MANHATTAN (CN) — Lawyers for former Alaska Governor Sarah Palin asked the Second Circuit on Monday afternoon to revive her twice-dismissed defamation suit against The New York Times over a 2017 editorial that linked her to a mass shooting in Tucson, Arizona.
Mounting an appeal against the “actual malice” standard enshrined in the landmark 1964 ruling in New York Times v. Sullivan, which held that the First Amendment requires proof of actual malice in any defamation action brought by a public official, Palin’s attorneys asked the appeals court to overturn the second dismissal of her 2017 defamation suit by a judge in Manhattan federal court last year.
“We don’t think that rule should be applied in the first place. We think the times have changed so significantly since that rule was created by an unelected branch of our government sixty years ago that it has no place in the modern speech landscape,” Palin’s attorney Shane Vogt said during an hourlong oral argument before the appeals court.
Palin’s lawyers argued that she shouldn't have been required to prove “actual malice as to falsity or defamatory meaning” in her suit over the editorial, titled “America’s Lethal Politics” editorial, which connected the nation’s pattern of mass shootings to overheated political rhetoric.
The editorial cited as one example the 2011 shooting in Tucson, Arizona that left a federal judge and five others dead at a Congress on Your Corner event hosted by the newly inducted Representative Gabrielle Giffords. Palin’s political action committee had previously published a map with crosshairs over Giffords’ electoral district, and the Times called the move a “direct” link to the violence that ensued.
U.S. District Judge Jed Rakoff initially dismissed Palin's case for failing to identify anyone at The New York Times who had acted with actual malice, but in 2019 the Second Circuit revived the onetime vice presidential candidate's lawsuit.
Palin’s redo in the lower court went to trial in early 2022 where she was ultimately dealt defeat, both by the jury's verdict and by Judge Rakoff's mid-deliberation dismissal one day earlier.
In an appeals brief, Palin argued that Rakoff’s Rule 50 opinion had wrongfully concluded that there was a lack of malice. The judge, she argued, relied on the idea that New York Times opinion editor James Bennet otherwise “likely would have been defensive, avoided issuing a correction to the editorial, or tried to minimize the correction’s confession of error.”
The judge, Palin argues, ignored evidence demonstrating actual malice that would “flatly refute Bennet’s preconceived narrative,” like the fact that Bennet had conceded, “I didn’t think then and don’t think now the map caused [Tuscon shooter] Jared Loughner to act.”
“At trial, the district Judge systematically excluded critical evidence of actual malice, including evidence associated with Bennet’s brother, the Loughner shooting articles posted on The Atlantic’s website, the ‘How the Media Botched the Arizona Shooting’ article sent to Bennet, Times’ articles and the article Bennet received at The Atlantic discussing how the media erroneously blamed Appellant for the Loughner attack, and other circumstantial evidence of actual malice, which the Mandate identified as relevant and creating fact issues,” the brief states.
Palin also challenged Judge Rakoff's jury instructions, writing in her brief that the judge “erroneously advised them to disregard legally sufficient evidence of actual malice,” and advised them “an inference from a statement by Mr. Bennet is not itself sufficient to carry the clear and convincing burden.”
“Why isn’t that a question for the Supreme Court to decide?” U.S. Circuit Judge John Walker asked Palin’s attorney at Monday's hearing, referring to the landmark 1964 ruling in New York Times v. Sullivan, which holds that the First Amendment protects statements about public figures, including false ones, unless officials can prove actual malice. “We have a precedent that we have to deal with.”
Walker, a George H. W. Bush appointee, was joined on the panel by two fellow Republican-appointed judges: U.S. Circuit Judge Reena Raggi, a George W. Bush appointee, and U.S. Circuit Judge Richard Sullivan, a Trump appointee.
The New York Times was represented by attorney Jay Ward Brown, who told the judges they should affirm the federal court dismissal.
“Multiple circuits have held that there is no actual malice if a journalist unknowingly makes a false statement about somebody,” the Ballard Spahr partner said. “And here it is not just Mr. Bennet’s testimony, but the physical evidence: the e-mail exchanges before and after publication, the testimony of others that establishes what meaning he thought his words were communicating, which is different from the one alleged by Ms. Palin.”
In its appeals brief, The New York Times argued Palin’s defamation claims are bound by Sullivan v. New York Times precedent.
“As a former governor, candidate for vice president, and potential candidate for president who regularly seeks to influence politics and matters of public concern, Palin is the paradigmatic public figure to whom the holdings in Sullivan and its progeny apply," the brief states. (Emphasis in original.)
Palin alleged in her 2017 lawsuit in the Southern District of New York that The New York Times “exceeded the bounds of legality, decency and civility” by bringing her name into an editorial published the evening after a shooting had broken out at a congressional baseball practice.
The Times published a correction within fourteen hours the saying there was no such “clear” link. Indeed, no evidence has ever been established that the Tucson shooter Jared Lee Loughner saw the Palin PAC's map.
An editor removed the language and published a correction the next day, but those steps were not enough for Palin, who said she never got an apology.
Attorneys at Gibson, Dunn & Crutcher LLP represented the Reporters Committee For Freedom of the Press and a coalition of other news media organizations in an amicus brief urging the Second Circuit to affirm the lower court’s ruling in favor of The Times.
"Reporters continue to need the actual malice standard to protect free and open public debate; without it, the press would be hamstrung in its ability to provide important newsworthy information to the American people,” the Reporters Committee said in statement accompanying its brief.
Judge Rakoff anticipated that Palin would seek reversal of his ruling on appeal.
“This is the kind of case that inevitably goes up on appeal,” he said in February 2022 after the jury returned their verdict finding The New York Times not liable for defamation.
The panel did not issue a ruling from the bench.
Follow @jruss_jruss
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
