Judge And Jury Say Sarah Palin Failed To Prove 'Actual Malice' In Defamation Case Against The NY Times
from the because-she-didn't dept
The last time we wrote about Sarah Palin's defamation lawsuit against the NY Times was in 2017 when Judge Jed Rakoff was dismissing the case, noting that Palin had failed to show "actual malice," by the NY Times, which is the necessary standard under the seminal defamation case (also involving the NY Times), NY Times v. Sullivan. However, two years later, the appeals court ruled that Rakoff violated procedural rules in doing so, and reinstated the case. It's been three years since then and over the past few weeks an actual trial was held -- which is extraordinarily rare in defamation cases.
The "actual malice" standard is both extremely important and widely misunderstood. It does not mean that the speaker/publisher "really disliked" the subject or wanted to get them. It has a distinct meaning under the law, which is that that the publisher/speaker either knew it was false at the time of publication, or that they posted it with "reckless disregard" for whether it was true or false. And, again, people often misunderstand the "reckless disregard" part as well. It does not mean that they were simply careless about it. For there to be reckless disregard, it means that they had to have substantial doubts about the truth of the statement, but still published it.
In other words, for defamation of a public figure, you have to show that the publisher/speaker either knew what they were writing was false, or at least had strong reasons to believe it was false, and still went ahead with it. This is extremely important, because without it, public figures could (and frequently would) file nonsense lawsuits any time some small mistake was made in reporting on them -- and small mistakes happen all the time just by accident.
But, still, the Palin case went to trial and before the jury even came back, Judge Rakoff announced that, as a matter of law (which the judge gets to rule on) Palin had failed to show actual malice. The oddity here was that he did so while the jury was still deliberating, and allowing the jury to continue to do so. The next day, the jury came to the same conclusion, finding the NY Times not liable for defamation, as a matter of fact (juries decide matters of fact, judges decide matters of law -- and it's nice when the two agree).
It seems likely that Palin will appeal, in part because there are a contingent of folks in the extreme Trumpist camp -- including Supreme Court Justice Clarence Thomas and some of his close friends who have been campaigning over the past few years to over turn the "actual malice standard" found in the Sullivan case.
As many observers have noted, this case is probably not a very good test case for that question, but that doesn't mean Palin won't try to make it just such a test case -- and even if it's a weak case, we should be watching closely as any such case moves through the courts -- as they are, inherently, attacks on free speech. Weakening the actual malice standard would be a way for the powerful to more easily silence the powerless who speak up against them. The "actual malice" standard is a key element of strong free speech protections -- and attempts to weaken it are attacks on free speech.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 1st amendment, actual malice, defamation, free speech, jed rakoff, nyt v. sullivan, sarah palin
Companies: new york times
Reader Comments
The First Word
“Always going to be appealed
It was my understanding the whole purpose of this case was to appeal it to the SC to overturn the current standard as a major blow to free speech and really owning the libs and setting the stage for more fascist rhetoric without consequences.
Subscribe: RSS
View by: Time | Thread
An important question:
Can we all finally agree to make her politically and culturally irrelevant again if she loses all of her appeals?
[ link to this | view in chronology ]
Re: An important question:
While that would be a nice thing, there will always be an open seat on Faux for her to spew more drivel about how those big mean libs are picking on her.
[ link to this | view in chronology ]
A bit of irony
Let's just say that she had won the case, what would this have meant for her? How many times to she and her ilk make far less substantiated connection claims? How much could she be liable for if she claimed that she could see Russia and Russia sues for land devaluation by being in an intellectually-depressed zone? What about a group that claims that video games lead to violence, and then a study comes out to show either that's not true or the opposite? Fox "News" makes gross distortions hourly that, as they put it in defending Tuckums from a defamation suit, no reasonable person would take seriously. Everyone at Fox should be happydancing that this lawsuit did a complete faceplant.
[ link to this | view in chronology ]
Re: A bit of irony
I'm hearing the dramatic music rising ... and... it's the "Linus and Lucy Theme".
[ link to this | view in chronology ]
Re: An important question:
Is she relevant now? I don't recall the last time I read her name when it wasn't related to this lawsuit or a historical postmortem on why McCain lost so badly in 2008 (which invariably mentions her name near the top of the list). Even looking through Wikipedia it seems the only thing she did as a "celebrity" recently was take the Rudy Giuliani spot on the Masked Singer, and I don't think that novelty comedy value is the same as being culturally relevant.
