After nearly five years of fighting, Sarah Palin was defeated in a lawsuit against the New York Times earlier this week. But at least two big questions remain.
First, did media reports during the trial taint the jury verdict in favor of the Times, providing Palin with grounds for a new trial or appeal? And second, could an outside party be funding her legal efforts in a bid to embarrass the Times—or even to overturn a landmark Supreme Court decision that makes it difficult for public figures to successfully sue the media?
At issue in the lawsuit were two statements from a 2017 opinion article by the Times editorial board, published in response to the shooting at a Republican congressional baseball team practice in Virginia. The editorial referenced the 2011 shooting in Arizona that wounded Representative Gabby Giffords and killed six others, and cited a map released by Palin’s political action committee that had featured crosshairs over electoral districts including Giffords’s.
James Bennet, a Times opinion editor, wrote that, in the Virginia shooting, there was “no sign of incitement as direct as in the Giffords attack,” in which “the link to political incitement was clear.” Palin was pilloried after the attack in Arizona, but no connection between the map and the shooting had, in fact, ever been established. The Times published corrections to the editorial the next day—it was, as lawyers for the paper repeated at the trial, “an honest mistake.”
“Ms. Palin was subjected to an ultimately unsupported and very serious allegation that Mr. Bennet chose to revisit seven years or so after the underlying events,” Judge Jed Rakoff said from the bench on Monday. “I’m hardly surprised that Ms. Palin brought this lawsuit.”
But after all the evidence had been presented, he said, “there is one essential element on which plaintiff has not carried its burden: the portion of actual malice which is falsity or reckless disregard for falsity.” There just wasn’t the required “clear and convincing evidence” for a “reasonable juror,” according to Rakoff, to conclude that Bennet thought what he was publishing was false.
And while a jury of nine New Yorkers—a hedge fund manager, a refrigerator technician, a docent at the Met—deliberated behind closed doors, Rakoff told the rest of the courtroom that he planned to dismiss Palin’s case no matter what their verdict might be, on legal grounds. “They, of course, will not know of my decision,” said Rakoff. But the jury verdict, and its decision on any damages to award, would be entered into the record, to be used if Rakoff’s decision were reversed on appeal.
A little less than twenty-four hours later, the jury returned its own verdict. They agreed with Rakoff, finding the Times not liable. “We’ve reached the same bottom line,” said Rakoff. Bennet and lawyers for the paper hugged and shook hands.
But, as an order on Wednesday released by the court revealed, some jurors, who were not sequestered between days of deliberation, “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.
“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.”
Michael Dorf, a professor at Cornell Law School, called the timing of Rakoff’s order inexplicable. “I just think he made an error,” said Dorf. “There’s at least potential grounds for appeal here.”
Judge Rakoff declined to comment on the record, as did the Times.
On Tuesday, Palin’s lawyer Ken Turkel called the judge’s comments “premature, from our perspective.” Speaking outside the courtroom, Palin, clad in a leather motorcycle jacket with an eagle sequined on the back, called the moves in the courtroom confusing. “I don’t think people are going to understand this,” she said. “It’s very avant-garde.” Lawyers for Palin may argue it was also unfair.
Which raises the second question. Why did Palin—a figure who is often written about in robust terms—bring the suit in the first place, and might an outside party be funding it as part of a larger cause?
When I asked Palin why she brought the case, she said it was “about holding the media accountable,” before plunging through a scrum of twenty photographers and into a black SUV. The photographers themselves offered a more cynical explanation. The lawsuit, a high-profile tussle with the paper of record, has given Palin her most sustained media exposure in years.
Palin has repeatedly called her case against the Times a David and Goliath story. “They’re buying ink by the barrel, while I’m up in Wasilla, Alaska, with my number two pencil,” she said from the stand. But it’s possible that someone has been helping her buy her own ink, as in the case of Hulk Hogan’s lawsuit against Gawker, which was funded by Peter Thiel.
Charles Harder, a prominent Los Angeles attorney who represented Hogan, was seated near me for the entirety of the trial, taking copious notes on a legal pad. Harder told me he was watching just for fun, out of general professional interest, not on behalf of a particular client. He said he doesn’t believe Thiel is behind this effort, and that he doesn’t know who might be.
“A backer can help to level the playing field,” Harder told me by email. “Media defendants tend to have insurance that covers legal fees and costs for the duration of the case, as well as for reimbursement of a judgment or settlement. Most plaintiffs do not have anywhere close to that level of resources for a lawsuit.”
Certainly, there’s an issue at the heart of the case that conservatives in particular would like to resolve in their favor—the notion of actual malice. That standard, set out in the landmark 1964 Supreme Court ruling New York Times Co. v. Sullivan, makes it harder for public figures to sue the news media. “Actual malice is a constitutional feature, not a bug,” said Jonathan Peters, a professor of journalism and law at the University of Georgia and a contributor to CJR. It’s a bar that was carefully decided upon by the court, then elaborated for more than a decade, he said, to allow room for unintentional mistakes in reporting on powerful people.
It’s certainly a bar that plaintiffs’ lawyers loathe, something they and the public figures they often represent would pay good money to overturn. Two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have indicated they’d be open to throwing it out.
There are many reasons, though, why Palin’s case would not make a good candidate for such consideration. “A case like this,” Harder told me, “is not the best one for a plaintiff to take to the Supreme Court asking for a new standard.” He agreed with the assessment that the Times’ error was “an honest mistake.”
For now, Sullivan remains, as lawyers like to say, “good law.” As Rakoff put it at trial: “If my bosses at the Supreme Court disagree, I’ll be happy to have another trial at that point. Won’t that be fun.”
Caleb Pershan was a CJR fellow.
