Sarah Palin Triumphs in the Second Circuit, Earning a Rematch With the New York Times

The reversal by the Second United States appeals circuit of Judge Jed Rakoff’s dismissal of Governor Sarah Palin’s defamation suit against the New York Times earns the Alaskan another day in court — and signals that the Gray Lady’s liability lingers. The Second Circuit found that Judge Rakoff “improperly intruded on the province of the jury by making credibility determinations, weighing evidence, and ignoring facts or inferences that a reasonable juror could plausibly have found to support” Ms. Palin’s cause. The riders note that the Times’s “not liable” verdict was marred by “several major issues at trial.”These included the “erroneous exclusion of evidence, an inaccurate jury instruction, a legally erroneous response to a mid-deliberation jury question, and jurors learning during deliberations of” Judge Rakoff’s decision that Ms. Palin had failed to meet her burden of proof, meaning that he was going to find for the Times regardless of what verdict the jury brought in.In reversing Judge Rakoff, the three riders — John Walker, Richard Sullivan, and Reena Raggi — declare that the “jury is sacrosanct in our legal system, and we have a duty to protect its constitutional role, both by ensuring that the jury’s role is not usurped by judges and by making certain that juries are provided with relevant proffered evidence and properly instructed on the law.” This is the second time the appellate court has reinstated the case after Judge Rakoff deemed it unworthy of proceeding. On the first occasion, he did not deem it sturdy enough to reach a jury.The standard for defamation — actual malice— was set by the Supreme Court in New York Times v. Sullivan, which requires that the allegedly defamatory statement be made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Ms. Palin claimed that this standard was met by an editorial published in the Times on June 14, 2017 entitled “America’s Lethal Politics.” The piece compared the shootings of Representative Gabrielle Giffords with that of Representative Steve Scalise. The editorial, brought out under the auspices of the erstwhile editor James Bennet, linked the shooting of Ms. Giffords to an advertisement promulgated by a political action committee for Ms. Palin that superimposed crosshairs over 20 congressional districts represented by Democrats, including the one served by Ms. Giffords. It accused the committee of “political incitement” despite an absence of evidence linking the image to the violence.One of the paper’s columnists, Ross Douthat, wrote to Mr. Bennet to express his “bafflement at the editorial that we just ran on today’s shootings and political violence. There was . . . no evidence” linking the attack, widely seen as triggered by mental illness, to the advertisement. A correction was subsequently appended that noted that “an earlier version of this editorial incorrectly stated that a link existed between political incitement and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established.” Soon after, Ms. Palin sued for defamation. The Second Circuit vacated Judge Rakoff’s invocation of Rule 50 of the Federal Rules of Civil Procedure. That statute is triggered when a judge rules that there is no legally sufficient evidentiary basis for a “reasonable jury” to “find for the party on that issue.” Here, Judge Rakoff reckoned that Ms. Palin had not met Sullivan’s sky-high standard, meaning the Times could not be held liable, no matter what the verdict the jury brought in.The riders disagree, finding that “there is a ‘legally sufficient evidentiary basis’ for a reasonable jury to find for the non-movant plaintiff on the question of actual malice, which means that the question must be left to a jury.” This does not mean that they have decided that the Alaskan has the better argument — merely that she has adduced enough evidence that a fair-minded jury could bring in a verdict of “liable” against the Times. Judge Rakoff announced this decision to dismiss the case in open court, and some jurors were alerted that the trial was short circuited during deliberations by push notifications on their mobile telephones. The Second Circuit though, denied Ms. Palin’s motion to disqualify Judge Rakoff from the case, finding that she failed to furnish evidence that he is possessed of “deep-seated and unequivocal antagonism” toward her. The riders did, though, find that Judge Rakoff’s excessively parsimonious approach to admitting evidence injured Ms. Palin’s “substantial rights by substantially limiting the relevant inferences that she and the jury could draw.” The Second Circuit discerned that Ms. Palin should have been allowed to introduce evidence of bias. Mr. Bennet’s brother, Michael, a Democrat, serves the senior senator from Colorado.The panel concludes by noting that “given a judge’s special position of influence with a jury, we think a jury’s verdict reached with the knowledge of the judge’s already-announced disposition of the case will rarely be untainted.” Judge Rakoff will now be charged with giving Ms. Palin a fair trial — for the third time.A Times spokesman, Charlie Stadtlander, said that the paper is “confident we will prevail in a retrial.”

Sarah Palin Triumphs in the Second Circuit, Earning a Rematch With the New York Times

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