Leroy N. Soetoro
2020-09-05 19:22:19 UTC
A federal judge has ordered a jury trial in former Alaska Gov. Sarah
Palins libel suit against The New York Times over an editorial linking
her to the 2011 Arizona shooting rampage that seriously wounded then-Rep.
Gabby Giffords and killed six others.
In the latest round of litigation in the case, U.S. District Court Judge
Jed Rakoff rejected separate motions in which the Times and Palin claimed
they should prevail based on the existing evidence and depositions in the
In a ruling issued Friday evening, Rakoff said the issues were not as
clear-cut as either party suggested, so the matter will have to be decided
by a jury. He set Feb. 1, 2021, as a target for a trial to open in the
case, but noted that the date could be delayed as courts continue to
struggle with in-person proceedings amid the ongoing coronavirus pandemic.
The initial version of the 2017 Times editorial said it was clear that
the 2011 shooting was linked to a map Palins political action committee
released that included crosshairs over Giffords Tucson district. However,
no such link has ever been established. The shooter, Jared Lee Loughner,
was found to be mentally ill and was sentenced to life in prison in 2012.
The Times corrected that language the morning after the editorial was
first published online, but Palin sued, claiming that then-editorial page
editor James Bennet knew or should have known the claim was false because
when he served as editor of the Atlantic magazine it published numerous
articles indicating that no link between the crosshairs map and the
shooting had been established.
Rakoff threw out the case in 2017 after an unusual early hearing in which
Bennet testified that he was responsible for the error and simply forgot
about the earlier articles.
But a federal appeals court revived the suit last year, ruling that the
unorthodox procedure Rakoff used violated Palins rights under federal
court rules to pursue evidence and testimony about the episode before a
definitive ruling on her suit.
As that process has gone forward, Rakoff said it was possible that jurors
might conclude the error was intentional or the product of what he termed
a purposeful avoidance of the truth.
Taking the evidence in the light most favorable to plaintiff, she has
sufficiently pointed to enough issues of triable fact that would enable a
jury to find by clear and convincing evidence that Bennet knew, or was
reckless not to know, that his words would convey the meaning in the minds
of the readers that plaintiff asserts was libelous, to wit, that she bore
a direct responsibility for inciting the Loughner shooting, wrote the
judge, an appointee of President Bill Clinton.
Despite his earlier ruling in the Times favor, Rakoff expressed some
skepticism about Bennets claim that he was not attempting to draw a
direct causal link between the Palin groups graphic and the Tucson
Here, Bennets contention that, notwithstanding the words he used, he did
not mean to suggest a direct link between the Map of the shooting, may be
so inherently improbable that only a reckless man would have chosen the
words he chose to convey the meaning he (allegedly) sought to convey, the
judge wrote, quoting an earlier case.
Rakoff also said the Times self-styled correction could be viewed as
undercutting its current contention that the initial statement was simply
ambiguous and not wrong.
The judge did find for Bennet on some points, noting that the evidence
established he had no role in Atlantic articles about the Loughner
Were disappointed in the ruling but are confident we will prevail at
trial when a jury hears the facts, Times spokeswoman Danielle Rhoades-Ha
Attorneys for Palin were pleased with the ruling. Governor Palin
appreciates the Courts ruling and careful consideration of the merits of
this case. We look forward to the trial in February, said Shane Vogt and
The trial could be something of an awkward spectacle for the Times, in
part because the newspaper effectively forced Bennet out of his post two
months ago. Bennet departed amid controversy over his stewardship of the
editorial page, including a decision to publish an op-ed by Sen. Tom
Cotton (R-Ark.) advocating the use of military forces to quell urban
unrest stemming from the death of African American motorist George Floyd
in an encounter with Minneapolis police.
Still, it is unclear how much sympathy the conservative former governor
and 2008 Republican vice presidential nominee is likely to find on a jury
drawn from the liberal bastion of New York City.
Palins attorneys appear to be eager to make her suit into a test case for
the courts to embrace recent suggestions from President Donald Trump and
Supreme Court Justice Clarence Thomas to abandon the longstanding actual
malice standard governing suits against public figures, opening news
outlets to the increased possibility of costly libel suits even in cases
involving public figures.
In a footnote attached to the Friday ruling, the veteran judge seemed to
defend his initial handling of the suit, despite the 2nd Circuits
unsparing rejection of that process. Rakoff called his approach something
of an innovation and suggested it was prompted by relatively recent
Supreme Court rulings calling for judges to assess the plausibility of
civil suits before allowing them to proceed.
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