By Jonathan Stempel
NEW YORK (Reuters) -Sarah Palin and the New York Times are headed back to a courtroom where the former Alaska governor and Republican vice presidential candidate will try convincing a second jury the newspaper defamed her in an editorial about gun control.
A retrial in Palin’s nearly eight-year-old lawsuit is scheduled to begin on Monday in Manhattan federal court.
Palin, 61, who was defeated in her 2008 bid for the nation’s second-highest office, lost her first trial against the Times and former editorial page editor James Bennet in 2022.
But last August, the 2nd U.S. Circuit Court of Appeals in Manhattan found the verdict tainted by several rulings by the presiding judge, and ordered a retrial.
Lawyers for Palin did not immediately respond to requests for comment for this article.
Times spokesman Charlie Stadtlander said Palin’s lawsuit concerned “a passing reference to an event in an editorial” that was not about her.
“That reference was an unintended error, and quickly corrected,” he said. “We’re confident we will prevail.”
The trial comes as polls show Americans increasingly distrustful of mainstream media, as more people get their news from social media and outlets whose views conform to their own.
Juries today may be more willing to “take out their frustration at the failings of the wider media landscape on an individual media defendant that has been sloppy,” said RonNell Andersen Jones, a University of Utah law professor and First Amendment expert.
Palin’s jury will be drawn from portions of New York City and northern suburbs that often vote heavily Democratic, though Republican President Donald Trump fared better in November’s election than in 2020.
‘NERVOUS ABOUT FACING JURORS’
Since Palin’s first trial, several media outlets have faced, and sometimes settled, high-profile defamation cases.
In January, for example, CNN settled with a private security contractor after jurors awarded him $5 million for defamation.
The contractor had claimed that CNN falsely accused him on-air of exploiting Afghans, following the U.S. military’s 2021 withdrawal from Afghanistan.
A month earlier, ABC agreed to pay $15 million to settle with Trump over an on-air assertion that a jury found him civilly liable for raping – rather than assaulting – writer E. Jean Carroll.
“The capitulation in the ABC case and other Trump-related litigation suggests deep-pocketed defendants are nervous about facing jurors anywhere,” said David Logan, dean emeritus of the Roger Williams University School of Law.
Palin has viewed her case as a vehicle to overturn New York Times v. Sullivan, the 1964 Supreme Court landmark requiring public figures alleging defamation to prove media knowingly published false information or recklessly disregarded the truth.
The 2nd Circuit, however, said Palin waived the argument by waiting too long to challenge Sullivan’s “actual malice” standard.
‘AMERICA’S LETHAL POLITICS’
The lawsuit stemmed from a June 14, 2017 editorial, “America’s Lethal Politics,” that wrongly suggested Palin may have incited a January 2011 mass shooting in an Arizona parking lot.
Six people died in the shooting, and Congresswoman Gabrielle Giffords was seriously wounded.
Bennet had added language – he said under deadline pressure – identifying a “clear” link between the shooting and a map from Palin’s political action committee that put Giffords and other Democrats under crosshairs.
While the Times quickly corrected the editorial and apologized, Palin said the reputational harm and mental anguish she suffered justify compensatory and punitive damages.
“The heart of this case is how much freedom the media has to make a mistake, correct it and move on,” said Roy Gutterman, a professor at Syracuse University’s Newhouse School of Public Communications.
In reviving Palin’s case, the 2nd Circuit said U.S. District Judge Jed Rakoff wrongly excluded evidence she offered to show Bennet knew she did not incite the shooting.
It also faulted Rakoff’s excluding evidence about Bennet’s relationship with his brother Michael Bennet, the Democratic senator from Colorado, that Palin said could establish bias.
A retrial before Rakoff is expected to last at least five days. Palin is slated again to testify.
The case is Palin v. New York Times et al, U.S. District Court, Southern District of New York, No. 17-04853.
(Reporting by Jonathan Stempel in New York; editing by Amy Stevens and Marguerita Choy)
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