Sarah Palin Gets New Trial in Libel Lawsuit Against N.Y. Times
From today’s Second Circuit decision in Palin v. N.Y. Times Co., written by Judge John Walker and joined by Judges Reena Raggi and Richard Sullivan:
Plaintiff Sarah Palin appeals the dismissal of her defamation complaint against defendant The New York Times (“the Times”) and its former Opinion Editor, defendant James Bennet, for the second time.
We first reinstated the case in August 2019 following an initial dismissal by the district court (Rakoff, J.) under Federal Rule of Civil Procedure 12(b)(6). Palin’s claim was subsequently tried before a jury but, while the jury was deliberating, the district court dismissed the case again—this time under Federal Rule of Civil Procedure 50. We conclude that the district court’s Rule 50 ruling 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 Palin’s case.
Despite the district court’s Rule 50 dismissal, the jury was allowed to reach a verdict, and it found the Times and Bennet “not liable.” Unfortunately, several major issues at trial—specifically, 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 the district court’s Rule 50 dismissal ruling—impugn the reliability of that verdict.
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. We therefore VACATE and REMAND for proceedings, including a new trial, consistent with this opinion….
The opinion is long (but readable), and interested readers should review the whole thing. But here a few excerpts; first, the factual background:
On June 14, 2017, the Times’ Editorial Board published the editorial challenged in this case, entitled “America’s Lethal Politics” …, which compared two political shootings. In the first attack, on January 8, 2011, Jared Loughner killed six people and injured thirteen others, including Democratic Congresswoman Gabrielle Giffords, during a constituent event held by Giffords in Arizona (“the Loughner shooting”). In the second, which took place in 2017 in Virginia on the day the editorial was published, James Hodgkinson seriously injured four people, including Republican Congressman Stephen Scalise, at a practice for a congressional baseball game ….
In comparing these two tragedies, the editorial made statements about the Loughner shooting that are the subject of this defamation action. It stated that there was a “clear” and “direct” “link” between the Loughner shooting and the “political incitement” that arose from a digital graphic published in March 2010 by former Alaska governor and vice-presidential candidate Sarah Palin’s political action committee (“the challenged statements”)…..
{In full, the paragraphs of the editorial containing the challenged statements read [emphasis added]:
“Was [the Hodgkinson shooting] evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.
Conservatives and right-wing media were quick on Wednesday to demand forceful condemnation of hate speech and crimes by anti-Trump liberals. They’re right. Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask of the right.”}
The graphic was a map that superimposed crosshairs over twenty congressional districts represented by Democrats—including Giffords’ district. In fact, a relationship between the crosshairs map and the Loughner shooting was never established; rather, at the time of the editorial, the attack was widely viewed as a tragic result of Loughner’s serious mental illness….
The idea of publishing an editorial about the Hodgkinson shooting was first raised by Elizabeth Williamson, a writer for the Times, on the morning of June 14, 2017 in an email to James Bennet and other members of the Times’ Editorial Board. A follow-up email from Williamson indicated that Hodgkinson might have had “POSSIBLE … pro-Bernie, anti-Trump” views. Editorial Board members weighed in on Williamson’s idea. Bennet asked “whether there’s a point to be made about the rhetoric of demonization and whether it incites people to this kind of violence,” adding that “if there’s evidence of the kind of inciting hate speech on the left that we, or I at least, have tended to associate with the right (e.g., in the run-up to the Gabby Giffords shooting) we should deal with that.”
Williamson conducted research for the editorial with the aid of the Board’s editorial assistant, Phoebe Lett. Prompted by Bennet’s suggestions, she asked Lett whether th
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