The Volokh Conspiracy

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Should Sarah Palin's Masked Singer Appearance Be Admissible in Her Libel Trial Against the N.Y. Times?


The N.Y. Times' proposed trial exhibits include:

81   3/11/2020   Masked Singer Video - Reveal

Inadmissible, say Palin's lawyers, saying they "will be asserting objections on January 17, 2022" to this document (and many others). From the N.Y. Daily News (Noah Goldberg):

The former Republican candidate for vice president has asked a judge to keep her shocking March 2020 reveal as a contestant on "The Masked Singer" from jurors who will render a verdict in her defamation trial against The New York Times.

Footage of Palin singing "Baby Got Back" by Sir Mix-a-Lot while wearing a blue-and-pink fuzzy bear costume should not be shown to the jury because it would cause "unfair prejudice and confusion," lawyers for the former Alaska governor argued in a Manhattan Federal Court filing Monday.

"The bear is part of my nickname growing up, and the whole mama bear thing," Palin explained on the show after taking off her mask.

It will be interesting to see what the Times' theory of relevance here is; but the story just struck me as so outré that I had to note it. Thanks to the Media Law Resource Center MediaLawDaily for the pointer.

NEXT: #MeToo/#TheyLied Among the Communists / “Anti-Fascists” / Left Anarchists: This Time About Personal Jurisdiction

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  1. How is this of probative value?

    1. I guess it depends exactly what the NYT wrote that Palin is claiming to be libelous.

      1. The Times falsely claimed that Palin incited the Gabby Giffords shooting by publishing a map with several congressional districts, including Giffords', under stylized crosshairs. The crosshairs indicated that these districted should be electorally targeted by Republicans.

    2. It probably it has to do with whether and to what degree her reputation was damaged by the alleged libel.

      If you're the NYT you're going to point out that she was recruited to be a contestant on an very popular prime-time game show airing on a major network. It suggests a lack of harm to Palin's reputation.

      1. I am not sure I see how it is probative on the reputation issue one way or the other. Couldn't Palin just as easily say that she was reduced from Governor and VP candidate to having to dance in a bear suit on TV in order to put food on the table?

        And that doesn't even get to the issue of whether the parties could simply stipulate to the facts of the appearance.

        1. Remember that the judge and jury have different roles to play here.

          The judge decides whether the evidence comes in, the jury decides what the evidence (all the evidence that comes in) means.

          Palin could definitely respond that the video actually shows reputational harm to her. But that argument presupposes the video has probative value. Parties disagree all the time about what meaning to take from a particular piece of evidence; that disagreement doesn't mean the evidence is irrelevant.

          If the judge excludes this, it will be on rule 403 grounds (unfair prejudice or confusion) not relevance grounds.

      2. Then the probative value would seem to be in the contract that recruited her as a contestant, not the video itself.

  2. Pity she wasn't wearing a Chewbacca costume.

  3. "Palin sued the newspaper in 2017, claiming that an editorial, 'America’s Lethal Politics,' defamed her by linking ads from her political action committee to the 2011 shooting of Rep. Gabrielle Giffords (D-Ariz.)."

    The fact that she sang rap lyrics while wearing a bear costome showed that she had a predisposition to violence? What theory of relevance are they going with?

    1. I'd love to give the NYT the benefit of the doubt, just to break out of the Punch-and-Judy routine and say something nice about progressives - in this situation, though, I'm just not seeing it.

      1. OK, thanks to other commenters, I see the NYT's point about relevance. I also see how Palin could turn that evidence around for the jury, but that's not a relevance question.

  4. To show that she hasn’t suffered any reputational damage based on the false statements.

    I would think that would be obvious.

    1. It is obvious (not that the NYT is right, just the reason the NYT is trying to admit it into evidence).

      Either EV has been in the ivory tower a bit too long or he's being obtuse.

      1. I'll ask both of you in the "obviously relevant" camp, since I don't practice in federal court: isn't it also obviously "prejudicial or confusing," when the relevant fact(s) could come in through a series of no more than about 4 questions to any of several witnesses?

