Could Jurors’ Smartphone Alerts Push an Appellate Court’s Buttons in Sarah Palin-N.Y. Times Defamation Fight?
The New York Times winning its defamation fight with former Alaska Gov. Sarah Palin isn’t necessarily unexpected. But, when you throw in a federal judge indicating he’d dismiss the case while the jury was still deliberating, modern technology that made several of the jurors aware of that decision before they reached a verdict and recent criticism of the actual malice standard, it’s not exactly business as usual, either.
To summarize nearly five years of litigation: Palin in 2017 sued NYT for defamation over a gun violence editorial that linked one of Palin’s political action committee ads to the 2011 mass shooting in Tucson, Arizona, that seriously injured then-U.S. Congresswoman Gabby Giffords. The paper quickly issued a correction explaining no link had been established between the PAC ad and the shooting. She said its reaction to public backlash was “woefully insufficient,” and argued the paper knew there was no connection, noting multiple other Times pieces published around the same time that had refuted the idea.
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U.S. District Judge Jed Rakoff in August 2017 dismissed the complaint — finding that Palin, a public figure, had failed to meet the standard of showing actual malice — but in August 2019 the fight was revived by a federal appeals court. Rakoff denied a later motion for summary judgment on related grounds. After trial was delayed due to Palin contracting COVID-19, it began in earnest Feb. 3 and closing arguments ended Friday.
Rakoff on Monday indicated he’d dismiss the matter regardless of the jury’s findings, having found Palin failed to show the requisite malice at trial. It’s not uncommon for a defendant to ask the court to make a ruling instead of waiting on a jury verdict because it feels the plaintiff failed to make their case, but the timing and circumstances here are raising some eyebrows in the legal community.
Charles Harder, the lawyer who famously won a $140 million jury verdict against Gawker on behalf of Hulk Hogan in 2016, attended the trial to observe and says overall the judge handled it very well. “He seemed to handle jury selection quickly and fairly; he seemed to handle evidentiary issues fairly; he treated all counsel, and the jury, very nicely,” says Harder. “He seemed smart and in command of the case. He also has a good sense of humor and made the trial less boring by lightening things up.”
But the attorney questions Rakoff’s “unusual” decision to publicly announce he’d dismiss the case while the jury was still deliberating. “Jurors can be easily influenced by what the judge says and does,” says Harder. “I assume the judge’s thinking was that, if the jury came back with a verdict in favor of Palin, the Court of Appeal would have a choice: to either affirm his dismissal on Rule 50 grounds, or to affirm the jury’s verdict. But I think the jury’s verdict became tainted once he announced publicly that he was dismissing.”
While she also was surprised by the timing of Rakoff’s decision, head of Haynes and Boone’s media law group Laura Prather sees the logic behind it. “Although Judge Rakoff’s decision while the jury is still deliberating might appear odd, it is consistent with the active case management he has demonstrated throughout this litigation,” she says. “By allowing the jury to continue to deliberate, the Second Circuit will have the benefit of both the Court and the jurors’ decisions on appeal.”
Ashley Yeargan, a partner at Russ August & Kabat who often represents high-profile plaintiffs in defamation cases, also thinks Rakoff’s decision to allow the jury to come to its own conclusion was at least partially motivated by the potential for an appeal. “He has already been overruled once by the Second Circuit in this matter, which incidentally said it was up to the jury whether or not the editor’s behavior was or wasn’t consistent with ‘actual malice,’” she says. “That was probably a factor in letting the jury’s deliberations play out.”
The jury on Tuesday returned its one-page verdict form finding the NYT not liable.
Media lawyer Daniel Novack says Rakoff’s decision was the right call, but he’s still dubious about the timing. “I understand the impulse not to keep [former editor James] Bennet and the Times in suspense, or to spare Palin an emotional roller coaster seeing the jury find in her favor only to have victory snatched away, but every day that the jury doesn’t return a verdict is more opportunity for them to see the headlines and wonder what the judge knows that they don’t.”
That’s precisely what happened. Over the weekend the jurors had been reminded via email not to read or watch any coverage of the case in the press or talk to anyone other than their fellow jurors about the matter — but, in a Wednesday order, Rakoff says a court clerk did receive information from multiple jury members during a routine post-verdict follow-up that they got news alerts about the decision on their smartphones. They insisted it had no impact on their verdict.
