Sarah Palin is back in court this week as she is once again suing the NY Times for defamation over an editorial which accused her of inciting the 2011 Tucson shooting. If you’re having deja vu that’s because this case already unfolded back in February 2022.
That trial ended when Judge Jed S. Rakoff decided Palin hadn’t presented enough evidence that the Times had displayed a reckless disregard for the truth while the jury was still deliberating. The next day the jury also sided with the NY Times, but there was a potential hitch because the jury had not been sequestered. In other words, it seemed possible the jurors may have learned about the judge’s decision prior to reaching their own. Obviously, there wasn’t going to be much resistance to siding with the Times if the jurors knew the judge had already done that.
And it turns out that’s exactly what did happen. Palin appealed the case and the Appeals Court found that jurors learned about Judge Rakoff’s decision before reaching their own verdict.
Later that evening, the district judge’s law clerk interviewed jurors to see if they had any problems understanding the court’s legal instructions during trial. Such interviews are the district judge’s “uniform practice,” “so that improvements can be made in future cases.” In these interviews, “several” jurors reported that, prior to rendering the verdict, they had learned that the court had made a Rule 50 determination in favor of the defendants via “involuntarily received ‘push notifications’ on their smartphones.” The law clerk reported this information to the district judge.
That was an error by the judge but not the only one. The Appeals Court determined that the Judge was wrong to conclude there was no evidence a jury could reasonably used to find the Times guilty in the first place.
The district court based its judgment for defendants solely on its conclusion that, as a matter of law, the trial evidence was insufficient to permit a jury to find that the defendants acted with actual malice. We disagree with that conclusion. After reviewing the record and making all reasonable inferences in Palin’s favor as the nonmoving party, we conclude that there exists sufficient evidence, detailed below, for a reasonable jury to find actual malice by clear and convincing evidence.
The Court specifically found that one statement by James Bennet could have been construed as an admission that he did not believe what he wrote and published.
During cross-examination by the defense, defendant Bennet, who was called as a witness by the plaintiff, stated what could be plausibly viewed as an admission: “I didn’t think then and don’t think now that the [crosshairs] map caused Jared Loughner to act.” But the district court dismissed out of hand the possibility that Bennet’s statement could be viewed as an admission supporting a finding of actual malice. The district court concluded that such an interpretation was “not a reasonable reading of Bennet’s answer and . . . would be inconsistent with [his] testimony overall.” Crediting Bennet’s explanation that he did not intend to convey in the editorial that the crosshairs map directly caused Loughner to act, the district court interpreted Bennet’s “admission” to be merely a statement that the question of whether the crosshairs map spurred Loughner’s attack never entered his mind.
But in deciding a Rule 50 motion, a district court may not credit the movant’s self-serving explanations or adopt possible exculpatory interpretations on his behalf when interpretations to the contrary exist. Furthermore, the district court was plainly incorrect to conclude that Bennet’s testimony cannot “reasonabl[y]” be understood to “indicate[] that Bennet did not believe that what he was writing was true.” Bennet’s statement—that he “didn’t think,” when revising the editorial, that “the [crosshairs] map caused Jared Loughner to act”—can permissibly be read to suggest that Bennet entertained serious doubts as to his assertion that the map and shooting had a “clear” and “direct” “link.”
In short, the district court judge decided to take Bennet’s word for it that and view his statement in the light most advantageous to him even though a jury is not required to do that. For those who’ve forgotten, here’s what Bennet wrote:
Was this attack evidence of how vicious American politics has become? Probably. 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.
Conservatives and right-wing media were quick on Wednesday to demand forceful condemnation of hate speech and crimes by anti-Trump liberals. They’re right. Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask for of the right.
In two paragraphs, he claimed Palin’s map was a direct incitement for the shooting. Yet in cross examination he claimed to have never believed the “map caused Jared Loughner to act.” Those two claims seem to be at odds and the judge should never had determined there was no evidence Bennet was reckless in publishing the claim that Palin’s map incited violence.
The bottom line is that Palin is getting a 2nd chance at making her case before a new jury.
Last year, the 2nd U.S. Circuit Court of Appeals ruled in favor of Palin’s appeal and vacated the jury’s decision, citing “several major issues at trial” and remanding for new proceedings.
In his opening statement on Tuesday, Palin’s attorney, Shane Vogt, told jurors that the newspaper had engaged in a “sickeningly familiar pattern” by targeting a popular Republican personality…
Ahead of Tuesday’s new trial, a spokesperson for the Times said in a statement that the paper was “deeply committed to the fairness and accuracy of all our journalism.”
“This case revolves around a passing reference to an event in an editorial that was not about Sarah Palin,” the spokesperson said. “That reference was an unintended error, and quickly corrected.”
There’s no doubt this was an error and a false claim which needed to be corrected and removed. The question is whether publishing it in the first place demonstrated a reckless disregard for the truth given that the Times and many other news outlets had reported there was no such connection between Palin’s map and the shooting. It truly is hard to believe that Bennet and others involved in publishing this didn’t know better years after the issue had been settled.
This is still an uphill battle for Palin to prove defamation, but maybe without the judge unfairly working against her she’ll have a better chance this time around.
