Despite defeat, Sarah Palin's defamation suit has legs

March 14, 2022 - Sarah Palin's loss in her defamation trial against The New York Times was predictable. The odds were against Palin from the start, and she did nothing to improve her chances by her disengaged testimony during the trial.

The case is far from over, however. Contrary to what some have predicted, it could possibly find its way to the Supreme Court. It occurs to me, as an experienced litigator and former Assistant U.S. Attorney, that this may have been the point of the lawsuit all along.

The trial judge, Jed Rakoff, who sits in federal district court in Manhattan, announced during jury deliberations that Palin's case would be dismissed. He held that no reasonable juror could conclude from the evidence that the Times had acted with "actual malice" in 2017 when it wrongly posited a "clear link" between her campaign rhetoric and a mass shooting that left six people dead and 19 wounded, including Representative Gabby Giffords.

"Actual malice" is a term of art in defamation law, denoting either knowledge of the offending statement's falsity or reckless disregard of the likelihood of its falsity. It is a demanding standard that applies to defamation actions brought by public officials or public figures like Palin -- a former governor of Alaska and vice-presidential candidate -- but not by ordinary plaintiffs, who need prove only negligence.

The substance of Judge Rakoff's ruling was no surprise, since evidence of "actual malice" was all but nonexistent. The Times had admitted its mistake almost immediately, correcting the offending editorial within hours of publication; no evidence surfaced that prior to this correction the newspaper knew or had reason to suspect that the "clear link" did not exist; and throughout the trial its representatives (including its key witness, former opinion editor James Bennet, who had edited the piece) struck an appropriately penitent tone.

What was surprising was Judge Rakoff's decision to read the explanation for his decision in open court, while the jury was still deliberating. The following day, the jury returned a verdict in favor of the Times, naturally raising the troubling possibility that the jurors had learned of the court's public ruling and been influenced by it.

Judge Rakoff addressed this possibility the next day. He issued an order explaining that several jurors had reported they learned of the dismissal through push notifications on their cell phones, but they had "repeatedly assured the court's law clerk that these notifications had not affected them in any way or played any role whatsoever in their deliberations."

Judge Rakoff returned to this point several weeks later when he issued his formal ruling dismissing Palin's lawsuit. While noting that the jury's verdict would matter only if his ruling were reversed on appeal, he again rejected the possibility that the verdict may have been tainted by the ruling. Despite what "some outsiders" may have assumed, Judge Rakoff wrote, "the court knows of no reason why the highly conscientious citizens who served as jurors in this case would be so firm that they were unaffected by this information unless it were true."

Judge Rakoff could have waited until the jury returned a verdict before announcing his decision. Instead, he decided to go first, which has prompted motions by Palin's counsel attacking the dismissal and the verdict. The motions are unlikely to succeed.

An ordinary litigant would probably stop here. Not only did Palin fail to demonstrate "actual malice," but her damages appear to be slight; she could point to no appreciable reputational injury or related pain and suffering, with the possible exception of loss of sleep. In her testimony, she seemed much more focused on the idea of being criticized by the Times, rather than its impact on her life or reputation.

But Palin is no ordinary litigant. All indications are that Palin intends to pursue her case to the very end. Her case is less about redressing legal injury than making a political statement about the power of The New York Times. One subject on which she did testify passionately was that the Times was "the Goliath" against which she was "powerless" to defend herself. Palin even told the jury that Times writers "have lied before" concerning her supposed responsibility for violence, but she could provide no support to back up this charge.

When Palin, before trial, moved for summary judgment on her defamation claim, her sole argument was that the stringent "actual malice" standard, introduced by the Supreme Court as a constitutional requirement nearly 60 years ago, should be overturned in favor of common-law negligence. This special rule, forged in the exigencies of the civil rights struggle in the American South, confers First Amendment protection on false statements that would otherwise be actionable. It is a source of the press power that seems to rankle Palin, at least when it is wielded by The New York Times.

Judge Rakoff denied Palin's summary judgment motion, explaining that only the Supreme Court itself could grant the relief she sought. This is not just an abstract possibility (as Judge Rakoff was probably aware). The current Supreme Court might be receptive to Palin's argument, since at least three justices (Clarence Thomas, Neil M. Gorsuch, and Elena Kagan) have publicly questioned the "actual malice" standard.

More to the point, Palin's own case could be an effective vehicle for the Court's reconsideration of "actual malice." Paradoxically, the very weakness of her case makes it more suited to Supreme Court review, not less, as critics have assumed.

Palin's argument would be that, but for the "actual malice" standard, she might have won her suit, because the Times acted carelessly in publishing the original version of the editorial. The editor of the offending piece, James Bennet, testified at the trial that "This is my fault … I'm not looking to shift the blame." The words "fault" and "blame" are noteworthy. If negligence were the standard, Palin would probably be entitled to a new trial.

In other words, Palin can argue her defamation case is strong enough to go to the jury as a negligence claim, even if, as Judge Rakoff ruled, it is not strong enough as an "actual malice" claim. This puts the larger issue she wants to highlight in sharp relief.

Getting to the Supreme Court is always a long shot, and Palin's case has other problems that might dissuade the Court from taking it. Despite repeated setbacks at trial, however, Palin might only have begun to fight.