Sarah Palin continues her fight against the New York Times, alleging defamation. The case, originally filed in 2017, has been dismissed twice, but her legal team is appealing the latest dismissal. Her chances of winning are slim under current case law because defamation is difficult to establish when the media writes about public figures. The law intentionally places a high standard of proof on public figure plaintiffs (the person or entity alleging defamation). Regardless of the outcome, the case offers valuable insights into the likelihood of success when suing the media.
In 2017, former New York Times editor James Bennet published an editorial stating the following:
“In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old-girl, the link to political incitement was clear. 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 cross hairs.”
The statement was false and the next day the Times corrected the mistake and admitted that it had no evidence that the statement was true.
Bennet’s defense was that he made an error. He intended to make a point about the heated political rhetoric, but did not mean to say there was a causal link between the map of target electoral districts and the 2011 shooting. He also argued that in the rush to publish a daily newspaper, errors can happen – also referred to as the “oops” defense.
Palin’s attorneys argued that if the oops defense was accepted, no plaintiff would ever prevail in a defamation case against the media.
The District Court granted the Times’ motion to dismiss in 2017 but the case was reinstated by the Second Circuit on appeal in 2019. It went to trial in 2022. On February 14, 2022, while the jury was still deliberating the verdict, U.S. District Court Judge Jed S. Rakoff dismissed the action on the grounds that Palin failed to show that the Times acted with “actual malice,” which is the standard of proof for public figures in a defamation action. However, the Judge allowed the jury to keep deliberating so the case would have a verdict in case his decision was overturned on appeal. The jury decided in favor of the New York Times and rejected Palin’s claim of defamation. Palin appealed the verdict.
Defamation is the publication or communication of a false statement of fact about a person to a third party, which causes harm to the subject-person’s reputation or constitutes defamation per se, and occurs without privilege or the subject-person’s consent. Palin must meet the higher standard of proof applied to public figures, like her, who sue for defamation.
In the seminal 1964 decision, the U.S. Supreme Court held in New York Times v. Sullivan that newspaper publications are protected by the First Amendment even if they publish false statements so long as they did not act with “actual malice.” Justice Brennan defined actual malice as acting “with knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” Meaning, in order to meet her burden of proof, Palin must have shown that the Times acted with knowledge that the statement was false or with reckless disregard of whether it was false or not when it published the false statement at issue.
While Judge Rakoff and the jury ruled in favor of the Times, this case is not over. Palin has filed an appeal to overturn the verdict and Judge Rakoff’s dismissal of the case. According to Palin’s lawyers, the dismiss was based on “fundamental, prejudicial errors.” She objects to the malice standard Judge Rakoff applied in the case and contends that his speedy jury selection process meant that the jurors weren’t properly screened for bias. Further, Palin argues that Judge Rakoff acted inappropriately by dismissing the case while allowing the jury to continue to deliberate. Palin contends that this pre-verdict decision “contaminated” the jurors’ verdict. Palin argues that the contamination is evident because some of the jurors admitted to Judge Rakoff’s clerk that during deliberations they learned about Rakoff’s decision a day before rendering their verdict through cellphone notifications. However, the jurors reported that knowledge of the decision did not affect their findings.
Palin also has an outstanding post-trial motion pending before Judge Rakoff in the District Court. Palin’s post-trial motion seeks relief similar to her appeal: disqualification of Judge Rakoff, permission to interview jurors about the cellphone notifications, reconsideration of Judge Rakoff’s dismissal, and setting aside the final judgment and granting of a new trial. The Second Circuit, in an order dated on March 29, 2022, stayed Palin’s appeal until Judge Rakoff resolves Palin’s post-trial motions.
Defamation is a difficult claim to win for any plaintiff. If you have a potential claim or are facing a lawsuit for defamation, an experienced attorney can help you assess your options. Contact us to discuss your case.