PALIN V. NEW YORK TIMES: NOTHINGBURGER OF THE YEAR. The dust hasn’t quite settled on the meaning and effect of Judge Rakoff taking the case away from the jury. But having followed the case from its inception there are some deeper issues to be considered. This is not a law review article and I’ll try to keep the jargon to a minimum. I also apologize for the length of this note, but there’s a fair amount of background context that needs to be laid out. That said, the issues fall into two groups: first, the potential endgame of this case; and second (and far more importantly), the implications about media and the way they treat the public in general.

As for the case itself, in short, it revolved around an editorial that regurgitated the “conventional wisdom” that Palin’s infamous “crosshair map” impelled lunatic Jared Laughner to shoot Representative Giffords. Unfortunately for the Times, they had previously published a news article that clearly exonerated Palin from any vicarious liability. In editing and fact-checking the editorial however, the Times staff purportedly looked only at previous editorials and not news articles. So the theme for Palin was “don’t you people even read your own paper?” That’s not a bad question.

There were a few oddities in the judge’s handling of the case. I’ve litigated before Judge Rakoff and found him to be highly intelligent and virtuously unbiased. Nonetheless, during the Motion to Dismiss phase (in which the judge is required under Rule 12(b)6 to review only the motion papers), Rakoff decided nonetheless to hold an evidentiary hearing. This was appealed and the usually press-friendly Second Circuit pointed out the error in holding such a hearing and sent the case back to Rakoff. After discovery had been completed Rakoff held that there was “a genuine issue of triable fact” appropriate for a jury to decide. Then things got weird: While the jury deliberated, Rakoff announced publicly that he would grant “JNOV” to the Times, meaning that under Rule 50, a reasonable jury would “not have a legally sufficient evidentiary basis to find for the party”.

What does this mean for the endgame of the case? It seems to me that Rakoff handed Palin a serious appealable issue on a silver platter. The un-sequestered jury had learned about Rakoff’s decision prior to their finding for the Times. It seems to me that it’s not unreasonable to assume that jurors either took that as an implicit instruction or were subliminally influenced by Rakoff’s decision.

Here’s where it gets kind of interesting (at least to constitutional law geeks). Normally a jury finding is almost sacrosanct in appeals, and jury findings will not be overturned unless there is a showing of “manifest injustice.” Not so for First Amendment cases. Federal courts exercise “independent appellate review” and essentially look at every aspect of the case (called “de novo” review). Although the Times initially denied that the editorial made a defamatory assertion, they were rightly able to argue that as a public figure, Palin had to prove more than bumbling idiocy on the part of the Times, but that they published it with knowing falsity. On those grounds, it’s highly unlikely that the Second Circuit would reverse the finding. More problematic for the Times is whether or not Rakoff’s announcement so contaminated the jury deliberations as to warrant a mistrial. This all remains to be seen.

The implications outside of the case are far more serious in my mind. To begin with, it appears to me that the Times’ “victory” will only calcify the media’s terrible and repetitive habit of jumping to erroneous and often defamatory conclusions. We saw CNN settle the lawsuit brought by “the Covington kid” after they lost a Motion to Dismiss pleading that their broadcasts were not defamatory statements of fact but “mere opinion.” Even today the “ready, shoot, aim” habit again reared its ugly head.

The Las Vegas Sun today published an editorial decrying “increasingly violent rhetoric coming from extremist Republicans” in connection with the attempted assassination of Louisville, KY mayoral candidate Democrat Craig Greenberg. This was after it was revealed that the alleged shooter, Quintez Brown was not only a former Louisville Courier columnist specializing in race issues but was a self-described Black Lives Matter activist. Underscoring that fact is the revelation that Brown’s $100,000 bail was paid by the BLM-aligned Louisville Community Bail Fund, who states on their fundraising page that:

“To build transformative communities, we must perform transformative acts of liberation. Cash bail is one of the aspects of the criminal justice system that keeps communities wrapped up in systemic slavery and in debt.”

A Daily Caller headline summed up the media’s knee-jerk reaction perfectly: “Former Biden Campaign Staffer Tried To Blame Attempted Assassination On ‘Right Wing Rhetoric,’ But Suspect Is Left-Wing Activist.” That article pointed out that “Brown is an anti-capitalist activist who praised Che Guevara and Mao Tse-Tung in a post on Twitter.” The odds are pretty darned good that no amount of “violent rhetoric coming from extremist Republicans” would convince Brown or his cohorts to do anything, let alone take a shot at a political candidate.

Sadly, there are no winners here except for the law firms. The Times’ “victory” exposed a high degree of untrustworthiness, if not ineptitude. (Fortunately for the Times, ineptitude is not tantamount to actual malice). In addition, Palin was reportedly a terrible witness, according to observers, and her claims of emotional damage were empty and unconvincing.

The biggest losers – again – are the media who are already suffering an all-time low in public trust, and the readers who look into these publications for truth in reporting.