The case of Sarah Palin v. New York Times Co. has grown increasingly Dickensian, the press law version of Jarndyce v. Jarndyce, with no apparent end or point. Last week’s ruling of a federal appellate court in Manhattan ordering another trial demands that we examine what has happened so far, what’s likely ahead, and what should be. Here are the basic facts: In 2017, after a shooter attacked a congressional baseball practice—six people were injured, the gunman was killed—the Times published an editorial. The piece suggested, incorrectly, that a distasteful ad placed by Palin’s political action committee had “incited” a shooting that had taken place in 2011—the attempted assassination of Gabrielle Giffords, a Democratic member of Congress, which led to the deaths of six others. There was no reason to believe the suggestion about Palin, however; the next day, the Times corrected its errors. Palin almost immediately brought a libel suit against the Times; much later, she added as a defendant James Bennet, who had led the Times opinion section and done a heavy edit on the piece.
The case was clear from the start. Googling would have revealed that the piece was inaccurate. There has never been any question that the Times and Bennet were negligent in the matter, nor much that Palin was seriously defamed by it. Since 1964, a landmark Supreme Court case, Times v. Sullivan, has made American libel law the most generous to publishers in the world; per Sullivan, in cases involving public officials and other prominent “public figures”—nearly everyone agrees Palin is one—an outlet is free from legal liability unless the plaintiff can prove that those responsible for publication have what the court called “actual malice.” That level of fault goes beyond negligence, and instead hinges on something that another Supreme Court case later specified: “subjective awareness of probable falsity.” No decent journalist would knowingly publish something false, which means the press wins almost every libel case brought by a prominent person. Many are disposed of well before trial; most of those lost at trial are reversed on appeal.
The Palin case was one of the few that likely merited being tried. Where a plaintiff, through documents or sworn statements or pretrial interviews (depositions), can collect enough evidence that journalists might have known they were publishing something untrue, the decision about whether that actually happened can be made only by a jury. The mistakes in the Palin piece would have been clear to the writer and editors involved if only they had looked in the archives of the Times—or The Atlantic, which Bennet had previously run, and other publications under its corporate umbrella. Despite that, the Times filed a motion to dismiss.
Enter Jed Rakoff, the federal district judge to whom the case was assigned, on the bench since 1996 and, well, an iconoclast. The key question was whether Bennet had harbored “actual malice,” Rakoff decided, so he would just hold a hearing, with Bennet as the sole witness, and try to find out if there was enough evidence. That may sound sensible enough, but the Federal Rules of Civil Procedure generally don’t work that way: Rakoff’s move short-circuited “discovery,” in which the Times would have to give Palin’s lawyers relevant documents, and the lawyers would get to question witnesses. Rakoff’s procedural shortcut left him unconvinced. After a few weeks, he dismissed the case. If that felt too good to be true for the Times, it was. Palin appealed the decision to the Second Circuit, the federal appeals court for cases brought in New York. The Court of Appeals was not impressed with Rakoff’s “innovation,” which it deemed procedurally improper. The conclusions he’d reached had not been his to make, the judges ruled, and the case was sent back for discovery and trial.
Legal skirmishing ensued until early 2022, when the case went to trial, in Manhattan. As part of his pretrial rulings, Rakoff excluded from evidence—that is, refused to let the jury see—those articles from publications under the Atlantic umbrella (the Daily Dish and the Atlantic Wire) that contradicted the Times editorial. When all the evidence that Rakoff did allow was in, the Times, as almost all defendants do in civil trials, made a motion to dismiss the case on the grounds that no reasonable jury could construe the evidence in Palin’s favor. Rakoff said he wanted to hear closing arguments before ruling and to get more briefs. Then his iconoclasm kicked in again. He charged the jury, they started to deliberate. But while they were doing so—on Valentine’s Day—he granted the Times’ motion and (once more) dismissed the case.
That should have been the end of jury deliberations. But Rakoff opted, again, to deviate from the usual rules. He let the jurors keep going, without telling them about his ruling; he just advised them to avoid news stories about the case. Rakoff, who was seventy-eight at the time, hadn’t counted on alerts on jurors’ cellphones. The next night, after their verdict—they decided in favor of the Times and Bennet—multiple jurors reported to the judge’s clerk that they had seen alerts and knew about Rakoff’s ruling before they reached their own conclusion. At that point, Rakoff should have declared a mistrial, at least with respect to the jury verdict. Alas, that wasn’t the path he chose.
