Below is my column in the Hill on the Palin defamation trial and why it could still present a substantial challenge to press protections in false stories. The court’s curious handling of the case backfired. Judge Jed Rakoff announced that he would dismiss the case regardless of the jury decision but that he still wanted the jury to reach a decision. As discussed below, the tactic would serve to insulate his own decision on appeal. However, the jury found out about his decision and now, in my view, the verdict should be set aside. If so, the case may now be a major challenge to the application of the “actual malice” standard to public figures. That issue would have to be decided by the Supreme Court however given the prior ruling in New York Times v. Sullivan.
Here is the column:
In a trial in New York, federal judge Jed S. Rakoff came up with a curious legal version of a palindrome in the defamation trial of former Alaska governor and vice presidential candidate Sarah Palin v. The New York Times. Rakoff was previously reversed by the federal court of appeals for dismissing the action. He then held a trial and sent the jury out to deliberate the merits. Once they began deliberating, Rakoff announced that, regardless of their verdict, he would again dismiss the case. The jury later ruled against Palin. Either way, in Rakoff’s courtroom it would read the same: no liability for the New York Times.
The case involves an editorial that suggested Palin inspired or incited Jared Loughner’s 2011 shooting of then-U.S. Rep. Gabrielle Giffords (D-Ariz.). It was outrageously and demonstrably untrue. The editorial was published in the wake of the shooting of Rep. Steve Scalise (R-La.) and other GOP members of Congress by James T. Hodgkinson, of Illinois, 66, a liberal activist and campaign supporter of Bernie Sanders (I-Vt.). It appears The Times wanted to shift the narrative back to right-wing violence; it stated that SarahPAC, Palin’s political action committee, had posted a graphic that put Giffords in crosshairs before she was shot, described it as direct incitement of violence and opined that while not as guilty as Palin, “liberals should of course hold themselves to the same standard of decency that they ask of the right.”
In reality, the map SarahPAC distributed put targets on various districts that were viewed as possible flip districts by Republicans, and the map was published long before the shooting.
Rakoff insisted that he was “not at all happy to make this decision” but that he was, again, forced to dismiss the case because the Supreme Court established “a very high standard for actual malice” for public figures in seeking recovery for defamation. He is referring to the New York Times v. Sullivan standard requiring a showing that a false statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”
Rakoff’s curious handling of the case seems intended to undermine any appellate challenge that would allow the court to revisit the “actual malice” standard.
The Times helped create this standard as the victim of a bias campaign. The status is far less obvious today. For critics, The Times has become the very thing that the original decision sought to combat: a threat to free speech. The Times, they argue, often uses this protection to shield false attacks on political opponents.
Over 50 years ago, The Times was being targeted by segregationists who wanted to deter media from publishing accounts of segregationists opposing the civil rights movement. This effort was creating such a threat that media had to choose between a type of self-censorship or insolvency. In his concurrence in New York Times v. Sullivan, Justice Hugo Black said that “state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials.”
Today it is too often the media targeting those with “unpopular views on public affairs” to deter dissent. Many in the media applauded as GoFundMe and some banks froze donations to protesting Canadian truckers, and some media figures denounced them as terrorists and insurrectionists. Even a teenage student visiting his nation’s capital can be victimized in this media mob mentality by false claims that he harassed an elderly Native American activist in front of the Lincoln Memorial.
Journalists and schools of journalism have embraced the model of “advocacy journalism.” Some writers and academics now reject the very concept of objectivity in journalism. For example, Stanford journalism professor Ted Glasser has explained that journalism needs to “free itself from this notion of objectivity to develop a sense of social justice.” He insists that “journalists need to be overt and candid advocates for social justice, and it’s hard to do that under the constraints of objectivity.”
This approach was captured recently and quite vividly by Lauren Wolfe, the fired freelance editor for the New York Times, who has not only gone public to defend a pro-Biden tweet but published a piece titled, “I’m a Biased Journalist and I’m Okay With That.”
