Justice
Sarah Palin and the N.Y. Times are in court again. Here's why
By Scott Nover The Washington Post
Published April 18, 2025
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Sarah Palin has returned to a Lower Manhattan courtroom this week, determined to prove that the New York Times defamed her in a 2017 editorial that suggested a link between a map published by her political action committee and the 2011 shooting of former Democratic congresswoman Gabrielle Giffords.
If this squabble sounds familiar, it's because it happened before - same judge and same courtroom, too.
In 2022, a jury in federal district court found that the Times and its former opinion editor, James Bennet, were not liable for defamation against Palin, the former Alaska governor and 2008 Republican Party nominee for vice president. But the New York-based U.S. Court of Appeals for the 2nd Circuit found in 2024 that there were several missteps in the original trial that could have influenced the outcome in the Times's favor - most notably finding that U.S. District Judge Jed S. Rakoff sullied the jury's verdict by improperly tipping his hand.
With the jury out of earshot, Rakoff told the courtroom that he would dismiss the case against the Times regardless of the jury's decision because he did not think Palin's lawyers demonstrated that the newspaper acted with "actual malice," the traditionally hard-to-achieve standard for demonstrating a public official has been defamed. Knowing the chance of an appeal was likely, Rakoff said he wanted future courts to have both his opinion and the jury's to consider.
Despite the judge's strict instructions to the jury to avoid any news about the case, several jurors told Rakoff's clerks that they inadvertently learned about his decision through push notifications sent out by news organizations - including the Times - covering the high-profile trial.
"The jury is sacrosanct in our legal system, and we have a duty to protect its constitutional role, both by ensuring that the jury's role is not usurped by judges and by making certain that juries are provided with relevant proffered evidence and properly instructed on the law," a three-judge panel on the 2nd Circuit wrote in ordering a retrial at the district court.
The new trial, which is expected to last up to two weeks, began with jury selection on Monday and opening arguments on Tuesday. While little has changed about the case, the result could still be different this time.
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Once again, Palin's lawyers will have to demonstrate that the Times acted with "actual malice," a legal standard set in the landmark 1964 Supreme Court decision in New York Times Co. v. Sullivan. The Sullivan decision, which has become a target of anti-media attacks in recent years, established that high-profile defamation plaintiffs, such as public officials and celebrities, need to show that the speaker in question knew that what they were saying was false and acted with "reckless disregard" for the truth. Lesser-known individuals have a lower bar; they merely need to show that a statement was false and the speaker acted negligently - not with actual malice.
This standard is critically important for journalists who cover those in the public eye.
"Defamation litigation brought by politicians and public figures can be brought against journalists and media outlets across the spectrum of public and political opinion on any conceivable topic," said Lisa Zycherman, vice president of legal programming at the Reporters Committee for Freedom of the Press. "The protections of that standard remains vital - no matter who's in office, no matter what the politics of a particular era happen to be. Reporters continue to need that standard to protect free and open public debate."
Palin's lawyers asserted in court Tuesday that the Times acted in a "sickeningly familiar pattern" - appropriating a line from the original editorial in question - in targeting Palin and other Republican politicians. A lawyer for Palin did not respond to a request for comment.
In defending its editorial practices, the Times has maintained that it acted professionally and without ill intent, correcting an error in a timely manner.
"We are deeply committed to the fairness and accuracy of all our journalism," Charlie Stadtlander, a Times spokesperson, said in a statement. "Our standards are among the strictest of any news organization. This case revolves around a passing reference to an event in an editorial that was not about Sarah Palin. That reference contained an unintended error that was corrected within 18 hours. We're confident we will prevail and intend to vigorously defend the case."
• What's changed since last time?
The appeals court ordered a redo of the original trial, so the facts at the center of the dispute - now eight years old - remain somewhat unchanged. However, the appeals court also found that Rakoff improperly excluded some evidence, clearing the way for Palin to introduce evidence that was not permitted to be presented to the jury last time. That evidence pertains to Bennet's previous stint as the editor of the Atlantic magazine and his familial connection to national partisan politics: His brother is Sen. Michael Bennet (D-Colorado).
But the other variables are time - of which much has elapsed - and the jury.
A different jury in a retrial can certainly elicit a different result, even if the facts of the case are the same and the performances of the lawyers are similar in nature. Some media law experts and press freedom advocates say the political environment has changed enough that the New York jury could be more sympathetic toward Palin's claims this time.
"The general unpopularity of the media serves as a backdrop to defamation suits of this type," said Lyrissa Lidsky, who teaches First Amendment and media law at the University of Florida Levin College of Law. "General public suspicion about whether the media really tried to get the facts right affects potentially how credible they view individual testimony, how sympathetic they are toward individual plaintiffs."
The retrial comes as President Donald Trump has ramped up his attacks on the news media. The White House is engaged in a legal battle with the Associated Press after denying its journalists access to cover certain events. Additionally, the government is also in court defending Trump's effort to dismantle Voice of America, and Trump has urged the Federal Communications Commission to investigate CBS over its editorial decisions. Trump has personally levied defamation suits against ABC News, which he settled for $15 million, and CBS News, which NPR reports is likely to settle, as well.
"The public has been conditioned to tolerate things that it previously wouldn't tolerate," said Seth Stern, director of advocacy at Freedom of the Press Foundation. "A president who is regularly filing SLAPPs [an acronym for "strategic lawsuits against public participation"], barring outlets he disfavors from events that normally the press would be able to cover, a president who has weaponized the Federal Communications Commission against his critics."
• What's at stake for the press?
In the intervening years between trials, there have been notable defamation decisions and eye-popping settlements.
In January, CNN settled with a Navy veteran named Zachary Young after a jury found the network was liable for defaming him. CNN was ordered to pay $5 million in compensatory damages but settled punitive damages out of court. Young argued in court that he and his business suffered as a result of a 2021 segment on the high costs of evacuating Afghans out of Afghanistan after the Taliban took over.
In February, NBC Universal, which owns NBC News and MSNBC, settled a defamation suit for an undisclosed sum with a Georgia gynecologist named Mahendra Amin, whom a whistleblower called a "uterus collector." The network's journalists alleged that Amin performed hysterectomies on female detainees at an Immigration and Customs Enforcement facility, but before the settlement, U.S. District Judge Lisa Godbey Wood found that Amin performed only two such operations.
And most notably, there has been a deluge of settlements between right-wing media organizations and the voting machine companies Dominion Voting Systems and Smartmatic: Fox News paid a staggering $787.5 million in 2023 to Dominion Voting Systems after making unsubstantiated claims that it helped rig the 2020 presidential election.
Fox may go to trial to face similar claims from Smartmatic, which has already settled charges from Newsmax and One America News over the claims. And a Delaware judge last week found that Newsmax made defamatory statements about Dominion ahead of a potential trial.
While there has been a concerted effort by conservatives such as billionaire casino mogul Steve Wynn to get the Supreme Court to revisit and overturn Sullivan, there are less ambitious goals for plaintiffs, including Palin.
"She's been embroiled in this for eight years. It's not necessarily unusual for a libel plaintiff to persist in the face of obstacles over a period of many years," Lidsky said. "And the reason is that a libel plaintiff often feels a great sense of wrong. They want vindication from having been wronged, and so they're willing to persist - where if it were just about the money, they might stop."
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