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:
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:
Palin: I was
defending Bernie Sanders
because there would be some
who would try to link him to
the shooting [at the baseball
practice]. I did not want to
see more untruths printed,
trying to score political
points by capitalizing on
horrific violence.
Palin: The
NYT had already run a kneejerk
piece, trying to score
political points. Palin's
lawyer: What were people
calling to tell you? NYT
lawyer: Objection! Judge
Rakoff: Not for the truth, but
for impact on her? Palin's
lawyer: Yes. Judge Rakoff:
Overruled.
Palin: I
don't like to complaint. I
have a T-shirt that says,
"Suck It Up, Cupcake." Palin's
lawyer: So this was hard to
deal with? Palin: Yes, I was
up in Wasilla, with my Number
2 pencil, facing off with NYT
which buys ink by the barrel.
No further questions.
NYT lawyer: Fair
to say that in the run up to
the 2008 election, you took
some shots, right? Palin: Like
what? NYT lawyer: Lot of
people said you were
unprepared? Palin's lawyer:
Objection. Judge Rakoff:
Plaintiff's counsel can't have
it both ways. Overruled.
NYT lawyer:
Unprepared to be one heartbeat
away from the Presidency,
based on what you'd done in
Alaska. Palin: I didn't have
time or desire to read
everything written about me.
NYT lawyer:
But you knew there was a lot
of attention paid to your
record, right? Palin: The
problem was, my record wasn't
being reported.
NYT lawyer:
You're written a number of
books? Palin: Four. NYT
lawyer: Four or five? Palin:
Four. NYT lawyer: American by
Heart, Sarah Palin Uncut?
Bring up DX 218
Palin: Had
I written that, I would not
have chosen that cover shot.
NYT lawyer: You've been a Fox
News commentator? Palin: And
and off. NYT lawyer: You were
on Fox News yesterday, right?
Judge Rakoff: Relevance? [NYT
focused on showing lack of
damages?]
NYT lawyer:
You were on Teen Mom OG?
Palin: With my daughter,
yes. NYT lawyer: And on
The Masked Singer?
NYT lawyer:
Governor Palin, what's the
objection?
Palin: I just
thought it was funny.
NYT lawyer: Are
you with American Prosperity?
Palin: Yes. NYT lawyer: Isn't
that a financial company? Are
you being paid?
Palin: I did one
video. NYT lawyer: You were a
pitchwoman? Palin: A pit
woman?!? NYT lawyer: Pitch
. NYT
lawyer: You knew there was
criticism of your PAC's map,
right? Palin: It was no call
to violence. Judge Rakoff:
Let's take our mid-morning
break. Thread will continue.
And they're
back.
NYT lawyer: You
said that journalists
manufactured a blood libel --
Sarah Palin: I said, they
SHOULD not. It's an
admonition. NYT lawyer: You
thought pundits had already
done it. Sarah Palin: You're
reading into it. You need to
read it literally.
NYT lawyer:
And you had no problem with
your team running that
Breitbart story, did you?
Palin: I'm not sure if they
ran it by me. But they are
generally pretty discerning on
what goes on that website.
NYT lawyer: Did
you ask the Times for a
retraction? Palin: They had
just accused me of inciting
murder. So I didn't think I
would get one. NYT lawyer: So
you didn't ask for a
retraction before filing your
lawsuit? Palin: My lawyers
did. But I didn't, personally
NYT lawyer:
Governor Palin, did you speak
to any of your family members
about the editorial about the
2017 shooting? Palin: What
time frame are you asking
about? NYT lawyer: I'm going
to move on. [Then Judge Rakoff
reads out loud from the
underlying deposition]
NYT lawyer: Can
you name a name of someone who
thought less of you because of
the editorial? Palin: I got a
lot of communications. But not
as I sit here now. [Lack of
proof of damages a big focus
for NYT]
NYT lawyer:
So you saw that when the Times
was criticized on Twitter they
corrected it, right? Palin:
They *said* they did. NYT
lawyer: You've talked about
challenging a Senator in
Alaska?
Palin: I don't
know about running. But
supporting someone to
challenge her. Re-direct:
Palin's 2d lawyer: This photo
of her [Kathy Griffin] with
the bloody fake head, you've
seen it? Palin: Yes.
Palin's lawyer:
Do you know Alan Dershowitz
personally? Palin: No. I think
he was on Fox at some point.
Judge Rakoff:
Let's break for lunch now.
[Note: many
SDNY cases send up looping
back to connect, see Guiffre
v. Dershowitz, here
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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