With market pressures transforming media in the advocacy journalism model, defamation lawsuits could now be the vehicle to protect rather than destroy journalism. The Times and other media outlets have shown they are unwilling or unable to resist demands for unbiased coverage.
As sacrilegious as it may sound, a little liability may now be just what journalism needs.
Since many editors seemingly lack the courage to stand up to advocacy journalists, they may be able to summon a modicum of courage to state (however reluctantly) that “those damn lawyers” are forcing them to be more balanced and accurate in their reporting. This would not be the first time that liability served as a substitute for courage.
It may also be time to revisit the “actual malice standard” and its application to public figures. Some justices have already begun to raise questions over whether the court went too far after New York Times v. Sullivan.
That brings us back to the decision of Judge Rakoff. The fact is the jury verdict was most useful in vindicating the court, not The Times and certainly not Sarah Palin.
A dismissal by Rakoff could have laid the foundation for a serious challenge to the actual malice rule. Even if the Supreme Court is unwilling to change the rule (though Justice Sonia Sotomayor recently warned in an oral argument that such a change could be coming), Rakoff could have been reversed in his dismissal of the case.
By ruling against Palin, the jury gave her a tougher appeal, given the ruling on the merits. She will not be able to appeal Rakoff’s legal interpretation alone, and The Times can argue that Rakoff’s ruling on the standard was immaterial because the jury rejected the claim on the merits — even if Rakoff did not render his decision, the case would have still ended.
While the win for The Times is ordinarily a cause for celebration in the interests of journalism, even Judge Rakoff expressed mixed feelings about the dismissal in light of the conduct of the editors. The Times ultimately prevailed on the basis of the higher standard that it helped create decades ago, but it may also have made the case for a reexamination of that standard in this or other cases. Indeed, it leaves open the question of whether a little more liability might go a long way in reinforcing journalistic values.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.
So let me see if I have this correct, since I was a LEO in the past or a Public Official, that gives the Media the right to accuse me of criminal conduct even though I have nothing to do with criminal conduct????? Or if I choose to run for an elected position, the Media can publish blatantly false allegations of wrong doing to effect the outcome of the election???? If this is correct then the Bill of Rights is a wasted piece of paper!!!! Prove me wrong.
The role of Editor used to mean something. The disappearance of strong Editors is and has been a major contributor to the demise of the 4th Estate in this country over the past 40 to 50 years.
“The center does not hold”
https://www.poetryfoundation.org/poems/43290/the-second-coming
“…while the worst
are full of passionate intensity.”
Professor Turley Says:
Some writers and academics now reject the very concept of objectivity in journalism.
…………………………………………
Turley is half-right in this assertion.
An increasing number of journalists and editors reject ‘Both-Sidism”. That’s when journalists give equal weight to both sides (of an issue) for the sake of appearing ‘objective’ when one side is clearly disingenuous and, or, factually challenged.
Examples of Both-Sidism:
“More than 90% of the Science community believes Climate Change is at a tipping point where rising seas and desertification could trigger mass migrations. However, there was a brief point in the 1970’s when a few scientists believed the world was entering a ‘Second Ice Age’. And because those scientists were so far off the mark, we should be skeptical of Global Warming evidence”.
“Statistics show that most women seeking abortions are already mothers who lack the income and support to raise another child. But abortion opponents point out that poor women can always carry their pregnancies then leave their newborns at a fire station; no questions asked. The firemen will then see that the newborn is safely handed-over to the foster care system”.
“Proponents point out that Affirmative Action has worked exactly as intended with record numbers of women and minorities now represented in upper management. However opponents say that ‘because’ women and minorities are now well-represented, Affirmative Action is no longer needed”.
