At about 2:30 on Tuesday afternoon, after roughly a dozen hours of deliberation, a nine-person jury—featuring, among others, a refrigerator repairman, a docent at the Met, a creative director, a hedge fund worker, and a receptionist at a fertility clinic—found that the New York Times Company, and its co-defendant James Bennet, did not libel Sarah Palin.
A day before, Judge Jed S. Rakoff—out of earshot of the jury—had already ruled that “no reasonable juror” could possibly conclude Palin had met her burden of proof. Rakoff advised both sides that if the jury decided the Times had defamed Palin, he’d reverse the outcome. Thus, the verdict from these (apparently reasonable) jurors was a second blow—and a bit of salt in the wound for the former Alaska governor. I’m tempted here to point Palin toward one of her trademark mottos, invoked by an opposing attorney at the trial: “Suck it up, buttercup.”
It seems obvious to me that the jury’s conclusion was sound, given the high hurdle Palin needed to clear as a public figure alleging libel. Palin failed to demonstrate—as she was required to do, per the Supreme Court’s 1964 ruling in New York Times v. Sullivan—that the Times acted with “actual malice.” She didn’t prove that the Times published something false despite knowing it was false, or that the Times recklessly disregarded the high probability it was publishing something false, or that the Times intended to defame her and took conscious, deliberate steps to do so. What Palin instead showed was that Times journalists are, much like everyone else in the world, capable of making sloppy errors when they rush to meet a deadline. She also showed (and this didn’t help her case) that those journalists really, really hate to make mistakes and try hard to correct them as quickly as possible.
Sarah Palin has said and done many vile things during her years in public life. In the course of this trial I was reminded, for instance, that Palin campaigned in 2017 for Alabama Senate candidate Roy Moore—one of the more despicable figures in the political arena in recent memory. Palin has also, it’s worth noting, made lots of reprehensible comments about what she terms “the lamestream media.” Still, it’s important to acknowledge that no one deserves to be falsely accused of inciting murder. Even if the mistake was an honest one, and even if it was rapidly corrected, it was still a supremely awful error. I hope we can all agree on that, no matter our feelings about Palin. The real question is: Where does this leave us? Where do we go from here?
Do we think that the “very high standard” (as Rakoff termed it) for proving actual malice is a fair one? Should public figures continue to suffer slings and arrows—even as sharp as the one the Times mistakenly hurled at Palin—with little hope of recourse beyond the press saying, “Our bad”? Does the freedom to write fearlessly about the famous and the powerful necessitate permitting even the gravest of errors? Or, as some on the right are suggesting—including a former president and two current Supreme Court justices—should we be taking another look at where we draw this line?
I know two things for sure. 1) If this line’s going to be redrawn, I don’t want Donald Trump, or Neil Gorsuch and Clarence Thomas, holding the pencil. 2) This is by no means the end of this battle. Palin will surely appeal this verdict, and if hers isn’t the case that makes it all the way to the Supreme Court, people hoping to weaken New York Times v. Sullivan will look around for another vehicle.
Sitting in the observer section at the trial—along with Sarah Palin’s boyfriend, James Bennet’s wife, a bunch of journalists, and a few curious members of the public—there was one especially intriguing figure. Charles Harder was the lead attorney when Hulk Hogan sued Gawker out of existence. And Harder watched every minute of the testimony in this trial, taking copious notes on a legal pad. He wasn’t working with Palin’s legal team (though he’d worked with them before, in that Gawker case). He was just watching.
During breaks in the proceedings, I peppered Harder with questions. How much did he think this trial was costing Palin? Answer: More than $1 million. How much would it cost to take the case all the way to the Supreme Court? Answer: $5 million, give or take. Was it possible Palin’s attorneys were working on a contingency basis, or maybe doing this just for the publicity? Answer: Basically, no.
Hulk Hogan didn’t pay his own legal costs (meaning, in part, Harder’s invoices) when he took Gawker to court. Silicon Valley grotesquerie Peter Thiel famously footed Hogan’s bill—secretly at first, until he was outed as Hogan’s backer. When it comes to this trial, I just can’t bring myself to believe that Palin paid for it out of pocket. If indeed she didn’t, and someone else was funding this, I wondered where that money was coming from. I asked Harder if he knew. He said he didn’t.
Then I asked Harder one last thing: Why exactly was he here? He was taking all those notes—was it for an article he’s writing, or a book? No, he said, “I’m just here to observe and learn.”
That was the most chilling thing I heard in that courtroom. What exactly did he learn from Sarah Palin’s (so far) failed effort to sink the Times? How exactly is he planning to apply those lessons? My fear is that, before long, we’ll all find out.