A jury decided against former Alaska Gov. Sarah Palin on Tuesday after a two-week civil trial to determine whether a New York Times editorial linking her with a mass shooting was defamatory under the law.
“Of course I’m disappointed,” Palin told reporters as she walked to a large SUV parked outside a Manhattan courthouse.
She replied “I hope so” when asked whether she plans to appeal as expected.
Palin has suffered a string of setbacks with the suit, most recently Judge Jed Rakoff’s decision to throw her case out while the jury was still deliberating on Monday. The same judge had also tossed the case in 2017 not long after it was originally filed, arguing that Palin did not have enough evidence on her side, but an appeals court ruled in her favor.
The editorial in question, titled “America’s Lethal Politics,” was published directly after the 2017 congressional baseball shooting and compared that incident with the 2011 shooting involving Rep. Gabby Giffords (D-Ariz.). It incorrectly stated that Palin’s rhetoric had helped inspire the earlier incident, which left six people dead, including a 9-year-old, and critically injured the congresswoman.
Rakoff’s announcement came as a surprise this week as he explained that he did not believe Palin’s attorneys had met their burden of proof over the course of the trial.
Defamation cases between public figures and the press are difficult to win in the United States because that burden is particularly high. Plaintiffs must show “actual malice,” meaning that the defendant either published something they knew to be false or recklessly disregarded the truth.
Rakoff explained that the jury’s verdict would still be helpful for the appellate court, and so jurors went home for the day Monday with instructions not to look at any coverage of the case and returned Tuesday morning.
Vanderbilt University law professor Gautam Hans said he was “slightly surprised” by Rakoff’s decision, but noted that “it’s not inconsistent with the rules and the complex procedural posture of the case.”
Because the jury agreed with the judge, the appeals court “will have ample evidence to justify their rulings” in the case, Hans said.
A spokesperson for the Times thanked the jurors for their consideration “in a difficult area of the law.”
“It is gratifying that the jury and the judge understood the legal protections for the news media and our vital role in American society,” the Times said.
Palin’s case is being closely watched by press freedom advocates because it’s viewed as a test of Times v. Sullivan, a landmark 1964 Supreme Court ruling that defined what it took for public figures to successfully sue the press.
If Palin takes her appeal up to the Supreme Court, it could give the justices a chance to revisit Times v. Sullivan, potentially restricting press freedoms. At least two justices have already suggested the “actual malice” standard may be too high.
James Bennet, the Times’ now-former opinion editor, made mention of Palin in what he described as a rushed editorial because her political action committee had published a map with crosshairs over Giffords’ district in 2010. The image was meant to highlight Democrat-held congressional seats that could possibly flip to Republicans that year, but received contemporaneous criticism for implying violence at a time when many felt political rhetoric was becoming too cutthroat.
There was never any evidence, however, that Giffords’ shooter had seen Palin’s map or was inspired by her rhetoric, and the Times eventually amended the piece with two correction notes.
Bennet was pushed off the masthead over a controversy involving a later editorial.
On the stand, he expressed deep regret for the error, saying he thought about it nearly every day.
“We are human beings. We do make mistakes,” Bennet testified.
Palin testified that reading her name in the piece made her feel “powerless” because, by 2017, she felt she no longer had the same platform that she had as the Republican Party’s 2008 vice presidential nominee. She viewed the case as a David-and-Goliath situation, casting herself as David.
Palin revisited the metaphor outside the courthouse on Tuesday when she said her attorneys were “unsurpassed when it comes to seeking justice, doing all that they can to make sure that the little guy has a voice ― the underdog can have their say.”