        Relatedly, in state court "probative value vs. prejudicial effect" rulings are extremely judge-dependent; fair to assume they are in federal court as well, or are there a number of bright line rules the Courts of Appeal have carved out over the years?

        1. Neither of us said it was obviously relevant. We said it was obvious what the NYT’s theory of admissibility is, not that it was a winning argument. Goat expressly disclaimed opining on whether the theory would be accepted.

        2. I am not aware of a bright line rule to apply to the Rule 403 analysis. It's an inherently fact- and case-specific analysis, which is why it's left to the judge's discretion.

          The rule 403 test is whether the probative value is SUBTANTIALLY outweighed by the risk of, among other things, UNFAIR prejudice (because all evidence is prejudicial to one side or other) and confusion to the jury.

          I don't know much about the case, but intuitively the unfair prejudice argument seems like a stretch to me. What is unfairly prejudicial about showing the Plaintiff on a game show? I just don't see it. Confusion seems like the better angle to me.

    2. How does showing a former VP candidate singing and dancing in a bear costume show that she hasn't suffered any reputational damage?

      1. "If you're recruited by a major network to be on its flagship prime time game show, how damaged can your reputation really be?"

        That argument may not be persuasive to a hypothetical juror, but it certainly meets the relevance test.

        1. So stipulate that she was recruited and move on. Or allow one question to one witness. No one's disputing the fact. Showing the footage is irrelevant.

          1. You don't get to just stipulate away evidence you don't like to soften its impact.

            The evidence is plainly relevant under the FRE. The real issue is whether its its probative value is substantially outweighed by the risk of unfair prejudice or confusion.

            I don't think unfair prejudice is persuasive on this issue; confusion is probably the best argument.

            1. Actually, in a criminal case, you may be able to stipulate away unfavorable evidence.

              If the only relevance is that she was hired to wear a bear suit, then I fail to see how watching the whole video is relevant.

              1. I am thinking about Old Chief v. United States - 519 U.S. 172, 117 S. Ct. 644 (1997). But concededly, that is a criminal, not civil case, and most courts read it narrowly. But it does stand for the proposition that if a defendant offers to stipulate to certain facts to keep prejudicial evidence out, that Rule 403 may well require exclusion of the evidence if the stipulation satsifies the same evidentiary value.

                1. Good point, I should have been clearer that while there are some circumstances where you can stipulate away prejudicial evidence, those are the exception.

                  There are lots of good reasons to allow parties to present admissible evidence in the manner that party chooses, even when the opposing party would prefer to stipulate away that evidence.

        2. "If you're recruited by a major network to be on its flagship prime time game show, how damaged can your reputation really be?"

          I haven't watched that show, so I don't know the history of who fills the goofy suit each week. The few teasers I have paid attention to, led me to believe the person was a defunct B or C lister celebrity.
          I am perfectly willing to be corrected. This is not in my wheel house.
          I guess my point being, some may see the invitation as the epitome of reputational rock bottom. (Gary Busey?)

          1. It's a fair point.

            I could definitely see this video backfiring for NYT. Palin say "Before this op-ed I was a heartbeat away from the Oval Office. After the op-ed I was a dancing bear costume."

            1. I have to agree. Playing a masked costume is a common comedy trope to show how low a character has fallen (most notably, Blades of Glory had Will Ferrell's character reduced to a costumed character on an ice show to show his rock bottom after previously winning an Olympic Gold). You can easily twist this into a narrative.

              But from my perspective, it seem like the New York Times is trying a "throw everything at the wall and see what sticks" tactic.

              1. Presumbly ABC/Disney wouldn't have touched her with a 39 1/2 foot pole had she been tied to causing the shooting in anything but the fevered dreams of hopeless partisans.