To be honest, for me it really depends on what other people do. If others are taking her seriously as a political figure, then they need to be reminded of why she failed before, but if others want to watch bad TV that happens to feature her I don't care about her in the same way as I don't care about a lot of "celebrities" who also appear on TV I don't watch.
[ link to this | view in chronology ]
If I were one of the jurors, I'd have asked the judge why they didn't throw it out based on the law before putting me through a trial.
[ link to this | view in chronology ]
Re:
Because the judge has been overruled before. Had the case been appealed again, and Palin won the appeal again, then they would have needed to redo the entire trial again. With being so close to the finish line, waiting for the jury decision both short circuits the retrial, and the judge doesn't need to issue a ruling that can be appealed. It was smart of the judge to do it this way.
[ link to this | view in chronology ]
The verdict was going to be appealed regardless of whether the jury agreed with the judge. You don’t actually think she’s going to accept this L with grace and dignity, do you?
[ link to this | view in chronology ]
Re:
This is Kolby you are talking to....
[ link to this | view in chronology ]
Re: Re:
Bravely bold Sir Koby
Rode forth from the internet.
He was not afraid to die,
Oh brave Sir Koby.
He was not at all afraid
To be killed in nasty ways.
Brave, brave, brave, brave Sir Koby.
[ link to this | view in chronology ]
Re: What a Mess
...this was a bizarre court proceeding.
Not only is a further Appeal highly justified on procedural grounds, the presiding Judge should be impeached and removed from the Bench.
A judge suddenly dismissing a case while the jury is still in deliberation -- is an outrageous miscarriage of legal Due Process.
A formal Jury in America always has the final say & judgement on both the facts and law in a court case before them.
A judge can advise a jury upon his understanding of law involved in a specific case, but that is not binding on the jury.
A judge formally declaring his final decision on a jury case still in jury deliberation -- amounts to criminal Jury-Tampering.
Palin herself and her defamation claim are irrelevant to this procedural court fiasco.
[ link to this | view in chronology ]
Re: Re: What a Mess
None of this "mess" was all that unusual in a trial like this, and this judge specifically has done it several times in the past, based on several lawyers weighing in yesterday on Twitter. It's kind of his job, even if the timing isn't all that common.
Funny that no one minded before Palin was involved.
This article (bizarrely) doesn't explain why the judge did this. Basically, he was doing his job pointing out that actual malice wasn't proven, while also letting the jury do their job to decide that the plaintiff wasn't successful. Both together make an appeal far, far less likely to succeed -- something that would be desirable to a judge who didn't think it the original case was legally justified in allowing to go forward to begin with (particularly since the editorial was fixed 12 hours after it was posted).
If you don't understand the legal actions involved, it's okay to just say nothing and lets the adults discuss it. You might even learn something.
[ link to this | view in chronology ]
As the article notes, the judge ruled on the matter of law and the jury ruled on the matter of fact. Granted, the notice of dismissal regardless of the jury verdict is unusual. But nothing I’ve heard about the case says the move violated her civil rights.
Judges can set aside jury verdicts. Show me the law that says they can’t.
The judge announced his decision when the jury was out of the courtroom. Unless evidence proves that the decision both got back to the jury and unduly influenced the verdict, the decision—while unusual—doesn’t amount to anything approaching a criminal act.
I’m sorry that one of your conservative icons didn’t get to upend 60-plus years of defamation law over an honest mistake. But look on the bright side: At least this clears her schedule for more reality TV show appearances.
[ link to this | view in chronology ]
Re:
Well, why have juries at all if a judge can dismiss a jury verdict at his discretion ... or better yet, just decide the case himself from the start?
What is the purpose of a Jury Trial in American society?
Of course the jury system has been under successful attack in America by elitist factions for about a century.
Juries nowadays decide only a tiny fraction of all civil and criminal cases, under tight government constraints.
The right to trial by jury is rooted in the Declaration of Independence, U.S. Constitution, and 49 of 50 state constitutions.
James Madison saw juries of common citizens as a critical check upon government excesses and those of powerful private interests.
"It is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the courts are the best judges of the law. But still both objects are lawfully, within your jury power of decision. "
[ Chief Justice John Jay, 'Georgia v. Brailsford', 1794]
"It is left to the juries, if they think the permanent judges are under any bias whatever, to take on themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges; and by the exercise of this power they have been the firmest bulwarks of English liberty."
