By Sam Ozer-Staton

It’s been a rough couple of weeks in New York City for Sarah Palin. Late last month, the former Alaska governor and vice presidential candidate, who is unvaccinated, was caught repeatedly flouting the city’s Covid-19 restrictions, dining inside less than a week after she reportedly tested positive for the virus. 

Palin was in New York City to appear before a judge in her libel suit against the New York Times. The trial was eventually postponed due to Palin’s positive test. Finally, this Monday, she lost the case. 

Palin filed the lawsuit in response to a 2017 Times editorial that made a direct connection between Palin’s political action committee and the 2011 Arizona shooting that gravely wounded Representative Gabrielle Giffords and killed six others, including a 9-year-old girl. 

The editorial was called “America’s Lethal Politics,” and it was published following the 2017 shooting at the annual congressional softball game, which left then-House Majority Whip Steve Scalise in critical condition. (Scalise later recovered.) 

The original editorial, which was then corrected multiple times, recounted other instances of political violence in the United States. It said that when the Arizona shooter opened fire in 2011, “the link to political incitement was clear.” The editorial continued, “Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized crosshairs.” 

A day after publishing the editorial, the Times issued multiple corrections, including one that read: “An editorial on Thursday about the shooting of Representative Steve Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established.” 

Palin then filed a lawsuit in 2017 that her lawyers admitted was designed to challenge existing Supreme Court precedent. Under a landmark Supreme Court decision called The New York Times Company v. Sullivan (1964), a public figure like Palin must meet an exceedingly high standard to prove that a news publication defamed her. The plaintiff must prove that the news outlet acted with “actual malice” — that is, that they acted “with knowledge that [information] was false or with reckless disregard of whether it was false or not.”

Judge Jed S. Rakoff of the Southern District of New York, who was appointed by President Bill Clinton, dismissed the case, ruling that Palin had not proved that the Times’ conduct (and specifically that of then-editorial page editor James Bennet) constituted “actual malice.”

“The Supreme Court made that balance and set a very high standard, and I don’t think that standard has been realized by plaintiff with respect to at least one aspect of the actual malice requirement,” Rakoff said. “I don’t think a reasonable juror could conclude that Mr. Bennet either knew the statements were false or that he thought the statements were false and he recklessly disregarded that high probability.”

Despite ruling in the Times’ favor, Rakoff did not shy away from criticizing the publication. “Ms. Palin was subjected to an ultimately unsupported and very serious allegation that Mr. Bennet chose to revisit 7 years or so after the underlying events,” the judge said. “I think this is an example of very unfortunate editorializing on the part of the Times but, having said that, that’s not the issue before this court.”

Rakoff also did something unusual: he announced that he was throwing out the case a full day before the jury rendered a verdict. That’s known as a “directed verdict,” and, according the federal rules of civil procedure, it can be issued “[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.”

Rakoff did not announce his decision to the jury itself — so as not to bias them before they had reached their own verdict — and he waved off concerns that they may be informed of the directed verdict via notifications on their phone.  

“I certainly considered the possibility that I should wait until after the jury had rendered its verdict in this case, but the more I thought about it over the weekend, the more I thought that was unfair to both sides. We’ve had [a] very full argument on this. I know where I’m coming out,” Rakoff said before announcing his ruling. 

Those concerns turned out to be well-founded. In a court filing on Wednesday, Rakoff wrote that several jurors “reported that although they had been assiduously adhering to the Court’s instruction to avoid media coverage of the trial, they had involuntarily received ‘push notifications’ on their smartphones that contained the bottom-line of the ruling.” But, Rakoff insisted, “the jurors repeatedly assured the Court’s law clerk that these notifications had not affected them in any way or played any role whatever in their deliberations.”

Rakoff’s ruling means that Palin’s case is unlikely to serve as a basis for the Supreme Court to revisit the half-a-century-old precedent established in Sullivan. But that doesn’t mean that the Court won’t reconsider the “actual malice” standard: last year, both Justice Clarence Thomas and Justice Neil Gorsuch wrote dissenting opinions calling on their colleagues to review the standard.

“The lack of historical support for this Court’s actual-malice requirement is reason enough to take a second look at the Court’s doctrine,” Justice Thomas wrote in Berisha v. Lawson. “Our reconsideration is all the more needed because of the doctrine’s real-world effects. Public figure or private, lies impose real harm.”

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