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Sarah Palin judge will dismiss her libel case, finding no malice by New York Times

The rare and closely watched case has raised concerns that historic protections for journalists may be at risk.

Sarah Palin arrives at the U.S. District Court in Manhattan on Monday. (Eduardo Munoz/Reuters)
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NEW YORK — A judge on Monday said he will dismiss Sarah Palin’s libel case against the New York Times, saying she had not met the legal standard showing that the newspaper acted with “actual malice” in publishing a 2017 editorial that included an inaccurate claim about her.

Judge Jed S. Rakoff told the lawyers involved in the case that he will formally issue his ruling after a jury that has been deliberating since Friday returns its decision.

Rakoff said that because the decision is likely to be appealed — a path that could upend long-standing legal protections for journalists who write about public figures — he wanted future courts to have both his decision and the jury’s to consider.

Rakoff did not spare the Times criticism for its error, a collection of phrases within a larger essay that inaccurately suggested a link of “incitement” between the crosshairs that her political action committee imprinted on a congressional map and a 2011 mass shooting in Tucson.

“This is an example of very unfortunate editorializing on the part of the Times,” he said, adding that he was “not at all happy to make this decision” in its favor.

However, he told the parties gathered in a courtroom in the U.S. District Court for the Southern District of New York in Manhattan that “the law sets a very high standard for actual malice, and in this case the court finds that that standard has not been met.”

While Palin’s attorneys argued that the paper’s then-editorial page editor, James Bennet, had acted recklessly in publishing assertions he should have known were false, a Times lawyer described a frantic rewriting session on deadline that resulted in “a mess-up … a goof” that Bennet regretted immediately and corrected as quickly as possible.

Ultimately, Rakoff concluded that Palin’s team did not prove that Bennet knew the statements were false nor even that he suspected they might be false and then recklessly disregarded that possibility.

Judge Jed S. Rakoff said on Feb. 14 that he would dismiss former Alaska governor Sarah Palin's defamation lawsuit against the New York Times. (Video: Reuters)

The case — the first libel lawsuit against the Times to go to trial in the United States in nearly two decades — has taken a long and winding path that has left press-freedom advocates concerned that it could open journalists to more legal threats from the powerful people they write about.

Two conservative Supreme Court justices, Clarence Thomas and Neil M. Gorsuch, have signaled an openness to reassessing a landmark 1964 ruling that set a high bar for prominent people pursuing libel claims.

But the case has also served unofficially as a chance to interrogate the “hot take” culture of digital journalism, as well as the relative power of Palin, the former Alaska governor and 2008 Republican nominee for vice president, who has seen her stature and visibility shrink in recent years.

Sarah Palin, center stage again, in New York Times court battle that could be her true legacy

Palin first filed suit in 2017, not long after the Times published its editorial, under the headline “America’s Lethal Politics.” Written in the hours after the June 2017 shooting attack of Republican lawmakers practicing baseball at an Alexandria, Va., field, the editorial decried rising levels of toxic political discourse and gun ownership. And it made a connection between the Alexandria shooting and a 2011 attack at a Tucson shopping center that left then-Rep. Gabrielle Giffords (D-Ariz.) gravely wounded and six other people dead.

“The link to political incitement was clear,” the editorial stated. “Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized crosshairs.”

In fact, investigators never found any indication that the mentally disturbed Tucson shooter was motivated by the Palin PAC’s map. The Times corrected the error the morning after it was published on the newspaper’s website.

Rakoff dismissed Palin’s suit not long after she filed it, stating it was doubtful that Palin could demonstrate that the Times had shown the “actual malice” that public figures must prove in a libel case.

“Negligence this may be,” he wrote, “but defamation of a public figure it plainly is not.”

But the case was sent back to him by an appellate court — a reversal that put many legal scholars on alert that a favorable climate for journalists may be changing.

For 50 years, “journalists have generally been able to count on the courts to have their backs,” said Sonja West, a University of Georgia law professor. But “when you combine this trend with the drop in the public’s trust in the news media and the rise in high-profile defamation lawsuits like this case, many press-freedom scholars see reasons to be concerned about where things are headed,” West said.

On Monday evening, a spokeswoman for the Times said the newspaper welcomed Rakoff’s ruling.

“It is a reaffirmation of a fundamental tenet of American law: public figures should not be permitted to use libel suits to punish or intimidate news organizations that make, acknowledge and swiftly correct unintentional errors,” said Danielle Rhoades Ha.

Speaking to reporters outside the courthouse, Palin said: “This is a jury trial. We always thank jurors. We always appreciate the system. So whatever happened in there kind of usurps the system.”

Rakoff said he was letting the jury continue its deliberations for the benefit of an appeals court that will inevitably take up the case; if it returns a decision in Palin’s favor, he offered as an example, the appeals court wouldn’t necessarily have to send the case back for a new trial but rather reinstate the jury’s verdict.

Legal experts called Rakoff’s ruling a highly unusual outcome in a highly unusual case.

It’s more typical for a judge to issue such a ruling either before a jury begins its deliberations or after it has reached a verdict, said David A. Logan, a Roger Williams University law professor and expert in First Amendment protections. “By doing it this way, it is somewhat efficient,” he said, since “another jury does not need to be impaneled” if it goes to the appellate court and is reversed.

Since Rakoff “has already been reversed in the case,” Logan said, “I expect he doesn’t want to preside on a retrial.”

Rakoff told the court Monday that while he considered waiting for the jury’s verdict before making his decision, “the more I thought about it over the weekend, the more I thought that was unfair to both sides. We’ve had very full argument on this. I know where I’m coming out and I want to therefore apprise the parties of that.”

By dismissing a case in which the plaintiff didn’t satisfy the “burden of proof,” Rakoff did “what most judges would do,” said University of Richmond Law professor Carl Tobias.

If the jury decides in favor of the Times, “this would confirm the judge’s view and make the case difficult for plaintiff to win on appeal.” But if the jury rules in Palin’s favor, “it becomes more complicated.”

Jonathan Peters, a media law professor at the University of Georgia, argued that the Palin case is part of a growing effort by public figures “to weaponize libel law in order to generate publicity or score political points or exact revenge on critics,” pointing to other recent lawsuits. Most have been dismissed, he said, but they “nevertheless advance the narrative, voiced by some lawyers and judges,” that lower courts have given journalists too much leeway when it comes to libeling public figures, or that the actual malice standard “encourages bad journalism.”

Meanwhile, the jury finished Monday — its first full day of considering the case, after taking it up late Friday afternoon — still without a decision of its own. That raised the question of whether jurors could avoid learning about Rakoff’s ruling, which would have the potential to color their own decision-making.

Like all jurors, they had been instructed to avoid news coverage of their trial. Rakoff expressed concern that repeating his order might tip them off that something had transpired, so he told the court he would call in the jurors to “schmooze them” before his warning.

When the jurors entered his courtroom, Rakoff told them that “I didn’t think I should let the day expire when you know I love this jury without wishing you a happy Valentine’s Day.” Laughter ensued, and then he delivered some mundane scheduling announcement before reminding them:

“If you see anything in media about this case, just turn away,” he said. “Read about the traumatic results for the Cincinnati team instead.”

correction

An earlier version of this article misspelled the name of New York Times spokeswoman Danielle Rhoades Ha.

Read previous stories:

The existential dread of journalists watching the Sarah Palin trial

Sarah Palin’s libel case against New York Times opens in Manhattan courtroom, a culture clash with lasting legal potential

James Bennet testifies as Sarah Palin trial raises questions about New York Times editing: ‘This is my fault’

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