Here’s how Rakoff describes it: “It is the Court’s uniform practice after a verdict has been rendered in a jury trial to have the Court’s law clerk inquire of the jury as to whether there were any problems understanding the Court’s instructions of law, so that improvements can be made in future cases. Late yesterday, in the course of such an inquiry in this case — in which the jury confirmed that they had fully understood the instructions and had no suggestions regarding jury instructions for future cases — several jurors volunteered to the law clerk that, prior to the rendering of the jury verdict in this case, they had learned of the fact of this Court’s Rule 50 determination on Monday to dismiss the case on legal grounds. These jurors reported that although they had been assiduously adhering to the Court’s instruction to avoid media coverage of the trial, they had involuntarily received ‘push notifications’ on their smartphones that contained the bottom-line of the ruling. The jurors repeatedly assured the Court’s law clerk that these notifications had not affected them in any way or played any role whatever in their deliberations.”
Rakoff also noted that none of the parties objected to his plan to render his decision but “permit the jury to continue deliberating so that the Court of Appeals would have the benefit of both the Court’s legal determination and the jury’s verdict.”
Still, he’s giving them a chance to air any grievances now. “Nevertheless, in an excess of caution, the Court hereby brings the foregoing facts to the parties’ attention,” writes Rakoff in the Feb. 16 order. “If any party feels there is any relief they seek based on the above, counsel should promptly initiate a joint phone conference with the Court to discuss whether any further proceedings are appropriate.”
While some of the attorneys consulted by THR anticipate Palin will continue to fight, they doubt she will ultimately be successful.
“I imagine that Palin will try to move for a new trial, arguing that it can’t be known whether the jury came to its conclusion on its own or was influenced by the judge’s mid-deliberation opinion,” says Yeargan. “It will be interesting to see whether Judge Rakoff entertains such a motion or says that a new trial would be moot because he could decide as a matter of law that Palin failed to prove her case.”
In the event Palin takes the matter back to the 2nd Circuit, the push alerts will likely come into play — though the modern technology twist doesn’t change the underlying legal issues.
“News that some of the jurors were aware that the judge had determined the Times was entitled to judgment as a matter of law before they rendered their verdict could become an issue on appeal. Palin may argue that the judge’s announcement influenced the jury in its deliberations,” says Gibson Dunn partner Anne Champion, whose specialties include First Amendment matters.
“She would appeal on grounds that the Rule 50 dismissal was improper, and also that the judge’s public announcement tainted the jury, and thus their verdict should be vacated as well,” says Harder. “If she wins on appeal, her grand prize would be to come back and retry the case before Judge Rakoff and a new jury. Not the ideal scenario. It would not surprise me if Palin throws in the towel at this point.”
It wouldn’t surprise Novack either. “It’s reassuring to see the jury reached the same conclusion as Judge Rakoff,” he says. “I question the conventional wisdom that Palin is sure to appeal.”
Adds Prather, “The jury’s verdict demonstrates that both the facts and law were aligned in protecting the breathing space necessary for media organizations to report on matters of public concern in a manner where they won’t fear retaliation for making honest mistakes that they remedy swiftly.”
Still, how much room for honest mistakes there should be has been at the center of the recent debate about the actual malice standard — which has been in effect since the 1964 U.S. Supreme Court decision in New York Times v. Sullivan. For a public figure to succeed on a defamation claim they must show the defendant made the statement at issue with “knowledge that it was false or with reckless disregard of whether it was false or not.” In July, U.S. Supreme Court justices Clarence Thomas and Neil Gorsuch wrote separate dissenting opinions in a defamation matter that argued the actual malice standard needs to be reviewed.
“Quite a bit has been written about the U.S. Supreme Court possibly revisiting the actual malice standard one day,” says Harder, adding that he doesn’t think Palin v. NYT is the right case to use as a vehicle for that. “The Times’ conduct here seems to have amounted to ‘an honest mistake’ as I think the judge correctly observed, rather than reckless disregard for the truth by clear and convincing evidence. So a case like this is not the best one for a plaintiff to take to the Supreme Court asking for a new standard.”
He also notes that only those two justices seem particularly interested in the subject. “It takes four of nine justices to grant certiorari, and five of nine justices for a majority opinion changing the standard,” says Harder. “I don’t see either of those as a particularly likely scenario — certainly not on the facts in the Palin case.”
Champion expects to see more high-profile cases like this filed against major media companies and, even if most of them are unsuccessful, says they could still have a chilling effect. “The allegedly defamatory aspects of the article were really implied, and sometimes it is hard to see all that is implied in what we write and say until the public begins to consume it, and journalists, editors, and news organizations need leeway in that regard,” she says. “That has never been more true than in our digital age when content is so quickly and widely distributed, but can also be quickly and widely corrected, as the Times did here.”
As for Palin, it remains to be seen if and how she’ll continue this fight. Outside of court after Rakoff’s decision, the former governor said “This is a jury trial and we always appreciate the system. So whatever happened in there usurps the system.” But, following the jury’s verdict, Palin acknowledged she was “disappointed” and hoped there would be an appeal.