More on the NYTimes-Palin Lawsuit—It’s Not Over

From The Poynter Report with Tom Jones:

Sarah Palin never had a chance. Not this time around.

But don’t go anywhere, because this thing is not over.

The former Alaska governor and vice presidential candidate sued The New York Times over a 2017 editorial that incorrectly linked the 2011 shooting of Rep. Gabby Giffords to a map circulated by Palin’s PAC that showed certain electoral districts under crosshairs.

Palin was angry. She was hurt. And she had every right to be.

The Times editorial board — and, in particular, then-editorial page editor James Bennet — messed up. There was no link. The Times admitted so in a correction less than 12 hours after it published the editorial online.

Still, Palin took her complaints to court, and the weeklong trial showed just how sloppy the Times’ editing process was. Yes, it was shoddy journalism. But was it intentional?

From the start, journalism and legal experts predicted that Palin would run into a major hurdle: proving that the Times acted with “actual malice.” In other words, it would be difficult for Palin to prove the Times intentionally set out to hurt her.

We found out just how difficult Monday when the judge in the case said he would dismiss the suit because Palin’s team had not met the legal standard. While the trial was embarrassing for the Times, it did seem to prove that it almost immediately regretted the error and corrected it as soon as it could.

Thus, it seems as if the judge made the correct decision.

However, here comes a twist: Judge Jed S. Rakoff made his decision while the jury was deliberating and he’s not going to toss the case until after the jury returns with a verdict. The jury began deliberations late Friday, continued into Monday and will pick them up again today.

So why wait?

As The Washington Post’s Elahe Izadi and Sarah Ellison wrote, “… since the decision is likely to be appealed — a path that could upend longstanding legal protections for journalists who write about public figures — Rakoff said he wanted future courts to have both his decision and the jury’s to consider.”

The other question is why didn’t Rakoff hold off on announcing his ruling until after the jury came back with a verdict?

“I certainly considered the possibility that I should wait until after the jury had rendered its verdict in this case,” Rakoff said, “but the more I thought about it over the weekend, the more I thought that was unfair to both sides. We’ve had a very full argument on this; I know where I’m coming out.”

Despite ruling in the Times’ favor, Rakoff did not spare the Times, saying in court that he “wasn’t happy” about his decision, but had to follow the law.

Rakoff said, “This is an example of very unfortunate editorializing on the part of the Times.” He even said that he was “hardly surprised” that Palin sued the Times.

Palin’s attorneys had no comment. A Times spokesperson said, “The New York Times welcomes today’s decision. It is a reaffirmation of a fundamental tenet of American law: public figures should not be permitted to use libel suits to punish or intimidate news organizations that make, acknowledge and swiftly correct unintentional errors.”

So now what?

Regardless of how the jury comes back, expect Palin and her team to appeal. Judge Rakoff even expects it, which is why he ruled to let the jury continue deliberations.

Eventually, this could end up before the Supreme Court, where the landmark New York Times v. Sullivan case could come under scrutiny.

The Times’ Jeremy W. Peters wrote, “A landmark Supreme Court case, The New York Times Company v. Sullivan, established that a public figure like Ms. Palin has to prove that a news organization acted with ‘actual malice’ in publishing false information, meaning it displayed a reckless disregard for the truth or knew it was false.”

Supreme Court Justices Clarence Thomas and Neil Gorsuch have indicated that they would be open to reassessing New York Times v. Sullivan. Is the standard to prove malice too high? That’s eventually a question that a court might decide.

But journalists breathed a slight sigh of relief on Monday following Rakoff’s decision to throw out the suit. Journalists loathe making mistakes, but the ruling in the Sullivan case allows for them to make honest mistakes without the fear of being sued.

Eve Burton, the chief legal officer for the Hearst Corp., told NPR’s David Folkenflik, “The ruling is reassuring.”

But this case is not over.

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