By Jonathan Stempel
Sarah Palin called on the judge who oversaw her unsuccessful defamation case against the New York Times to disqualify himself, and said his series of errors tainted the outcome and required a new trial.
In a late Tuesday night filing in federal court in Manhattan, lawyers for the former Republican vice presidential candidate and Alaska governor said U.S. District Judge Jed Rakoff set too high a bar for her to prove the Times acted maliciously.
The lawyers also faulted Rakoff’s unusual decision to dismiss Palin’s case while jurors were deliberating.
They said this “contaminated” jurors’ Feb. 15 verdict against Palin, citing several jurors who later admitted to the judge’s clerk that they learned through “push” notifications to their cellphones about Rakoff’s decision a day earlier.
“A reasonable person fully informed of the facts would question the court’s impartiality and predisposition,” Palin’s lawyers wrote.
Palin, 58, is appealing the verdict and Rakoff’s dismissal.
Rakoff’s chambers did not immediately respond on Wednesday to a request for comment.
Times spokeswoman Danielle Rhoades Ha said: “We remain confident that the judge and jury decided the case fairly and correctly.”
Palin sued the Times and its editorial page editor at the time, James Bennet, over a June 14, 2017, Times editorial that addressed gun control and lamented the rise of inflammatory political rhetoric.
It followed a shooting at a congressional baseball practice in Virginia, where Republican U.S. congressman Steve Scalise was among the wounded.
The editorial incorrectly linked Palin’s rhetoric to a 2011 Arizona mass shooting where Democratic then-congresswoman Gabrielle Giffords was seriously wounded. The piece was corrected the next morning.
In a March 1 written opinion, Rakoff said Palin “wholly failed to prove” that the Times or Bennet acted with “actual malice,” a stringent standard, in publishing the editorial.
He said it was “unfortunate” that jurors learned about his planned dismissal, but said they maintained it did not affect their deliberations.
Palin’s lawyers nonetheless said the outcome stemmed from “several fundamental, prejudicial errors” by the judge.
The lawyers said Rakoff’s usual speedy jury selection meant jurors weren’t properly screened for bias, a necessity for a case involving “a major media defendant, polarizing parties and political issues, and extensive press coverage.”
They also said Rakoff’s decision to talk to a reporter about the push notifications ran afoul of a federal rule governing judicial conduct, and could be seen as an “attempt to bolster the court’s rulings.”
The difficulty of proving defamation has prompted some calls to reconsider a landmark 1964 Supreme Court decision, New York Times v. Sullivan, broadly protecting journalists.
That decision requires public figures alleging defamation to show that news media acted with actual malice, meaning they knowingly published false information or had reckless disregard for the truth.
The Times is scheduled to reply to Palin’s arguments by April 12.