SDNY COURTHOUSE,
March 1 –
In the case of Sarah Palin
versus New York Times and
James Bennet, on July 24, 2020
U.S. District Court for the
Southern District of New York
Judge Jed S. Rakoff held oral
arguments. Inner City Press
live tweeted them - and now
the 2022 trial, below.
After Judge
Rakoff said he would dismiss,
and some jurors saw it on push
notifications on their phone
and followed suit, on March 1
Judge Rakoff issued a detailed
order including that "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. FN But the jurors
who saw the media coverage say
they did as instructed: they
turned away from the reports
and set the information aside
for the remainder of the
deliberation. The jurors, both
those who reported awareness
of the Rule 50 decision and
the others, insisted to the
Court’s law clerk that the
information played no role
whatsoever in their
deliberations and did not
affect the outcome.
"FN: 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. But it must also
be remembered that when
defense counsel referred to
the term “push notifications,”
Tr. 1307, the Court responded
by doing what defendants’
counsel requested, i.e.,
reminding the jurors of their
duty to disregard anything
they heard about the case in
the media. Defendants’ counsel
sought no further relief (such
as a direction to the jurors
to turn off any automated
alerts for the duration of the
trial)" -
Inner City Press
notes that in the District for
the District of Columbia for
the current US v. Guy Reffitt
January 6 trial (which has no
call-in line unlike Palin v
NYT or the SDNY criminal trial
before Judge Oetken, US v.
Parnas), Judge Dabney
Friedrich has explicitly told
prospective jurors to turn
their push notifications off.
Inner City Press which has
asked for call-in lines
reported that on February 28,
here.
As has been said in other
contexts, Rakoff has impact.
A telephone conference was
held on February 23 and Inner
City Press covered it, here.
It was short, and
resulted in this: "Minute
Entry for proceedings held
before Judge Jed S. Rakoff:
Telephone Conference held on
2/23/2022 with court reporter
Khris Sellin. Plaintiff's post
trial motions not to exceed 50
pages, all motions in a single
submission. Defendants'
response not to exceed 50
pages, replies are limited to
15 pages."
On August
28, 2020 Judge Rakoff issued
an order denying summary
judgment and finding, inter
alia, that "there "there is
sufficient evidence to allow a
rational finder of fact to
find actual malice [by NYT /
Bennet] by clear &
convincing evidence." So,
trial. Inner City Press will
cover it - having previously
reported Judge Rakoff jokingly
perhaps offering that time
slot to a criminal case and
saying, Ms. Palin may just
have to wait.
It was set to
start on January 24, 2022. But
as tweeted
by Inner City Press, "Sarah
Palin v. NYT will NOT start
today. Palin has tested
positive for COVID three
times. Judge Rakoff says she
can return for trial on
February 3, unless she is
showing symptoms."
On February
3 the trial started. Inner
City Press live tweeted it,
thread here.
On February
7, after this song
things proceeded, with Inner
City Press live tweeting,
thread here.
On February
8, questioning of the NYT's
Ms. Cohn continued; Inner City
Press live tweeted, thread here.
On February 9,
witnesses ranged from James
Bennet through Ross Douthat
until (finally) Sarah Palin,
the beginning. Inner City
Press live tweeted, thread here:
On February 10,
Sarah Palin continued on the
stand, including cross
examination by the NYT
attorney, very focused on
(lack of) damages. Inner City
Press live tweeted, thread here.
On February
11, the closing arguments;
Inner City Press live tweeted,
below.
On February 14,
Judge Rakoff issued his legal
ruling on the case, adding
that it could be packaged for
appeal with the jury verdict.
Inner City Press live tweeted,
thread here:
OK - in Palin v.
NYT, first full day of jury
deliberations now has jury
note asking for transcript of
Ross Douthat's testimony.
Judge Rakoff
says, prepare the Douthat
transcript for the jury,
there's no need to redact
questions with sustained
objections (such redacts were
made in the recent US v.
Avenatti / Stormy Daniels
trial). Inner City Press will
live tweet jury notes and
verdict
Now at 11 am
Judge Rakoff tells Palin v.
