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.
The New York Times always has malice.
…antithetical, unconstitutional, insurrectionist, and “fundamentally transformational” malice.
If you don’t love the Founders, you can’t love the Constitution, and you can’t love America.
The New York Times is a direct and mortal enemy of America.
Jonathan: Pushing Sarah Palin’s doomed to fail defamation suit against the NY Times doesn’t seem like the best use of your column space. But it does serve the purpose of your goal to get the SC to reconsider the Sullivan case. Be careful what you wish for. If the “actual malice” requirement for media outlets were to be eliminated your employer Fox News would be in a lot of legal trouble. The jury in the Palin case says their deliberations were unaffected by Judge Rakoff’s decision to dismiss the suit. So whatever happens on appeal it is likely Palin is facing a long hard slog.
But pushing Palin’s cause avoids having to discuss other important court decisions. This week a DC judge reinstated Trump as a defendant in a suit over whether Trump misused funds from his 2017 inauguration. In 2020 the DC AG sued the Trump organization, Trump’s hotel in DC and Trump’s inaugural committee, a tax-exempt non profit, accusing them of using tax-free funds for the benefit of Trump and his family. The case will now go to trial. This the case to watch–not the travails of poor Sarah Palin.
Dennis McIntyre. I understand there just isn’t room for two cases in your head. It must be so confusing.
Thinkitthrough: I usually don’t respond to inane comments. But, yes, I can walk and chew gum at the same time. See my comments about two other lawsuits involving Trump–particularly the one in which Trump contradicts the pleading of his own attorneys in the NY AG’s investigation of Trump’s finances. I know you are probably having a hard time keep up with the really important news. But, please, think it through before commenting next time.
Dennis you scream in indignation about Trump but a judge making a finding regardless of the juries verdict has no interest for you. You display no interest in equal justice. A man who doesn’t believe in equal justice is far more dangerous than a January 6 rioter. Yet you see yourself as a patriot.
” I can walk and chew gum at the same time.”
Whoops, Dennis, I see gum all over the floor with people picking you up to put you back into your chair.
The principle of “Responsibility to Protect” should apply in the case of Ukraine (as if there wen’t enough principles already: UN Charter violations, Budapest Memorandum, etc. ). So what’s the point in having these lofty principles if nothing is done to enforce them?
https://en.wikipedia.org/wiki/Responsibility_to_protect
Not everything is a “Wag the Dog” situation, so you’re not as clever as you think you are for bringing up such a trite and unoriginal idea over and over and over again.
Kangaroos everywhere…appeal.
The Judge was dead wrong in doing what he did by making that announcement and evidenced that it was KNOWN to the Jury BEFORE it had reached a Verdict…..that is a dead certain win upon Appeal.
People should start a Fund to pay for the Appeal and take the Case to the Supreme Court….as it would seem the Supreme Court would accept that as a way to revisit Sullivan as well as deal with Judicial Misconduct as done by the Judge.
One has to question how such misconduct by a Federal Judge can be left unpunished?
I hope Republicans take both Houses of Congress n the November Election and make one of their first tasks to be Impeaching and removing this Judge from the Federal Bench…..not for who the Plaintiff was….but for the corrupt actions of the Judge alone.
Then perhaps they might turn an eye to FISA Court Judges involved in the Russia Collusion Conspiracy…..and remove them as well.
Not one of those Judges ever called any FBI or DOJ person into their Court on Contempt Charges despite learning how bogus those Affidavits for Warrants were……why did they not do that?
“that is a dead certain win upon Appeal.”
The losing side can appeal either way. There is no “dead certain win upon Appeal” here.
“One has to question how such misconduct by a Federal Judge can be left unpunished?”
Absolutely nothing prevents you from filing a complaint about the judge if you believe he engaged in misconduct. Here you go:
https://www.uscourts.gov/judges-judgeships/judicial-conduct-disability/faqs-filing-judicial-conduct-or-disability-complaint
The judge’s info: https://www.nysd.uscourts.gov/hon-jed-s-rakoff
But I think you’re going to be disappointed in the outcome.
Ralph Chappell, the jurors themselves stated the judge dismissing the case did not affect their decision. It is more likely that they already decided against Palin long before going into the deliberation room.
Maybe the evidence against NYT was not as strong as Palin claimed.
