Alaska’s own Sarah Palin is back in the news. On Wednesday, the Second Circuit Court of Appeals granted her request for a new trial in her defamation suit against the New York Times over a 2017 editorial that incorrectly linked her to a mass shooting.
Writing for a three-judge panel, Circuit Judge John Walker agreed with Palin that U.S. District Judge Jed Rakoff had made several errors that tainted the February 2022 trial against the Times and former editorial page editor James Bennet.
The appeals court said Rakoff wrongly excluded evidence that Palin believed reflected the Times’ “actual malice” in publishing the editorial, and wrongly instructed jurors on how much proof was needed for the Times to be liable.
It also said the verdict was likely tainted after jurors learned during deliberations, through news alerts on their cellphones, that Rakoff would dismiss Palin’s case because she did not offer clear and convincing evidence of malice.
What makes this case interesting, the colorful nature of any proceeding involving Sarah Palin aside, is that it may well have long-reaching implications on a previous Supreme Court decision regarding where the bar is set on public figures in defamation suits.
Media critics and Palin have viewed the case as a possible vehicle to overturn New York Times v. Sullivan, the landmark 1964 U.S. Supreme Court decision that set a high bar for public figures to prove defamation.
To win, public figures must show that media demonstrated “actual malice,” meaning they published false information knowingly, or had reckless disregard for the truth.
A New York Times editorial? Showing actual malice? Towards a prominent Republican? Well, that doesn’t exactly require a willing suspension of disbelief. And if the New York Times thinks political rhetoric today is nasty, I invite them to read Cicero’s “Philippics” — Cicero really, really hated Mark Antony and was very eloquent in expressing that hatred.
The editorial in question was in part about “incendiary political rhetoric,” and showed as evidence a map published by Sarah Palin’s political action committee (PAC) showing competitive congressional seats that could be targeted for a Republican pickup, including the seat held in Arizona by then Democrat Congresswoman Gabby Giffords. On the map, the districts in question were marked by a small crosshair emblem — a mark that has been used for decades in similar maps. Giffords was later injured in a mass shooting at a campaign event, but there was never any evidence that the two — Palin’s map and the shooter — were in any way connected.
But the New York Times editorial, according to Palin’s defamation suit, stated: “…the link to political incitement was clear.”
It wasn’t.
See Related: ON BRAND: MSNBC Journo Who Questioned Don Jr. About Kids in Cages Is at Center of Defamation Suit
CNN Defamation Suit: Does Unredacted Deposition Show Journo Admitting Their Story Was Wrong?
Speaking as an Alaskan resident: Sarah Palin (full disclosure — she lives about 30 miles from where I sit at this moment) is certainly a local figure of note. Even her town of Wasilla isn’t that big a place. A buddy of mine told me only a few months back about chatting with Palin at Walmart, where she was — yes, really — buying ammo. Everyone here seems to have strong feelings about Sarah in one way or another. People love her, or they hate her, with very little middle ground.
But a connection between a campaign ad showing crosshairs marking competitive seats and a mass shooting? That’s just a little much. We will watch as this case progresses, even if it goes, as it very well might, to the Supreme Court.