              2. And on top of that, it's a competition she had no hope of actually winning, or even placing highly in. She was there as little more than comic relief

              3. Eh, juries are finicky creatures, who knows what they'll find determinative.

          2. It's the modern Love Boat.

        3. That argument is BS.

          The problem with it is that shows like that generally tend to run with has-beens trying to make a comeback, not A-list celebrities. A lot of the "Stars" on Dancing with the Stars fall into that as well.

      2. I guess it could be seen as relevant since she was able to obtain high-profile media appearances after the allegedly defamatory editorial ran.

        But it sure seems like the Dancing Bear video is ripe grist for the Rule 403 mill. The fact of her appearance on Masked Singer could be established by testimony or other means.

        And if the NYT simply wanted to show that she retained her celebrity status, surely it could introduce clips of other, less obviously flamboyant media appearances.

    3. "To show that she hasn’t suffered any reputational damage based on the false statements. "

      She used to be a significant political force, now she sings a song in a bear suit.

      Its not Meet the Press.

      1. Perfectly fair point. That's for the jury to decide though. It doesn't go to admissibility.

      2. "Its not Meet the Press."

        Depends on the day.

  5. Could it be that the NYT's relevancy argument is along the lines of "she was a halfwit before John McCain had his moment of temporary insanity, she was a halfwit during the campaign, and her behavior since then -- including her tenure as a singing bear -- proves that she's still a halfwit?"

    1. Except the libel here is that she called for the assassination of a Congresswoman. The level of her wit is irrelevant. There are lots of halfwits who know enough not to do that.

    2. "halfwit"

      She still has 100% more wit than you.

  6. My take is that it is inadmissible because it is unduly prejudicial because it might easily ridicule her in the eyes of jurors to the point that they would not rule in her favor regardless of the merits.

  7. I disagree with the lawyers' strategic thinking. If I were a juror on the case, and I were shown the video, it would make me MORE inclined to find FOR Sarah Palin, regardless of any other consideration.

    1. It would incline me to rule against whichever side made me watch it.

      1. Maybe it's entertaining. God knows a libel trial (or any trial) is not the height of entertainment. Might insert a bit of fun into the proceedings.

  8. Perhaps the Times’ lawyers want to imply that Gov. Palin is a closet Furry. Apparently the Times is prejudiced against Furries.

  9. Has the identify of the person(s) who persuaded Sen. McCain to choose the dimwitted hayseed with a trainwreck family?

    1. Maybe the same person who recommended Kamala Harris.

      1. Harris is intelligent and accomplished. Look at her resume and her answers to real questions as opposed to Palin’s.

  10. I have to say, as scandals go, simging “Bany Got Back” while wearing a pink and blue fuzzy bear costume doesn’t strike as anywhere close to the most outrageous thing an American politician has done in recent years. I don’t really see why it would be any more especially damaging to her reputation than, say, Bill Clinton trying to play saxophone (and nowhere close to that other well-known scandal of Bill’s.)

    That said, I suspect the NYTs would be hard-pressed with a reason to justify relevance.

  11. I think the reality is that her star began to set pretty much right after McCain lost the 2008 race, and part of that is that she and her family could have been a reality TV show (the Wasilla Hillbillies?). Every time she opened her mouth she stuck her foot in it. If not for the serendipitous good fortune of McCain picking her, she would have finished out her term as an obscure governor and never been heard from again.

    The legalities are that the NYT article probably did cause reputational damage and probably wasn't entirely fair. But face facts: she had such an abysmal performance in 2008 that her chances of remaining a political player are about the same as my chances of being elected pope, and I'm not even Catholic.

    1. Even if all that is true, claiming she called for a Congresswoman's assassination is beyond the pale. How much economic damages she suffered because of that, I don't know, but she is certainly entitled to some significant damages, even punitives. There is a big leap between a hick and someone who calls for assassination.

      1. Would expressing the opinion that the particular graphic on Palin's site encouraged violence be libel? I mean they might be wrong that the graphic had that effect, but is expressing a wrong opinion libelous? Not that this question has anything to do with the relevance of the video.