“After January 6th, a record number of Americans feel our democracy is under siege. Rarely a day goes by without our ex-president making public claims that his defeat was the result of a ‘vast conspiracy’. No court has upheld these claims but the sheer repetition of said claims has rattled our faith in free elections. Nevertheless, Trump supporters feel attention should be riveted to the 2016 election when the Clinton campaign waged a secret effort to portray Donald Trump as a Putin sympathizer. Loyalists insist that Trump’s continued deference to the Russian leader should be set aside when viewing actions by the Clinton campaign”.
The singular American failure has been and continues to be the judicial branch which usurps power not provided by the Constitution, and corruptly “dictates” rather than “adjudicates.”
More to the point, Congress has failed America by not exerting the control the People hold over the mostly unelected judicial branch through the constitutional impeachment process.
We don’t want the dalliances of judges; we want their dispassion.
We want the law, we want all the facts that bear and not the facts chosen by a biased judge, we want a verdict by an independent jury not a verdict dictated and commandeered by a judge.
We don’t want their love, we don’t want their respect, we want their fear.
Ultimately, Congress adjudicates in America through the impeachment process, negligence, dereliction and omission notwithstanding.
_________________________________________________________________________________________________________
Article 2, Section 4
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Jonathan Turley continues to attempt too much.
And Professor Buffoon continues to be mortally covetous of Professor Turley, his intellect, acumen and success as the preeminent political-legal cynosure.
_________________________________________________________________________________________________________________________
10th Commandment
You Shall Not Covet
Commentators complain when the C Supreme Court considers a change to the status quo of law in a particular area but only when it is a change to a a topic which they support. So we have the largely same people screaming about a potential change to Sullivan, Roe, etc. demanding a change to Heller and Citizens United. Guess it depends on if it is your ox being gored.
Turley is thoroughly beating this dead horse to a bloody pulp. This case wont go to SCOTUS as many conservatives in power are hoping to. The one problem everyone criticizing the judge have is the simple fact that the jury already made up its mind long before they learned about the judge’s decision. Palin’s testimony it turns out was self defeating. She made a mess of her argument that it became obvious and didn’t have any evidence that she was harmed. Plus the jury itself insisted learning about the judge dismissing palin’s case didn’t affect their decision. It means they came to the same conclusion as the judge long before they were sent into deliberation.
What really is strange is how Turley who is a stickler for details and insinuations didn’t bring up Palin’s testimony on the stand. Knowing what she said and the totality of the proceedings Turley could easily have understood why his current “argument” doesn’t fly. Notice he keeps saying it’s “strange” or “weird” but not something that is automatically illegal.
There are far more important cases than this dead horse. Trump taking classified documents to mar a lago, Trump and children being forced to be deposed, the Jan 6 committee subpoenas and new evidence being uncovered. AND a Texas lawmaker proposing banning CRT in universities and getting rid of tenure for discussing CRT. A serious freedom of speech issue. Sussman asking to have charges dismissed.
Turley, Palin is a lost issue professor. There’s a plethora of far more interesting cases that are right up your alley.
The one problem everyone criticizing the judge have is the simple fact that the jury already made up its mind long before they learned about the judge’s decision
Talk about contradicting the facts.
If the juries intention was already common knowledge, the Judge would have never made his statement.
iowan2 — I don’t really understand “law”, i.e., the way it is practiced. But I will hazard the guess that the judge, once having made that determination, was ‘honor’ bound to inform the opposing attorneys.
Anyway, intention of the jury was only implicitly known, the jurors having no voice in a trial.
David – Did you know some juries in some states can make law? If you don’r think/thunk the NYT has malice in forethought and afterthought against Palin, you are a lost ball in high weeds.
Interesting, if the jury had reached a verdict before the Judge ruled to dismiss the verdict if it found in favor of Palin, then why was it hours after his ruling was common knowledge that the Jury returned a verdict? Wouldn’t they have returned a verdict immediately after trial if their mind was made up?
“The Times ultimately prevailed on the basis of the *higher standard* . . .” (Emphasis added)
And there’s the rub.
