Sarah Palin lost her libel trial against The New York Times on Tuesday but a question lingers about whether she was treated fairly.
Palin, a 2008 GOP candidate for vice president, is not beloved by the powers that be. She is a gun-toting hick from Alaska who is not well read and who makes hokie references to “hockey moms” and “lipstick on a pig.” Palin, a former Alaska governor, is especially loathed by Harvard grads and urban elites.
Still, the beauty of the American justice system is that even the most despised are entitled to basic fairness and justice under the law.
It rankles that U.S. District Judge Jed Rakoff, 78, the semi-retired judge who presided over the trial, announced Monday that Palin had not met the high standard for malice to prevail in the case. He said he would dismiss the case regardless of the jury’s verdict.
The jury was deliberating at the time. Reuters reported Wednesday that jurors received phone notifications that the judge had decided to dismiss the case regardless of their verdict. Clearly Judge Rakoff’s pronouncement could have prejudiced the jury.
Timing Is Everything
It was Judge Rakoff’s job to tell the jury what the law is and the jury’s job to apply the law to the facts in the case.
The jury was in the process of deciding whether the NYT showed actual malice in 2017 when it published a preposterous allegation that a political ad by Palin’s political action committee incited the 2011 shooting of former U.S. Rep. Gabby Giffords and 18 others at a constituent meeting in Tucson. Indeed, the editorial said “the link to political incitement was clear.” The editorial was written by two NYT editorial writers and cleared by a NYT fact checker.
Judge Rakoff acted upon a seldom invoked rule that permits a judge to dismiss a case if a plaintiff fails to reach a basic evidentiary threshold. It’s not clear why he allowed the jury to begin deliberating in the first place. He said it was likely that Palin would appeal and the appeals court would “greatly benefit” from knowing how the jury decided.
But why didn’t he wait until the jury returned its verdict?
Still, the jury continued to deliberate on Tuesday and Wednesday, sufficiently long to indicate there was a serious difference of opinion among the jurors about the NYT’s culpability in the case.
Meanwhile, the NYT cast the case as a critical milestone for freedom of the press, a pitch that resounded with Columbia University professors and most of the mainstream media. The Times’s lawyer David Axelrod called the case “incredibly important because it’s about freedom of the press”.
This was never about freedom of the press. It was about libel. It was about the NYT publishing an editorial that was so ridiculously incorrect that the U.S. Court of Appeals held it raised a plausible issue of actual malice. It was about whether the NYT showed reckless disregard for the truth.
Normally, there would not be much that Sarah Palin could do at this point. The 9-member jury came back with a unanimous verdict that clears the NYT and appeal courts are typically reluctant to disturb a jury verdict. But Palin could argue that Judge Rakoff’s pronouncement prejudiced the jury.
It is possible, of course, the jury verdict was right. But many observers – possibly even some Palin haters – will wonder if the verdict was a foregone conclusion after Judge Rakoff’s untimely pronouncement.
The NYT engaged in self-interest by artificially inflating the importance of the case to the future of freedom of the press but the case was actually important. The perception of justice is the foundation of the judiciary. That’s why judges have lifetime tenure and are paid so much money.
If the judiciary is perceived to be political and biased, people will not invest their faith in the system. This will unleash a Pandora’s Box of unanticipated consequences, none of which support a vital and functioning democracy.