Judge Rakoff's Opinion in Palin v. N.Y. Times Co.

Here's the introduction (the whole opinion is 68 pages long):

At trial, plaintiff Sarah Palin wholly failed to prove her case even to the minimum standard required by law. Accordingly, defendants the New York Times Company (the "Times") and James Bennet moved to dismiss the case prior to the start of jury deliberations. After hearing extensive argument, the Court granted the motion shortly after the jury had begun its deliberations. This Opinion sets forth the reasons for that decision, as well as the reasons for how the Court then dealt with the deliberating jury.

Comments

[Sidney r finkel]

Sarah Palin may be one of those few individuals in the universe who cannot be libeled, just not possible.

But on the serious side, one should expect this case, or one in which the plaintiff was actually libeled to go to the Supreme Court, which given its current makeup will rule for the defendent, provided of course the defendent is a conservative Republican.

[DaivdBehar]

By a statute, NY Times should be reversed. It should be replaced by deviation from professional standards described in the Journalism Code of Ethics. One of its tenets is to get both sides of a story. The fequent remark, could not be reached by press time, should result in liability per se.

https://www.spj.org/ethicscode.asp

[CJColucci]

There are many respectable arguments against the Sullivan rule, but it is a rule, possibly mistaken, of constitutional law and, therefore, cannot be reversed by a statute.

[DaivdBehar]

Sorry CJ. Find the text in the constution that it preserves. Sullivan is just made up shit by scumbag lawyers. Not a single utterance by the Supreme Court scumbags has the slightest validity save for enforcement by men with guns.

[CJColucci]

Whether Sullivan is “made up shit” or not, it is a ruling — possibly wrong — on the meaning of the Constitution. Therefore, it cannot be reversed by statute, only by a different bunch of Supreme Court Justices making different shit up. That’s how it works. I know you don’t like it, but nobody consulted you — probably for excellent reasons.

[DaivdBehar]

I threaten the rent of the lawyer scumbag profession. The Supreme Court made up shit is a rule, enacted by unqualified, unelected little tyrant lawyer bitches. Article I Section 1 gives all lawmaking power to Congress. “All” is a first grade vocabulary word, and easy to understand. Stop supporting lawlessness. Your comment suggests insurrection against the constitution. You want rules from unelected, dumbass, Ivy indoctrinated scumbags? Go amend the constitution.

[OtisAH]

You don’t threaten shit. You’re crank and a loser with a heavy ax to grind probably due to losing a divorce, child custody, and/or maybe a competency hearing.

[MoreCurious]

As children, many of us were traumatized by things like monsters under the bed and ghosts in the closet. We usually grow up and overcome those fears by the time we reach our teenage years. Poor David seems to have had a nasty encounter with a lawyer somewhere along the way in his seemingly pathetic life. What he doesn’t seem to understand is that no one cares. Your ceaseless, immature diatribes are tedious, David, but that doesn’t make them interesting to anyone.

[Krychek_2]

“One of its tenets is to get both sides of a story.”

Yes and no. If a newspaper is doing a story on the civil rights movement, I don’t think it’s obligated to track down a Klansman for comment. Nor do I think it needs to interview a young earth creationist if it’s doing a story on recent findings in biology. Some stories only have one side. And pretending that, i.e., a young earth creationist occupies equal footing with a Harvard biologist for purposes of writing a biology story is every bit as much bad reporting as what happened here.

[DaivdBehar]

The article would be more ethical and more professional, according to the professional society, not according to me.

[iowatwo]

equal footing with a Harvard biologist for purposes of writing a biology story is every bit as much bad reporting as what happened here.

Harvard virologist are disinformation

You are going to have to find a different hypothetical appeal to authority.
But careful. You cant use “more the 50 retired intelligence officers”, either

[Titus PUllo]

Harvard Biologist? Seriously buddy…biology and Harvard. As a physics major, we used to make fun of bio majors..they were not very good in math, couldn’t do calculus and their field was like history more than a science (Carl Sagan actually said that). I do agree when the issue is settled in the physical world it you have some liberty to not get the other side. But for any issue that is about human action (ok call out there to Mises), you should. When some Harvard “economist” goes on about inflation being good or deficit spending smart…you should ask the other side.

For Ms Palin, she deserves a trial with a judge and jury of her peers..in Alaska with a judge who is of the same religious sect.

[Rev. Arthur L. Kirkland]

Not a fan of Harvard, like most disaffected, antisocial, obsolete, right-wing culture war losers?