One of the hallmarks of Western jurisprudence is the principle that the law is the same for, and applies equally to, everyone. There is not supposed to be a “higher standard” (or lower standard) for some individuals. Just because you are a “public person” (whatever the hell that means) does not mean that you lose rights. Sullivan, with its “actual malice” standard, creates an unjust, two-tiered “law.”
This is smoke and mirrors from Turley, the reason is that the Federalist Society wants cases like this to go to the SCOTUS, is to weaken the free press and dissent. They now have the justices to overturn laws that has hindered their agenda and power. Don’t kid yourselves, there is a reason why certain names were sent to Trump for the SCOTUS. And think of all the times Trump wanted to sue newspapers and journalists.
Jonathan: You are beating a dead horse. This column is basically a rehash of yesterday’s column. Repeating a lie doesn’t make it true. Clarence Thomas is the only Justice pushing the “originalist” theory that Sullivan should be overturned. Thomas’ faulty reasoning has been trashed by many legal constitutional scholars. Now you say “a little liability may now be just what journalism needs”. You know that if Sullivan were to overturned there be an avalanche of lawsuits by people like Trump and others with deep pockets to try to silence any criticism. We would no longer have a free press but one subservient to the powerful. That’s what happens in Turkey and other autocracies. You need to adopt Lauren Wolfe’s admission that “I’m a journalist and I’m Okay with that”. At least then you would be at least honest.
Hear hear, Dennis
I think Turley is trying to buy time so he can figure how to explain Trump’s problems in such a way as not to upset his Trump supporter fans on the blog. Turley is always excited about the number of “followers” on his blog. Losing them would be akin to losing credibility I would think.
As I noted yesterday when you made a similar comment …
Politico quoted Rakoff as saying “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.”
So he is distinguishing between knowledge (“knew” — in the first half) and belief that isn’t knowledge (“thought” — in the second half).
As Howard Wasserman at PrawfsBlawg noted:
“It turns out the use of NYT and actual malice as the standard is based in part on New York’s anti-SLAPP statute, which codifies actual malice (likely as a hedge against SCOTUS overruling) although in an amendment enacted after the op-ed was published. Judge Rakoff held, as a matter of New York law, that the law applied retroactively and the instructions to apply actual malice applied the statute and the First Amendment. Overruling New York Times as the constitutional standard would not change the standard under New York law, meaning the result would be the same…”
If you look at https://www.courtlistener.com/docket/6081165/174/palin-v-the-new-york-times-company/ in the case docket, you’ll find:
“Exhibit B is correspondence between the Court and counsel for the parties regarding case law germane to Defendants’ Rule 50 motion for judgment as a matter of law” — where the defendants noted relevant NY caselaw: “Sweeney v. Prisoners’ Legal Servs., 84 N.Y.2d 786, 793 (1995) (“To satisfy the reckless disregard standard, plaintiff had to establish that defendants in fact ‘entertained serious doubts as to the truth of the publication’ or that they actually had a ‘high degree of awareness of its probable falsity,’” and “defendants’ failure to investigate cannot amount to ‘purposeful avoidance’ unless it evidences an intent to avoid the truth. Absent some direct evidence that defendants in this case were aware that Mays’ complaint was probably false, they cannot be found to have harbored an intent to avoid the truth.”)
I think that clarifies what has to be shown for Prong 2 of an actual malice assessment in NY.
As best I can tell, Rakoff did not misapply the standard in NY.
Thanks for this. If that is a correct statement of NY law and if that is what Rakoff was referring to then this case has little to do with the US Constitution or NYT v Sullivan and is entirely a matter of NY state law, which would be more protective of the press in libel/defamation claims than NYT be Sullivan.
YW.
Not sure what YW means.
You’re welcome.
BTW, a useful source for determining what acronyms stand for: https://acronyms.thefreedictionary.com/
“Exhibit B is correspondence between the Court and counsel for the parties regarding case law germane to Defendants’ Rule 50 motion for judgment as a matter of law”
Why didn’t the Judge rule for the defense, instead of handing the case to the jury? That is well within his power, and would have established a ruling on law. Letting it go to the jury, establishes no precedent.