NYT counsel that he has to
take a 10 minute call in
another case. Inner City Press
will follow him there - it's
Wilson v. Triller, Inc.
21-cv-11228 (Palin NYT thread
will continue here)
Programming note:
Judge Rakoff just set a March
28 deadline, and Sept 8 trial
ready date, in that other
case. Now should be returning
to Palin v. NYT - and we will
too, thread to continue below
Update: Another
jury note in Palin v NYT: Jury
wants transcript of James
Bennet's testimony. Judge
Rakoff, says "work with the
reporter, send it in." Thread
will continue.
Now in colluquy
with Palin v. NYT counsel,
ranging for Latin derivation
of "incite" to, now, Judge
Rakoff's reminiscing on the
Sayoc case (which Inner City
Press also covered here…
Judge Rakoff (to
NYT counsel) - So you're
saying that if you run an
editorial that two plus two
equals five, then later a
correction that "there is no
evidence that two plus two
equals five," that amounted to
admitting that the initial
editorial was false?
Judge Rakoff
tells Palin v. NYT counsel
he's going to think about this
for an hour or more, and that
he has another matter at 2 pm.
(That's Zurich American Life
Insurance v. Nagel,
20-cv-11091 - may cover it,
with eye on a DDC bond
hearing). Thread will continue
He's back. Judge
Rakoff: I'm going to give you
my decision now, but I will
only enter it after the jury
comes back with its verdict. I
want non-lawyers to understand
that the question is whether
the plaintiff failed to prove
a central element to the claim
Judge Rakoff: I
think there is one central
element the plaintiff has not
carried its burden on: actual
malice. This is a high
standard, under NYT v.
Sullivan.
Judge Rakoff: So
you'll have my decision on the
law, and the jury decision, so
the Court of Appeals will have
both. The plaintiff can object
to my decision. Anything else?
No your Honor. Judge Rakoff:
I've got another 3:30 matter.
Ask the jury if they want to
stay.
Judge Rakoff:
Jury says it will continue
until 5 pm.
Inner City
Press@innercitypressUpdate:
Judge Rakoff retakes the
bench, asks if the parties
want the jurors brought in
face to face and told not to
look at the media [which will
be saying, case is decided, in
a sense].
Judge
Rakoff: This might highlight
it too much, if I keep saying
it.
On February 15, a
second shoe dropped, with the
jury ruling against Palin.
And on February 16, this:
"ORDER: It is the Court's
uniform practice after a
verdict has been rendered in a
jury trial to have the Court's
law clerk inquire of the jury
as to whether there were any
problems understanding the
Court's instructions of law,
so that improvements can be
made in future cases. Late
yesterday, in the course of
such an inquiry in this case
-- in which the jury confirmed
that they had fully understood
the instructions and had no
suggestions regarding jury
instructions for future cases
-- several jurors volunteered
to the law clerk that, prior
to the rendering of the jury
verdict in this case, they had
learned of the fact of this
Court's Rule 50 determination
on Monday to dismiss the case
on legal grounds. These jurors
reported that although they
had been assiduously adhering
to the Court's instruction to
avoid media coverage of the
trial, they had involuntarily
received "push notifications"
on their smartphones that
contained the bottom-line of
the ruling. The jurors
repeatedly assured the Court's
law clerk that these
notifications had not affected
them in any way or played any
role whatever in their
deliberations. The Court also
notes that when it proposed to
the parties, during oral
argument on Monday morning, to
render its Rule 50 decision
later that day but to permit
the jury to continue
deliberating so that the Court
of Appeals would have the
benefit of both the Court's
legal determination and the
jury's verdict, no party
objected to this plan. Nor did
any party object when the
Court reconvened later that
day, outside the presence of
the jury, and the Court
indicated that it was prepared
to issue a Rule 50 decision at
that time. Indeed, no party
objected to this procedure at
any time whatever.
Nevertheless, in an excess of
caution, the Court hereby
brings the foregoing facts to
the parties' attention. If any
party feels there is any
relief they seek based on the
above, counsel should promptly
initiate a joint phone
conference with the Court to
discuss whether any further
proceedings are appropriate.
