Sarah Palin is now 0 for 2 in her ongoing legal battle with The New York Times, but so far the former Alaska governor has given no indication she intends to quit. swing for the fences.
Shortly after a federal jury in New York on Tuesday rejected Palin’s second attempt to sue the newspaper for defamation, the Republican instigator was asked if she would try to appeal the verdict to the Supreme Court.
“I hope so,” she replied as she got into a limo.
But that, according to legal experts, is easier said than done.
Under New York law, Palin cannot challenge the jury’s unanimous verdict, delivered a day after U.S. District Judge Jed Rakoff of the Southern District of New York took the unusual step of announcing he would dismiss Palin’s case, regardless of how the jury decided.
So Palin should try her luck with the 2nd U.S. Circuit Court of Appeals, possibly arguing that the jury instructions bent the law, the experts said.
But that court has always been reluctant to preempt decisions made by jurors, Ryan Cummings, media lawyer at Hodgson Russ, told Reuters.
Even if Palin were to prevail there, the odds of the highest court in the land taking her case are stacked against her, experts said.
“She can try but it’s extremely unlikely they’ll take her case,” said George Freeman, who directs the Media Law Resource Center in Manhattan. “They’ve got bigger fish to fry, like the likely overturning of the law set in Roe v. Wade, so I think the court would be reluctant to upset a long-standing precedent in a second area.”
The second area Freeman was referring to is The New York Times v. Sullivan, the landmark 1964 decision that held that a public figure must prove that a defamatory statement was made “knowingly false or with reckless disregard as to whether or not it was false.” .”
Palin’s failure to prove reckless disregard has failed both of her attempts to sue the Times over a 2017 op-ed that the paper admits contains factual errors and for which it has already apologized.
“Palin is a public servant, and I think in the unlikely event that the Court takes up a case reconsidering Sullivan, it would be in a public figure/celebrity case, not a public official case where Sullivan’s raison d’être – a debate strong and unhindered on public matters — is at its strongest,” Freeman, who previously spent three decades working as a lawyer for The Times, wrote in an email.
Other legal experts agreed.
“If she can win review by the United States Supreme Court, Ms. Palin may seek to set a lower standard than the current malice standard for public figures,” Barbara Wahl, partner at Arent Fox, who has spent years litigating and advising clients on defamation cases, said in an email.
Conservative justices such as Neil Gorsuch and Clarence Thomas have shown interest in changing libel laws to make it easier for the media to sue and win, Wahl and other experts said.
“Several Supreme Court justices have expressed the view that the actual malice standard should be changed,” Wahl said. “But the Supreme Court has recently not accepted the review of several defamation cases that could have given the Court the opportunity to do so.”
Even with a conservative majority, the Supreme Court is very protective of free speech, said Kent Greenfield, a law professor and prominent scholar at Boston College Law School.
“The only possible exception is that there have been indications that Sullivan has fallen out of favor,” he said.
“Judge Thomas, in particular, said he would overturn Sullivan’s decision,” Greenfield said. “I doubt Thomas will have four more judges to join him at this point, though.”
Palin claims her reputation was damaged by the Times editorial titled “America’s Lethal Politics” which wrongly linked her to a 2011 mass shooting in Arizona that nearly killed then-US Representative Gabby. Giffords, D-Ariz.
The Times quickly published a correction stating that “no such link has been established” and the section’s then-editor, James Bennet, issued an apology.
But Palin sued the Times for unspecified damages.
Rakoff launched Palin’s first lawsuit two months after she was filed in 2017, saying she failed to show the newspaper knew he was publishing false statements in the editorial.
But a three-judge panel at a Manhattan federal appeals court reinstated it in 2019, saying Rakoff should have given Palin’s team more time to obtain emails and other evidence that could help their case.
Yet as Palin’s second libel trial began, even her own lawyers expressed doubts about her victory, because the odds for public figures to prove they were libeled are so high.
“We approach this case with eyes wide open, fully aware that we are fighting an uphill battle,” Palin’s attorney, Shane Vogt, said in an opening statement.
To win, Palin still had to prove that the Times claim was not only false, but also that the news outlet published the claim knowing it was false.
Both times, Palin was represented by Vogt and Kenneth Turkel, who helped Terry “Hulk Hogan” Bollea win a massive libel lawsuit that bankrupted the Gawker media outlet.
Tech billionaire Peter Thiel, a supporter of former President Donald Trump, funded the Hogan lawsuit.
Palin declined to say who foots the bill for her defamation lawsuits, fueling suspicions that her case could be some sort of Trojan horse, galloping to the Supreme Court to undermine New York Times v. Sullivan.
But Andrew Koppelman, John Paul Stevens law professor at Northwestern University, said “it’s hard to guess what his long game is.”
“She once published a (truthful) account that the Times was sloppy with the facts, and that may be all she wanted,” he said.