A New York jury could deliver a resounding win for Sarah Palin in her libel case against the New York Times and it still wouldn’t hand her a victory over the Gray Lady.That strange outcome became a real possibility on Monday afternoon. A district court judge, Jed Rakoff, announced that he would allow jury deliberations to continue into a third day but if the jury found for Ms. Palin, he would set aside their verdict and dismiss the case against the Times.In appearing to split the baby, Judge Rakoff noted: “This is the kind of case that inevitably goes up on appeal.” He also commented, “This is an example of very unfortunate editorializing on the part of the Times.” Nevertheless, Judge Rakoff is set to dismiss Ms. Palin’s challenge because he believes she has failed to meet the necessary legal standard. Mr. Rakoff’s announcement underlines that the Times entered the case benefiting from more favorable black letter law terrain. As the Sun has noted, the legal standard for libel of a public figure is “actual malice,” set by the Supreme Court more than a half century ago in Times v. Sullivan.The suit centers on a 2017 staff editorial titled “America’s Lethal Politics” that implied an advertisement distributed by a political action committee affiliated with Ms. Palin inspired the shooting of Congresswoman Gabrielle Giffords. To prevail, Ms. Palin must show that the Times knew it was lying in tying her to the attack on Ms. Giffords, or that it showed “reckless disregard” for the truth. Evidently, Judge Rakoff believes that she did not do so, regardless of what the jury decides. The Associated Press reported that Ms. Palin reacted with consternation outside the courthouse, opining: “This is a jury trial and we always appreciate the system. So whatever happened in there usurps the system.” The decision, made while the jury was in its second day of deliberations, raised the unusual possibility that judge and jury might arrive at different positions in a case that has seen both Ms. Palin and a former Times opinion editor, James Bennett, take the stand. The Times issued a correction that admitted the piece “incorrectly stated that a link existed between political rhetoric and the 2011 shooting,” but has not explicitly apologized to Ms. Palin. At trial the newspaper sought to portray Ms. Palin’s suit as an assault on the First Amendment, contending that awarding her monetary damages would chill freedom of the press. In closing arguments, the lawyer for the Times, David Axelrod, called the wording in question an “honest mistake.” Ms. Palin’s lawyers, on the other hand, contended that the Times’s behavior was indicative of how the paper “treated people on the right they don’t agree with. … They don’t care. She’s just one of ‘them.’”Judge Rakoff’s decision is the latest twist in a litigation story that has already climbed up and down the judicial ladder. Ms. Palin first sued the Times in 2017, and Judge Rakoff dismissed the case, for reasons that mirror the ones that motivated him today. On appeal, three riders of the Second Circuit felt differently, finding that Ms. Palin’s filings plausibly state “a claim for defamation” and tossing the case back to Judge Rakoff. An appeal will send the suit back up to the Second Circuit. In dismissing the jurors on Monday after announcing that he was going to set aside whatever decision they came to, Judge Rakoff called them back in “to schmooze a little and wish them a happy Valentine’s Day.” He also expressed the desire that the jury remain ignorant of his decision until they had rendered their own, and worried that repeating the standard admonition excessively would generate suspicion on the part of jurors. In response, one of Ms. Palin’s attorneys highlighted the possibility that a juror might be alerted to the development via a push notification, perhaps like the one the Times sent one out just minutes before. It remains to be seen what the Second Circuit will make of Judge Rakoff short-circuiting Ms. Palin’s case for a second time.
