The Second Circuit Revives Sarah Palin’s Defamation Suit Against The New York Times

The Second Circuit Court of Appeals has once again revived Sarah Palin’s longstanding defamation suit against The New York Times.

The Second Circuit’s opinion highlights important procedural and substantive issues in defamation actions involving public figures, particularly in the current polarized media environment.

Palin’s lawsuit, which we previously wrote about here, relates to a 2017 Times editorial that incorrectly linked a political ad from the 2008 Republican vice presidential candidate and former governor of Alaska to a 2011 mass shooting in Arizona that killed six people and injured 13 more, including Congresswoman Gabby Giffords. After an initial dismissal that was reversed on appeal, Palin’s case proceeded to trial in February 2022.

During jury deliberations, 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 favor of the Times. However, the judge allowed the jury to continue deliberations and the jury subsequently returned a verdict for the Times. The court later revealed in a public filing that members of the jury had learned about the judge’s decision to dismiss the case during deliberations after receiving push notifications on their smartphones. This unusual procedural sequence, compounded by errors during the trial, led the Second Circuit to vacate the judgment and order a retrial, which is scheduled to begin on April 14, 2025.

The Second Circuit found that the “district court’s Rule 50 ruling improperly intruded on the province of the jury by making credibility determinations, weighing evidence, and ignoring facts or inferences that a reasonable juror could plausibly have found to support Palin’s case.” The appellate panel also identified “several major issues at trial,” including the erroneous exclusion of critical evidence, inaccurate jury instructions regarding defamatory malice, a legally erroneous response to a mid-deliberation jury question, and jurors receiving push notifications on their smartphones about the district court’s Rule 50 ruling in favor of the Times during deliberations. The Second Circuit held that these errors impugned the reliability of the jury’s verdict and warranted a retrial.

Although Palin ultimately succeeded on appeal, Palin’s broader efforts to have the Supreme Court revisit the “actual malice” requirement set by New York Times v. Sullivan may have hit a dead end. Public-figure defamation plaintiffs need to prove actual malice, which requires showing that an allegedly defamatory statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Sullivan, 376 U.S. at 280. 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 probable 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.”

On appeal, Palin argued that “the actual malice standard is either no longer good law or should not apply to her case.” The Second Circuit rejected these arguments as barred by the “law of the case” doctrine because they were ripe for review at the time of Palin’s initial appeal but were not raised. Additionally, Palin challenged the district court’s ruling that, regardless of the First Amendment, she was required to prove actual malice as an element of her claim under New York’s amended Anti-SLAPP law, N.Y. Civil Rights Law § 76-a. The November 2020 amendment to New York’s Anti-SLAPP law imposes an actual malice fault standard in any action concerning the “exercise of the constitutional right of free speech in connection with an issue of public interest.” However, “because the First Amendment and New York’s amended Anti-SLAPP Statute share the same substantive requirement (that a public-figure defamation plaintiff must prove actual malice by clear and convincing evidence),” the Second Circuit stated, “we need not decide—and do not decide—whether the Anti-SLAPP Statute’s amendment applies retroactively.”

The Second Circuit’s decision to defer ruling on this issue is significant. The retroactive application of New York’s amended Anti-SLAPP statute effectively insulates Palin’s case from a future challenge to the current First Amendment standard because the outcome of the new trial will presumably rest independently on both federal law and New York State statutory law. While Palin’s case has reignited debates about Sullivan’s actual malice standard, it is unlikely that her case will provide the vehicle for the United States Supreme Court to revisit this line of precedent.