Imagine if you were a juror in a high-profile case with First Amendment implications between a former vice presidential nominee and the leading newspaper in America. Imagine you learned that, while you and your fellow jurors were still deliberating, the judge had awarded judgment to the defendant without telling you. That’s exactly what happened in Sarah Palin’s defamation suit against The New York Times.

Judge Jed Rakoff granted a dismissal to The New York Times on Monday, but did not tell the jurors. “Several” of the jurors learned of the dismissal by push notifications on their cell phones, Rakoff later said. The next day, unsurprisingly, the jury followed suit and returned a verdict for the defendant. This bizarre turn of events threatens to undermine the verdict in favor of the Times on appeal, and could have major repercussions for the future of the First Amendment.

Challenging a Decades-Old Protection of Press Freedom

In New York (and virtually every other state), a plaintiff bringing a defamation case has to prove four things by a preponderance of the evidence (more than 50-50), if she is suing an ordinary person: (1) a false statement was made about the plaintiff, (2) it was published without the permission of the plaintiff, (3) the defendant either knew that the statement was false or, at a minimum, was negligent in determining whether it was false, and (4) the plaintiff was damaged by the false statement.

When the plaintiff is a “public figure” and the defendant is in the media, however, there is a heightened standard, called “actual malice”. The plaintiff must prove by “clear and convincing evidence” that the defendant operated “with knowledge that it was false or with reckless disregard of whether it was false or not.” The “actual malice” standard was announced by the U.S. Supreme Court in a case called Times v. Sullivan in 1964. For the past fifty years, the Times has never lost a defamation suit under the “actual malice” standard.

Palin argued that the court should not apply the “actual malice” standard because technology has rendered it obsolete. According to her argument, in the social media era where everyone can publish to millions on Facebook, Instagram or Twitter, every person who is subjected to defamation is potentially a “public figure” and everyone who issues a defamatory statement is potentially part of the “media.”

Rakoff denied Palin’s arguments and instructed the jury that they had to find “actual malice” in order to rule in her favor. At the close of the trial, The New York Times argued that the judge should dismiss the case without sending it to the jury, because no reasonable jury could conclude that theTimes acted with “actual malice” when it published an editorial containing two false facts about Palin in 2017—that the gunman who shot Rep. Gabby Giffords in 2011 (and killed a 9-year-old girl) was motivated by an ad run by Gov. Palin’s political action committee, and that the ad by the Palin PAC showed Giffords in crosshairs. It was undisputed that those two misstatements were corrected within 12 hours of being published.

Rakoff allowed the case to go to the jury, while he considered the Times’ motion. Ordinarily, a judge will not announce his ruling on a motion for judgment until after the jury returns its verdict, for fear of infecting the jury. Here, Rakoff departed from standard operating procedure and announced in open court on Monday that he was granting the Times’ motion and the case would be dismissed. He did not, however, inform the jury. Rakoff said that he was allowing the jury to return its verdict so that the Second Circuit Court of Appeals would have that verdict when it ruled on a highly likely appeal.

A Bizarre Turn of Events Could Overturn 50 Years of First Amendment Law

Modern technology made Rakoff’s ruling immediately known to several jurors, who received push notifications on their phones. The jurors did not immediately tell the Court that they knew of the dismissal. Instead, they returned to deliberate the next day and returned a verdict in favor of the Times.

Rakoff only learned on Tuesday that “several” jurors knew about his ruling when his law clerk conducted a post-verdict discussion with the jurors. On Wednesday, he issued an order stating that although the jurors said they’d learned of his ruling, they “repeatedly assured the Court’s law clerk that these notifications had not affected them in any way or played any role in their deliberations whatsoever.”

It appears unprecedented that a jury learned of a judge’s dismissal of the case through “push notifications” before they returned their verdict. It is possible that the Second Circuit Court of Appeals will rule that Rakoff was wrong when he dismissed the case (because a reasonable jury could have found that Gov. Palin proved “actual malice”) and that the jury verdict was hopelessly tainted.

The bizarre episode could lead to a successful appeal which would delay the case for years before it might reach the Supreme Court. Palin told the press immediately after the jury ruled against her that she hopes to do just that. In addition, two Supreme Court justices have previously issued an opinion in 2021 that they would overturn the “actual malice” test and treat members of the media like any other defamation defendant.

As time passes, and Republican candidates explicitly campaign on overturning the “actual malice” standard, it is possible that three newly appointed Supreme Court justices would join Justices Thomas and Gorsuch to overturn Times v. Sullivan and remove the First Amendment protections for the press from defamation suits.

So could this week’s developments eventually increase the likelihood that the last 50 years of First Amendment law are overturned? It would be just another extraordinary twist in a case full of them.

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