On the left, ex-Alaska Gov. Sarah Palin enters into a Manhattan federal courthouse at 500 Pearl Street, where her lawsuit against the New York Times is taking place. The newspaper’s headquarters is on the right.
Former Alaska Gov. Sarah Palin’s (R) lawyers mounted a wide-ranging attack on the presiding judge in their quest for a new defamation trial against the New York Times. In a 40-page legal brief filed on Tuesday evening, Palin argues that the judge “reasonably appears to objective observers” to be “partial and predisposed.”
Senior U.S. District Judge Jed Rakoff found that Palin “wholly failed” to prove that the Times acted with actual malice when it published the editorial “America’s Lethal Politics” in 2017.
Accusing Rakoff of prematurely booting the case twice, Palin also complained about the manner in which she screened the jury. Rakoff suggested that Palin’s defense counsel tried “dumbing down the jury” during the voir dire process. Palin also claims that the judge hesitated before striking one juror who admitted to disliking her.
“It Is the Jury That Must Decide”
Focusing on the subjects of overheated political rhetoric and violence, the original Times editorial asserted that the “link to political incitement was clear” between a graphic disseminated by Palin’s political action committee and the 2012 massacre perpetrated by Jared Lee Loughner. Sarah PAC had circulated a map with crosshairs over the congressional districts of 20 Democrats, including that of one of Loughner’s victims, Arizona Rep. Gabrielle Giffords. Subsequent court proceedings never established that Loughner saw the map, let alone acted upon it.
Despite the Times quickly correcting the editorial within 12 hours, Palin sued the paper in federal court within days of it running. Judge Rakoff initially dismissed the case after holding an unusual fact-gathering hearing featuring testimony by then-Times editor James Bennet. The Second Circuit revived the case in a ruling criticizing Rakoff for crediting Bennet’s testimony before the discovery phase of the proceedings had begun.
Palin’s lawyer Shane B. Vogt claimed that Rakoff flouted the Second Circuit’s instructions in dismissing Palin’s lawsuit days before the jury reached a verdict.
“First, Bennet’s testimony could not be accepted as true: ‘The jury may ultimately agree with the district court’s conclusion that Bennet was credible—but it is the jury that must decide,'” Vogt’s brief states, emphasizing the Second Circuit’s holding in italics.
The day before the jury reached a verdict, Judge Rakoff tossed the case against the Times as a matter of law, finding that Palin could not reach the high standard that Bennet acted with actual malice with the offending words. To prevail, Palin would have had to have shown that Bennet knew that the disputed words were likely false before he published them. Trial evidence produced slim evidence of that, and internal communications showed Bennet communicating with other columnists, including Ross Douthat, about what needed to be corrected.
Vogt argues that Bennet may have known that the editorial’s original claim linking Palin to the Loughner shooting was false because an early draft included a hyperlink to an article stating that. No evidence was introduced suggesting Bennet clicked on that link and read the article.
“Significant Hostility”
In addition to attacking the judge, Palin argues that the jury was inadequately screened. Her lawyers claim that Rakoff wrongly excluded inquiries into potential jurors’ media consumption, including whether they were Times subscribers.
According to the brief, a Times lawyer responded that Palin’s team was trying to weed out “educated jurors who read the paper.”
“A short while later, the court stated: ‘Just for the record, so to speak, my philosophy of picking a jury is, of course, to make sure that we get the fairest jury possible, but also that we don’t artificially exclude anyone of intelligence, and many of the questions [submitted prior to trial] that were suggested in this case seemed to me inevitably to have the effect, I’m sure this was not the intent, but have the effect of dumbing down the jury, and I have seen that repeatedly in the 300 juries I have selected over the years, and I’m not going to let that happen,” according to the brief.
Palin also claims that Rakoff hesitated after a potential juror revealed “significant hostility” toward her.
“I don’t like Sarah Palin,” this juror said, according to the brief. “I think she is a cruel person. I don’t like her, and I don’t think I would be fair to her listening to what she has to say.”
After that juror’s concession, Rakoff pressed further whether the candidate could put those views aside before striking this person for cause, according to the brief.
The jury ultimately found the Times not liable one day after Rakoff ruled that no reasonable jury could have found otherwise. Legal experts questioned the timing of the judge’s ruling, which they argued handed Palin a possible appellate issue that could have been avoided had he reserved his decision until later. Rakoff later disclosed that “several” jurors told his clerk that they received push notifications about his ruling, though they insisted that it did not affect their verdict.
According to the brief, Rakoff defended his decision to the press before alerting counsel.
“I continue to think it was the right way to handle things,” Rakoff told Bloomberg, before releasing an opinion stating that the notification controversy was “legally irrelevant.”
Throughout the trial, media watchers questioned whether Palin’s defamation case was little more than a vehicle to attack the Supreme Court’s watershed decision New York Times v. Sullivan, a crucial press freedom protection that established the actual malice standard.
Apparently nodding to this controversy, Palin’s lawyer wrote: “Ultimately, despite public perception and speculation about possible larger implications of this case, plaintiff’s primary objective is to obtain a fair trial,” arguing for one before a “new judge.”
During her testimony, Palin provided little evidence of personal blowback to her from the 12 hours that the Times editorial ran in its original form. The threats against Palin predated its publication. She asserted no career, reputational, or medical damages, admitting that she continued to go on the campaign trail for Republican candidates and collect fees for speaking and TV appearances.
Read the brief, below:
(Photo of Palin via Spencer Platt/Getty Images; photo of NYT building via JOHANNES EISELE/AFP via Getty Images)
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