Haven’t you been paying attention? The judge DID “rule for the defense” along with “handing the case to the jury,” and he did both because (a) as a matter of law he believed that Palin’s attorney’s did not meet their burden in showing actual malice under NY state law, and (b) he presumably recognized that there was a good chance that the case would be appealed either way, and it would be useful for the appeals court to also know the jury’s verdict.
Turley continues to beat the drum about SCOTUS revisiting NYT v Sullivan, and he continues to ignore that the case is based in part on NY state law. Again, as law prof. Howard Wasserman at PrawfsBlawg noted:
“It turns out the use of NYT and actual malice as the standard is based in part on New York’s anti-SLAPP statute, which codifies actual malice (likely as a hedge against SCOTUS overruling) although in an amendment enacted after the op-ed was published. Judge Rakoff held, as a matter of New York law, that the law applied retroactively and the instructions to apply actual malice applied the statute and the First Amendment. Overruling New York Times as the constitutional standard would not change the standard under New York law, meaning the result would be the same. SCOTUS typically does not take cases that turn on state law.” (emphasis added)
Rather than his continued rehashing of the Palin verdict, I look forward to Turley analyzing Judge Mehta’s ruling yesterday, which allows 3 civil cases to proceed against Trump and says in part:
“Finally, President Trump plays a game of what-aboutism, citing fiery speeches from Democratic legislators, including Plaintiff Waters, which he says likewise would not be protected speech if the court were to find, as it has, that the President’s is not. Thompson Trump Reply at 8, 11–13. The court does not find such comparators useful. Each case must be evaluated on its own merits, as the court has done above. If the President’s larger point is that a speaker only in the rarest of circumstances should be held liable for political speech, the court agrees. Cf. Bible Believers, 805 F.3d at 244 (observing in a case involving religious expression that “[i]t is not an easy task to find that speech rises to such a dangerous level that it can be deemed incitement to riot”). That is why the court determines, as discussed below, that Giuliani’s and Trump Jr.’s words are protected speech. But what is lacking in their words is present in the President’s: an implicit call for imminent violence or lawlessness. He called for thousands “to fight like hell” immediately before directing an unpermitted march to the Capitol, where the targets of their ire were at work, knowing that militia groups and others among the crowd were prone to violence. Brandenburg’s imminence requirement is stringent, and so finding the President’s words here inciting will not lower the already high bar protecting political speech.”
https://storage.courtlistener.com/recap/gov.uscourts.dcd.227536/gov.uscourts.dcd.227536.66.0_6.pdf
How did the jury find out about Rakoff’s intention?
How is that relevent to the discussioin? This is about the Judges actions, not the jury decision.
iowan,
It matters not “how” the Jury learned of the Judge’s Decree……just the fact that they did as a direct result of the Judge’s actions is enough to warrant a Mis-Trial and the Plaintiff Appealing the Decisions of both the Judge and the Jury with the Judge’s misconduct being primary.
Rakoff didn’t engage in misconduct.
Rakoff was overruled when he denied the case a hearing in court. He got the law wrong, was slapped back by an appellate court.
So he was forced to hear the case. Then when handed off to the Jury, he said he would overturn a verdict in favor of Palin.
If at the end of testimony, the Defense had asked for a directed verdict, The judge could have heard arguments on both sides and ruled using the law. Or he could have ruled from the bench, that the facts and the law did not meet the minimum for the plaintiff to prevail. He did none of that. He is still holding on to his orignal ruling, that was overturned, because it was wrong.
Much like employment at will, a person can be fired for no reason. That does not mean you can fire a person for any reason.
Being overruled does not imply misconduct. Lower court rulings are overruled by higher courts all the time.
Lower court rulings are overruled by higher courts all the time.
But never by lower courts. like this.
What on earth are you talking about??
No lower court overruled Rakoff.