      2. Ehhhh the graphic was reprehensible. It talked about diagnosing the problem, asks the audience to "prescribe the solution" and shows crosshairs on a map. It may not be an overt call for an assassination, but it used the visual and written vocabulary of eliminationism. It's not beyond the pale to accuse her of advocating for assassination.

        That said, expressly tying her to a specific assassination attempt without any evidence that she was connected to it is still libelous.

    2. Her performance in 2008 was far from abysmal; on the contrary, she was the only factor that turned a disastrous landslide into a respectable loss.

  12. I think it is obvious what the NYT is trying to do here. Deflect blame for their lousy reporting. It is a classic "these are not the droids you are looking for" move in that they want the jury to laugh at a funny thing and then think that Palin isn't serious enough to warrant consideration of her claims.

    1. All the news that's fit to print, and some that isn't.

    2. Not being serious enough seems quite material to defamation damages.

      1. Depends on her theory of damages. If she is claiming that she is having a hard time getting work, then yes. If she is just complaining that she was branded an accessory to attempted murder, then no.

        1. Sure, you can get per se, but what's the theory of damages?

      2. Obviously participating in a show that is nationally televised, one time, where the entire plot is to dress up as a masked singer and people guess your identity throughout the process totally means that person is not serious about anything in life. Give me a break Sarc. Do you seriously believe what you typed up there?

        1. Evidence does not mean determinative, it just means probative.

          This is probative of that theory.

          This is what the law is, not some opinion I have.

          1. Ok so you are not serious. Got it.

            1. This may not be the only evidence Sarah Palin is not serious. You don't need to make your case with each exhibit.

              Does that explain to you better why you're wrong?

    3. If I were Sarah Palin’s lawyers, I’m not sure I would want to exclude it. To high-handed an attempt to make her look rediculous, to suggest that if she’s down on her political luck we can assassinate her character and get away with anything, could backfire on a jury and attract sympathy for her and anger at the NYT.

      Everybody’s done something silly sometime in their life. Too high-handed an attempt to embarass her coild work in her favor.

      I’m not exactly a big political fan of Sarah Palin either.

      1. You might be right. "We presented all this evidence that they maliciously libeled her… and their rebuttal was so weak that they were reduced to pointing to an episode of the Masked Singer."

  13. 8 YEARS AFTER it was thoroughly refuted by all reasonable people and news sources that Palin's ad had any role in the attack on Gabby Gifford, a major newspaper publishes that charge against her. In shame they should apologize for being stupid and ignorant. And they should offer her an abject apology and reasonable compensation.

    1. But, you see, it wasn't the Times' fault, it was this one guy who happened to write that editorial.

  14. How to judge Sarah Palin's reputation?

    By her education and achievements (family, business, etc.)?

    By the arrest-to-gainful employment ratio of her family? By the unplanned pregnancy-to-graduation ratio of her children?

    By the number of reality show appearances (which appear to be the Palin's family principal source of income)?

    By the contrast between her ostensible religious values and the flaming shitstorm that is her hillbilly family?

    By her illiteracy, or her claim that she reads 'all the newspapers?'

    I'm not saying Sarah Palin is dumb, but . . .

    1. I’m hardly a fan of Sarah Palin. But there’s a big difference between inept or mediocre as a politician and supporting attempted murder. Just because she was an embarassment to the McCain campaign as a candidate for Vice President doesn’t mean that the NYT gets to say anything about her it wants. Reputation for honesty, freedom from serious crime, is an important part of character. Not everybody can be a genius. But even mediocre people are entitled to have their reputations not assassinated.

      I don’t know who’s right in the dispute. But if her allegations are true, she is absolutely entitled to danages and it doesn’t matter whether you or I think her a good politician or not.

  15. I'm reading Louis Nizer's book My Life in Court. The first part of the book deals with the Westbrook Pegler libel trial. Back in the day, when you got libeled, you got 80 proof libeled.
    These guys are pikers.

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