New defamation trial for Sarah Palin against the New York Times

After identifying  a series of trial errors, the Court of Appeals has ordered that former Vice Presidential candidate Sarah Palin is entitled to a new trial on her defamation claim against the New York Times, which ran an editorial in 2017 that linked Palin to a mass shooting that took place in 2011.

The case is Palin v. New York Times, issued on August 29. After a gunman shot four people, including a Congressman, at a congressional baseball game practice in 2017, the Times published an editorial that said there was a "clear" and "direct" "link" between a Palin campaign advertisement in March 2010 and a separate shooting that took place in 2011, seriously injuring Congresswoman Gabby Giffords.That advertisement highlighted contested congressional districts, including Giffords', with graphics that looked like shotgun cross-hairs. Since there is no evidence that the Giffords shooter, Jared Loughner, pulled the trigger based on the cross-hair advertisements, Palin sued the New York Times and the editorial writer, James Bennet. 

The case went to trial before Judge Rakoff in in 2020, and the jury entered a verdict in favor of the New York Times. There will be a retrial based on the following trial errors:

1. The trial court granted the NYT and Bennet judgment as a matter of law in finding Palin cannot prove malice. Although Palin, as a public figure, must show the editorial constituted malicious defamation, the jury may find that Bennet's testimony that he did not think the cross-hairs map caused Loughner to shoot anyone in 2011. In holding otherwise, the district court held that Bennet's testimony in Palin's favor was inconsistent with his overall contrary testimony, but that call is for the jury, not the trial court.

2. While internal NYT discussions about Bennet's editorial, as he was drafting it, hyperlinked to ABC News articles that said Loughner was not motivated to fire his gun based on the cross-hairs map, in granting the NYT relief under Rule 50, the trial court credited Bennet's testimony that he did not read the ABC News articles. That was wrong, the Court of Appeals says, because circumstantial evidence permits a contrary inference, in part because the fact-checking process would compel the editorial writer to click through the link to read the article.

3. The trial judge also granted the NYT judgment as a matter of law in discounting the importance of prior NYT articles that said the Loughner shooting had nothing to do with the cross-hair map. The Second Circuit holds the prior articles could be read to cast doubt on any link between Loighner and the cross-hairs map.

There are other trial court errors that informed the Rule 50 order granting the NYT judgment as a matter of law relating to how the court viewed the evidence. You get the picture, though. The Second Circuit (Walker, Raggi and Sullivan) reminds us that jurors, and not the trial court, interpret the evidence and that granting Rule 50 relief during trial poses the risk of an appellate reversal if the Court of Appeals thinks the trial court took the case out of the jury's hands, risking a second trial. This case has some good language for litigators who are fighting off Rule 50 motions in federal court, about the need to respect the jury's view of the evidence and to draw all inferences in favor of the plaintiff when Rule 50 motions are on the table. The Court of Appeals also identified problems with the jury charges that compelled a new trial, as well.

The Court of Appeals wraps up with the most interesting issue on appeal, at least from my perspective. As the jury was deliberating, the trial court heard oral argument from counsel on the NYT's motion for judgment as a matter of law. The court granted the Rule 50 motion but decided to allow the jury to issue a verdict anyway. The court did not tell the jury that the court had already dismissed the case, but the media was present when the Rule 50 order was issued in open court, and their news articles on this went online and, through "push notifications," in which news turns up on your cell phone automatically, the jury learned during deliberations that the judge had already dismissed the case. The jury nonetheless entered a verdict for the NYT and told the court that the push notifications had no bearing on their verdict.

The Court of Appeals holds that the verdict may not be reliable since the court publicly announced its view of the case (dismissing the case entirely) as the jury was deliberating. This was not deliberate on the trial court's part, but it still casts doubt on the verdict, as the jury is not supposed to know what the trial judge thinks about the case. 

Most trial judges reserve judgment on the Rule 50 motion until after the jury renders its verdict, on the theory that if the jury rejects the plaintiff's case, then it does not matter if the defendant is entitled to judgment as a matter of law. Other judges are more decisive and will grant Rule 50 relief then and there if they really believe the defendant is entitled to that relief. The problem here was the trial court's decisiveness combined with the modern technology that found its way into the jury room and allowed the jury to know that the case was already dismissed as the jury was deliberating on whether the plaintiff had a case