Sarah Palin’s long-anticipated defamation trial against the New York Times has been postponed after the former Alaska governor contracted COVID-19.
Her lawyer Kenneth Turkel reportedly told the judge: “She wants to be here for jury selection, she wants to testify live.” Turkel said that Palin is awaiting the result of another test before deciding how long they will need to delay, according to the Times.
Palin’s brush with the pandemic delays a trial nearly half a decade in the making, which experts fear may have broad repercussions for freedom of the press.
On June 15, 2017, the Times ran an editorial titled “America’s Lethal Politics” trying to connect overheated political rhetoric to real-world violence. The unsigned op-ed, written by former editor James Bennet, tied mass murderer Jared Lee Loughner’s shootings to a map disseminated by Palin’s political action committee, which had crosshairs over certain electoral districts.
One of those districts belonged to Rep. Gabrielle Giffords, an Arizona Democrat whom Loughner shot. There was no evidence that Loughner knew about the Palin ad, and the Times ran a correction noting that. That did not prevent Palin from suing later that year.
Though Rakoff initially threw out the lawsuit, the Second Circuit revived it because the judge held an unusual fact-gathering hearing before ruling on a motion to dismiss. On a motion to dismiss, judges must assume the allegations are true and determine whether the case would pass legal muster, if proven.
After the case went to discovery, Palin gained access to internal communications showing that Bennet added the contested language from the original draft of the editorial, which had a hyperlink to an ABC News article that reported: “No connection has been made between [the Map] and the Arizona shooting.”
Palin argues that this showed that Bennet had an agenda and ignored evidence to the contrary in order to defame her.
Under longstanding First Amendment precedent, public figures like Palin must prove “actual malice” before suing the press, and one manner of doing so would be by demonstrating “reckless disregard for the truth.” Few defamation cases filed by public figures meet this high bar, making Palin’s trial unusual.
In 2020, however, Judge Rakoff determined that a jury could decide from the evidence showed Bennet disregarded the truth in this exchange, and he initially set a trial over the controversy for last year. It was postponed because of the COVID-19 pandemic.
On Sunday, Judge Rakoff informed the parties of a new policy inside the Southern District of New York mandating that nobody may unmask in the courtroom — “even in the HEPA-filter-outfitted witness and attorney boxes” — unless they have tested negative for COVID-19 “using an approved molecular diagnostic test.”
“Confirmation of negative test results (or of a prior case of COVID-19) must be provided to the Court through its staff, as further set forth in this order,” Rakoff wrote.
The Times reported that it has not lost a defamation case in a U.S. court in more than 50 years.
Attorneys for Palin and the New York Times did not immediately respond to emails requesting comment.
(Photo by Aaron P. Bernstein/Getty Images)
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