Jurisprudence

Before the Jury Could Drop a Bomb in the Palin–New York Times Case, the Judge Did

A dramatic finale, just not the one anyone expected.

Palin in sunglasses and a black leather jacket speaks in front of a cluster of microphones outside
Palin speaks with reporters as she leaves federal court in New York on Monday. Michael M. Santiago/Getty Images

Friday morning at 9:30 sharp—which seems like years ago now, given all that had happened by Monday afternoon—closing statements began in Sarah Palin’s libel suit against the New York Times. Palin attorney Kenneth Turkel walked to the courtroom lectern, which, these days, is a plexiglass box fitted with a HEPA filter. He removed his mask to address the jury.

Over the next couple of hours, Turkel delivered a final pitch that framed Palin as a trod-upon victim who needed to “draw a line” because she couldn’t take the abuse anymore. “What this dispute is really about in its simplest form,” he said in his opening paragraph, “is power, and lack of power.”

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The first item on Turkel’s to-do list was to heighten the contrast between these litigants. He reminded jurors that the Times is a “publicly traded company” employing reporters all over the globe, while his client is a “mother and grandmother” still living in the tiny Alaska town where she grew up. Sure, Palin ascended to nosebleed altitudes in politics, once upon a time more than a decade ago. But these days, said Turkel, “there is no version of this that makes Gov. Palin as powerful a force as the New York Times.”

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Once he’d established that the Times, given its size and reach, had the opportunity to injure Palin, Turkel’s next move was to declare that the Times had a motive. A hefty portion of his speech dwelled on concepts like “bias” and “ill will.” The Gray Lady’s severe anti-Palin bent, Turkel argued, was the only possible reason it would run an editorial falsely accusing Palin of inciting the 2011 Arizona shooting that killed six people and wounded Rep. Gabby Giffords. In Turkel’s telling, this trial was really about the Times’ feelings toward Palin. “All they had to do was dislike her a little less,” he said, “and we’re not sitting here today.”

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When David Axelrod (not that one) entered the plexiglass box after Turkel had exited it, the Times’ lead attorney didn’t spend much time refuting Turkel’s claims about bias. I don’t think he’d have gotten much traction if he had. The key bits of evidence in this trial were subpoenaed emails from 2017 sent between Times editorial board members, and those emails made it pretty clear this was a group of left-leaning folks who mostly agreed with one another. I don’t imagine it will shock you to learn that the team of writers and editors tasked with channeling the Times’ institutional voice wasn’t a bunch of conservatives. No need for a federal trial to establish that. I do think it’s fair to argue that bias might have created the blind spot in which the Times’ factual error about Palin was allowed to sprout, and blossom, unnoticed. One might contend that if those editors had warmer feelings toward Palin, they might have thought a little harder before they casually tarred her with such a grave accusation.

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But the presence of ideological bias—in the crafting of an opinion piece, no less—just isn’t enough to seal the deal when it comes to a libel case like this one. Bias can suggest a motive, or maybe help explain what happened. But bias doesn’t qualify as proof of liability in this case.

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From day one, it seemed obvious that the outcome of this trial would hinge on Palin meeting the added burden of proof that comes into play when a libel plaintiff is, like her, a public figure. In Axelrod’s closing remarks, he spent a lot of time reminding the jury about this so-called actual malice standard, which famously arises from the 1964 Supreme Court ruling in the case of NYT v. Sullivan. The standard holds that it’s not enough for a public figure to prove that the Times published something about her that was untrue, or even that the untrue thing badly harmed her reputation. To meet the burden of proof, Palin needed to show that the Times knew it was writing something false but then went ahead and wrote it anyway, or that the paper acted with reckless disregard in ignoring the high probability that what it wrote was false. Palin needed to deliver clear and convincing evidence that the Times had intended to defame her, and that the Times’ false statement involved a conscious, deliberate attempt to avoid the truth. Mere negligence—a failure to fact-check, for instance—wouldn’t suffice.

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Axelrod directed the jury to look at subpoenaed emails in which you can see the Times editorial board batting back and forth ideas, shaping the fateful piece’s argument. Based on that evidence, Axelrod argued, there was just no way to conclude that some sort of intentionally villainous plot was going on here. Every indication suggested that Times journalists made a sloppy mistake while rushing to meet a deadline for the next morning’s print edition.