[Thomas Jefferson 1789][ link to this | view in chronology ]
Judges aren’t supposed to routinely dismiss jury verdicts as if the jury is meaningless. Such dismissals are meant to be used when a judge believes a jury either incorrectly applied the law in reaching its verdict or reached a verdict that no reasonable jury would’ve reached based on the evidence. In this sense, judges are meant to be a check on the powers of the legal system.
To have a jury of one’s peers determine the outcome of a given legal proceeding according to the presented evidence and the laws of the pertinent jurisdiction.
And they still are. But when juries go astray by following something other than the law, a judge is an additional critical check upon the abuse of power in the legal system. No jury or judge ever gets it 100% right, nor should we expect that of them.
[ link to this | view in chronology ]
Re: Re:
"Juries nowadays decide only a tiny fraction of all civil and criminal cases, under tight government constraints."
If the case doesn't get tossed, then this is by choice of the parties. If you are entitled to a jury trial, you are free to insist that you receive one, and the government can't prevent it. For a case to plead out or settle, all of the parties must agree. If you're a criminal defendant and really want a jury, then don't plead guilty. If you're a civil party and really want a jury, then don't settle. Trials and trials by juries are unpredictable (and costly), and mutual agreements can reduce the uncertainty and cost involved for all parties.
More generally, in the US, juries are there to resolve questions of fact, not questions of law. Purely legal issues are resolved the judge.
In federal civil cases, the judge can rule for one of the parties before or after a jury decision if, viewing evidence in light most favorable to the non-moving party, no reasonable jury could find for that non-moving party.
Rule 50(a) is for before the case is sent to the jury; 50(b) is for renewing the motion after the jury decision.
The idea is that sometimes the evidence is so strong for one side, that the jury would have to be or had been completely unreasonable to find for the other side. It's to check against unreasonable decisions by jurors; for example, suppose there were email in which the NYT editors wrote about lying to discredit Palin, but because the jurors all hate Palin, they found for NYT.
[ link to this | view in chronology ]
Re: Re: What a Mess
Its a good thing we don't have actual malice towards you or this would end up on Bad Legal Takes over on Twitter.
[ link to this | view in chronology ]
Re: Re: What a Mess
Holy crap that's some terrible armchair lawyering. You should refrain from making such bold claims of fact on a topic you appear to have learnt about only from TV shows.
Also, weird Turmp-esque capitalizations...
[ link to this | view in chronology ]
Re: Re: Re: What a Mess
...right, amateur lay persons should never be permitted on juries -- only certified lawyers are qualified to analyze formal court cases and decide verdicts.
[ link to this | view in chronology ]
Re: Re: Re: Re: What a Mess
If only there were people advising the jury as to the legal matters during the trial, huh? Almost as if that's something that's been thought of and addressed a long time ago...
[ link to this | view in chronology ]
Re: Re: Re: Re: What a Mess
Not sure what point you're trying to make by comparing jurors who sit through days or weeks of professionals presenting evidence and legal doctrine to random internet commenters who clearly demonstrate their lack of understanding of how trails work.
[ link to this | view in chronology ]
Re: Re: What a Mess
Did Trump University offer a law degree?
[ link to this | view in chronology ]
Re actual malice:
https://www.theonion.com/judge-dismisses-new-york-times-libel-suit-brought-by-1848541793
[ link to this | view in chronology ]
Can we get an "actual stupidity" standard in politics?
Seems like easier to meet than "actual malice" in jurisprudence. I'd want to enter Palin into the record but then that may be setting the bar too ... high?
[ link to this | view in chronology ]
Re: Can we get an "actual stupidity" standard in politics?
If I'm not mistaken, the reason why no such test has been introduced is because it's open to certain types of abuse to prevent minorities from running for office. For example, some kinds of IQ tests have known biases that aren't always apparent to the casual observer.
It would nice to have "is this person capable of rational thought" and/or "does this person believe in what the actual constitution says or what the latest QAnon feed claims it says", but there's always a risk of abuse.
[ link to this | view in chronology ]
Re: Re: Can we get an "actual stupidity" standard in politics?
Well sure, I know about the history of "literacy tests", and of course it is easy to discriminate by prescribing a particular "truth" you want to see. Like making it a failure of an intelligence test when you cannot remember huge amounts of voting fraud. Bad example since this is what the Republican Party currently does.
But then at least it relies on getting this kind of truth laundered through enough constituents' brains.
And that essentially is the problem with democracy: it's only as good as the education and intelligence of its constituency. Like the blockchain: if you control the narrative for more than half of the distributed nodes, you can bend the system to do anything.