Are you more a fan of backwater religious schooling? Downscale homeschooling? Fourth-tier hayseed factories operated by conservatives?

[DaivdBehar]

Hi, Rev. Just STFU, Boomer. Come back after you have resigned from your job and been replaced by a diverse. Stop your highly offensive woke yappery, and start doing what you want to impose on others.

[not guilty]

“For Ms Palin, she deserves a trial with a judge and jury of her peers..in Alaska with a judge who is of the same religious sect.”

Palin and her lawyers chose the forum. They should not be heard to complain now.

Litigating a defamation case is an uphill climb for someone with a national reputation as a doofus.

[Cal Cetín]

Some say Jerry Lewis was a doofus. Would it be OK, then, to link him to the Kennedy assassination?

[Brett Bellmore]

How do you know the story before you has only one side, if you’re not acquainted with the other side of the argument? How do your readers know it has only one side, if you only present one side?

Maybe the story is more complex than the Civil Rights marchers vs the Klan? Maybe there are other factions, and your chosen faction isn’t entirely in the right?

You’re describing how partisans approach these things. You treat the story as only having one side, because that’s the side you’re on. And people observing you do this should, rationally, suspect there are important things you’re not telling them, because that’s how partisans operate.

[DIsrobing]

The Emperor or Ice Cream has entered the chat.

[Bored Lawyer]

“Sarah Palin may be one of those few individuals in the universe who cannot be libeled, just not possible.”

How odd, then, that neither the NY Times nor the court ever considered that as a basis for dismissal.

[YepThatGuy]

Interesting use of “wholly” and “minimum” in the first sentence.

[TwelveInchPianist]

Not to mention, “While this approach was a bit unusual, neither side objected to it in the slightest. “

[Armchair Lawyer]

I read that line, and I instantly read “Extremist, biased judge”.

There are ways to rule on the case (against Palin) using firm non-confrontational, even dull language. Which is what should have been done. But the (Clinton) Judge needs to “make a point” on the case and it demonstrates bias.

[DaivdBehar]

Rakoff, Ivy indoctrinated, big government, radical little tyrant, scumbag lawyer. He needs to be removed from the bench.

[SKofNJ]

I thought exactly the same thing.

[Rev. Arthur L. Kirkland]

“” I read that line, and I instantly read “Extremist, biased judge”. ”

What did you think of the language used by that Federalist Society panel from the Hayseed (Fifth) Circuit when announcing that sketchy claims based on superstition would now override the military’s command structure, you obsolete, bigoted clinger?

Do you apply the same standard to judicial opinions authored by disaffected culture war casualties?

[Kleppe]

“What did you think of the language used by that Federalist Society panel from the Hayseed (Fifth) Circuit when announcing that sketchy claims based on superstition would now override the military’s command structure, you obsolete, bigoted clinger?”

Are ya winnin’, Rev?

[Rev. Arthur L. Kirkland]

The culture war?

Winning . . . and enjoying it! I like watching bigots become more miserable; society improve against the wishes and efforts of disaffected conservatives; and reason, inclusiveness, science, education, modernity, tolerance, and progress continue to prevail against ignorance, bigotry, superstition, backwardness, insularity, and dogma.

Are you enjoying the half-century (and more) tide of the culture war in modern and improving America, Kleppe?

[DaivdBehar]

Hi, Rev. The culture war brought 20 million AIDS deaths of homosexuals and drug users. The AIDS death is a slow, prolonged, painful way to go. The culture war brought a surge in the murders of black young males. A million black babies have been slaughtered by the feminist lawyer, going beyond the wildest hallucination of the most psychotic genocidal maniac in the KKK. Good job, Boomer. Much to be proud of there.

[CJColucci]

But do you actually object to 20 million dead homosexuals and a million dead black babies? Not that I’ve noticed.

[jb]

Rakoff is a pretty sharp writer in a lot of his decisions. Do you disagree with the merits of the decision? If what the first sentence says matches the actual situation of the trial, it seems helpful rather than biased for the judge to be clear about the decision.

Unlike some rulings where the judges bring barely related information or set forth arguments not really made by anyone in the case (which judges from both sides of the political spectrum do), this hardly seems like evidence of bias.

[Bored Lawyer]

In context, he means she failed to meet the actual malice standard of NY Times v. Sullivan. And he is likely right — under that standard, a newspaper can consist of bumbling dolts and get off for defamation. That is the law. Can’t blame this judge for that.

