Sarah Palin’s battle against freedom of the press faces a difficult road to the Supreme Court

Former Alaska Governor Sarah Palin (right) never had a particularly strong libel case against The New York Times. Lawyers for both sides spent about a week last month examining what was wrong with a 2017 opinion piece in the newspaper wrongly linking Palin to an earlier mass shooting. For the Times, it was an honest mistake made under the pressure of deadlines. For Palin, it was because the newspaper’s editors were secretly prejudiced against her.

A jury ruled unanimously for the Times. But the verdict was overshadowed by U.S. District Judge Jed S. Rakoff’s decision to dismiss the case if the jury did not rule in favor of the newspaper – an odd announcement made while the jury was still deliberating. This week, Palin formally requested a new trial.

Some of the jurors told the court that they actually found out what was going on in the case because of the news alerts they saw on their phones. They assured a bailiff that the notifications did not affect their decision.

Still, the judge criticized his timing. Gautam Hans, a law professor at Vanderbilt University, told HuffPost he thinks it “creates wrinkles that didn’t need to be created.” Rakoff defended himself in a 68-page article opinion filed on Tuesday, writing that Palin’s team “completely failed to prove its case, even to the minimum standard required by law.” His job was to call his side. It would have been “grossly unfair to both sides” to wait for the jury to deliver its verdict, he wrote, because in the meantime, Palin and the Times would think the case was going to be decided by the jury. .

“While this approach is a bit unusual, neither side objected in the slightest,” Rakoff said of the timing of his decision. The jury was still allowed to deliberate assuming Palin would appeal, and it would help the appeals court to know what a jury had decided. Proceedings regarding Palin’s motion for a new trial ― and a new judge, among other demands ― are expected to unfold throughout March.

Legal experts, however, say the 2008 Republican vice-presidential nominee still faces an uphill battle in her quest to obtain damages from the New York Times. She is unlikely to get a new trial, and an appeals court seems unlikely to go along with her if she seeks that route.

Clay Calvert, a University of Florida law professor and director of the Marion Brechner First Amendment Project, said an appeals court would rely heavily on Rakoff’s long opinion to determine whether his judgment was wrong.

“I don’t think the odds are very good that the Second Circuit will reverse the decision,” Calvert said of the federal appeals court handling New York’s cases.

But whether Palin wins her case in the lower courts may not matter so much. Several people who spoke with HuffPost said they thought Palin’s case was always more important than an op-ed.

“For me, it was as much about a media narrative and the media narrative as it was about the law,” Hans said. “I think the idea that she was going to prevail at trial was unlikely, and yet the case hasn’t been settled. Why? Because I think they wanted to take the case to court, not necessarily to win in the trial court, but perhaps for other legal or political purposes.

Sarah Palin listens to New York Times attorney David Axelrod make his closing arguments during Palin's libel trial against The New York Times, at <a class=the United States Courthouse in Manhattan on February 11.” width=”720″ height=”540″ data-src=”https://img.huffingtonpost.com/asset/621f91fc1e00005e001af4a9.jpeg?ops=scalefit_720_noupscale”/>
Sarah Palin listens to New York Times attorney David Axelrod make his closing arguments during Palin’s libel trial against The New York Times, at the United States Courthouse in Manhattan on February 11.

JANE ROSENBERG via Reuters

Testifying on the witness stand, Palin largely failed to form a convincing picture of how the Times editorial had harmed her personally or professionally. She found it mortifying to be falsely linked to the 2011 Arizona mass shooting that killed six people and injured more than a dozen. But after the op-ed was published, she still managed to land television appearances on high-profile shows and gave public speeches to help galvanize Republican voters.

While her trial is ongoing, however, Palin has the ability to publicly accuse The New York Times of being a hotbed of anti-conservative bias and smearing the establishment media as a whole.

Conservatives have long argued that it is too difficult to successfully prosecute the press in America. The “actual malice” standard that the Supreme Court adopted in Times v. Sullivan in 1964 ― a historic First Amendment ruling ― means that a public figure must prove that someone either posted something they knew to be untrue or recklessly ignored the truth. It’s a high bar. Later cases expanded the definition of a public figure.

Some wonder if Palin’s case is really just a way for the Supreme Court to revisit the standard of actual malice. Two judges ― Clarence Thomas and Neil Gorsuch ― have already signaled that they are open to it. But four judges must agree to take charge of a case.

Calvert said he doubts the Supreme Court as a whole has the appetite for it, though he speculated that might have been the ultimate goal of the Palin case. Hans also suggested that other ongoing cases might provide more effective vehicles for revisiting the actual malice.

John Watson, who teaches communications law and journalism ethics at American University, offered a different view, saying he would “bet my lunch money” that at least four judges would agree to take Palin’s appeal, if it went that far, given the strength of the court. conservative bias. He pointed out that this possibility was enough to cause concern.

“The stakes are quite serious, especially for professional journalists,” Watson said.

There is also the issue of cost. It is expensive to take a case to court, let alone to the Supreme Court. Political media writer Jack Shafer raised the idea that someone ― a wealthy conservative, perhaps ― was funding Palin’s trial as a potential way to roll back press freedom in America.

Slate noted that a “particularly intriguing” figure had sat in Rakoff’s courtroom throughout Palin’s trial: Charles Harder, the lawyer who calls himself the “Gawker Slayer” for leading wrestler Hulk Hogan to victory in a lawsuit against the influential blog, which published Hogan’s sex tape.

Gawker was forced to close following a 2016 jury verdict in favor of Hogan, who was secretly receiving funding from billionaire Peter Thiel because the tech investor supposedly held a grudge against the blog. (Politico asked Thiel for comment but received no response, Shafer reported.) Palin is already represented by two lawyers who were part of the anti-Gawker legal team of Harder, Florida-based Kenneth Turkel and Shane Vogt. It is not known if anyone is helping him with the legal fees.

Former New York Times editorial page editor James Bennet holds a copy of the paper as Sarah Palin looks on during her February 9 libel trial.

JANE ROSENBERG via Reuters

Dropping the actual malice standard would be very bad news for the media, especially for small organizations and local outlets that are already cash-strapped and steadily downsizing amid media industry upheaval. .

“If this fundamental concept of actual evil is set aside, coverage of people with power and influence should almost certainly decline,” Watson said.

“A sincere effort to get the best evidence for the truth might not be enough,” he continued. “And realistically, that could make serious coverage of important issues too expensive or too risky in terms of damages from a possible defamation lawsuit.”

Of course, it’s not just the media that the true malice standard protects. Members of the public who speak are also protected.

“There are all sorts of unintended consequences that would come from changing the status quo,” Hans said.

But there’s reason to believe that Palin’s case isn’t ideal for such a challenge to First Amendment freedom of the press. His case isn’t particularly compelling — Judge Rakoff dismissed it in 2017 on a procedural issue. It was reinstated on appeal and made its way to trial, where Rakoff and a jury came to the conclusion that Palin didn’t have enough on her side.

Hans speculated that other legal vehicles might be better placed to challenge the actual malice standard, such as the dispute that arose after the Southern Poverty Law Center dubbed an evangelical church, Coral Ridge Ministries, a hate group.

A New York state law could also throw a wrench in Palin’s case. New York passed the actual malice standard alone in 2020, and according to at Reuters, Rakoff decided that the law would apply in Palin’s case. State law could also act as a safeguard for defamation suits more broadly.

“Even if the court removed actual malice toward public figures, states could still adopt their own standards,” Calvert said. “What the Supreme Court does…is just set the minimum or the floor of the First Amendment.”

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