We previously discussed how the Palin case could present one of the most consequential challenges to current defamation rules in decades.
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.
Rakoff doubled down in his most recent decision. He notably admits that his motivation in allowing the jury to rule was, as suggested in the earlier column, an effort to insulate his own decision:
“…the Court could have simply entered final judgment in defendants’ favor and dismissed the jury. Instead, however, the Court, while announcing its decision, explained that it would allow the jury to continue its deliberations, so that, if the Court of Appeals were to disagree with the Court’s determination to dismiss the case as a matter of law, the appellate court would not have to send the case back for trial, since it would have the benefit of the jury’s verdict. Moreover, as a technical matter, the Court could then issue its Rule 50 judgment, post-verdict, pursuant to Rule 50(b). While this approach was a bit unusual, neither side objected to it in the slightest.”
Palin’s counsel should have clearly objected to the continuation of the jury deliberations in my view, as I said at the time. However, counsel insisted that it did object. The judge raised the pending Rule 50 motion and stated his intention to let the jury continue to reach a verdict. Counsel objected to the motion. Judge Rakoff, however, insists that he construed the objections as challenging the merits of the dismissal and not the novel procedure. It is clearly an attempt to argue that counsel did not preserve any objection for appeal — another effort to insulate his controversial ruling on appeal.
While Rakoff describes his handing as “a bit unusual” and the resulting issues as “procedural necessities,” he has shown extremely poor judgment in the case (including the decision leading to his prior reversal by the Second Circuit). It is clear that his view of the case did not change when it was returned to him by the appellate court.
I do not disagree with Judge Rakoff that, given his own ruling, there is no need for a new trial. He has already declared that it would not make any difference to the outcome in his view. The court goes through a methodical presentation of the evidence and explains how it does not meet the actual malice standard.
The problem is his refusal to set aside the jury verdict. It is chilling to have a judge say that such a verdict remains valid despite the jury learning that the judge already ruled on the merits. It is frankly absurd.
Yet, Rakoff blissfully brushes such concerns to the side.
“Although the Final Judgment ultimately rests on the Court’s dismissal of the action under Rule 50, that legal conclusion is reinforced by the jury’s verdict that defendants are not-liable. The Court continues to have great confidence in the integrity of the jury’s verdict, notwithstanding that a few jurors became aware, involuntarily, of the bare fact that the Court intended to dismiss the case as a matter of law.”
His opinion restates his “firm view” that the jurors’ awareness that he dismissed the case “did not nullify the jury’s verdict in any respect.” Again, it is clearly that his view had not changed one iota since he was reversed by the Second Circuit.
Palin should appeal. In the very least, assuming the jury verdict is set aside, the case would present a clean record to challenge to the application of the actual malice standard to public figures. That is the subject of my earlier USA Today column.
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. Yet, I do not see how the Second Circuit could agree on the viability of the jury decision after the mishandling of this trial.
Here is the decision: Palin v. New York Times