Judge Jed Rakoff put his thumb on the scale for the New York Times, and there’s little the former Alaska governor can do about it.
Judge Jed Rakoff put his thumb on the scale for the New York Times, and there’s little the former Alaska governor can do about it.
W hether the New York Times was reckless in Sarah Palin’s libel case is an interesting legal question. But whether Judge Jed Rakoff was reckless in Sarah Palin’s libel case is no question at all: He clearly was.
A nine-person jury found in favor of the Times after a short trial in Manhattan federal court last week, but not before Judge Rakoff’s mind-boggling decision to announce, while the jury was deliberating, that he was throwing out the former Alaska governor’s case. Predictably, several jurors learned about Rakoff’s ruling before the jury reached a verdict that echoed the ruling. The appellate courts should nullify the verdict, but that would not necessarily translate into victory for Palin. As we shall see, while Rakoff’s handling of the jury was appalling, he may well be right that the Supreme Court’s controlling precedents favor the Times.
The Times Publishes an Outrageous Falsehood about Palin . . . Again
There is no question that, in 2017, the Times falsely blamed Palin for inciting political violence. The paper does not deny this. How could it? After radical leftist James Hodgkinson tried to murder Republican lawmakers in Alexandria, Va., as they practiced for the annual Congressional Baseball Game, a Times editorial gratuitously villainized Palin, a conservative Republican and Trump supporter, in a fit of whataboutism. Hodgkinson, a supporter of Senator Bernie Sanders (D., Vt.), severely wounded and nearly killed Representative Steve Scalise (R., La.) and a lobbyist named Matt Mika. Others were less seriously injured in the mayhem.
It marked the second such smear of Palin. Back in 2011, Jared Lee Loughner opened fire as then-representative Gabrielle Giffords (D., Ariz.) held a constituent meeting in a Tucson, Ariz., supermarket parking lot, killing six and wounding Giffords and a dozen others. Demagogically exploiting the tragedy, leftists claimed not only that the shooting had been motivated by right-wing sympathies but that Palin, the 2008 Republican vice-presidential nominee, was specifically to blame. They pointed to a map festooned with cross-hairs over particular voting districts Republicans were hoping to win, published by a Palin-run PAC. Clearly, the PAC was hoping to take seats in those districts, but the Left distorted the message into a summons to gun down Democrats — an absurd narrative that the Times fueled in an editorial and a Paul Krugman opinion column that generally faulted conservatives for inciting violence. In fact, neither Palin nor politics had anything to do with the attack in Arizona. Loughner was mentally disturbed, and the claim of right-wing motivation was debunked.
Yet, in its rote disdain for conservatives in general and Palin in particular, the Times revived the same grotesque falsehood after the 2017 Scalise shooting.
Negligence or Maliciousness?
When Palin sued for libel, the paper did not try to justify what it had said. Its defense was that it had made an honest mistake — that it had been negligent, not malicious.
Palin’s legal team highlighted abundant evidence that the manifestly left-leaning Times was predisposed to be hostile toward her. And indeed, it is nearly impossible to imagine the Gray Lady making such an egregious misstatement absent that predisposition. Yet, the paper asserted that any inclination to be hostile to Palin would not, by itself, prove that a particular action was malicious, even if it appeared consistent with that inclination.
The Times argued that its woeful misfeasance was not willful. Its staffers testified about their regret over inexcusable lapses in their drafting and fact-checking processes. Its lawyers also stressed the testimony of former opinion editor James Bennet. At 5 a.m. on the day the editorial was published, when he says he first realized that its assertions about Palin were grievously wrong, Bennet immediately published a correction. He then pushed the correction out on social media in order to draw attention to the Times’ quick admission of error. Describing his team’s performance as “a terrible mistake,” he said he continues years later to be wracked with guilt over it.
Most heavily, the Times leaned on the daunting standard the Supreme Court has imposed on public figures who claim libel. Though my heart is with my friend Kevin D. Williamson’s insightful take on the case, this standard is why I haven’t been able to get my litigator’s head all the way to believing that Palin should win.
The Supreme Court’s Wayward Defamation Jurisprudence
I’ll admit it: As a commentator, I’m personally glad to have the protection of the Court’s extraordinarily forgiving defamation jurisprudence. Still, it is indefensible as a matter of constitutional law — a relic of the Warren Court era, when imperial justices made it up as they went along. I am persuaded that, as the eminent judge Laurence Silberman contended in a refreshingly blunt dissenting opinion last year, Justice Clarence Thomas is right to have called for the Court to revisit its wayward decisions in this area — principally, New York Times v. Sullivan (1964), which pulled out of thin air the requirement that, to prevail in a defamation suit, public officials must satisfy the so-called actual-malice test, and Curtis Publishing v. Butts (1967), which extended this newfangled burden on public officials to all public figures.