[Michael P]

It is a terrible way to say that, though. It trivializes the burden of meeting the Sullivan standard by calling it “minimum”, and is blithely dismisses the (demonstrated!) fact that the NYT knew the claim was false by saying Palin “wholly failed” to prove the fact pattern.

[Titus PUllo]

called nullification…even judges should do it. It is your duty as someone defending liberty to nullify any federal law that is in violation of the Bill of Rights when given the opportunity.
Many SC decisions have been incorrect..too many.

[Rev. Arthur L. Kirkland]

When I wish to know whether Supreme Court decisions are incorrect, I always am interested in the opinions of bigoted, vanquished, right-wing physics majors.

[Bored Lawyer]

“Here, of course, it was the timing of the Court’s announcement of its Rule 50 determination that increased the risk that some jurors would encounter some snippets of the Court’s legal conclusion, and that is unfortunate.”

Do tell. In the (concededly very unlikely) event that the decision is reversed and remanded for a new trial, this “unfortunate” decision will result in a waste of a whole new trial.

“The Court is frank to confess that it was not familiar with the term “push notification” when it was raised by counsel for the Times and did not fully appreciate the potential for jurors to be involuntarily informed about the Court’s intended ruling through their smartphones.”

Welcome to the 21st century judge.

[Bob from Ohio]

He’s 78. You can’t expect old fools to learn anything.

He’s never accept an excuse like that from a lawyer before him. Its arguably a violation of the ethical rule that requires lawyers to keep abreast of technology.

[Rev. Arthur L. Kirkland]

I guess a bigoted loser from our can’t-keep-up backwaters would argue that if he figured it might help the doomed causes of bigotry and backwardness.

[phoqueue]

I can accept that OId Man Jed might not have been familiar with push notifications. But it is wildly implausible that he truly believed that jurors would not be at serious risk of encountering his decision in some form, whether by TV, radio, electronic ticker, browser ad, notifications, or otherwise. And he can’t save himself from criticism by hiding behind the laughable notion that he admonished the jury to “turn away.”

[Joe_dallas]

Did the judge bar evidence that Bennet and the NYT knew the story was false

[jb]

No, Palin just failed to present any such evidence. That’s what he means by they failed to meet the burden of proof.

[JesseAz]

I disagree. On the stand the NYT admitted the phrasing was added during editorial review. It was intentionally inserted. By an editor. One who was around when they retracted the claim the first time.

Please define malice. Also they ignored the wreckers disregard standard.

This wasn’t something missed by a review, but added by a review.

[jb]

“On the stand the NYT admitted the phrasing was added during editorial review. It was intentionally inserted.”

Yes, no one is arguing that it showed up there as a copy/paste error or something. That doesn’t show that they knew the story was false, though, which is what Joe_dallas was asking about.

[TwelveInchPianist]

“Specifically, after reviewing all evidence adduced at trial in the light most favorable to Palin and drawing all reasonable inferences in her favor, the Court concluded that no reasonable jury could find by clear and convincing evidence that Bennet or The New York Times Co. knew at the time of publication that the allegedly libelous statements were false or that Bennet thought that the challenged statements were probably false but recklessly proceeded to publish them anyway.”

A jury could infer that Bennet thought the claim that Palin’s map caused the shooting was false by the sheer implausibility of the claim.

[Leo Marvin]

The original editorial didn’t say the map caused the shooting. It said there was a link. That was false, but not implausible. How is it any less plausible that a nutjob could be influenced by a political ad he misconstrues than by the delusion that shooting a politician will impress an actress he’s stalking?

[TwelveInchPianist]

“In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized crosshairs.”

It said that the map caused the shooting. There’s no other plausible way to interpret “link” in this context.

And if a news outlet had speculated that Jodi Foster had caused the Regan shooting without any evidence that that was the case, that would have been likely false as well. But there was evidence that the nutjob was influenced by Jodi Foster. Not so in this case.

[Leo Marvin]

So after quoting a passage that confirms the editorial said “linked” (as I said it did), and not “caused” (as you said it did), you inexplicably double down with a fresh assertion that it said “caused.” Because “linked” really means “caused.” OK. Except no. It doesn’t. “Linked” means “linked.” “Caused” means “caused.” The NYT has all the good words. They know how to say “caused” when that’s what they mean.

And if a news outlet had speculated that Jodi Foster had caused the Regan shooting without any evidence that that was the case, that would have been likely false as well.

You didn’t say false. You said implausible. That either Hinckley or Loughner would turn out to be mentally ill, as both did, was entirely plausible. And that any shooter so afflicted might have been influenced by anything from what they thought would win the heart of a movie star, to their misapprehension of a political ad, was also entirely plausible.

