A federal appeals court allowed Sarah Palin, the former governor of Alaska and 2008 Republican vice-presidential nominee, to once again pursue her libel lawsuit against the New York Times two years after a jury ruled in favor of the newspaper.
In its Wednesday ruling, the three-judge panel of the Second Circuit Court of Appeals unanimously disregarded the 2022 jury verdict that concluded the Times was not liable for defaming her in a 2017 editorial suggesting she encouraged a mass shooting that wounded a congresswoman years earlier.
The appeals court’s opinion said U.S. district judge Jed Rakoff, who tossed out Palin’s lawsuit twice and oversaw the trial, was mistaken in ruling that the Republican politician did not sufficiently prove the Times knowingly or recklessly published false information about her. The appeals court stood by the plaintiff’s legal claim of “actual malice.” This marks the second time that the court panel revived Palin’s suit; Rakoff first dismissed the complaint in 2019.
Among the problems that the three appeals judges found was potential bias of the jury in the form of news alerts from the Times. Jurors received push notifications on their smartphones about the case while they were deliberating.
“We have no difficulty concluding that an average jury’s verdict would be affected if several jurors knew that the judge had already ruled for one of the parties on the very claims the jurors were charged with deciding,” Judge John Walker Jr. wrote. Appointed by George H. W. Bush, Walker was joined by George W. Bush appointee Reena Raggi and Donald Trump appointee Richard Sullivan in the opinion.
While the jurors have said their verdict wasn’t influenced by the news alerts, the appeals court panel said that outcome is unlikely in such a high-profile case.
“We think a jury’s verdict reached with the knowledge of the judge’s already-announced disposition of the case will rarely be untainted, no matter what the jurors say upon subsequent inquiry,” Walker wrote.
Major errors cited in the document included “erroneous exclusion of evidence, an inaccurate jury instruction, a legally erroneous response to a mid-deliberation jury question, and jurors learning during deliberations” of Rakoff’s dismissal of the suit.
Palin sued the Times after its editorial board claimed her political action committee, SarahPAC, helped spur the 2011 shooting of then-representative Gabby Giffords (D., Ariz.) by circulating a map showing 20 electoral districts represented by Giffords and 19 other Democrats in crosshairs. The 2017 editorial was published on the same day as the congressional baseball shooting in Alexandria, Va., where then-House majority whip Steve Scalise (R., La.) was shot in the hip.
Two days after publication, the Times issued the following correction about the allegation involving Palin: “An editorial on Thursday about the shooting of Representative Steve Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs.”
Despite the correction, Palin alleged the Times and its editorial page editor at the time, James Bennet, maliciously lied about her. The Times and Bennet denied such allegations.
Moreover, Palin claimed Bennet smeared her to politically benefit his brother, Senator Michael Bennet (D., Colo.). However, evidence backing that claim was deemed inadmissible by Rakoff because it was irrelevant and unfairly prejudicial.
While handing her a major victory, the appeals court did reject Palin’s request to have another judge other than Rakoff preside over the retrial.
It remains to be seen whether the Times takes one of two paths: asking the Second Circuit Court of Appeals to rehear the appeal or taking the case to the Supreme Court. A Times spokesperson called Wednesday’s decision “disappointing” and maintained confidence that the newspaper “will prevail” again.
On the other hand, Palin’s lawyer praised the court panel’s decision as the plaintiff prepares for her new trial.
“Governor Palin is very happy with today’s decision, which is a significant step forward in the process of holding publishers accountable for content that misleads readers and the public in general,” the lawyer said. “The truth deserves a level playing field.”