Sarah Palin of Alaska is back in the news. On Wednesday, the Second Circuit Court of Appeals granted her request for a retrial in her defamation suit against The New York Times, based on a 2017 editorial that stated: falsely linked it to a mass shooting.
District Judge John Walker, sitting for a three-judge panel, agreed with Palin that U.S. District Judge Jed Rakoff made several errors that marred the February 2022 trial of the Times and former editorial editor James Bennet.
The appeals court said Rakoff improperly excluded evidence that Palin said reflected the Times’ “actual malice” in publishing the editorial, and that she misinformed the jury about how much evidence was needed to hold the Times liable.
It further said the verdict was likely tainted after jurors learned during deliberations from news reports on their cell phones that Rakoff would dismiss Palin’s case because she had not presented clear and convincing evidence of willful intent.
Aside from the sensitivity of any case involving Sarah Palin, what is intriguing about this case is that it may have far-reaching implications for an earlier Supreme Court decision that addressed the question of what standards to apply to public figures in defamation trials.
Media critics and Palin see the case as an opportunity to overturn the U.S. Supreme Court’s landmark 1964 ruling in New York Times v. Sullivan, which set a very high bar for proving defamation by public figures.
To win, public figures must prove that the media showed “actual malice,” meaning that they knowingly published false information or recklessly disregarded the truth.
A New York Times editorial? Real malice? Towards a prominent Republican? Well, that doesn’t necessarily require a willingness to suppress one’s skepticism. And if the New York Times thinks political rhetoric is evil these days, then I invite them to read Cicero’s “Philippic” – Cicero really, Really hated Marcus Antonius and expressed this hatred very eloquently.
The editorial in question was partly about “inflammatory political rhetoric” and showed as evidence a map published by Sarah Palin’s political action committee (PAC) that showed contested congressional seats that were at risk for a Republican win, including then-Democratic Congresswoman Gabby Giffords’ seat in Arizona. On the map, the districts in question were marked with compact crosshairs – a marker that has been used on similar maps for decades. Giffords was later injured in a mass shooting at a campaign rally, but there was never any evidence that the two – Palin’s map and the shooter – were in any way connected.
But the New York Times editorial stated, according to Palin’s defamation suit, “…the connection to political incitement was clear.”
It wasn’t like that.
See also: ON BRAND: MSNBC journalist who questioned Don Jr. about children in cages is at the center of a defamation lawsuit
CNN defamation lawsuit: Does unredacted testimony show journalist admitting his story was false?
As an Alaskan, Sarah Palin (to be completely truthful, she lives about 30 miles from where I am now) is certainly a well-known local figure. Even her town of Wasilla isn’t that substantial. A buddy of mine told me just a few months ago about talking to Palin at Walmart where she was – yes, really – buying ammo. Everyone here seems to have sturdy feelings about Sarah in one way or another. People either love her or they hate her, and there’s hardly any middle ground.
But a connection between a campaign ad in which crosshairs mark contested seats and a mass shooting? That’s just a bit much. We’ll be watching this case as it progresses, even if it ends up in the Supreme Court, which is entirely possible.