The only safeguard for democracy is a mature educated constituency, and the U.S. is not wild about public education as a national backbone of functioning democratic structures.
[ link to this | view in chronology ]
Re: Re: Re: Can we get an "actual stupidity" standard in politic
"Like making it a failure of an intelligence test when you cannot remember huge amounts of voting fraud. Bad example since this is what the Republican Party currently does."
Well, there's 2 major problems there. One is the question of why sets the tests. If your test is set by a Trumper who believes that the only truth is that the last election is stolen, then it will filter out anyone with a grasp on reality surrounding that date. So, it will make democracy worse, not better.
The second problem is that the question would hinge of what you mean by "voting fraud". Do you mean cases where people register but don't vote in multiple locations? Cases where people do attempt to vote illegally but are caught? Or, cases where there's been actual tampering with ballot boxes or the counting process? Those are all different things even if you discount the possibility that the person setting the test has been listing to a little too much Fox and has bought into innuendo already.
I definitely agree with you in principle, but I fear that this stuff is just too far open to abuse by the very people it would be intended to filter out.
[ link to this | view in chronology ]
Always going to be appealed
It was my understanding the whole purpose of this case was to appeal it to the SC to overturn the current standard as a major blow to free speech and really owning the libs and setting the stage for more fascist rhetoric without consequences.
[ link to this | view in chronology ]
It's amazing how thin skinned the current version of the Republican party is. All, while running around screaming..."You fucking Commie Socialist bastards are torturing us with masks and vaccines. You want to steal our guns and turn us into slaves of the welfare state. You stole the election, you lying, cheating, evil enemies!!"
It's getting to be a lot like decaf...
[ link to this | view in chronology ]
Re:
All the while screaming about how the 'snowflakes' need to grow thicker skins and stop being offended so often, but as the saying goes 'every accusation a confession' with that lot.
[ link to this | view in chronology ]
The "actual malice" belongs entirely to Palin.
[ link to this | view in chronology ]
'What do you mean we're being sued for again?!'
By all means 'win' that appeal, I can't see lowering the bar for defamation could possibly backfire in spectacular fashion say by, and I'm just throwing a hypothetical out there, making it much, much easier to sue someone(whether individual, company or group) for claiming that you were involved in election fraud...
A lowered bar for defamation would certainly bring a serious chilling of speech against those with power but it would also open the doors for them to be on the receiving end a whole lot more themselves so it would not be a painless 'victory' there.
[ link to this | view in chronology ]
Blue Hair
Just dye your hair blue and trash this trash article, because it's trash Masnick! How about you actually do a journalist's real job and actually interview the people your write articles about? Oh, because you serve the evil corrupt nazi establishment Democrats, and you want Google to monetize your website, so you write garbage hit pieces on as many Republicans as you can. It might help you to actually be a non-biased hack, but I guess it hasn't hurt you to not be.
Still, I think you're better off dying your hair blue again if it's not blue already and keep it that way so we all know who your allegiance is to.
[ link to this | view in chronology ]
Sir, this is a TGI Friday’s.
[ link to this | view in chronology ]
Re:
How's that January 6th defense fund coming along bro?
[ link to this | view in chronology ]
Re: Womp Womp
All together now!
Fuck your feelings!
[ link to this | view in chronology ]
Re: Blue Hair
I prefer blue hair over orange chetoo's skin any day.
[ link to this | view in chronology ]
Re: Blue Hair
Lol, a decade of rambling nonsense and you still haven't worked out that this is an opinion blog, not a primary news or investigative journalism source. Honestly, a decade of your life wasted on anger and hatred, and you haven't even worked out who you're talking to.
Nice to know that "Sarah Palin lost due to her own incompetence again" is such a trigger for you, though. I'm sure there will be many more stories to go with the pile of history we already have about her failures.
[ link to this | view in chronology ]
Free press... Why not. NYT's leans dem...GOP rally....
[ link to this | view in chronology ]
Does judge's showmanship risk a mistrial?
Surely, since he wished for the jury to reach a verdict, the judge should have waited before releasing his own decision? Since the jury were not sequestered, they were bound to learn of the judge's decision and be influenced ("tainted") by it.
The judge claims that the plaintiff's attorneys OK'd the early release of his decision, but the whole episode sounds strange, risky, and totally unnecessary.
[ link to this | view in chronology ]
That sound you hear is Lostinlodos frantically jizzing his own panties in penance for failing to safeguard the honor of a brave Republican warrior, for it was his lack of vigilance that led to the filthy dems winning.
[ link to this | view in chronology ]