Sarah Palin is now 0 for 2 in her ongoing legal battle with The New York Times, but so far the former Alaska governor has given no indication that she intends to stop swinging for the fences.
Shortly after a federal jury in New York City on Tuesday dismissed Palin's second attempt to sue the newspaper for defamation, the Republican firebrand was asked if she would try to appeal the verdict to the Supreme Court.
"I hope so," she replied as she climbed into a limousine.
But that, legal experts said, is easier said than done.
Under New York law, Palin can't challenge the jury's unanimous verdict, which came down a day after U.S. District Judge Jed Rakoff for the Southern District of New York took the unusual step of announcing that he would be dismissing Palin’s case regardless of how the jury ruled.
So, Palin would have to try her luck with the 2nd U.S. Circuit Court of Appeals, perhaps arguing that the jury instructions misstated the law, the experts said.
But that court has historically been reluctant to second-guess determinations reached by jurors, Ryan Cummings, a media lawyer at Hodgson Russ, told Reuters.
Even if Palin were to prevail there, the odds that the nation's top court would take her case are against her, the experts said.
"She can try but it’s extremely unlikely they would take her case," said George Freeman, who heads the Media Law Resource Center in Manhattan. "They have bigger fish to fry, such as likely overturning established law in Roe versus Wade, so I think the court would be loath to upset long-standing precedent in a second area."
The second area Freeman was referring to is New York Times v. Sullivan, the landmark 1964 ruling which concluded that a public figure must prove a defamatory statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”
Palin's failure to prove reckless disregard sank both of her attempts to sue the Times for a 2017 editorial the newspaper admits contained factual errors and for which it has already apologized.
"Palin is a public official, and I think in the unlikely event the Court takes a case revisiting Sullivan, it would be in a public figure/celebrity case, not a public official case where the rationale for Sullivan — robust, uninhibited debate on public issues — is at its strongest," Freeman, who previously spent three decades working as a lawyer for the Times, wrote in an email.
Other legal experts concurred.
“If she can get review by the U.S. Supreme Court, Ms. Palin could seek to establish a less demanding standard than the current actual malice standard applicable to public figures,” Barbara Wahl, a partner at Arent Fox, who has spent years litigating and advising clients about defamation cases, said in an email.
Conservative justices such as Neil Gorsuch and Clarence Thomas have shown an interest in changing the libel laws to make it easier to sue media outlets and win, Wahl and other experts have said.
“Several Supreme Court justices have expressed the view that the actual malice standard should be modified,” Wahl said. “But the Supreme Court has recently not accepted review of several defamation cases that might have given the Court an opportunity to do so.”
Even with a conservative majority, the Supreme Court is very protective of free speech, said Kent Greenfield, a law professor and distinguished scholar at the Boston College Law School.
“The one possible exception is that there have been some indications that Sullivan has lost favor,” he said.
“Justice Thomas, in particular, has said he would overrule Sullivan,” Greenfield said. “I doubt that Thomas would have four other justices to join him at this point, however.”
Palin claims her reputation was damaged by the Times editorial bearing the headline “America’s Lethal Politics” that incorrectly linked her to a 2011 mass shooting in Arizona that nearly killed then-U.S. Rep. Gabby Giffords, D-Ariz.
The Times quickly published a correction saying "no such link was established" and the editor then in charge of that section, James Bennet, issued an apology.
But Palin sued the Times for unspecified damages.
Rakoff tossed Palin’s first lawsuit two months after it was filed in 2017, saying she had failed to show that the newspaper knew it was publishing false statements in the editorial.
But a three-judge panel of a federal appellate court in Manhattan reinstated it in 2019, saying Rakoff should have given Palin’s team more time to obtain emails and other evidence that might help their case.
Still, as Palin's second defamation trial got underway, even her own lawyers expressed doubt she would prevail because the hurdles for public figures to prove that they’ve been libeled are so high.
“We come to this case with our eyes wide open, keenly aware of the fact that we’re fighting an uphill battle,” Palin’s lawyer Shane Vogt said in an opening statement.
To win, Palin still needed to prove that the Times’ claim was not only false, but also that the news outlet published the claim knowing it was false.
Both times, Palin was represented by Vogt and Kenneth Turkel, who helped Terry “Hulk Hogan” Bollea win a huge libel suit that bankrupted the media outlet Gawker.
Tech billionaire Peter Thiel, a supporter of former President Donald Trump, bankrolled the Hogan lawsuit.
Palin has refused to say who is footing the bill for her defamation lawsuits, stoking suspicions that her case may be a Trojan horse of sorts, galloping toward the Supreme Court to undermine New York Times v. Sullivan.
But Andrew Koppelman, the John Paul Stevens professor of law at Northwestern University, said "it's hard to guess what her long game is."
"She's already publicized a (true) narrative that the Times was sloppy with facts, and maybe that's all she wanted," he said.
