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Judge to dismiss Sarah Palin's defamation suit against 'New York Times'

Former vice presidential candidate Sarah Palin at a rally, in 2017.
Brynn Anderson
Former vice presidential candidate Sarah Palin at a rally, in 2017.

Updated February 14, 2022 at 6:14 PM ET

A federal judge announced Monday afternoon that he would dismiss former Alaska Gov. Sarah Palin's defamation lawsuit against The New York Times, saying her legal team had failed to reach the high standards required for public figures to make their case.

The case centered on a June 2017 Times editorial that Palin's attorneys argued accused her of inciting murder six years earlier in a mass shooting in Tucson, Ariz. that gravely wounded then-Rep. Gabby Giffords.

The New York Times' legal team argued Palin had not shown that the paper or its former editorial page editor, James Bennet, had been motivated by "actual malice," in which he would have had to have known that his characterization was false or he would have known the probability of it being false was so great as to mean that he was acting with reckless indifference to the facts.

And with evident reluctance, U.S. District Judge Jed Rakoff embraced that reasoning, saying Palin's lawyers failed to present any such evidence against Bennet, who had inserted the problematic language in the article.

The Times' attorneys filed their motion before Rakoff turned the trial over to the jury, which began deliberations Monday. The judge said he would wait to formally dismiss the case until after the jury's verdict so an appellate court could consider its findings, in full knowledge Palin would appeal his ruling.

"Ms. Palin was subjected to an ultimately unsupported and very serious allegation that Mr. Bennet chose to revisit seven years or so after the underlying events," Rakoff said. "So I don't mean to be misunderstood. I think this is an example of very unfortunate editorializing on the part of The Times."

But, he said, his role was not to evaluate.

"My job is to apply the law," Rakoff continued. "The law here sets a very high standard for 'actual malice,' and to this case, the court finds that that standard has not been met." Rakoff had initially dismissed Palin's suit, but it was reinstated by an appeals court that directed him to reconsider. The four-and-a-half year process led to the trial that wrapped up closing arguments on Friday.

Palin's attorneys could not be reached immediately for comment.

Rakoff repeatedly admonished the jury not to consume any media coverage or social media commentary of the case, and not to speak to anyone about the case outside the jury's meeting room. They broke off their deliberations late Monday afternoon and were to pick back up Tuesday morning unaware.

The judge's decision, however, made headlines around the world.

First Amendment attorneys hail the judge's decision

"The ruling is reassuring," says Eve Burton, the chief legal officer for the Hearst Corp. The judiciary branch, she says, "is predictably and accurately playing the critical role needed in protecting the press in everyday reporting of the news, even when we get some things wrong accidentally."

She adds that Rakoff "took the political out of the case and put the letter of the law back in the center of the analysis. Welcome news."

Jonathan Peters, a professor of media law at the University of Georgia, called Rakoff's decision unusual.

"I'm not aware of another libel case in which a trial judge effectively and publicly granted a motion for a directed verdict while the jury continued to deliberate to reach a verdict," he tweeted Monday afternoon. A directed verdict is one in which the judge says there's only one verdict to reach.

Procedure aside, Peters wrote, "Palin failed by a wide margin to prove actual malice."

The trial represented a dramatic confrontation between the self-professed hockey mom from Wasilla, Alaska, and one of the nation's most august news outlets. When she broke onto the national political scene in 2008 as Republican presidential candidate John McCain's running mate, Palin routinely derided the press as the "lamestream media." Her routine folksy attacks on the media helped pave the way for Donald Trump's candidacy.

Hanging over the case were questions of language, intent and the lapses that occurred under deadline pressure. The editorial was written in a rush the night a leftist opened fire on conservative members of Congress at baseball practice outside of Washington, D.C. Republican Congressman Steve Scalise of Louisiana was among those wounded in the attack.

Bennet sought a swift denouncement of both the ready availability of guns and inflammatory political rhetoric. Before going to print, he inserted a passage in the editorial invoking the deadly mass shooting in 2011 that wounded Giffords. He wrote, "the link to political incitement was clear" between that shooting and an ad the year before from Palin's political action committee showing stylized gun crosshairs over the congressional districts of Democrats, including Giffords.

No proof was ever found suggesting Giffords' shooter was motivated by, or even knew about, the Palin ad.

In addition, the editorial misrepresented the ad as placing the crosshairs over images of Democratic lawmakers, rather than their districts.

The Times corrected the errors within a day. Bennet testified he did not check those assertions before publication.

The newspaper's lawyers say the wrong passages represented "an honest mistake." No convincing evidence surfaced during the trial to suggest Bennet acted in bad faith or harbored animus toward Palin, despite efforts by her lawyers to make that case. Palin's attorney's also argued that Bennet's failure to research those claims explicitly should not get him or the Times off the hook.

Bennet and others testified that the Times did not apologize directly to Palin because its policy was not to do more than issue corrections.

Her team called them "purported corrections," saying they were obviously inadequate, and accused the paper of political bias against Palin.

Bennet testified that standards editors believed to apologize routinely would cheapen the nature of an apology, though he seemed personally to disagree: he tweeted out an apology from the Times opinion section's account the next morning, although he did not use Palin's name. Bennet also sought to offer her an apology through CNN reporter Oliver Darcy, although it was never conveyed to Darcy as the paper's public relations staffers withheld it due to the paper's policy on apologies.

Palin's attorneys had represented Hulk Hogan against Gawker

As the end of the trial neared, Palin's attorneys, Shane Vogt and Kenneth Turkel, increasingly ramped up the severity of their claims against the newspaper, saying it accused her of inciting murder. The duo formed the core of the trial team that took down the digital news and gossip site Gawker on behalf of the former professional wrestler Terry Bollea, who performed under the name Hulk Hogan. That case was financed by the Silicon Valley investor Peter Thiel, who had his own beef with the site.

It is not known if Palin's lawsuit has been similarly subsidized by an outside figure. But it is in keeping, media lawyers say, with a raft of lawsuits against major news sites, including NPR, many of which carry an ideological element. Palin's lawyers asked jurors throughout the trial to send a message to the Times, arguing that a clear line had been crossed and that Palin could take it no more.

The two sides clashed over what had become of Palin's life after she faded from the national political scene. Was she, as she and her attorneys conveyed, a quiet recluse in Wasilla or seeking star turns on Fox News, at conservative conferences, and even on the game show "The Masked Singer?"

As the jury deliberated Monday, Rakoff spent hours wading through arguments from the two sides' attorneys over the newspaper's motion to dismiss the case before a verdict arrived. The Times argued Palin had not met the standards for actual malice.

Under a 1964 U.S. Supreme Court ruling that also involved the Times, Palin's attorneys had to show that Bennet and the newspaper either knew that what they published was false, or had acted with reckless disregard of the possibility that it was - that is, he should have known. It was under that standard that Rakoff revealed his surprise ruling known later Monday afternoon.

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David Folkenflik was described by Geraldo Rivera of Fox News as "a really weak-kneed, backstabbing, sweaty-palmed reporter." Others have been kinder. The Columbia Journalism Review, for example, once gave him a "laurel" for reporting that immediately led the U.S. military to institute safety measures for journalists in Baghdad.