By Jonathan Stempel
NEW YORK (Reuters) -Sarah Palin on Wednesday won her bid for a new trial against the New York Times over an editorial that the former Alaska governor said was defamatory.
The 2nd U.S. Circuit Court of Appeals said Palin can again try to prove the Times should be liable for a 2017 editorial, "America's Lethal Politics," that incorrectly linked her to a 2011 mass shooting that killed six people and seriously wounded Democratic U.S. congresswoman Gabrielle Giffords.
Media critics, and Palin herself, have viewed the case as a possible vehicle to overturn New York Times v. Sullivan, the landmark 1964 U.S. Supreme Court decision that set a high bar for public figures to prove defamation.
Writing for a three-judge panel, Circuit Judge John Walker said U.S. District Judge Jed Rakoff in Manhattan made several errors that tainted Palin's February 2022 trial against the Times and former editorial page editor James Bennet.
The appeals court said Rakoff wrongly excluded evidence that Palin believed reflected the Times' "actual malice" in publishing the editorial, and wrongly instructed jurors on how much proof was needed for the Times to be liable.
It also said the verdict was likely tainted after jurors learned during deliberations, through news alerts on their cellphones, that Rakoff would dismiss the case because Palin did not offer clear and convincing evidence of malice.
"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," Walker wrote.
Charlie Stadtlander, a Times spokesman, said: "This decision is disappointing. We're confident we will prevail in a retrial."
Shane Vogt, a lawyer for Palin, called the decision "a significant step forward in the process of holding publishers accountable for content that misleads readers and the public in general. The truth deserves a level playing field, and Governor Palin looks forward to presenting her case to a jury."
SULLIVAN PRECEDENT QUESTIONED
The Sullivan decision requires public figures who believe they were defamed to show that media demonstrated "actual malice", meaning they published false information knowingly or had reckless disregard for the truth.
Supreme Court justices Clarence Thomas and Neil Gorsuch have urged a reconsideration of the decision, with Gorsuch citing changes in the media landscape including the growth of cable TV news and online media and the spread of disinformation.
"America's Lethal Politics" addressed gun control and lamented the rise of incendiary political rhetoric.
It was published on June 14, 2017 after a gunman opened fire at a congressional baseball practice in Alexandria, Virginia, injuring Republican U.S. congressman Steve Scalise and others.
The editorial noted that before the 2011 shooting in Tucson, Arizona, where Giffords was wounded, Palin's political action committee had published a map with crosshairs over Giffords' election district.
Palin objected to the editorial's original language that "the link to political incitement was clear," despite there being no evidence that the map had motivated Jared Lee Loughner, the Arizona gunman.
Bennet had added the disputed phrase.
The Times corrected the editorial the next morning and removed the phrase, after readers and a columnist complained.
Lawyers for the Times and Bennet said neither intended to link Palin to the Arizona shooting.
Palin, 60, was the Republican U.S. vice presidential candidate in 2008 and Alaska governor from 2006 to 2009.
She has cast the Times case in biblical terms, testifying that she considered herself an underdog to the Times' Goliath.
Jurors deliberated for about two days, including a few hours after receiving the news alerts about Rakoff's planned dismissal.
They said after the verdict that the "push notifications" had no effect on their deliberations.
The case is Palin v. New York Times et al, 2nd U.S. Circuit Court of Appeals, No. 22-558.