https://www.powerlineblog.com/archives/2022/02/judge-tosses-palins-case-allows-jury-to-continue-deliberating.php

Judge Jed Rakoff has ruled that Sarah Palin’s libel suit against the New York Times over a 2017 editorial that falsely said she incited violence against Gabby Giffords and others fails due to lack of evidence that the Times knew what it wrote about her was false or that it acted recklessly in publishing the editorial. Judge Rakoff will allow the jury, which is in its second day of deliberations, to reach a verdict. That way, if he’s reversed on appeal based on the current legal standard for suits against public figures, and the jury finds for Palin, he can enter a verdict in her favor.

I didn’t follow the trial closely enough to know whether Rakoff is correct in concluding that Palin didn’t present evidence sufficient to allow a jury to find that the Times acted illegally under the stringent standard applicable when public figures are sued for defamation. I’m confident, as Rakoff said he is, that Palin will challenge that standard on appeal.

The standard was set by the Supreme Court. Thus, that Court would have to take the case and change the law. Two Justices — Gorsuch and Thomas — have indicated their willingness to revisit the issue, but it will take four to have the Court hear the case and five for Palin to prevail.

I want to make a point about one of Judge Rakoff’s evidentiary rulings. According to this account, Judge Rakoff excluded evidence that the editor responsible for including the defamatory material, James Bennet, is the brother of Sen. Michael Bennet whom Palin attacked when he ran for the Senate.

There might be a sound basis for this evidentiary ruling. I haven’t seen a report of Rakoff’s reasoning.

However, the ruling seems questionable to me. Why isn’t evidence that James Bennet may have had it in for Palin for personal and/or political reasons relevant to the question of malice?

On the witness stand, Bennet explained his mistaken attack on Palin with a shaggy dog story about how he initially looked for an instance in which a liberal politician incited violence but somehow ended up with an instance in which a conservative politician didn’t. Or something.

The jury might believe Bennet’s story. On the other hand, it might believe that Bennet wanted to attack Palin for personal and/or political reasons, and that’s why he didn’t perform the minimal work required to fact check what he wrote. (“Too good to check,” in effect.) Evidence that Palin attacked his brother, if the Times editor knew about this, might cause a jury to believe the second, more culpable story.

I think John has followed this trial more closely than I have. He has tried many more cases than I have. I’d be interested in his views.

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