Former Alaska Governor and Vice Presidential candidate Sarah Palin recently lost the trial of her defamation case against The New York Times. Given the complexity of the legal issues and the unusual events at trial, a messy appeal is sure to follow. But if the appellate courts can see past the procedural novelties, Palin’s case could become a vehicle for revisiting the seminal case of New York Times v. Sullivan.

Palin’s case arises out of a tragic mass shooting in Tucson, Arizona in 2011. The shooter, Jared Lee Loughner, killed six people and injured 13 more, including Congresswoman Gabby Giffords. A few hours after the incident, Times columnist Paul Krugman speculated that Loughner had acted on political motives and specifically linked the shooting to Palin, whose fundraising PAC had “targeted” certain vulnerable Democratic House members, including Giffords, with “crosshairs” on a website graphic. Of course, the use of “crosshairs” in campaign rhetoric was not unusual and, in fact, was used in the same time period by various Democratic organizations. And Krugman’s speculation was later disproved. The subsequent investigation showed that Loughner was severely mentally ill and had no apparent political motive.

Despite this, in June 2017 when mass shooter James Hodgkinson opened fire on a group Republican Congressmen practicing for the annual congressional softball game, the Times ran an editorial entitled “America’s Lethal Politics” that referenced the Tucson shooting. The editorial stated that in the case of the Tucson shooting “the link to political incitement was clear” and again blamed Palin’s “crosshairs” graphic. Remarkably, on the very same day the paper’s news section reported—correctly—that no link to the Palin “crosshairs” graphic existed. The next day, the paper ran a correction stating that the original editorial had “incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established.”

At first blush, this would seem like a text book case of defamation—even under New York Times v. Sullivan, which requires a public figure like Palin to prove that a defamatory publication was made with “actual malice,” i.e., “reckless disregard of the truth.” What could be more “reckless” than an editorial board writing that a link “was clear” on the same day that the news section of the same paper correctly reports that no link existed?

But Sullivan’s progeny later established that “reckless disregard of the truth” has nothing to do with traditional notions of recklessness. In St. Amant v. Thompson, the Supreme Court explained that proof that a defamatory article was published “recklessly, though not knowingly” is not sufficient to prove actual malice. Rather, the evidence must show that the defendant had “an awareness…of the probably falsity” of the publication. Later, in Gertz v. Robert Welch, Inc., the Court defined “reckless disregard of the truth” to mean “subjective awareness of probable falsity.”

At trial in the Palin case, the Times argued that its editors, though ignorant of the paper’s own reporting on the issue, did not subjectively believe their erroneous claim about Palin to be false when the editorial was published. In support of that argument, the Times produced email evidence showing that the editors were alerted to the erroneous claim that evening and quickly published the correction the next day once they realized their error.

If that were the end of the story, Palin’s case might “just” be an interesting opportunity for the Supreme Court to revisit the Sullivan precedent as a whole, or rethink the subjective test of actual malice set forth in St. Amant and Gertz. Some Justices are clearly looking for such an opportunity, as evidenced by recent dissents from Justices Thomas and Gorsuch calling on the Court to revisit the Sullivan line of cases. (One of the authors of this article has been a long-time critic of Sullivan—beating Justices Thomas and Gorsuch to the punch by more than two decades.) It is difficult to imagine a better test case than the editors of the “paper of record” being shielded from liability by claiming ignorance of their publication’s own news reporting on an issue.

But then things got weird. While the jury was deliberating, the District Court Judge announced in open court that he believed Palin had failed to produce sufficient evidence of actual malice, and, for that reason, would grant judgment in the Times’s favor notwithstanding whatever verdict the jury reached. The judge allowed the jury to continue to deliberate, however, because he felt that the jury’s verdict would “greatly benefit” the court that hears the inevitable appeal.

The following day, the jury returned a verdict for the Times. Then, a day later, the court revealed in a public filing that members of the jury had learned about his decision to dismiss the case while they were deliberating. The jurors had abided by the court’s admonition that they avoid news reports about the trial, but some of them learned of the court’s decision through push notifications on their mobile phones. The jurors reported, however, that knowledge of the court’s decision had played no role in their verdict.

So what began as an appeal about First Amendment and defamation law has likely morphed into something very different. Palin’s lawyers will surely argue that the push notifications tainted the jury’s deliberations—and that argument is cogent. Many jurisdictions have a standard civil jury instruction advising that the judge has not expressed a view on the facts of the case, and if the jury thinks the judge has done so, they should disregard whatever they think those views are. Here, it is undeniable that the jurors knew exactly what the judge’s view of the case was because it popped up on their phones while they were deliberating. The jurors may have claimed (according to the court) that the push notifications did not influence their verdict, but trial practice is premised on an undeniable tenant of human psychology: some things are just too prejudicial to un-hear.

It will be up to the Second Circuit Court of Appeals to sort through this mess of issues in the first instance. But don’t be surprised if someday Palin v. New York Times is taught right after New York Times v. Sullivan in Constitutional Law classes.

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