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Palin says editorial wrongly linked her to mass shooting

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Appeals court ordered retrial after jury sided with Times

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Press freedoms at stake

By Jonathan Stempel

NEW YORK, April 10 (Reuters) - Sarah Palin and the New

York Times ( NYT ) are headed back to a courtroom where the

former Alaska governor and Republican vice presidential

candidate will try convincing a second jury the newspaper

defamed her in an editorial about gun control.

A retrial in Palin's nearly eight-year-old lawsuit is

scheduled to begin on Monday in Manhattan federal court.

Palin, 61, who was defeated in her 2008 bid for the nation's

second-highest office, lost her first trial against the Times

and former editorial page editor James Bennet in 2022.

But last August, the 2nd U.S. Circuit Court of Appeals in

Manhattan found the verdict tainted by several rulings by the

presiding judge, and ordered a retrial.

Lawyers for Palin did not immediately respond to requests

for comment for this article.

Times spokesman Charlie Stadtlander said Palin's lawsuit

concerned "a passing reference to an event in an editorial" that

was not about her.

"That reference was an unintended error, and quickly

corrected," he said. "We're confident we will prevail."

The trial comes as polls show Americans increasingly

distrustful of mainstream media, as more people get their news

from social media and outlets whose views conform to their own.

Juries today may be more willing to "take out their

frustration at the failings of the wider media landscape on an

individual media defendant that has been sloppy," said RonNell

Andersen Jones, a University of Utah law professor and First

Amendment expert.

Palin's jury will be drawn from portions of New York City

and northern suburbs that often vote heavily Democratic, though

Republican President Donald Trump fared better in November's

election than in 2020.

'NERVOUS ABOUT FACING JURORS'

Since Palin's first trial, several media outlets have faced,

and sometimes settled, high-profile defamation cases.

In January, for example, CNN settled with a private

security contractor after jurors awarded him $5 million for

defamation.

The contractor had claimed that CNN falsely accused him

on-air of exploiting Afghans, following the U.S. military's 2021

withdrawal from Afghanistan.

A month earlier, ABC agreed to pay $15 million to

settle with Trump over an on-air assertion that a jury found him

civilly liable for raping - rather than assaulting - writer E.

Jean Carroll.

"The capitulation in the ABC case and other Trump-related

litigation suggests deep-pocketed defendants are nervous about

facing jurors anywhere," said David Logan, dean emeritus of the

Roger Williams University School of Law.

Palin has viewed her case as a vehicle to overturn New York

Times ( NYT ) v. Sullivan, the 1964 Supreme Court landmark requiring

public figures alleging defamation to prove media knowingly

published false information or recklessly disregarded the truth.

The 2nd Circuit, however, said Palin waived the argument by

waiting too long to challenge Sullivan's "actual malice"

standard.

'AMERICA'S LETHAL POLITICS'

The lawsuit stemmed from a June 14, 2017 editorial,

"America's Lethal Politics," that wrongly suggested Palin may

have incited a January 2011 mass shooting in an Arizona parking

lot.

Six people died in the shooting, and Congresswoman Gabrielle

Giffords was seriously wounded.

Bennet had added language - he said under deadline pressure

- identifying a "clear" link between the shooting and a map from

Palin's political action committee that put Giffords and other

Democrats under crosshairs.

While the Times quickly corrected the editorial and

apologized, Palin said the reputational harm and mental anguish

she suffered justify compensatory and punitive damages.

"The heart of this case is how much freedom the media has to

make a mistake, correct it and move on," said Roy Gutterman, a

professor at Syracuse University's Newhouse School of Public

Communications.

In reviving Palin's case, the 2nd Circuit said U.S.

District Judge Jed Rakoff wrongly excluded evidence she offered

to show Bennet knew she did not incite the shooting.

It also faulted Rakoff's excluding evidence about Bennet's

relationship with his brother Michael Bennet, the Democratic

senator from Colorado, that Palin said could establish bias.

A retrial before Rakoff is expected to last at least five

days. Palin is slated again to testify.

The case is Palin v. New York Times ( NYT ) et al, U.S. District

Court, Southern District of New York, No. 17-04853.