Turley only mentions it was “weird” what the judge did. Not that it was not allowed. If the jurors insisted they were not swayed by knowing what the judge would do then their verdict still stands. If one juror actually claims it did then there would be ample reason to appeal. So far the jury’s decision was unanimous.
“ While the jurors insisted that it did not effect their judgment, I cannot imagine how it did not.”
It seems the jury may have already decided the outcome would be against Palin long before they were sent to deliberate. Possibly the evidence was so obvious that the jurors made up their minds way before heading into deliberations.
The only question they were supposed do answer was, was there actual malice behind the NYT article? So far there seems to be no evidence to support that.
Thank you, Svelaz. The other issue was damages–Palin couldn’t prove that she was actually damaged by what was written. She continued getting very lucrative speaking engagements, and, being charitable, most people never viewed her any having much in the way of intellectual substance, so she can’t say that public perception of her was damaged. She is starting to look a little Merle Haggard.
“It seems the jury may have already decided the outcome would be against Palin long before they were sent to deliberate.” Based on what?
“It seems the jury may have already decided the outcome would be against Palin long before they were sent to deliberate.” Based on what?”
Based on thin air. Svelaz suffers mentally from oxygen deficiency.
Anonymous (S. Meyer),
“ Based on thin air. Svelaz suffers mentally from oxygen deficiency.”
How about evidence they heard in the trial? Jurors could have already made up their minds long before they went to deliberate. It’s not unheard of.
The question was, how did anonymous know what he stated as a fact? Do you bother thinking before putting something into writing? When you shaved your beard, did they put you back into first grade? (if explanation needed: https://jonathanturley.org/2022/02/15/media-vapors-how-special-counsel-john-durham-has-triggered-a-media-meltdown/comment-page-5/#comment-2159764)
Anonymous,
“ It seems the jury may have already decided the outcome would be against Palin long before they were sent to deliberate.” Based on what?”
Based on the evidence they heard during the trial. Obviously they already heard all the evidence. That’s why they were sent to deliberate. It’s entirely possible all the jurors made up their minds long before they were to deliberate.
Please explain: What is the point of a ‘trial by jury’ if a Judge can send the jury out for deliberation but then publicly decided to negate their work? The ramifications of this Judge’s actions undermines the public’s perception of sanctity of the the jury system. Did the judge become, with his pre-jury decision, the 13th juror? PS. Doesn’t the judge know with today’s high level of communications there is always an ‘open mike’! Would it not have been better to have kept silent and let the system work and then use the his option of dismissal.
The Judge shifted appeals lawyer costs to Palin rather than NYT. Leftist lawfare tactic. The process is the deterrent, not the law. Remember this judge tossed Palin’s initial filing, denying a trial. The judges ruling was overturned on appeal, forcing the same judge to sit and hear the case and give it to the people as finders of facts and law. No surprise the judge, getting slapped back on appeal, sought revenge.
He believed then and believes now that she failed to show actual malice.
Judges dismiss cases prior to trial all the time. For example, Karen McDougal’s defamation suit against Fox for Tucker Carlson’s lies about her was dismissed by a judge without going to trial.
@10;34
That has nothing to do with my post. Its deflection, attempting to shift the focus. The focus is the incentives of one judge in one case. Your off topic scribble, does nothing to address those incentives.
“I do not see the alternative to setting the verdict aside.”
It’s pretty obvious, don’t you think? The alternative is not setting it aside.
“News” papers that sensationalize or embellish a story, knowing their intent is to do harm, to someone’s reputation, and income. When a judge predetermined the outcome, Ms. Palin lost her right to an impartial jury. NYT had already destroyed it’s own reputation, what did they have to lose?
It was an op-ed, not a news story.
It is impossible to identify that nuance today
That you are unable to tell the difference does not imply that there is no difference. You, of course, are free to hold any opinion about it that you want. Perhaps this explains why your own comments on the news are so often opinions.
BTW, if all news stories were op-eds, that would actually make it harder for people to win defamation suits about news reporting.
BTW, if all news stories were op-eds, that would actually make it harder for people to win defamation suits about news reporting.
Here is something from The Volokh Conspiricy
“Yesterday, two reporters of the Washington Post actually wrote that Justice Thomas is a “Black justice whose rulings often resemble the thinking of White conservatives.” No this barb did not appear in the opinion section. It appeared in the news section.