SO ORDERED. (Signed by Judge
Jed S. Rakoff on 2/16/2022)
(kv)" Watch this site.
From February 11:
Palin's lawyer: ... So Ross
Douthat sent James Bennet two
tweets, from Jonathan Chait
and Chris Hayes, "another
liberal journalist."[ALJ, also
Administrative Law
Judge].
Palin's lawyer:
They switched the correction
from Sarah Palin's PAC to "a
PAC."
Palin's
lawyer: The Times is trying to
argue that it's about Sarah
PAC, not Sarah Palin. Reject
that. The last witness, not on
the editorial board but the
Reader Center, called it the
"Sarah Palin editorial."
Palin's lawyer:
Notice how in their correction
they don't mention Sarah Palin
once. It's up to you to decide
if that's because they don't
like her politics.
Palin's
lawyer: The Republican
baseball practice shooter,
there was anti-Trump politics
in his social media, it was
reverse engineers. But here,
my client became the casualty
of their politics. She doesn't
like to complaint. Suck it up,
cupcake.
Now NYT
lawyer's closing argument
(which, Judge Rakoff notes,
will be broken in half by
jurors' lunch). NYT lawyer:
The judge cautioned you, when
you get back to the jury room,
work together to remember the
evidence.
NYT lawyer:
What's shocking about the
closing we just heard if they
shift to opinion. The opinion
of Mr. Bennet, of Tom
Friedman. In this country
you're allowed to have
opinions. Opinions can't be
wrong.
NYT lawyer: This
honest mistake made James
Bennet stay up all night
thinking about it. For
Governor Palin to prevail in
this case she needs to show
you it was not an honest
mistake, but that it was
intentional defamation, or
reckless.
NYT lawyer:
The Editorial Board is there
to express shared values. Take
yourself back. President Trump
had just been elected. This a
county awash in
misinformation. We needed to
say something about it. The
Times made a natural
connection to Gov Palin
NYT lawyer:
They could have called Bob
Semple -- Judge Rakoff:
Jurors, either side could have
called him. NYT lawyer: Yes,
though could have called him--
Palin's lawyer: Objection
Judge Rakoff: The point is,
the not-calling could give
rise to an inference. Or not.
NYT lawyer
Axelrod: So he went an hour
and 45 minutes and I objected
only once. Now he --
Objection!
Judge Rakoff: He
had every right to object.
This is not proper argument.
NYT lawyer Axelrod: Bob Semple
said something about NRA. Who
cares? It's irrelevant. NYT
lawyer: If we intended to
defame Governor Palin, would
it have done straight to James
Bennet, and not like this,
just a fluke?
NYT lawyer
Axelrod: James Bennet was
sitting on his couch. Maybe it
was watching SportsCenter. The
point made in the editorial is
that both shooting took place
in a political environmental.
He wrote, Maybe we don't know.
Maybe he was watching the Mets
game
NYT lawyer:
Governor Palin is showing no
credible evidence of harm.
James Bennet didn't add Sarah
Palin's name - Elizabeth
Williamson did!
NYT lawyer:
The editorial ends by praising
Donald Trump! It wasn't
anti-Republican. Look at the
website, Governor Palin wasn't
even in the headline.
NYT lawyer:
Look at James Bennet here at
5:08 am, rally his people to
make a correction. If Mr.
Bennet knew that was false,
why would he fall on his
sword? And like Linda Cohn
told you, the Times has a
policy of not repeating the
error in a correction.
NYT lawyer
continues: It is not enough
for that to prove that a
newspaper like the New York
Times made a mistake. That's
not good enough.
NYT lawyer:
If James Bennet had intended
to falsely charge Gov Palin,
why did he link to the ABC
piece? Did he make a mistake?
Yeah. But there was no motive
to go after Governor Palin.
NYT lawyer: Mr.
James Bennet's reputation is
incredibly important to him.
We all saw how you looked at
him, while he was on the
stand... Even conservative
columnist Ross Douthat said he
had a lot of respect for him
NYT lawyer: Gov
Palin says her reputation
suffered harm. There's no
evidence in this case of that.
