Jonathan Stempel
NEW YORK (Reuters) – Former Alaska Governor Sarah Palin on Wednesday won a lawsuit against The New York Times over a defamatory editorial she claimed the paper published.
The 2nd U.S. Circuit Court of Appeals said Palin can try again to prove that The New York Times should be held liable for a 2017 editorial, “America’s Deadly Politics,” that falsely linked her to the 2011 mass shooting that left six people dead and severely injured Democratic Rep. Gabrielle Giffords.
Media commentators and Palin herself see the lawsuit as a potential step to overturn New York Times v. Sullivan, a landmark 1964 U.S. Supreme Court decision that set a high bar for proving defamation by public figures.
Circuit Judge John Walker, speaking for a three-judge panel, said U.S. District Judge Jed Rakoff in Manhattan made several errors that tainted Palin’s February 2022 trial against The New York Times and former op-ed editor James Bennett.
The appeals court said Judge Rakoff wrongly excluded evidence that he believed reflected “actual malice” by The New York Times in publishing the editorial and misinstructed the jury about what level of evidence was needed to hold The New York Times liable.
He also said the verdict was likely tainted because jurors learned through breaking news on their cell phones while they were deliberating that Rakoff would dismiss the case because Palin had not presented clear and convincing evidence of malice.
“Juries are sacred in our legal system, and we have a duty to protect their constitutional role by ensuring that their role is not usurped by the judge and by ensuring that jurors are provided with proper evidence and properly instructed on the law,” Walker wrote.
“We are disappointed with this verdict and are confident we will prevail if retried,” Times spokesman Charlie Stadtlander said.
Palin’s lawyer, Shane Vogt, called the verdict “a major step forward in the process of holding publishers accountable for content that misleads readers and the public. The truth must be revealed on a level playing field, and Governor Palin looks forward to presenting her case to a jury.”
Doubts about the Sullivan Precedent
The Sullivan decision requires public figures who believe they have been defamed to prove that the media demonstrated “actual malice,” meaning that the media knowingly published false information or showed reckless disregard for the truth.
Supreme Court Justices Clarence Thomas and Neil Gorsuch urged reconsideration of the ruling, citing changes in the media environment, including the growth of cable news, online media and the spread of misinformation.
“Deadly Politics in America” addressed gun control and lamented the rise of inflammatory political rhetoric.
The news came after a gunman opened fire at a congressional baseball practice in Alexandria, Virginia, on June 14, 2017, wounding Republican Rep. Steve Scalise and others.
The editorial noted that before the 2011 shooting in Tucson, Arizona, in which Giffords was wounded, Palin’s political action committee had released a map that showed a crosshair through Giffords’ district.
Palin took issue with the editorial’s original wording, “The connection to political incitement is clear,” despite there being no evidence that the map motivated Arizona shooter Jared Lee Loughner.
Bennett added the controversial phrase.
The Times corrected the editorial the next morning, removing the phrase after complaints from readers and columnists.
The Times and Bennett’s lawyers said neither intended to link Palin to the Arizona shooting.
Palin, 60, was the Republican US vice presidential nominee in 2008 and served as governor of Alaska from 2006 to 2009.
She described the Times case in biblical terms and testified that she considered herself the underdog against the Times’ Goliath.
Jurors deliberated for about two days, including hours after receiving breaking news about Rakoff’s planned firing.
After the ruling, they said the “push notifications” had no impact on their deliberations.
The case is Palin v. The New York Times et al., 2nd Circuit Court of Appeals, case number 22-558.