Former Alaska Governor Sarah Palin and the left-wing New York Times were back in a New York courtroom on Monday for jury selection in the retrial of the former’s defamation suit against the latter. Palin scored a retrial after a biased judge inappropriately announced that he was going to rule against her no matter what the first jury found, with jurors subsequently finding out. The start of the retrial drew begrudging coverage from NPR media correspondent David Folkenflik, who lamented that the case had new life.
It was clear from the opening sentence that Folkenflik didn’t hold the case in high regard, quoting Yogi Berra while quipping: “As another New York City institution once said, it’s déjà vu all over again for The New York Times and former Alaska Republican Gov. Sarah Palin.”
Folkenflik tried to downplay how The Times accused Palin of being responsible for the assassination attempt of former Democratic Representative Gabby Giffords (AZ), suggesting it was only something “Palin’s attorneys argued” happened.
Omitting how the editorial was written by The Times’ editorial board (not just one of their columnists) and how the correction in the piece admitted to what they did, Folkenflik then disclosed: “No proof was ever found suggesting the shooter was motivated by, or even knew about, the Palin ad cited by the editorial.”
So which was it; only something the lawyers argued happened or something that really did happen?
Folkenflik took solace in how conservatives were struggling to get the results out of the case they wanted, while boasting about how “Palin had an uphill battle” to hold The Times accountable:
Conservative allies had hoped to use the case to upend protections for the press stemming from a six-decades-old U.S. Supreme Court ruling in a defamation case that also involved the Times.
Thanks to that ruling, Palin had an uphill battle: the bar to prove defamation is high for public figures such as Palin — a former governor, vice presidential candidate and vocal supporter of President Trump. She has not been able to make a credible case that she suffered tangible damages as a result of the Times’ editorial, and the newspaper moved relatively quickly to remedy its errors.
Regarding the judge’s misconduct that resulted in the retrial, Folkenflik downplayed it as just a “misstep” instead of the miscarriage of justice that it was.
Despite the years of pre-trial hearings that were supposed to act as a gatekeeping function to see if the case was worth being brought before a jury, which it was, U.S. District Judge Jed S. Rakoff announced that he would rule against Palin no matter what the jury found during their deliberation, which they were actively doing at the time.
“The next day, the jury unanimously found against Palin,” Folkenflik admitted. “Upon being questioned by the judge’s law clerk, however, several jurors conceded that they had learned of Rakoff’s ruling dismissing the case through push alerts on their smartphones before they had finished deliberating [sic][.]”
A panel of appeals judges later ruled that they had “no difficulty concluding that an average jury’s verdict would be affected if several jurors knew that the judge had already ruled for one of the parties on the very claims the jurors were charged with deciding.” Thus, a retrial was permitted, to Folkenflik’s apparent chagrin.
Folkenflik cautioned that this time around “the media landscape has shifted since that first trial,” after several media organizations had been held accountable for their defamation and lies in several ways:
CNN recently settled a case filed by a former security contractor whom it had accused of “black market” rescue operations after the fall of Kabul to the Taliban. A Florida jury had awarded the man $5 million in pain and suffering; CNN agreed to pay him more to stave off the jury’s decision on how much to award him in punitive damages. MSNBC settled a defamation claim brought by a physician falsely accused in 2020 of performing mass hysterectomies on female detainees at an Immigration and Customs Enforcement facility.
Of course, Folkenflik misrepresented the nature of Navy veteran Zachary Young’s victory in his defamation suit against CNN.
The case was not “settled.” In fact, CNN was found liable for malicious defamation and forced to pay out $5 million in economic and emotional damages. What did get settled were the punitive damages, which were only on the table because the jury found that CNN acted with actual and expressed malice.
It matched Folkenflik’s flippant attitude toward the case. He first wrote about Young’s case on the eve of the trial’s jury selection on January 6 and injected President Trump into it for no reason.
Meanwhile, NPR thought this kind of reporting was worth being subsidized by your tax dollars.