[Michael P]

They said “linked” because it is a weasel word. What non-causal link might have been reasonably meant?

[TwelveInchPianist]

“Because “linked” really means “caused.” OK. Except no. It doesn’t. “Linked” means “linked.” “Caused” means “caused.”

Sigh. “Link” can mean “caused”. And in some contexts, “linked” can mean something other than “caused”.

But in this context, when they say “the link to incitement was clear”, they mean, “Sara Palin’s incitement caused the shooting.”

If you think I’m wrong and you have an alternate interpretation, please feel free to provide it.

If you don’t they are saying that Sara Palin caused the shooting, what do you think they are saying?

[Leo Marvin]

If you don’t they are saying that Sara Palin caused the shooting, what do you think they are saying?

I’d say the author intended “linked” to mean “linked,” with that word’s full range possible implications, of which “cause” is but one. I’m guessing he meant he believed Loughner was aware of Palin’s ad, maybe that the ad inspired him, maybe together with any number of other things, none of which alone or in combination necessarily adds up to “cause.” The law recognizes two types of causation, “but for” and “proximate.” Palin’s ad could be linked to the shooting in Loughner’s mind without being either of those.

[TwelveInchPianist]

“I’m guessing he meant he believed Loughner was aware of Palin’s ad, maybe that the ad inspired him, maybe together with any number of other things, none of which alone or in combination necessarily adds up to “cause.” The law recognizes two types of causation, “but for” and “proximate.” Palin’s ad could be linked to the shooting in Loughner’s mind without being either of those.”

You’re saying he thought that Loughner was aware of the ad, but would have done the shooting anyway? That would be no link, or at the very least no clear link. Nice try though.

[Leo Marvin]

No, I’m saying that of the plausible meanings of “linked” in this context, among them is that Loughner was aware of the ad, and who knows how much that influenced the decisions and actions that ended in him shooting Giffords. Maybe a little, maybe a lot. Maybe something in between. You’re excluding a capacious middle between “no clear link” and “totally caused it.”

If you really find it so difficult to conceptualize the difference between an identifiable but attenuated influence on an event, i.e., a “link,” and that event’s cause, also a “link,” here’s what I suggest: study for and take any torts or crim law exam. Problem solved.

[Sarcastr0]

You and I discussed this previously.

You’ve convinced yourself different words are the same because the story appeals to you.

You appeal to ‘not plausible’ as your proof, which should be a red flag you’re not going with evidence but wishes.

[Tempe Jeff]

“The pistol, was linked to the shooting.” What does that sentence, mean to you? Linked, means attached to. Like, a chain.

[TwelveInchPianist]

“You’ve convinced yourself different words are the same because the story appeals to you.”

I’ve convinced myself that linked means caused in this context because no other interpretation is possible. And you have previously asserted that there are other possible interpretations but have failed to provide one.

[TwelveInchPianist]

“You appeal to ‘not plausible’ as your proof, which should be a red flag you’re not going with evidence but wishes.”

Another possibility is that your own view is based on your wish that the NYT meant to say something else.

That would explain your certainty that “linked” doesn’t mean “caused” in this context coupled with your inability to provide an alternate reading.

[Frank Drackman]

Judge is a Yankees fan, all I need to know (that he’s a jerk)

[Leo Marvin]

Judge isn’t a Yankees fan. He’s a Yankee.

[apedad]

I was born and raised in a Boston suburb, and had never been called a Yankee until I went to Biloxi, Miss.

Keesler AFB was my first assignment in the USAF and I remember walking into a bar off-base and asking for a ‘bayr.’

The bartender responded, “You must be a Yankee, boy.”

It was really odd because we just don’t consider ourselves ‘Yankees.’

[OtisAH]

I was called a “Double Yankee” once because I was born in one northern state and lived in another. By a lady who desperately wanted me to know that although she lives in Tennessee, she’s really from Mississippi.

[captcrisis]

I presume the Court did not acknowledge its Impulse Control Problem.

[F.D. Wolf]

I had made up my mind to rule against Palin, but rather than simply do so before jury deliberations, I sent the jury to deliberate, figuring they’d see things my way and let me off the hook. But then I started thinking, “What if they don’t see things my way?” so I decided to give them a little nudge.

[I’m paraphrasing, of course.]

[Dilan Esper]

Yeah, he really did blow it on the timing of that announcement and probably realizes he did, though he tries to rationalize it in the opinion.

