The Alaska Lady, The Gray Lady, And Libel

The Alaska Lady, The Gray Lady, And Libel
Sarah Palin’s claim against the New York Times was reasonable, and the behavior of the trial judge, Jed Rakoff, was outrageous.

MARCH 25, 2022|12:01 AM
Former Alaska Governor Sarah Palin is not generally noted for her contributions to civil discourse, so the recent defeat of her libel action against the New York Times has not generally been a cause for regret.

But Palin’s claim against the Times was reasonable, and the behavior of the trial judge, Jed Rakoff, was outrageous. Palin’s lawsuit in a federal district court in New York was based on a 2017 editorial suggesting that she was somehow to blame for the assassination attempt against Congresswoman Gabrielle Giffords of Arizona. Palin had published a political advertisement that included a map that marked the districts of about a dozen Democratic members of Congress with the letter “X.” The Times editorial board effectively accused her of inflaming public opinion in an improper way and polarizing the electorate. A Times rewrite editor questioned the piece before it was published, which only resulted in a minor revision that did not remove its sting. Palin, however, was hard put to document any monetary loss resulting from the article.

Palin’s case shows how, since the 1964 New York Times v. Sullivan, it has been inordinately hard for an ordinary citizen to win a libel case and virtually impossible for a public figure to do so. A rule originally designed to allow serving presidents or governors to be freely criticized has been so broadly extended as to deter prominent citizens from speaking out or seeking public office lest they be defamed with impunity.

Rakoff’s initial dismissal of the complaint was reversed by the Second Circuit, an experience which would induce caution in most trial judges when conducting the subsequent trial. Rakoff, however, is not an ordinary judge. His career is the confirmation of Francis Bacon’s observation that “an over-speaking judge is no well-tuned cymbal.” Rakoff does a good part of his “over-speaking” not in court but in the pages of the New York Review of Books—not the most impartial tribunal—to which he has contributed no fewer than 35 articles.

In Palin’s case, Rakoff struck the claim for punitive damages at the end of the trial, which was proper, since it spared the jury the need to deliberate on it. But then, while the un-sequestered jury was deliberating, he publicly announced that if it was intrepid enough to bring in a plaintiff’s verdict for compensatory damages, however small, he would grant a motion for judgment notwithstanding the verdict.

Judges frequently allow cases about which they has doubts to go to a jury and then grant a defendant’s motion to set aside a verdict once returned. This spares both parties the need for a second trial if a reviewing appellate court agrees with the plaintiff. But to inform the jury of this intention either by announcement or by statements to the press while the jury is deliberating and not sequestered as Judge Rakoff did is a procedural outrage. If the judge’s action is set aside, it requires an otherwise unnecessary new trial if the jury’s judgment agrees with his own, which it is likely to do where, as here, press accounts of the judge’s action reach the jury before they have come to a verdict. An appellate court is not likely to be convinced by jurors’ statements, induced by the judge, that they were not influenced by press accounts. A reversing judgment will then almost certainly direct that a re-trial be conducted by a different judge.

There are procedural limits that may be imposed to eliminate the chilling effects of extravagant verdicts like that in the Sullivan case: limiting the remedy to a declaratory judgment as distinct from damages; allowing special verdicts on issues apart from a damage verdict, as permitted by Judge Abraham Sofaer in a famous case involving Ariel Sharon; or limiting threats of extravagant damages by annexing a reasonable offer of judgment (say $50,000) to the complaint, as permitted by Federal Rule of Civil Procedure 68 which provides that acceptance of such an offer by a defendant immediately ends a case.

But the substantive question in the Palin case is even more important than the procedural one. The standard of New York Times v. Sullivan requiring actual malice to be shown in cases brought by public figures has recently been questioned by Justice Clarence Thomas (who has suffered greatly at the hands of the institutional press) and by Justice Neil Gorsuch. They are not alone in questioning that standard. After it was rendered, former University of Chicago President and Attorney General Edward Levi referred, in a letter to Justice Walter Schaefer, to “the glories of free, open, and in fact libelous non-debate.”

Supreme Court misgivings about the reach of Sullivan have not been confined to two justices commonly characterized as “right-wing.” Justice Potter Stewart, who had joined in Sullivan, dissented in the later case of Rosenblatt v. Baer (1966), which extended immunities to defamation of private citizens:

That rule should not be applied except where a State’s law of defamation has been unconstitutionally converted into a law of seditious libel. … [We] have not stripped private citizens of all means of redress for injuries inflicted upon them by careless liars. … Surely if the 1950’s taught us anything, they taught us that the poisonous atmosphere of the easy lie can infect and degrade a whole society. … What the New York Times rule ultimately protects is defamatory falsehood.

In addition, Justice Thurgood Marshall would have disallowed only punitive, not compensatory damages to private individuals who have become involuntarily newsworthy, while Justice Abe Fortas, in dissent in St. Amant v. Thompson (1968) said of a broadcaster, part of the institutional press, that “Petitioner had a duty here to check the reliability of the libelous statement about respondent.”

Professor Harry Kalven, credited by many as being the scholar who inspired the 1964 decision, felt that Sullivan was the occasion for “dancing in the streets” and that a ban on the concept of seditious libel (libel of the ruler) was at the core of the First Amendment. However, Palin’s challenged statements were not those of a government official but of a political has-been who had resigned her office. And the Times misgivings, retractions, and apologies were effectively communicated to few of its readers and did not mitigate any harm suffered upon publication.

Learned Hand once observed, “The hand that rules the press, the radio, the screen and the far-spread magazine, rules the country.”

In the late 19th century, the great cultural historian Jacob Burckhardt, who accurately foresaw the coming of the 20th-century’s murderous dictators, observed, “Among us the irresponsible malice of a few miserable guttersnipes disgusts decent people, the ones who are ready to make sacrifices in office, or secretly leads them not to take office, so that they limit their activity to charity and that sort of thing. O, there is a lot to say on that score.”

People can reasonably differ as to what limitations on Sullivan should be imposed, but Justices Thomas and Gorsuch are right that there should be some. Imposing reasonable restrictions should not be a cause for the right wing only.

George Liebmann is the president of the Library Company of the Baltimore Bar and the author of numerous works on law and history, most recently the anthology Vox Clamantis In Deserto

Posted in: Culture Wars, Judiciary and Legal Issues, The Right

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