In November of last year, the Second Circuit heard the case again. Last week, to the surprise of no one, the judges threw out the jury’s verdict, because of the text alerts. They also rejected Rakoff’s ruling. The question of Bennet’s actual malice—whether to believe him when he testified that he didn’t know the editorial was wrong, that he hadn’t seen or didn’t remember the stories to the contrary—was one for the jury, not the judge, the decision said. For good measure, the Second Circuit also noted that Rakoff had made some mistakes in excluding evidence and in the details of his legal conclusions, though that was appellate gilding of the lily. The Palin case will need to be tried again, likely in a year or so, by which time Rakoff will be around eighty-two.
When the case does go to trial, I have little doubt, having watched the first round, that the jury will find for the Times and Bennet. I believe that will be the outcome despite all that has transpired after the case materialized: In June 2020, the Times published an op-ed, “Send In the Troops,” by Senator Tom Cotton, arguing that the military should be deployed in response to those protesting the murder of George Floyd; the piece, which was inaccurate and incendiary, caused an uproar. Bennet, who hadn’t read it prior to publication, quickly apologized to staff—but by then he’d lost the room and the faith of his boss, A.G. Sulzberger, the Times’ publisher. Within days, Bennet had been forced out. The Times story reporting the news noted that the Cotton piece hadn’t been the only problem on his watch, citing the Palin editorial, among others.
Bennet went on to a job at The Economist, where he writes a column. Last December, he published a wide-ranging broadside, “When the New York Times Lost Its Way,” admonishing the paper for, among other things, failing “to live up to their commitments to integrity and open-mindedness.” The piece contains only one reference to the Palin lawsuit, referring to it as “endlessly appealed on procedural grounds.” But the impression you get—which a retrial would air—is that Bennet and the Times leadership can’t stand each other.
The event of a retrial will surely stir up the Bennet-Times conflict. It will be uncomfortable. How much, if anything, Rakoff will allow the jury to hear about the unpleasantness between Bennet and his former colleagues is unknowable, but you can be sure that Palin’s lawyers will be pressing for it at every turn, before and during the trial. I don’t think that will determine the outcome, however. Juries know how to follow rules. The post-publication drama between a news organization and an editor who no longer works there may be titillating for spectators, but it’s not legally relevant. In the end, we will remain where we have always been on this case: the Times screwed up, and so did Bennet personally, but they did so the way all of us screw up sometimes—by mistake, rather than on purpose. I am confident that’s how the jury will see it.
There’s very little risk of this case undermining the precedent established by Sullivan, no matter how ugly the courtroom gets. In last week’s decision, the Second Circuit took pains to say they were deciding the case under Sullivan, declining Palin’s invitation to question it as precedent. That extreme position may be shared by Justices Neil Gorsuch and Clarence Thomas (and maybe their frequent coconspirator and fellow press hater Samuel Alito), but it has clearly failed to command even a fourth vote on the current court, no less a fifth. And Palin makes a poor candidate to present a case revisiting the “public figure” doctrine, which may be the weakest link of the Sullivan regime. She’s a former senior public official, and just too prominent.
If Rakoff is more careful this time, if he can play this case by the book for once—or, perhaps even better, if he lets another judge take over the case—Palin will lose at trial. And when her lawyers reach the Second Circuit for a third time, their arguments will have lost their charm. The Supreme Court will decline to hear a case that never presented any important novel legal questions; more than a decade after it began, the saga will come to an end.
But I don’t think this is a story that should end with another trial. I think the Times should settle. To be clear: Strong news organizations almost never settle libel cases unless they deserve to lose. In my experience—over more than twenty years at the Wall Street Journal—we only paid to settle one US case, and for good reasons. In thirteen years at ProPublica, we never settled. I do not think the Times should offer Palin money. Under the law, I don’t think she deserves it—I simply don’t believe that Bennet thought that what he was publishing was probably false.
I do think, though, that Palin is owed a long-overdue apology. Bennet tried to offer her one back in 2017, but someone in management or corporate communications or legal thought better of it. That was a mistake. Then, at trial, Bennet offered a general apology in front of the jury, but not to Palin directly. The Times should approach Palin now and offer a public apology, including an admission that it is seven years overdue—and further, offer to let her announce the gesture at a time and place of her choosing in exchange for dropping the case. What will happen? Even if the Times extends the offer, I have no idea if Palin would accept it. I won’t attempt to read her mind. Whatever she decides, though, as we all were told when we were kids, sometimes saying you’re sorry is simply the right thing to do.
Richard J. Tofel a retired press lawyer, is the former president of ProPublica and writes a Substack newsletter called Second Rough Draft.