Today, the Post noted a retraction. Or is it a “clarification”? After #MaskGate I have no idea how journalism works anymore.”
Very few ‘news pieces’ are free of substantial editorializing.
The idiot posters on Youtube need to get it out of their heads that Russia and China are the moral and political equals of the United States. They are not. The are relatively evil, and evil countries must never be allowed to do what good countries do. Good should threaten Evil with missiles, but Evil should not threaten Good with missiles. They might think they are clever when they make these points, but they are based on a false premise, and so they are not so clever after all.
Your stupidity knows no bounds…
“While the jurors insisted that it did not effect their judgment, I cannot imagine how it did not.”
So you do not trust that the jurors answered this truthfully?
So you do not trust that the jurors answered this truthfully?
You have no idea how the brain works
This from a leftist that contends all whites are racist……Subconsciously.
I haven’t ever contended that “all whites are racist……Subconsciously.” Try again.
So you reject all of the race baiting nonsense? No systemic racism, no micro aggression, no white supremacy culture.
Good to know, I apologize.
Reminds me of the meme You Had One Job! His bank account should be of interest
Unbelievable. We cannot let this become the norm – at present, our courts are the last slender thread to fairness and sanity we have. Either our courts and our elections are fair and unbiased, or we have no free society. To hear the Democrats talk about ‘Democracy’ is a joke that gets funnier every time, and it shouldn’t be. We enumerate the reasons here all the time, take your pick (and no, raw prejudice toward anyone that disagrees with them or makes them uncomfortable is not one of the valid ones). The NYT run by children. (Largely white) children that come from gobs and gobs of money.
The jurors allegedly learned of the judge’s decision via push phone notifications while deliberating. Is that normal to be allowed phones including Internet access during deliberations? It seems like a open door to accessing information not presented at trial.
Enigma, that’s a good point. Did the jury find out because either all got a notification or just one did? Either way isn’t the whole point of a jury being sequestered for any trial is so they can deliberate based only on the facts?
I can’t take Turley’s take on the issue seriously since he’s prone to leaving pertinent details on some of his columns.
This case is baffling but not for the reasons one might think. It is difficult if not impossible to be slandered by The NY Times. Most people with half a brain accept that it manufactures false news and spreads it like The Natinoal Enquirer. There is a strong presumption that they are lying every time they open their laptops. Heck, i have to double check their baseball scores every morning against mlb.com just to make sure they are not making that up. And Palin is a tough sell to a jury. She thrives in these pitched battles of ideological street fighting. She treated this contretemps as a badge of honor and used it to enhance her bona fides with the populist base and keep herself relevant. Soon she will be relegated to the dustbin of celebrityhood, a/k/a HSN, hawking anti-aging cream and quack weight loss methods for every aging milf who spends Saturday afternoons wolfing down 7 Eleven hot dogs.
“Palin should move for the verdict to be set aside and allow the appeal to go forward on the judge’s ruling alone.” How can this take place? As I understand it, the judge announced he would rule to set aside the verdict if the jury found against the Times, but since they didn’t he never ruled, so there is no “ruling” to appeal.
Some of the jurors were aware of the judges comments DURING deliberations. Subconsciously, they might have thought that if judge thinks the Times was not guilty of ‘actual malice’, how could they find in favor of Palin. I am not a lawyer, but it sounds like grounds for appeal to me.
The appellate issue to appeal would be the jury’s verdict, and the court’s final judgment.
How was the prompt correction disseminated? If it was given the same prominence as the original falsehood, that would support the Times’ argument that it acted in good faith. If it was buried in a small list of “Corrections” along with a bunch of minor errors, that would undermine it.
Should be an easy appeal for judicial misconduct, altho that may not be the best term to describe the judge’s actions. Appears that the jury was influenced by the decision to dismiss, which somehow made it to the jury. One good question is how did the jury find out?
Palin had an uphill battle to begin with, having to proceed in NY, the bluest of blue. Seems to me that the NYT actions could be interpreted to show malice. Reasonable minds can differ
“Most people with half a brain accept that it manufactures false news and spreads it like The National Enquirer.” Then most people have seriously malfunctioning brains.
Can’t say the jury was influenced when the jurors themselves stated they weren’t.