Commercial Litigation Update

The Second Circuit Court of Appeals has once again revived Sarah Palin’s longstanding defamation suit against The New York Times. The Second Circuit’s opinion highlights important procedural and substantive issues in defamation actions involving public figures, particularly in the current polarized media environment.

Palin’s lawsuit, which we previously wrote about here, relates to a 2017 Times editorial that incorrectly linked a political ad from the 2008 Republican vice presidential candidate and former governor of Alaska to a 2011 mass shooting in Arizona that killed six people and injured 13 more, including Congresswoman Gabby Giffords. After an initial dismissal that was reversed on appeal, Palin’s case proceeded to trial in February 2022.

During jury deliberations, the District Court Judge announced in open court that he believed Palin had failed to produce sufficient evidence of actual malice, and, for that reason, would grant judgment in favor of the Times. However, the judge allowed the jury to continue deliberations and the jury subsequently returned a verdict for the Times. The court later revealed in a public filing that members of the jury had learned about the judge’s decision to dismiss the case during deliberations after receiving push notifications on their smartphones. This unusual procedural sequence, compounded by errors during the trial, led the Second Circuit to vacate the judgment and order a retrial, which is scheduled to begin on April 14, 2025.