this case.  See this essay for an explanation of the motion to dismiss for background and context.  See his current article on the judge's order for much more.

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