There is a major development in the Sarah Palin defamation case where a jury recently rejected her claims against the New York Times. The case had a curious profile because the judge sent out the jury to deliberate and then announced that, while he would let them reach a verdict, it would not matter: he would dismiss the case anyway. I wrote in the Hill that this move worked to insulate the judge’s own decision. If the jury came in with a verdict against Palin, that fact finding would be more difficult to overturn. Now, however, Judge Jed Rakoff has disclosed that the jury found out about his intended dismissal before they reached a verdict. That is a major problem and could substantially change the impact of the case on appeal. In this case, Judge Rakoff effectively supplied both the instructions and the answers for the jury.
We have previously discussed the trial, which began with the introduction of evidence that the New York Times editorial board ignored internal objections to publishing the 2017 column linking Palin to the 2011 shooting in Tucson, Arizona in which then-U.S. Rep. Gabrielle Giffords, D-Ariz was seriously injured.
The case concerns an editorial by the New York Times where it sought to paint Palin and other Republicans as inciting the earlier shooting. It stated that SarahPAC posted a graphic that put Giffords in crosshairs before she was shot. It was false but it was enough for the intended spin: “Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask of the right.”
The editorial was grossly unfair. In its earlier ruling against the Times, the court put the theory of the case succinctly in its leading line: “Gov. Palin brings this action to hold James Bennet and The Times accountable for defaming her by falsely asserting what they knew to be false: that Gov. Palin was clearly and directly responsible for inciting a mass shooting at a political event in January 2011.”
Rakoff was previously reversed for dismissing the case. While Rakoff rejected motions to dismiss the case before trial, he made his surprising declaration just after the jury left to deliberate. It was a baffling decision. He could also have granted a motion for dismissal before the jury was set to deliberate on the evidence presented at trial. He could have waited for the verdict and tossed the case notwithstanding the verdict on a motion to set it aside from the defense. Instead, he created this weird status where the jury was ruling on a case that he announced was effectively dead.
Some jurors learned that Rakoff had already determined that, in his view, Palin did not meet the standard set by the Supreme Court for public figures. They were deliberating that very question and now had the view of the court that the “actual malice” standard was not satisfied in the case. While the jurors insisted that it did not effect their judgment, I cannot imagine how it did not.
Lawyers are often barred from juries because of the fear that they would have too much influence on a jury. In this case, the judge effectively parachuted into the middle of the jury room with his own conclusion.
The judge had just given them instructions on the actual malice standard and was now giving them the proper conclusion to reach on that question: how could that not render the verdict invalid?
Palin should move for the verdict to be set aside and allow the appeal to go forward on the judge’s ruling alone. That is a much better appellate posture for the plaintiffs. It would also make the case a serious potential challenge to the application of the actual malice standard to public figures. That is the subject of my USA Today column this week.
There are members of the Supreme Court that have already expressed discomfort over the standard being applied to public figures as opposed to public officials. There are good-faith concerns over that extension of New York Times v. Sullivan. However, the jury verdict made the case less compelling as a clean challenge. It would now remove that added baggage if Rakoff proceeds to dismiss the case without a verdict.
I do not see the alternative to setting the verdict aside but, in the very least, it has added a significant appellate issue. Palin could just walk away, of course. Litigation is costly. However, this could dramatically change the trajectory of the case on appeal.