Sarah Palin granted new defamation trial against NY Times by appeals court

Sarah Palin was granted a new defamation trial against the New York Times on Wednesday after a federal appeals court found “several major issues” tainted the first one in February 2022 – including jurors learning the judge had dismissed the case from breaking news alerts during their deliberations. 

In a 56-page decision, the 2nd Circuit Court of Appeals found Manhattan federal court Judge Jed Rakoff “improperly intruded on the province of the jury” when he determined the former Alaska governor and Republican vice presidential candidate failed to provide clear and convincing evidence that The Times maliciously defamed her in an editorial that suggested her political ads influenced a mass shooting.

Rakoff didn’t communicate his ruling finding the newspaper was not liable for defamation to the jury, deciding to let them reach their own conclusion days later – which was ultimately the same as his – but it then transpired they had learned about it from push notifications on their cell phones.

The appeals court found the jury’s verdict could not be deemed reliable because of the push alerts. They also determined that Rakoff wrongly instructed jurors about what Palin was required to prove and erroneously rejected evidence that Palin argued was proof that The Times editor who handled the piece, James Bennett, personally disliked her.

In Tuesday’s decision, 2nd Circuit Judge John Walker, writing for a three-judge panel, vacated the judge and the jury’s verdicts and remanded the case back to Rakoff for another trial. The court declined Palin’s request to disqualify the judge. 

Noting that the push notifications weren’t Rakoff’s doing, Walker wrote that the court nevertheless had “no difficulty concluding that an average jury’s verdict would be affected if several jurors knew that the judge had already ruled for one of the parties on the very claims the jurors were charged with deciding.”

“Given a judge’s special position of influence with a jury, we think a jury’s verdict reached with the knowledge of the judge’s already-announced disposition of the case will rarely be untainted, no matter what the jurors say upon subsequent inquiry,” the court wrote. 

The case, watched closely by press freedom groups, centered on a June 14, 2017 editorial titled “America’s Lethal Politics,” which examined the impact political rhetoric has on gun violence after a gunman opened fire at a congressional baseball game, wounding Rep. Steve Scalise (R-La.). It drew a line between Palin’s campaign literature and the 2011 shooting of Rep. Gabrielle Giffords, in which the former Arizona Democrat was partially paralyzed and six people were killed.

Bennett, The Times’ former editorial board editor, added details to the writer’s piece, noting that an old graphic put out by Palin’s political action committee had depicted “Giffords and 19 other Democrats under stylized crosshairs,” when the digital graphic in question actually showed Giffords’ electoral district in crosshairs. The piece was corrected after 14 hours. The shooter, Jared Loughner, was ultimately deemed to be severely mentally ill. 

In granting The Times’ motion to dismiss the case, Rakoff found the error amounted to “very unfortunate editorializing on the part of The Times,” but not defamation.

At trial, the newspaper’s lawyer, David Axelrod, argued the First Amendment protected journalists “who make an honest mistake” when they write about public figures like Palin and that Bennett, who took the stand, had quickly owned up to the blunder. Legal spectators viewed the case as a potential vehicle for the U.S. Supreme Court to revisit the landmark 1964 ruling in New York Times vs. Sullivan that restricts public officials’ ability to sue journalists. 

A spokesman for The Times, Charlie Stadtlander, said, “This decision is disappointing. We’re confident we will prevail in a retrial.” 

Palin’s attorney, Kenneth Turkel, said his client was “very happy” with the ruling, describing it as “a significant step forward in the process of holding publishers accountable for content that misleads readers and the public in general.”

“The truth deserves a level playing field, and Governor Palin looks forward to presenting her case to a jury that is ‘provided with relevant proffered evidence and properly instructed on the law’ as set forth in the Second Circuit Court of Appeals’ opinion,” Turkel said.