Other sources allege that Jurors received “push notices” of the judges decision on their phones. Virtually all digital media has that, especially news apps. Allegedly jurors did not surrender their phones while in the jury sessions. Might be something to think about in future cases. Hardly sequestered when the whole world can be accessed from something in your pocket.
Prof. Turkey would overturn the New York Times standard while at the same time urges broad First Amendment protections for academic speech and controversial opinions. The two positions are difficult to reconcile in practice.
The two positions are difficult to reconcile in practice.
That’s like saying a person that is against the county’s decision to repopulate, wolves into the wild, is exactly like supporting gun buy back programs.
T.: What are you two years old? Name calling is no substitute for analytic critique, pro or con. By your juvenile response you have told us that you aren’t up to the challenge. Stand in the corner for a few minutes and reflect.
Perhaps you’re unaware that some background spell-check apps automatically substitute Turkey for Turley.
T…….It seems you have difficulty seeing the trees for the Forest or do I misunderstand what you are saying?
Turley can see the many different issues and broad First Amendment protections of Academic Speech and Controversial Opinions are each different and separate and both are different from Slander and Libel of persons by the Media.
All fall under the generic concept of 1st Amendment Rights….but is how they are each evaluated for appropriateness that matters.
I strongly differ with the Professor re his views on Academic Speech protections….and to some degree on his views re Controversial Opinions.
But I very much respect his views in total while differing in parts.
Where I draw the line is when any Speech advocates for violence or makes threats of violence or other harm to anyone at any time…..and deem such speech as being not just “unprotected” but speech that should be sanctioned by criminal or civil actions.
Challenging someone of their comments, utterances, or positions about issues is fine….that is healthy debate but to offer violence or harm in any way for their having those positions or having said something re an issue is just not acceptable to me.
How did the jury find out about judge Rakoff’s decision, prior to their own, to dismiss the case regardless of the jury’s verdict? Also, why did not the jurors refuse to render a Potemkin verdict?
From reporting of what Rakoff said when making his decision, he may have misapplied the Sullivan standard with regard to the second prong of the alternative tests. Rather than asking whether Bennett published with reckless disregard of the truth or falsity of the statement, Rakoff asked whether Bennett published thinking it was false but proceeded with reckless disregard of that high probability. The second prong of the Sullivan test does not require the publisher to think the statement is false and to proceed regardless of that. It requires only that he publish with reckless disregard of whether the statement is true or false.
Perhaps the reporting is wrong, but if it is correct Rakoff could be reversed without overturning Sullivan, because he misapplied the standard.
Daniel, I posted this as a reply, but it became uncoupled:
https://jonathanturley.org/2022/02/19/judicial-palindrome-how-sarah-palin-was-left-with-losing-by-jury-or-by-judge/#comment-2160115
I think the quote of NY law in that response addresses your question.
This is a very tough issue. The rise of advocacy journalism, both right and left, suggests that there will be more inflammatory hit pieces, facts be damned. While my view is that there was actual malice in this case, reasonable minds can differ. Still, absent any real possibility of recovery, perhaps Sullivan should be tweaked – maybe by reducing the threshold for public figures as opposed to public officials. Those people will keep on defaming others until it hits their bottom line
Judge Rakoff showed bias in this Case from day one, rejected the case, got reversed upon Appeal then got the Case handed right back to him…..Strike One for the Judge.
Judge Rakoff then holds a Trial and sends it to the Jury for its Verdict….but then announces he shall Dismiss the Case no matter what the Jury decides….Strike Two for the Judge.
Judge Rakoff declares the Jury shall not learn of his Decision while they deliberate a Verdict….but they do……Strike Three for the Judge.
Governor Palin must Appeal the Case due to the Judges Misconduct as She was very clearly harmed by the Judge’s actions.
The Appeals Court should require a new Trial under a different and more competent Judge….and hopefully. her Attorneys shall be far more competent than her current Counsel.
How did the jury find out about Rakoff’s intention?