Three years after a federal judge and jury ruled that the New York Times didn’t defame Sarah Palin, the former GOP vice-presidential nominee is going to get another crack at the Grey Lady as jury selection is set to begin Monday in a retrial of her defamation lawsuit.
While the facts of Palin’s case — which centers on a 2017 Times editorial that wrongly suggested a political ad of hers inspired a mass shooting — haven’t changed, the media and political landscape since she lost her initial suit has completely shifted.
With Donald Trump and his administration threatening news organizations and pulling in preemptive settlements, all while other media companies have lost their defamation cases in court in recent years, what looked like an uphill battle for Palin could help set the stage for conservatives to challenge press freedom and the media’s ability to report on public figures.
“The case is, in many respects, an old-school media libel action resurrected into a newly complicated defamation landscape,” University of Utah law professor RonNell Andersen Jones told the New York Times. “It may prove to be a real barometer of the changing public attitude about the press and the changing appetite for American press freedom.”
Palin is getting another shot at the Times largely due to a misstep made by U.S. District Judge Jed S. Rakoff, who will also be presiding over the new trial in a Manhattan courthouse.
Palin’s odds of winning seemed slim through the 2022 trial, largely because of the protections afforded the Times from the landmark 1964 Supreme Court case NYT v. Sullivan that puts the onus on public figures to prove media outlets acted with “actual malice” and published material with a reckless disregard for the truth.
In the 2017 column that is at the heart of Palin’s complaint, the Times issued a correction the following morning that acknowledged there was no connection between the 2011 shooting of former Rep. Gabby Giffords (D-AZ) and an ad Palin ran that included crosshairs. The Times’ attorneys argued that the error was an honest mistake, and Rakoff initially dismissed the lawsuit before it reached trial. However, a federal appeals court revived it in 2019, claiming the judge reached his decision improperly.
When the trial began three years later, the Times’ then-editorial page editor James Bennet testified that he had inserted the passage about the Palin ad into the column but claimed he didn’t mean to imply she had directly incited the Giffords shooting.
While the jury deliberated, however, Rakoff decided to issue his own separate ruling against the former Alaska governor, stating that her case consisted “either of gross supposition or of evidence so weak that, even together, these items cannot support the high degree of particularized proof” to win.
Rakoff announced his ruling in court and out of hearing of the jury, claiming he would wait until after they announced their verdict before issuing his. After the jury came back with a unanimous ruling against Palin, however, several jurors acknowledged to the court clerk that they had received push alerts on their phones about Rakoff’s ruling.
Palin appealed the verdict, citing both Rakoff’s in-court announcement and the exclusion of certain evidence, and a three-judge panel on the U.S. Circuit Court of Appeals sent the case back to be re-tried. The appellate judges stated that Rakoff had not followed proper procedure throughout the original trial.
The panel added that they 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.” Still, the panel did reject Panlin’s request to have Rakoff removed from the case.
After the appeal court’s decision, the legal teams for the Times and Palin held talks about settling the case. The discussions reportedly broke down, though, when the paper made it clear that they would not give the Republican firebrand monetary damages.
A win for Palin would not only be trumpeted by Trump and his MAGA allies as yet another rebuke of the legacy media amid dwindling public trust in the press, but Palin’s lawyers have made it clear they’d use a victory to get the Supreme Court to reconsider NYT v. Sullivan and potentially unravel protections for the media.
At the same time, though, the case is taking place in New York after the state passed a law strengthening and expanding press freedoms.
