Sarah Palin is headed to court against The New York Times once again Tuesday in a second trial amid eight years of litigation over an opinion article that Palin alleges knowingly defamed her.
It has been a roller coaster of legal actions since Palin filed her suit in federal court in 2017; it was first dismissed by a judge, only to be reinstated after an appeal. The case went to trial in 2022 and a jury ruled against her, but she appealed for a new trial based on a variety of issues.
Last year, the 2nd U.S. Circuit Court of Appeals ruled in favor of Palin’s appeal and vacated the jury’s decision, citing “several major issues at trial” and remanding for new proceedings.
Opening statements in the second trial begin Tuesday.
The facts of the case
Palin, the former Alaska governor and Republican vice presidential candidate, sued the Times in 2017 after it published an editorial titled “America’s Lethal Politics.” It was written in the wake of the 2017 shooting at a baseball field where members of Congress were practicing ahead of a bipartisan charity game.
The editorial’s focus generally appeared to be a condemnation of escalating political rhetoric that could incite violence in a country where, it argued, firearms are relatively easy to access.
Palin received a mention because in 2011 her political action committee circulated a map that showed targeted electoral districts, including that of Rep. Gabrielle Giffords, D-Ariz. Giffords was later shot at a constituent event in Tucson, Arizona, by a man named Jared Lee Loughner.
Palin appeared to take exception to this passage:
“Was this attack evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.”
Palin’s suit asserted that the Times published the statement knowing that there was no clear link between her political activities and Loughner’s crime. Her complaint also referred to previous publications in the newspaper that refuted any supposed connection.
“The Times’ Editorial Board and staff followed Loughner’s criminal case and the facts it revealed; the paper reported regularly about the case,” the suit said. “Those proceedings failed to unearth any evidence that Loughner’s actions were politically motivated. There is no evidence to suggest that Loughner ever saw the map of targeted electoral districts that the Palin Article references.”
The Times edited the article and printed a correction following backlash over whether there was a “clear” link between the map and the shooting of Giffords.
The paper also put out a statement on its official NYT Opinion account on X (then Twitter), which is included in Palin’s suit.
“We got an important fact wrong, incorrectly linking political incitement and the 2011 shooting of Giffords. No link was ever established,” the post said.
“We’re sorry about this and we appreciate that our readers called us on the mistake,” the paper said in a separate post.
Ahead of Tuesday’s new trial, a spokesperson for the Times said in a statement that the paper was “deeply committed to the fairness and accuracy of all our journalism.”
“This case revolves around a passing reference to an event in an editorial that was not about Sarah Palin,” the spokesperson said. “That reference was an unintended error, and quickly corrected.”
An attorney for Palin did not have a statement on the case Monday.
A debate over ‘actual malice’
During the first trial, Palin’s attorney Shane Vogt conceded that the defamation case was an “uphill battle.”
The Supreme Court set a high bar for public figures to win defamation or libel actions against news outlets in the 1964 New York Times Co. v. Sullivan decision.
In its unanimous decision, the court ruled that it is not enough for a public figure to prove a statement is false to win a defamation or libel case. There must be evidence that the outlet acted with “actual malice,” meaning it made the statement either knowing it was false or with reckless disregard of the statement’s falsity.
“Actual malice” became a focal point of the Palin case.
U.S. District Judge Jed Rakoff initially dismissed the suit against the Times, saying Palin had not provided enough evidence of actual malice in her claim. The appeals court overturned his ruling in 2019 and reinstated the lawsuit.
Actual malice came up again in 2022 during deliberations through a question jurors had about the testimony of former Times opinion editor James Bennet.
The appeals court ruled that the district court misstated the law when it said “an inference” from Bennet’s answer to a question “is not sufficient in itself” to meet the burden of proof for actual malice.
“This error—made at a ‘critical portion’ of the trial when the jury was deliberating—was not harmless,” the appeals court wrote last year.
The appeals court also disagreed with Rakoff’s decision to bar evidence in connection with the fact that Bennet’s brother, Michael, is a Democratic U.S. senator.
Specific evidence Palin’s attorneys tried to introduce relating to Michael Bennet should have been admitted because it bore “on James Bennet’s own potential bias against Palin and his possible awareness of the falsity of the challenged statements,” the ruling said.