All that said, though, Times v. Sullivan is the law unless and until the Supreme Court reverses it. I don’t see the justices doing that any time soon, if ever — and certainly not in Palin’s case (at the end of this column, I’ll get to why). And under the Sullivan standard, a false statement is not libelous unless the public figure can establish that the publisher made it because of either actual malice or reckless disregard for the truth.
The question of actual malice can involve some fine parsing, but there is (as observed above) a difference between being (a) generally hostile toward a person; and (b) specifically malicious in publishing false, derogatory information about the person.
As for reckless disregard, commentators often describe it as if it were synonymous with gross negligence, but it’s not. Acts of negligence and even gross negligence are best thought of as almost unconscious: A person accidentally does something harmful, and the act is deemed negligent because of this very failure to anticipate the harm it would cause and exercise reasonable care. Reckless disregard, meanwhile, is a willful step beyond that. As the constitutional-law scholar Eugene Volokh explained while discussing Palin’s case:
Under existing libel law, she could only prevail if she could show so-called “actual malice,” which basically means that the Times knew that the statement about her was false (knowing falsehood), or at least published it with a “high degree of awareness of … probable falsity” or “entertain[ing] serious doubts as to the truth of his publication” (reckless disregard of the risk of falsehood). Mere negligence or even gross negligence isn’t enough. [Ellipsis in original.]
Kevin is right that if ever there were a situation in which a public figure might be able to satisfy this demanding test, it would be Palin’s mistreatment by the Times. But it’s a close call. The Times presented an effective “Man, we really screwed up here and we’re very sorry” defense.
Enter Judge Rakoff
Which brings us to Judge Rakoff, the 79-year-old Clinton appointee and darling of progressive intellectuals (not least for holding in 2002 that the death penalty is unconstitutional, despite the Constitution’s express, permissive mention of it).
At some point during the proceedings, Rakoff decided that Palin had not met her burden of proof on actual malice/reckless disregard. He thus decided to dismiss the case. I don’t agree with his decision, but that’s not because I think he’s wrong in a bottom-line sense: As I’ve said, the Supreme Court’s demanding proof standards in libel cases make this a close call, one on which reasonable minds can differ. Instead, Rakoff was wrong because the question whether the Times acted with reckless disregard for the truth is an issue of fact, and issues of fact are supposed to be decided by the jury in a jury trial such as this one. The judge can give the jurors instructions on the relevant legal principles that should inform their decision, but the decision is supposed to be theirs, not his.
There is, as usual, an exception: The judge has the authority to dismiss the case if he finds that the evidence presented is so weak that no rational juror could decide in the plaintiff’s favor. In my view, for what little that’s worth, it would be rational to find that Palin had met her burden of proof. That, however, would not mean that a juror’s finding in the Times’ favor would be irrational. It would mean that a verdict for either side would be defensible, and thus the jury should decide.
All that said, I don’t even have much heartburn over Rakoff’s determination to decide the case himself. After all, Palin can appeal. Rakoff’s ruling on the merits may have been wrong, but it wasn’t crazy. Palin could argue to the Second Circuit that Rakoff’s bottom-line ruling was wrong, and that, at the very least, he should have deferred to the jury. If she persuaded the appeals court, she would get a new trial.
Rakoff, however, did not want to risk that scenario. Yes, he decided to rule against Palin, but he didn’t want to appear to be doing so unilaterally, or in defiance of the jury. Manipulatively, he waited until the jury was already deliberating to announce his decision. Now, that’s odd timing. When a judge decides to throw out a case during a jury trial, the normal procedure is to announce the ruling and simultaneously dismiss the jurors, since there is no point in having them reach a verdict. By contrast, Rakoff announced that he was ruling against Palin after deliberations had begun, even though, at that point, no one is supposed to do anything that could extraneously influence the jury. And then he had the jurors continue deliberating.
Even worse, Rakoff timed the announcement of his ruling against Palin to come at the end of a trial day, when it was clear that the jury had not yet reached a verdict and would be going home. So the jurors were not sequestered when the announcement was made; everyone knew they’d be returning to continue deliberations the following day. With the jury gone, Rakoff made his ruling from the bench, reasoning that Palin’s evidence of actual malice/reckless indifference was insufficient. He had to know that his ruling, in a case that had drawn intense national media coverage, would be widely reported. It was virtually inevitable that at least some of the jurors would learn, in the middle of deliberations, that the judge from whom they took their guidance about the case had decided that Palin should lose.
