Appeals court mulls reviving Sarah Palin’s suit against New York Times — again

An attorney for former Alaska Gov. Sarah Palin opened his argument for her at a federal appeals court Monday by mounting a frontal assault on the Supreme Court decision that has been the bedrock of U.S. libel law for nearly six decades, New York Times v. Sullivan.

“We think the times have changed so significantly since that rule was created by an unelected branch of our government 60 years ago, that it has no place in the modern speech landscape,” lawyer Shane Vogt said as he sought to revive a lawsuit Palin filed against the Times. The former Republican vice presidential nominee and reality television star claims that a 2017 editorial libeled her by unfairly linking her to the 2011 shooting rampage in Arizona that killed six people and left Rep. Gabrielle Giffords (D-Ariz.) badly wounded.

After a two-week jury trial in Manhattan last year, Palin lost her suit when U.S. District Court Judge Jed Rakoff ruled that there wasn’t any evidence to support her claim that the Times’ editorial writers intentionally published false claims about her.

Rakoff, an appointee of President Bill Clinton, allowed the jury to deliberate and it later returned a verdict for the Times, but the newspaper’s own news alerts about the judge’s decision tossing out the case reached some jurors on their cell phones while deliberations were ongoing.

The showdown between Palin and The New York Times was one of the highest-profile libel cases to go to trial in recent decades, attracting attention for pitting a brash Alaska conservative against the prominent newspaper often seen as a bastion of the nation’s liberal establishment.

But some critics of the media have also viewed Palin’s case as a potential vehicle to get the Supreme Court to overturn Times v. Sullivan, which created a very high bar for public figures to prevail in libel lawsuits. Some on the right argue that a liberal-leaning press routinely uses the protections of that 1964 decision to slur conservatives.

The drive to overturn the precedent didn’t gain much traction Monday at the 2nd Circuit Court of Appeals, with one member of the three-judge panel essentially telling Vogt to move on because the decision remains binding and lower courts are obliged to apply the so-called “actual malice” standard.

“I think you’re wasting time for oral argument by spending a lot of time on this question,” said Judge John Walker, an appointee and cousin of President George H.W. Bush.

In recent years, two Supreme Court justices have expressed interest in revisiting the Times v. Sullivan standard. While the decision has become core First Amendment law, critics say the ruling amounts to judge-made law and has encouraged reckless reporting.

Justice Clarence Thomas issued his first clarion call on the subject in 2017, but none of his colleagues signaled any agreement. In 2021, Justice Neil Gorsuch echoed aspects of Thomas’ argument, urging that the high court consider whether the Sullivan standard is a sensible one in the internet era.

Some lower-court judges have joined that chorus, but the other Supreme Court justices have not. And the high court has not taken up any case questioning that longstanding rule.

While Palin’s assault on precedent didn’t get far Monday, her other arguments to revive her lawsuit did. Although no formal ruling was announced, all three judges on the appeals panel appeared receptive to her assertion that Rakoff improperly excluded evidence at the trial and gave jurors a potentially misleading response to a question they asked during deliberations.

Judge Reena Raggi was the most emphatic in suggesting that Rakoff erred by concluding no rational jury could have sided with the Times.

Raggi, an appointee of President George W. Bush, said former Times editorial page editor James Bennet may have undercut the Times’ case by testifying that he believed he read earlier Times editorials that said no link had been established between the 2011 shooting and a map Palin’s political action committee distributed that showed crosshairs over Giffords’ district.

Judge Richard Sullivan also sounded skeptical about arguments from a lawyer for the Times that Bennet’s statement wasn’t an admission that the paper knew the statements about Palin were false at the time they were published.

“Under your thinking, if a plaintiff on the stand says, ‘Yep, I knew it was false. I'm glad I said it. I'd say it again.’ Your view is they can't rely on that?” Sullivan, an appointee of President Donald Trump, asked the newspaper’s lawyer, Jay Ward Brown.

Brown said Bennet explained at the trial that he didn’t intend for the 2017 editorial to accuse Palin of a direct role in the Arizona shooting, but that it referred to a broader concern about the “atmosphere” caused by heated political rhetoric.

Walker seemed open to that argument about Bennet’s intent, but he noted that the Times published a correction to the editorial — appearing to concede not simply confusing wording but a factual error.

“The correction, it seemed to me, was pretty clear that they had made a mistake. They said they made a mistake in suggesting that there was a link between what Palin did and the shooting,” Walker said.

Brown said Bennet didn’t write the correction and what the newspaper did after the initial publication wasn’t indicative of his state of mind at the time.

Palin has claimed the newspaper intentionally lied about her and argued it may have done so because Bennet is the brother of Sen. Michael Bennet (D-Colo.).

The trial exposed a series of slip-ups in connection with the editorial, some driven by Bennet’s desire — with the backing of the newspaper’s top editor — to have editorial commentary respond more quickly to news events.

Shortly after the case was filed, Rakoff held an unusual hearing to take testimony from Bennet and then dismissed the suit. The 2nd Circuit reversed that decision in 2019, with Walker and two judges not on the current panel concluding that the procedure improperly foreclosed Palin’s ability to gather evidence to support her case.

The newspaper publicly backed Bennet in the immediate aftermath of the 2017 editorial, but forced him out in 2020 amid backlash to an op-ed the paper ran in which Sen. Tom Cotton (R-Ark.) called for the use of the military to combat violence and property damage stemming from racial-justice protests.

Whatever the desires of Palin and her attorneys, her case may not be an ideal vehicle to reconsider the broad protections for statements about public figures. For one thing, the New York Legislature passed a law in 2020 enshrining the “actual malice” standard regardless of what the Supreme Court may choose to do in the future, and Palin’s lawsuit is governed by New York law.

In addition, most of the skepticism about that standard has been focused not on its application to politicians like Palin, who ran for Alaska’s single House seat just last year and lost, but to celebrities and others who find themselves suddenly caught up in the media spotlight. Indeed, one of the Supreme Court’s liberal members — Justice Elena Kagan — made just such an argument decades ago, long before she joined the high court.