February 21, 2022
Sarah Palin’s lawsuit against the New York Times appeared to be a typical defamation claim by a public figure against a newspaper for an unflattering editorial. But many aspects of the case have been anything but typical. From a decision to apply a new state law retroactively, arguably insulating the case from an appellate challenge to the current First Amendment standard, to an announcement that the judge would issue a ruling adverse to the plaintiff that the jury itself learned about before rendering its verdict, the case has had numerous twists.
Palin sued the Times in the Southern District of New York based on an editorial published on June 14, 2017, the evening after James Hodgkinson opened fire in Alexandria, Virginia at a congressional baseball game practice.[i] The editorial, entitled “America’s Lethal Politics,” discussed the day’s shooting as well as the 2011 shooting by Jared Loughner at a political rally for Democratic Congresswoman Gabrielle Giffords in Tucson, Arizona, which killed six people and injured thirteen others, including Giffords.[ii] Shortly before that 2011 attack, Sarah Palin’s political action committee had circulated a map that showed a crosshairs target over certain Democratic congressional districts, including Giffords’. The Times editorial arguably suggested a tie between the Loughner shooting and the Palin PAC’s map, a tie that had been disproved in previous reporting by the Times and The Atlantic. The Times quickly issued a correction, removing the phrases suggesting a link between Palin and the Loughner shooting, but Palin filed suit twelve days later.[iii]
The Times first moved to dismiss the complaint based on Rule 12(b)(6), arguing primarily that the complaint failed to allege the requisite actual malice to overcome the First Amendment defense recognized by the Supreme Court in New York Times v. Sullivan.[iv] Rather than making his decision based solely on the complaint, the district judge held an evidentiary hearing and heard testimony from the Times editor responsible for the publication of the article, James Bennet. Using Bennet’s testimony as evidence of lack of actual malice, the court granted the motion to dismiss.[v] On appeal, the Second Circuit Court of Appeals found inappropriate the court’s reference to materials outside the pleadings in issuing its decision, reversed the dismissal, and remanded.[vi]
Back in the Southern District, discovery went forward, and the parties filed motions for summary judgment. In an August 28, 2020 decision, the district court rejected Palin’s argument that the New York Times v. Sullivan actual malice standard should not be applied to her case or is no longer good law.[vii] Subsequently, in November of that year, New York amended its anti-SLAAP law to expressly require that public figures prove actual malice by clear and convincing evidence.[viii] At the end of December 2020, the district court modified its August 28 Opinion and found that the revised New York law should apply retroactively.[ix] The significance of this ruling was to make it improbable that the case would provide the vehicle for a United States Supreme Court review of New York Times v. Sullivan, since New York law provides an independent basis for the application of the actual malice standard.[x]
When the case finally went to trial in February of this year, the Times stuck to its argument that Palin could not make the requisite showing of actual malice. Apparently, the Times moved for judgment as a matter of law under Rule 50(a), and the court denied the motion while it continued to ponder its merits.[xi] This itself is not unusual – there are very good reasons why courts deny motions under Rule 50(a) even if they grant them when renewed under 50(b).[xii] But here, the district court’s actions were less typical. On February 14, while the jury was deliberating, the judge announced in court his intent to issue a decision in favor of the Times.[xiii] In other words, should the jury come back with a plaintiff’s verdict, the judge would grant judgment for the Times notwithstanding that verdict. The public announcement was a curious move by the judge, given the possibility that the jury would hear about it.
The next day, the jury returned a verdict for the Times.[xiv] Not long thereafter, we learned that they had, in fact, heard of the judge’s announcement before their verdict. In an order dated February 16, 2022, the day after the jury reached its verdict, the judge announced that two jurors had told his law clerk that, “prior to the rendering of the jury verdict in this case, they had learned of the fact of this Court’s Rule 50 determination on Monday to dismiss the case on legal grounds” despite avoiding media coverage of the trial.[xv] The jurors assured the clerk that “these notifications had not affected them in any way or played any role whatever in their deliberations.”[xvi] It is not clear whether the rest of the jury was aware of the ruling.
This circumstance could prompt Palin to move for a new trial on the basis that the jury was tainted by outside influence. However, if her end-game is a review of the New York Times v. Sullivan standard in the Supreme Court, a new trial under New York state law will not achieve that goal.
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[i] Palin v. New York Times Co., 264 F. Supp.3d 527 (S.D.N.Y. 2017) (vacated and remanded by Palin v. New York Times Co., 940 F.3d 804 (2d Cir. 2019)).
[ii] The corrected version of the editorial can be found at https://www.nytimes.com/2017/06/14/opinion/steve-scalise-congress-shot-alexandria-virginia.html.
[iii] 940 F.3d at 808-809.
[iv] 376 U.S. 254 (1964).
[v] 264 F. Supp.3d at 540.
[vi] 940 F.3d at 816-17.
[vii] See Palin v. New York Times Co., 510 F.Supp.3d 21, 24 (2020) (referencing Dkt. N. 117).
[viii] See 510 F.Supp.3d at 24.
[ix] Id. at 29.
[x] The court addresses this in considering Palin’s argument that she relied on the law as it existed when she filed her suit: “[H]er claim would seem to be that, in first bringing this lawsuit in 2017, she relied on the prospect that the Supreme Court would overturn New York Times Co. v. Sullivan and allow her to recover damages without a showing of actual malice. . . . If anything, the retroactive application [of NY’s revised law] will protect the reliance interests of defendants, who published the Editorial in a media landscape long-governed by the actual malice rule, against possible changes of constitutional law at the federal level.” 510 F.Supp.3d at 28-29.
[xi] The Times itself reported that its lawyer had made “a routine procedural motion . . . to rule in its favor, which defendants have a right to do after the plaintiff has presented all of its evidence to the jury.” https://www.nytimes.com/2022/02/15/business/media/new-york-times.html.
[xii] See Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 406 (2006) (discussing the propriety of “permitting the jury to make an initial judgment about the sufficiency of the evidence” before granting a renewed motion for judgment as a matter of law).
[xiii] https://www.nytimes.com/2022/02/14/business/sarah-palin-new-york-times.html.
[xiv] https://www.nytimes.com/2022/02/15/business/media/new-york-times.html.
[xv] Palin v. New York Times Co., Case 1:17-cv-04853-JSR, Document 172 (Feb. 16, 2022).
[xvi] Id.