MANHATTAN (CN) – Lawyers for Sarah Palin struck a chord with the Second Circuit on Friday while fighting to restore defamation claims the former Alaska governor brought against the New York Times.
U.S. District Judge Jed Rakoff had tossed the suit in August 2017 after convening what all parties agree was an extraordinary hearing featuring Times editorial page editor James Bennet.
“This is tremendously unusual to have a hearing like this,” U.S. District Judge John Keenan said Friday morning of last year’s proceedings.
Sitting on the appeals panel by designation, Judge Keenan normally presides in New York’s Southern District. Along with two appellate judges, Keenan will decide after today’s arguments whether Palin’s suit was nixed improperly.
At the hearing last year before Rakoff, Bennet offered crucial testimony about the Times editorial that prompted Palin’s suit.
Published in reaction to a shooting that morning at a park where members of Congress were practicing for a charity baseball game, the article “America’s Lethal Politics” made the case that heated rhetoric fueled acts of violence.
Bennet, who wrote the unsigned piece, used Palin as example, saying she had a “clear” and “direct” connection to a 2011 mass shooting that killed six people and injured Arizona Congresswoman Gabrielle Giffords.
Bennet testified that he corrected the editorial within hours, the moment he learned that the basis for this accusation had been mistaken, but the judge heard witness testimony at all at that stage of proceedings was unusual.
Finding that the editor harbored no actual malice, Rakoff dismissed Palin’s lawsuit.
But Palin’s attorney Elizabeth Locke complained Friday that Rakoff did not have the authority to hold what she dubbed a “mini-trial on actual malice.”
U.S. Circuit Judge John Walker appeared to agree with that view.
“He basically, my reading of the opinion, he credited Bennett’s testimony,” Walker said of Rakoff.
Times’ attorney Lee Levine noted meanwhile that it was Palin’s responsibility to air any qualms she had about the procedure last year.
“They didn’t object to the evidentiary hearing,” Levine said. “They embraced it.”
U.S. Circuit Judge Denny Chin latched onto that point.
“Did the plaintiff object to what I agree is an unusual procedure?” Chin asked Palin’s attorney.
Locke argued that Palin did not object because Rakoff insisted that he would not use Bennet’s testimony to assess credibility.
The judges reserved decision on the ruling.