SDNY COURTHOUSE,
Feb 9 –
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.
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:
Q: Mr. Bennet,
why did you think this
editorial should be about gun
control?
James Bennet: It
was the hypothesis of the
board that access to firearms
increases the possibility of
this type of incident.
Q: Here, Bob
Semple said, We should
definitely shoot for
piece
James
Bennet: My intention was to
raise a question, not to
assert it as a matter of fact.
I can't prove that this
rhetoric leads to this
violence. Q: You wrote, Hard
to imagine that Bernie
[Sanders] is guilty of
anything like that. Why? James
Bennet: I hadn't heard
James
Bennet: Incite requires an
object, as a verb.
Judge
Rakoff: What did you mean by
"e.g. in the run up to the
Gabby Giffords shooting"?
James Bennet: I don't know.
[Thread will continue...]
James
Bennet *still* on the stand.
Q: You wrote, We made an error
of fact in the piece but it
doesn't invalidate the
argument we made in it. Why
did you write that? James
Bennet: Uh, Uh... I didn't
know that Sarah Palin had
responded to the piece.
Q: Let's
turn to Oliver Darcy, CNN's
media reporter. What's a media
reporter?
James Bennet:
It's what he says he is.
Q: Did you think
your answer was part of the
record? James Bennet: I was as
accurate as I could be.
Q: Are you
still working at the Times?
James Bennet: No. Q: Since you
left, have you reached out to
Governor Palin to apologize?
James Bennet: No. Judge
Rakoff: Sounds like we'll wrap
up the evidence tomorrow, late
tomorrow. So, closing
arguments on Friday, 2 hour
each side. The jury might
begin to deliberate on Friday.
Inner City Press will stay on
the case.
And we're
back -- Ross Douthat: So I
sent James [Bennet] tweets by
liberals who were raising
issues about the editorial,
for example Chris Hayes. Q:
And do you -- NYT lawyer:
Objection! To the introduction
as well!
Judge Rakoff:
There are hearsay problems.
But give it your best shot.
Ross Douthat: You are showing
me a tweet from Jonathan
Chait. I am 90 to 95% sure
it's the one I sent. Judge
Rakoff: You say that as a
statistician? Douthat: There
are many tweets in the world.
Judge
Rakoff: There are statements
in here by Mr. Chait. But he
is not here to be questioned.
It's called hearsay. But Mr.
Chait's tweet was shown [95%
sure] to Mr. Bennet. So for
that limited purpose it comes
in. NYT: Same objection. Judge
Rakoff: Same ruling.
Q: Did Mr.
Bennet ever tell you what to
write about? Ross Douthat: Not
to my knowledge. [Reflexive
legalese? A person would know,
right?]
Q: What's
this? Ross Douthat: My column
comparing Donald Trump to
various figures from Roman
history.... No further
questions. Judge Rakoff:
Re-direct. Q: Are you aware of
any politics in the life of
Loughner? NYT lawyer:
Objection. Judge Rakoff: I
don't see how this will come
in.
Q: In Tucson
shooting, did you become aware
of any politic-- NYT Lawyer:
Objection! Sustained. Now...
Palin.
Sarah
Palin, questioned by her
lawyer, in NYT case:
Q: How long have
you lived in Wasilla?
Palin: Since 2d
grade. Forever. I have two
girls in Texas, one in
Scotsdale. Judge Rakoff: You
have five children and only 8
grandchild? This sounds like
diminishing returns
Q: When did
you first get involved in
public service? Palin: I ran
for city council, on private
property rights issue. They
were trying to annex in people
who didn't want to be annex
in. I wanted to be a voice for
both sides
Palin: I
saw I had to be top dog. So I
ran for mayor and was elected
and re-elected, serving six
years. Q: Were you running
against established
politicians? Palin: Always.
Then in 2002 I ran for Lt-Gov
and lost, and learned. I
became Oil and Gas
Commissioner.
Palin: Then I ran
for governor, to clean up the
crony capitalism. In 2009 I
was tapped to run for Vice
President, by John McCain. I
was asked to meet with him the
next day in Arizona. I was
honored and excited.
Palin: I
don't think they were prepared
for me. But it was an amazing
experience. Judge Rakoff: We
will end for the day.
[Jury leaves]
Ms. Palin, you
may step down. Tomorrow I'll
give you the final draft jury
charge. Adjourned.
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)
***
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