Sarah Palin’s Last Frontier

The Alert Alaskan’s libel case against the Times, pending in the Second Circuit, could yet set the stage for a historic shift in American libel law.

AP/Seth Wenig, file
Governor Palin leaves a New York courthouse on February 14, 2022. AP/Seth Wenig, file

A ruling from the riders of the Second Circuit could come down any day in Palin v. New York Times. That is the years-long effort by Governor Palin to hold the paper responsible for an editorial insinuating that a political action committee of hers was responsible for a mass shooting. Ms. Palin accused the Gray Lady of defamation. The case’s real stakes, though, are constitutional. The Alert Alaskan’s last frontier could be the Supreme Court.

Ms. Palin originally filed her complaint in 2017. The judge, Jed Rakoff, tossed it out. Mrs. Palin went to the Second Circuit, which overruled Judge Rakoff and ordered him to hear the case. It went to trial in 2022. During the trial, as the jurors were deliberating, the judge stated in open court, “I know where I’m coming out.” It would be for the Times. His rationale was that Ms. Palin had not shown that the Times’ behavior amounted to “actual malice.” 

A finding of “actual malice” was required by the governing case, New York Times v. Sullivan. The high court precedent was handed down during the civil rights era. The plaintiff was the Montgomery, Alabama, police commissioner, L. B. Sullivan. He complained that he’d been libeled by a newspaper advertisement. He won in lower courts but lost at the Supreme Court, which set a higher bar for public officials, saying they need to prove “actual malice.” 

In any event, Judge Rakoff’s announcement that he was going to rule for the Times no matter what the jury said stunned the courtroom. He eventually admitted that some jurors “had involuntarily received ‘push notifications’ on their smartphones that contained the bottom line” of his intention to find for the Times, though his law clerk suggested that the judge’s announcement “had not affected them in any way.”

The jury did come in on the Times’ side, after the whole balagan.  Mrs. Palin, later in 2022, turned to the Second Circuit. Those oral arguments were in November. The riders focused much of their attention on the case’s strange denouement before Judge Rakoff. An attorney for Ms. Palin, though, Shane Vogt, cut to the constitutional quick by declaring that “actual malice should not apply,” meaning that his client has set her sights on bigger game. 

Mr. Vogt added that actual malice should “have no place in the modern speech landscape.” One rider of the Second Circuit gruffly responded to Mr. Vogt that the possibility of toppling the Sullivan precedent “is a question for the Supreme Court” and that pursuing it anywhere else is futile. Mr. Vogt was quick to note another First Amendment case involving allegations of false statements by a publication, Time, Inc. v. Hill, which made a significant point.

In that case, also handed down by the Supreme Court, the justices warned against the “blind application” of the Sullivan precedent and urged a consideration of “the factors which arise in the particular context.” Ms. Palin, should her case reach the Supreme Court, could find at least four ears bent in her direction. In a 2021 case, Justices Clarence Thomas and Neil Gorsuch both, in dissent, treated Sullivan with skepticism.

Justice Gorsuch was scathing. Thundered he: “What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.” Far be it from us to wheel on the press, but it’s our duty to report that Justice Gorsuch — and Ms. Palin — might yet win the point. 

It is an irony surfaced by this litigation that the Times’ former editorial page editor, James Bennet, is the paper’s co-defendant in Ms. Palin’s suit. Mr. Bennet is, famously, no longer with the Times, having been forced to resign in the wake of an uproar over his publishing op-ed by Senator Cotton. The editor now finds the paper riddled with “illiberal bias” — a tilt that lies at the center of the case on which the Second Circuit could soon rule.

The New York Sun

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