WhenSarah Palinarrived at a federal court on Monday, her appearance promised little in the way of legal fireworks.
Palin was in downtown Manhattan for a retrial in herdefamation lawsuitagainst the New York Times. She lost her first trial against the newspaper in 2022 and the legal basis of Palin’s civil claim – that an incorrect editorial unlawfully smeared her – remains the same.
The retrial granted tothe formerAlaska governor and 2008 Republicanvice-presidential contenderstems from procedural errors rather than factual questions. The US second circuit court of appeals revamped Palin’s case in 2024, having determined that Judge Jed Rakoff wrongly intruded on jurors’ decision-making.
While the jury was originally deliberating, Rakoff decided that if they delivered a verdict in Palin’s favor, he would set aside this decision. Rakoff, who stated that he presumed Palin would appeal what he expected to be an unfavorable verdict, told both sides that an appeals court “would greatly benefit from knowing how the jury would decide it”,according to NBC News.
Some jurors received push notifications on their phones about Rakoff’s decision while they were actually deliberating. The second circuit also found that Rakoff erred by keeping information from jurors potentially showing that James Bennet, then the editorial page editor at theNew York Times, knew this piece was incorrect.
While trial proceedings that started last week are largely a replay of Palin’s initial trial, first amendment constitutional advocates contend that they reflect a troubling trend. Politicians and public figures – especiallyDonald Trumpand his allies –are waging campaigns against US media organisationsthat are critical of them.
Many of these lawsuits are unlikely to pass legal muster: public figures have a high burden in proving defamation. But many outlets lack the resources to fight a costly years-long legal battle against defamation claims in a culture that’s increasingly media-averse,suppressing free expression.
“Every libel case these days feels like it has significant implications because of the fear and concern that the supreme court might ultimately want to change the legal standards for public officials and public figures,” Roy S Gutterman, the director of the Newhouse School’sTully Center for Free Speechat Syracuse University, said.
That said, Palin’s case might not be a referendum on the first amendment outright as “the actual malice standard, which requires the plaintiff to prove that the false information published about them was done either knowingly or with reckless disregard for the truth, is not an easy standard, which is why plenty of libel plaintiffs like Governor Palin do not win defamation lawsuits”, he added.
If Palin loses again, however, this does not equate to an automatic victory for first amendment rights. “She will almost certainly appeal again and keep appealing,” Gutterman said. “Appellate courts set precedent, so we might still be a ways away from seeing how strong the first amendment ultimately is these days.”
And if Palin were to land a shocking win, “it would not be great for theNew YorkTimes or the free press altogether. Even if she wins a nominal amount of money, both sides might still keep appealing,” Gutterman said.
Robert Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression (Fire), said the Palin proceedings hinge on procedural issues rather than a referendum on the first amendment. Philadelphia-based Fire is defending Iowa pollsterJ Ann Selzerfrom the US president, who is suing her over a poll which concluded that he was trailingKamala Harrisin the state just before his decisive victory in Iowa as well as nationally in the 2024 election.
“The retrial is more of a standard defamation claim,” Corn-Revere said. “The question is whether or notSarah Palinwill meet the very high bar that is required for a public figure deflation case.”
That said, the case is unfolding in a time where there is “contempt for constitutional norms”.
“People who want to bring some kind of action will do so regardless of whether or not they have some kind of valid claim, or whether or not such a claim even exists,” Corn-Revere said.
The 2017 editorial referred to the 2011 mass shooting that gravely injured then Arizona Democratic congresswomanGabby Giffordsand left six people dead. Prior to this attack, Palin’s political action committee (Pac) published an ad, featuring cross-hairs, spanning over several congressional districts led by Democrats.
The editorial article in question erroneously associated the Pac’s political rhetoric with the mass shooting. Asked about Palin’s claims, the Times said: “This case revolves around a passing reference to an event in an editorial that was not about Sarah Palin. That reference contained an unintended error that was corrected within 18 hours.”
Tom Spiggle, the founder of theSpiggle Law Firm, said that the retrial presents a “second bite at the apple” for Palin but “it really comes down to a factual issue at this point”.
“Can they show actual malice?” Spiggle said. “That’s going to be a jury question.”
Although the legal question is very specific, the case does speak to broader ongoing public discourse about free speech in the Trump era. “Trump has in the past made statements that he would like to reform defamation law and make it easier for people to win defamation cases,” he said.
But if Palin loses again, this could make an important statement for free speech.
“I think it does send a message that just because you’re angry at the New York Times – or insert your media source here – doesn’t mean you’re going to prevail. The standards are still high,” Spiggle said. “Actual malice is tough to prove, and there’s a reason for that, right? It’s because we want these reporters … not [to] be on pins and needles every time they publish a story.”
Lawyers for Palin did not respond to a request for comment.
The retrial is scheduled to resume on Monday. Jurors are expected to start deliberating midweek.