Ke$ha’s Court Loss May Be Win for Palin in Times Libel Case

The boost for Governor Palin could come by way of a ruling in an unrelated libel dispute between the musician Ke$ha and producer Dr. Luke.

Governor Palin outside federal court at New York. AP/John Minchillo, file

Governor Palin could get a boost in her libel case against the New York Times by way of judge’s ruling that, if upheld, would make it easier to win defamation cases filed, like Ms. Palin’s, before New York revised its libel law in 2020.

The ruling was handed down last week by Judge Jennifer Schecter of the New York State supreme court — a trial-level tribunal — in an unrelated libel dispute between the musician Ke$ha and producer Dr. Luke. Her ruling was a victory for the libel plaintiff, Dr. Luke.

Judge Schecter ruled, in effect, that Dr. Luke’s suit against Ke$sha would have been tried under the libel law regime in New York at the time the libel was committed. In 2020, the law in New York was changed to make it more difficult for a public figure to claim he or she was libeled.

That could help Ms. Palin, at least in theory, because she too filed her libel case against the Times before New York’s law was changed. She still has an uphill battle, but one worth watching in an era when libel law is changing.

The provision at hand is known as anti-SLAPP, for Strategic Lawsuit Against Public Participation. This law sets the standard for libel in New York State and was altered in 2020 to match the legal bar of “actual malice” handed down by the United States Supreme Court in New York Times v. Sullivan in 1964.

This stricter standard was meant to discourage excessive litigation by public figures directed at the press that reports on them. 

To that end, both federal and New York law now demand that to prevail in a libel case a public figure plaintiff must show that the person or entity making the defamatory statement had knowledge that it was false or acted with “reckless disregard” as to its veracity.

Judge Schecter’s decision means that any action that dates from before the amended anti-SLAPP provision came into effect in 2020 will be governed by the previous, more permissive standard. The jurist explains that even though “the amended statute is remedial” it does not entail that “the legislature intended retroactive application of the amendments.”

By all accounts, this more stringent version of anti-SLAPP is now in effect and federal and New York state law are now aligned. However, this ruling means that they were not when the editorial linking Ms. Palin to the shooting of Gabrielle Giffords was published in 2017.

At that time, New York law did not require an actual malice showing, and had not for 30 years. That would only come two years later.  

In arriving at this determination, the court rejected the finding of a federal district judge, Jed Rakoff, who in Palin v. New York Times ruled that the stricter anti-SLAPP standard did in fact extend retroactively.

That view, while never dispositive because Judge Rakoff is a federal judge, informed his thinking that Ms. Palin had a difficult legal hill to climb. 

As he put it in his written decision, “Palin’s burden to prove actual malice as to falsity by clear and convincing evidence is not only required by the First Amendment to the United States Constitution but also by New York State statutory law.”

That would have meant that the 2017 editorial in question that linked Ms. Palin to the shooting of Representative Gabrielle Giffords would have been covered on both the state and federal level by its rigorous “actual malice” standard.

After Judge Schecter’s ruling, that is no longer the case.   

The effect of this decision on Ms. Palin’s fight against the Times is likely to be oblique, however, because her case is transpiring in state and not federal court.

However, as a law professor, Eugene Volokh, points out, because the Alaskan’s alleged tort was not covered by the updated law means that the riders of the Second Circuit, should they choose to vindicate her claim, would not be upsetting state law in the process as well.

Judge Schecter’s ruling adds to the intrigue that has surrounded Governor Palin’s time in federal court. 

As the Sun has reported, Ms. Palin’s lawyers have filed for a new trial and Judge Rakoff’s disqualification after learning that jurors were notified of the judge’s decision to dismiss the case prior to delivering their verdict.

Ms. Palin no doubt hopes that a New York judge setting the record straight on what is required to show libel in her state augurs further reversals to come for Judge Rakoff.

The New York Sun

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