Her lawyer is pushing a
conspiracy theory. Governor
Palin has brought this case
for money.
OK, last of the
arguments - Palin's lawyer's
reply argument: Look at
Elizabeth Williamson's draft -
it's not in it. Linda Cohn's?
Not there. It came from Mr.
Bennet. He tried to reverse
engineer the facts.
Palin's lawyer:
Mr. Bennet said he associated
this violence with the right.
Opinions are fine; false facts
are not.
Palin's
lawyer: It's been a privilege
talking to y'all. If you want
to go nominal [damages], go
nominal.
Judge
Rakoff: We'll take a 5 minute
break to find if you want to
stay late to hear my
instructions. If not, we'll do
it Monday. Jury leaves. Jury
returns.
Judge Rakoff: Has
the jury reached a verdict...
on staying? [Laughs]
They will stay
and get legal instructions /
jury change now. Judge
Rakoff gets in HEPA filtered
counsel box and launches into
it. This could take a while
Early on
February 8, Palin's lawyers
put in a memo on their
entitlement to punitive
damages: "At the February 7,
2022 Charging Conference,
Defendants suggested certain
changes to the Court’s
proposed jury instruction on
punitive damages based on
Morsette v. “The Final Call,”
309 A.D.2d 249, 254 (1st Dep’t
2003). Specifically,
Defendants claim Plaintiff is
only entitled to punitive
damages if she proves that the
Defendants’ “sole motivation
in publishing the challenged
statements was hostility
toward and a desire to injure
the plaintiff.” See
Defendants’ Proposed Revisions
to Instruction No. 17
(provided at the Feb. 22nd
Charging Conference).
Defendants’ proposed revision
improperly seeks to limit the
grounds upon which Plaintiff
can prove her entitlement to
punitive damages and flies in
the face of well-established
law. As recognized by the
Second Circuit in DiBella v.
Hopkins, 403 F.3d 102, 122 (2d
Cir. 2005), “[u]nder New York
law, punitive damages in a
defamation case are justified
“‘to punish a person for
outrageous conduct which is
malicious, wanton, reckless,
or in willful disregard for
another's rights.’” (quoting
Prozeralik, 82 N.Y.2d at
479–80) (emphasis added); see
also Celle v. Filipino
Reporter Enterprises Inc., 209
F.3d 163 (2d Cir. 2000) (“all
of the relevant circumstances
surrounding the dispute”
should be considered in
establishing entitlement to
punitive damages)."
Back on
January 19 the New York Times
filed its proposed questions
for jurors, including "do any
of you believe that the New
York Times has a bias against
certain political parties or
issues?"Also, do you know Ross
Douthat? Andrew Sullivan?
Robert Semple?
On January 20,
Sarah Palin's lawyers filed
their proposed questions,
including "Have you followed
any recent high profile court
cases closely?" Can you say,
Ghislaine Maxwell? We'll be
there.
On January 17 -
MLK Day - the New York Times
filed a request that juror
before opening statements be
read a statement including
that "Plaintiff claims that
two statements in the
Editorial falsely communicated
to readers that she directly
caused Jared Loughner to shoot
people in Arizona in 2011."
Then, the cross-hairs. Watch
this site.
On January 11,
Judge Rakoff convened a
pre-trial session. Inner City
Press live tweeted it here.
The case is
Palin v. The New York Times
Company, 17-cv-4853-JSR
(Rakoff)
***
Your
support means a lot. As little as $5 a month
helps keep us going and grants you access to
exclusive bonus material on our Patreon
page. Click
here to become a patron.
Feedback:
Editorial [at] innercitypress.com
SDNY Press Room 480, front cubicle
500 Pearl Street, NY NY 10007 USA
Mail: Box 20047, Dag
Hammarskjold Station NY NY 10017
Reporter's mobile (and weekends):
718-716-3540
Other, earlier Inner City Press are
listed here,
and some are available in the ProQuest
service, and now on Lexis-Nexis.
Copyright 2006-2020 Inner City
Press, Inc. To request reprint or other
permission, e-contact Editorial [at]
innercitypress.com for
,