Then Axelrod showed the jury emails that revealed how the board reacted after it discovered it had made an error. These journalists deeply regretted their mistake—not because the mistake might harm Palin, and certainly not because it might eventually expose the Times to a lawsuit, but simply because those journalists absolutely hated that they got something wrong. There was zero hint that any of them would purposefully introduce an error into a piece, for any reason.

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When both lawyers had finished their summations, Judge Jed S. Rakoff went to the plexiglass box and removed his mask, revealing to the jury his Santa Claus–ish visage. He read aloud the jury instructions, including a section about actual malice. And then, around 3:30 on Friday afternoon, the jury disappeared into its chamber to deliberate.

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They didn’t reach a verdict. So they came back to the courthouse Monday morning and deliberated some more. They requested a transcript of one witness’s testimony, and then a different transcript of another witness’s testimony. It was clear they were taking their duty quite seriously.

As they deliberated, I thought about how, were I a juror, I might weigh the evidence. There were basically four things Palin needed to prove, so I went through them one by one:

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First, she needed to prove that the published words she’s suing over were false. Given that the Times issued a correction and acknowledged it had made a “factual error,” this didn’t seem in dispute to me.

Second, she needed to prove that those published words were “of and concerning” her, meaning that a reasonable reader would understand they referred to Palin personally. The Times tried to argue that its editorial referred to Sarah Palin’s political action committee, not to Sarah Palin. But since Palin was mentioned by name in the piece, and the PAC is essentially her—her face, her voice, her notoriety—I didn’t think the Times had much of a leg to stand on.

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Third, Palin needed to prove that these words were defamatory—meaning they could expose her to contempt, ridicule, disgrace, and so forth. Given that the Times falsely blamed her for inciting murder, I was inclined to give her this one, too. As Turkel said in his closing, “What worse could you say? It doesn’t really get much worse.”

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But the fourth element Palin needed to prove was actual malice. And that was an extremely high bar to jump over. It seemed obvious to me, having observed the trial, that Palin’s lawyers didn’t clear it. But would the nine members of the jury—including a refrigerator repair guy, a docent at the Met, and a receptionist at a fertility clinic—see things the same way I did? Or was I blinded by personal bias, as a journalist who’s been known to make the occasional sloppy error when rushing to meet a deadline?

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Then a little before 3 p.m. on Monday, with the jury still deliberating in its chamber, Rakoff suddenly summoned the litigants to the courtroom. And he informed them that he’d assessed the evidence the same way I had. “I think this is an example of very unfortunate editorializing on the part of the Times,” Rakoff said, but it just didn’t meet the “very high standard” required to prove actual malice. Even if he viewed Palin’s claims in the most favorable light possible, he said, he couldn’t imagine that a reasonable juror could find that Palin had met the actual malice burden. He said he’d wait to see what this jury does. But if they came back with a verdict in favor of Palin, Rakoff promised, he’d throw it out.

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The Times’ lawyers shook each other’s hands. Whatever the jury decided, the Times was now assured of a win. James Bennet—the man who wrote the passages Palin sued over, and the Times’ co-defendant in the trial—seemed to exhale about four years’ worth of anxiety as the lawyers patted him on the back.

Palin and her lawyers went out to the lobby looking shell-shocked. One of her attorneys said he didn’t fully understand what had happened. “It’s gonna take someone smarter than me to explain it,” he said. Outside the courtroom, many smart people did try to explain why the judge would make this announcement as the jury still deliberated; the judge said he believed it was fairer to both parties to reveal the decision now, even as some legal experts puzzled over his timing. Still, that was that.

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Well, sort of. A little before 5 p.m., the jury—which had not been told about Rakoff’s ruling, and won’t be until after the trial is over—returned to the courtroom to tell Rakoff that they hadn’t yet reached a verdict, and thus would come back to the courthouse to keep deliberating tomorrow. Rakoff bid them adieu, said he’d see them in the morning, and warned them not to look at any news reports. With good reason: If they did read the news about the trial, they’d see that the judge had taken it out of their hands.

Read more of Seth Stevenson’s coverage of the Times–Sarah Palin trial.

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