Palin wins appeal in defamation lawsuit against New York Times

Written by Jonathan Turley,

Over the years, I’ve written repeatedly (here, here, here, here, and here) about the interesting defamation lawsuit brought against the New York Times by Sarah Palin, the former governor of Alaska and Republican vice presidential nominee in 2008. The ruling by the judge in the case, U.S. District Judge Jed Rakoff, had previously been reversed and made innovative and deeply flawed statements before the case was dismissed.

Now his verdict has been reversed again, giving Palin a new chance to sue the newspaper. Given Judge Rakoff’s poor track record in this case, it is concerning that he will be allowed to preside over a new trial.

In the opinion below, the three-judge panel of the 2nd Circuit Court of Appeals overturned a 2022 jury verdict in favor of The New York Times because of Judge Rakoff’s errors.

The case revolves around an editorial that suggested Palin inspired or incited the 2011 shooting of then-U.S. Rep. Gabrielle Giffords (D-Ariz.) by Jared Loughner. It was outrageous and demonstrably false. The editorial was published in the wake of the shooting of Rep. Steve Scalise (R-La.) and other GOP members of Congress by James T. Hodgkinson, of Illinois, 66, a liberal activist and campaign supporter of Bernie Sanders (I-Vt.). The Times apparently wanted to spin the story back toward right-wing violence; it alleged that SarahPAC, Palin’s political action committee, had published an image that put Giffords in the crosshairs before she was shot, described it as direct incitement to violence, and argued that while not as guilty as Palin, “liberals should of course be held to the same standard of decency that they demand of the right.”

In reality, the map SarahPAC distributed showed the targets of several counties that Republicans saw as potential swing districts, and the map was released well before the shooting.

Rakoff previously maintained that he was “not at all happy with this decision,” but that he was again forced to dismiss the case because the Supreme Court had set “a very high standard of actual malice” for public figures seeking damages for defamation. He cited the New York Times vs. Sullivan standard requiring that it be shown that a false statement was made “with knowledge that it was false or with reckless disregard for whether it was false.”

The Times contributed to this standard as a victim of a biased campaign. The status is far less obvious today. For many, the Palin controversy exposed the “advocacy journalism” now in vogue in the media. The Palin piece was all too familiar to conservatives and Republicans who were routinely attacked by the paper. In this sense, the Times has become the very thing the original decision was intended to combat: a threat to free speech. The Times, they argue, often uses this protection to shield spurious attacks on political opponents.

Decades ago, The Times was attacked by segregationists who wanted to prevent the media from publishing reports by segregationists who opposed the civil rights movement. This effort created such a threat that the media had to choose between a form of self-censorship or bankruptcy. In agreeing to New York Times vs. SullivanJudge Hugo Black said that “the state’s libel laws threaten the existence of an American press powerful enough to publish unpopular views on public affairs and brazen enough to criticize the conduct of public officials.”

After reversing his dismissal, Rakoff went on to dismiss the case again after the jury had been sent to render a verdict. He stated that Palin had failed to provide evidence that would meet the minimum of the actual malice standard. I criticized that ruling as legally flawed. There was clearly sufficient evidence for a jury to render a verdict.

The Second Circuit agreed and reversed Rakoff’s ruling, finding that Palin had presented sufficient evidence of actual malice.

However, it was Judge Rakoff’s handling of the case that added additional reversible error. Rakoff had failed to sequester the jury, and his dismissal was widely reported. The jury learned of the decision and ruled against Palin. Although some jurors said the news had no effect on their decision, the Second Circuit correctly rejected the claim. The appellate panel held that “(w)e ​​believe that a jury’s verdict reached with knowledge of the judge’s already announced disposition of the case will rarely be untainted, regardless of what the jurors say upon subsequent inquiry.”

To make matters worse, Rakoff instructed the jury not to speak to the media after the case, an insulting requirement that served to protect his own mistakes. Jurors are free to discuss cases after a dismissal or verdict.

Palin was already at a huge disadvantage as a prominent Republican facing a New York grand jury. Rakoff added a series of flawed decisions to that. Even after he was previously overturned, Rakoff appeared intent on dismissing the case.

I have written about the case before as it raises concerns about the extension of New York Times vs. Sullivan from government officials to public figures.

As I wrote earlier, Judge William Brennan wrote perhaps his most eloquent and profound decision in New York Times vs. Sullivan.

News organizations at the time were being attacked by anti-segregationists to prevent them from covering the civil rights marches. The court rightly saw civil liability as a chilling effect on the free press, either by defunding publications or by creating a form of self-censorship. By imposing a high standard for proving libel, Brennan sought to give the free press “breathing room” to perform its most important function in our system.

The court held that government officials have ample means to refute false statements, but that it is essential to democracy that voters and reporters be able to challenge government officials. To create that breathing room, the court required that government officials prove “actual malice,” where the defendant had actual knowledge of the falsity of a statement or showed reckless disregard for whether it was true or false.

Two justices have indicated they would be open to the idea of ​​revisiting New York Times v. Sullivan . Justice Clarence Thomas has long been a critic of the standard, arguing it is not supported by the text or history of the Constitution. Thomas and Justice Neil Gorsuch last year objected to the denial of certiorari in Berisha v. Lawson , in which author Guy Lawson published a book detailing the “true story” of three Miami youths who allegedly became international arms dealers.

It was a success and earned him a film deal. A central figure in the story was Shkelzen Berisha, the son of the former prime minister of Albania. He sued Lawson for libel, claiming that he was not, as he was portrayed, an associate of the Albanian mafia and that Lawson used unreliable sources for his account.

Berisha is a public figure rather than a civil servant. The problem is that one element is missing to impose a higher burden on public figures like Berisha: to promote the democratic process. In teaching libel, the real standard of malice rests convincingly on a democratic reasoning that a free people and a free press must have breathing space to criticize the government and its leaders. It helps protect and perfect democracy.

For 30 years, I have struggled in the classroom to make the same compelling argument for applying the standard to anyone considered a public figure. It doesn’t take much to qualify as a public figure, or a “limited-purpose public figure.” But why should private success alone subject someone like the Kardashians to a higher burden of proof for defamation? Writing about hot dog-eating champ Michelle Lesco doesn’t protect fundamental democratic principles or even support fundamental journalistic principles. To prevail, a Kardashian would still have to prove that a statement was false and unreasonable to publish. Moreover, publications in most states are protected by retraction statutes that limit or bar damages for corrected stories. After all, speech is already protected from defamation suits.

These are difficult questions that warrant serious discussion, not only in the courts but also in society. For example, there may be a more credible basis for holding public figures to a higher standard on issues of great public interest. But what is a legitimate public cause, especially when that cause is based on a false report?

Take Nicholas Sandmann, who was swept up in a maelstrom of news coverage for falsely claiming he assaulted an elderly Native American activist in front of the Lincoln Memorial. Sandmann secured settlements for the biased and false reporting of major media outlets. Defamation still protects speech without a higher constitutional standard for figures like Sandmann.

Clearly, the public figure standard is a clear advantage for the media. However, without a compelling argument for a constitutional standard for public figures, it looks more like a court-enforced subsidy or shield. The purpose of Times v. Sullivan was not simply to prop up the press. The Palin case and others could provide a new opportunity for the court to revisit the doctrine.

Palin, however, will now have to appear before Judge Rakoff and a jury in New York, which has proven to be a deadly combination. If her case ultimately reaches the Supreme Court, it could lead to a reconsideration of the extension of New York Times vs. Sullivan to public figures.

Here’s the take: Palin vs. New York Times