How a Blunder in Palin’s Lawsuit Could Deal a Huge Blow for Press Freedom Imagine if you were a juror in a high profile case with First Amendment implications between a former vice presidential nominee and the leading newspaper in America. Imagine you learned that. while you and your fellow jurors were still deliberating. the judge had awarded judgment to the defendant without telling you. That’s exactly what happened in Sarah Palin’s defamation suit against The New York Times. Judge Jed Rakoff granted a dismissal to The New York Times on Monday. but did not tell the jurors. “Several” of the jurors learned of the dismissal by push notifications on their cell phones. Rakoff later said. The next day. unsurprisingly. the jury followed suit and returned a verdict for the defendant. This bizarre turn of events threatens to undermine the verdict in favor of the Times on appeal. and could have major repercussions for the future of the First Amendment. Challenging a Decades Old Protection of Press Freedom In New York (and virtually every other state). a plaintiff bringing a defamation case has to prove four things by a preponderance of the evidence (more than 50 50). if she is suing an ordinary person: (1) a false statement was made about the plaintiff. (2) it was published without the permission of the plaintiff. (3) the defendant either knew that the statement was false or. at a minimum. was negligent in determining whether it was false. and (4) the plaintiff was damaged by the false statement. When the plaintiff is a “public figure” and the defendant is in the media. however. there is a heightened standard. called “actual malice”. The plaintiff must prove by “clear and convincing evidence” that the defendant operated “with knowledge that it was false or with reckless disregard of whether it was false or not.” The “actual malice” standard was announced by the U.S. Supreme Court in a case called Times v. Sullivan in 1964. For the past fifty years. the Times has never lost a defamation suit under the “actual malice” standard. Palin argued that the court should not apply the “actual malice” standard because technology has rendered it obsolete. According to her argument. in the social media era where everyone can publish to millions on Facebook. Instagram or Twitter. every person who is subjected to defamation is potentially a “public figure” and everyone who issues a defamatory statement is potentially part of the “media.” Rakoff denied Palin’s arguments and instructed the jury that they had to find “actual malice” in order to rule in her favor. At the close of the trial. The New York Times argued that the judge should dismiss the case without sending it to the jury. because no reasonable jury could concl ... https://www.youtube.com/watch?v=NXmkyFNTdto