To what should have been no one’s surprise, that is exactly what happened.
If a lawyer for one of the parties pulled a stunt like this — publicly announcing information that was not part of the evidence in the case and that had a high potential to influence the jury while deliberations were ongoing — a good judge would be profoundly offended, and the lawyer might well face disciplinary proceedings. While Rakoff cavalierly observed that he had told the jury not to read or watch media reports, he well knows that this is not always sufficient. Sometimes news emerges that is so big, even conscientious jurors cannot avoid it. (In my terrorism prosecution in 1995, the jurors were instructed to refrain from relevant news coverage, but when the Oklahoma City courthouse was bombed, no one seriously believed they’d remain unaware of it.) It is the judge’s job to preserve the integrity of jury deliberations. It is not enough to instruct the jury to avoid news coverage of the case; the judge has an obligation to resist taking any unnecessary action that might intensify such news coverage.
In this instance, Rakoff’s announcement that he was ruling against Palin inevitably ignited a burst of news coverage. At least three of the jurors got unsolicited push-notifications about it on their mobile phones. Could there be anything more unfairly prejudicial to Palin than to have the jury informed, in the middle of its deliberations, that the presiding judge was ruling that the Times had not acted with actual malice or reckless disregard for the truth?
Fallout
Though a number of the jurors were now aware that Rakoff had ruled and that their verdict would be superfluous, they nevertheless came back to court the next day. Rakoff had them continue their deliberations rather than dismissing them, and — what a surprise! — they soon reached a verdict in favor of the Times. Now, thanks to these machinations, if Palin appeals, the Times will argue not only that the learned district judge ruled that her case had no merit, but also that the jury, after carefully sifting through the evidence, concluded that Palin failed to prove her case.
There was no good reason for Rakoff to do this. The rules allow him to throw the case out and dismiss the jury before it retires to deliberate. They also allow him to permit the jury to reach a verdict, but then overrule that verdict post-trial. In the latter situation, the appellate court gets the benefit both of the reasoning of the trial judge, and of a verdict reached by a jury that deliberated in the usual manner (i.e., shielded from outside influences). But it is simply inexplicable for a judge to announce a ruling on the ultimate merits of a case while the jury is deliberating, in a way that makes it highly likely the jury will hear about the ruling, and then have the jury continue deliberating as if nothing has happened.
If it’s possible, this story gets even worse.
We know that the jurors found out about the court’s ruling against Palin because Judge Rakoff had his law clerk interview the jurors after they reached their verdict. There was no notice to the parties that the jurors were going to be interviewed by the judge’s staff (which Rakoff says is his standard practice). There was no opportunity for the parties to hear what the jurors said, or to question them about the impact on deliberations of reporting about Rakoff’s ruling. Instead, Rakoff issued a terse order, less than two double-spaced pages long, which — besides giving his spin on what happened — chastised the lawyers for failing to object to his senseless plan to announce his decision while the jury was deliberating.
Meantime, in another jaw-dropping move, Rakoff gave a self-serving interview about the case to Bloomberg News, in which he expressed “disappointment” that the jurors had learned about his ruling “if they did” (of course, he knows they did), but defiantly concluded, “I continue to think it was the right way to handle things.”
Good grief.
Unsurprisingly, Palin has indicated that she plans to seek a new trial, to conduct interviews with the jurors, and to ask that Judge Rakoff disqualify himself from continuing to preside over the case. I’d be stunned if Rakoff confessed error, much less granted any of these motions. But eventually, it should all still make for an interesting appeal, and hopefully, the Second Circuit appellate court will ignore the jury verdict. It is a shame for jurors to have their service wasted this way, after giving up several days of their time to perform a vital civic duty. But the trial judge’s stratagems render the verdict unreliable. Again, this does not mean Palin will prevail on appeal. The Second Circuit could well find that Rakoff’s dismissal of her case was a correct application of the Supreme Court’s libel precedents. I hope she is granted a new trial, but I am not holding my breath.
One last thing: Palin has indicated that she hopes her case becomes the vehicle by which the Supreme Court reconsiders and perhaps even abandons New York Times v. Sullivan and its progeny. That is not going to happen. As Professor Volokh explains, New York state law applied to her claim against the Times, and New York has an actual-malice standard on the books. Consequently, even if the Court changed U.S. constitutional-law standards, that would not affect the New York law that applies to Palin’s claim. I am skeptical that the Supreme Court will reconsider Sullivan at all, but I’m sure that it won’t do so in a case where it has to navigate around conflicting state law.
If Palin prevails in the end, it will only be by proving actual malice or reckless disregard for the truth on the Times’ part.