By Jonathan Stempel
NEW YORK (Reuters) – Sarah Palin on Wednesday won her bid for a new trial against the New York Times over an editorial that the former Alaska governor said was defamatory.
The 2nd U.S. Circuit Court of Appeals said Palin can try again to prove that the Times should be liable for a 2017 editorial that incorrectly linked her to a mass shooting six years earlier that killed six people and seriously wounded Democratic U.S. congresswoman Gabrielle Giffords.
Lawyers for Palin argued that U.S. District Judge Jed Rakoff, who oversaw the February 2022 trial, wrongly excluded evidence of the Times’ actual malice and wrongly instructed jurors to disregard some of that evidence.
Media critics, and Palin herself, 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 knowingly published false information or had reckless disregard for the truth.
Supreme Court Justices Clarence Thomas and Neil Gorsuch have urged a reconsideration of the Sullivan decision, with Gorsuch citing changes in the media landscape, including the growth of cable TV news and online media and spread of disinformation.
The Times’ editorial, “America’s Lethal Politics,” addressed gun control and lamented the rise of incendiary political rhetoric.
It was published on June 14, 2017, after a gunman opened fire at a congressional baseball practice in Alexandria, Virginia, injuring Republican U.S. congressman Steve Scalise and others.
The editorial noted that before the 2011 shooting in Tucson, Arizona where Giffords was wounded, Palin’s political action committee published a map with crosshairs over Giffords’ election district.
Palin objected to the editorial, saying “the link to political incitement was clear” despite there being no evidence that the map motivated Jared Lee Loughner, the Arizona gunman.
James Bennet, then the newspaper’s editorial page editor, had added the disputed language. The Times corrected the editorial the next morning after readers and a columnist complained. Bennet was a defendant in Palin’s case.
Palin, 60, the Republican U.S. vice presidential candidate in 2008 and Alaska governor from 2006 to 2009, has cast the case in biblical terms, testifying that she considered herself an underdog to the Times’ Goliath.
Lawyers for the Times argued that the newspaper and Bennet never intended to link Palin to the Arizona shooting.
Rakoff added a wrinkle to the case by ruling during jury deliberations that he would dismiss Palin’s case because she did not offer clear and convincing evidence of the Times’ malice.
Some jurors learned what Rakoff did through news alerts on their cellphones. They said it had no effect on their deliberations, which lasted another few hours.
The case is Palin v. New York Times et al, 2nd U.S. Circuit Court of Appeals, No. 22-558.
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