[phoqueue]

The only real issue is whether he’s a moron who made a blindingly obvious mistake or whether he intended to sway the jury. I don’t think he’s a moron.

[Carlos Inconvenience]

Way to protesteth too much, judge.

[Jimmy the Dane]

Reversed once by the Second Circuit, my money is on a repeat of that in about a year….

[phoqueue]

Does Jed bother to specifically explain why he decided to announce his decision during deliberations?

[phoqueue]

[Withholding the Court’s decision], as the Court noted at the time, would have been grossly unfair to both sides, who would have been left with the impression that the case was going to be determined by the jury’s verdict when it was not.

The judge is full of shit. He intended to sway the jury. He tries to justify his “unusual” approach by pointing to the lack of objections, but there was no reasonable opportunity for anyone to lodge of meaningful objection.

First, he said (apparently without warning) that he was leaning toward Rule 50 dismissal. What’s there to object to at that stage? The statement has already been made, and it was tentative. Later, “after discussing the requirements of Rule 50, the Court explained its determination that no reasonable jury could find that Palin had carried her burden.” At that point, the cat’s already out of the bag. What good would an “objection” have done at that point? The journalists already knew.

Jed is a shady, shady boy.

[Sarcastr0]

Watching the trip from speculation, to belief, to certainty on unsupported fiction here.

Judge screwed up. Not in front of the jury, but he didn’t count on phone alerts being reflexively checked in good faith.

There is no evidence of anything more.

[JesseAz]

They weren’t sequestered. The judge knew it would be a big story as it had been the whole time.

How do you remain so disingenuous.

Phones aren’t the prime issue here dummy.

[jb]

“Phones aren’t the prime issue here dummy.”

Phones are the only issue, since that’s the only way that anyone on the jury learned about the decision.

[WuzYoungOnceToo]

How do you remain so disingenuous.

That’s like asking the scorpion why he stung the frog.

[Bored Lawyer]

His explanation stretches credulity:

“[Withholding the Court’s decision], as the Court noted at the time, would have been grossly unfair to both sides, who would have been left with the impression that the case was going to be determined by the jury’s verdict when it was not.”

Judges routinely reserve on such motions until after the jury’s verdict. What difference would it make to them if he waited to grant the motion until after the verdict was read? A little nail-biting?

I doubt he was acting maliciously, but this is lame. The real answer is that age is likely creeping up on him, as it does to even the best jurists. I recall another SDNY judge who was sharp as a tack when I watched him while in law school. Ten years later, he had clearly lost some of his faculties. Ten years later than that, it was time for him to be put out to pasture. Unfortunately, Article III depends on the good graces of judges to realize they are past it.

[phoqueue]

If people who know him are willing to say he’s now an idiot, I will accept that.

[phoqueue]

Unless the judge is a complete moron, he had to have been well aware that his announcement of his position would be disseminated by all the ordinary means. That knowledge should have prompted him (and would have prompted virtually every other judge) to be more careful. He chose to act otherwise precisely because he wanted his decision to leak. The fact that he achieved his aims by similar but perhaps not specifically anticipated means is hardly a defense.

[jb]

“The judge is full of shit. He intended to sway the jury.”

This is dumb. All he did was create the best possible basis for an appeal of the jury decision. If his goal was to rule against Palin as definitively as possible, he could just wait for the jury to come in with its verdict. If the jury says not liable, great, case is done and there’s pretty limited basis for appeal.

If the jury says liable, still no big deal. He can still make the same judgment on the motion to dismiss and Palin loses. Now there’s more surface area to appeal, but still she’s got to somehow prove as a matter of law that he was wrong.

But as it stands, Palin gets the most avenues of all for an appeal since she can make the argument that he swayed the jury. If his goal was to rule against Palin either way, this was the least effective way to do it, not the sneaky best way.

[David Nieporent]

But as it stands, Palin gets the most avenues of all for an appeal since she can make the argument that he swayed the jury.

I agree that the comment is stupid, but your argument here is mistaken. She still has to prove he was wrong. If his JMOL was correct, then whether he swayed the jury is irrelevant.

[phoqueue]

You’re underestimating how much deference jury instructions and admonitions receive on appeal.

He underestimated how much people in the legal community would react to his attempt to improperly influence the jury.

[not guilty]

I wonder who is financing this litigation. I would be surprised if Sarah Palin is paying for it out of pocket.

[Paladin_44]

Doesn’t look like the old SarahPAC has any money.