1. Home
2. Daily News
3. 2nd Circuit cites push notifications to jurors…

Tort Law

2nd Circuit cites push notifications to jurors as one reason why Sarah Palin deserves new defamation trial

By Debra Cassens Weiss

August 28, 2024, 2:54 pm CDT

Former Alaska Gov. Sarah Palin, a Republican, is entitled to a new trial in her defamation case against the New York Times, partly because a jury finding of no liability was marred by push notifications received by jurors, a federal appeals court ruled Wednesday.

The 2nd U.S. Circuit Court of Appeals at New York said U.S. District Judge Jed Rakoff of the Southern District of New York wrongly intruded on the province of the jury when he ruled during deliberations that the case should be dismissed because of insufficient evidence that the newspaper and one of its editors acted with actual malice.

Rakoff allowed the jury to issue a verdict anyway, and it found no liability. But the verdict was marred by some of Rakoff’s decisions and by push notifications that some jurors received about Rakoff’s finding of no actual malice, the appeals court said in its Aug. 28 opinion.

Law360 covered the 2nd Circuit’s decision in favor of Palin, a Republican who was the 2008 vice presidential candidate. She had sued over a June 2017 editorial linking the shooting of a Democratic congresswoman with a digital crosshairs graphic published by Palin’s political action committee.

Rakoff’s law clerk had learned about the push notifications when interviewing jurors following the verdict to see whether they had problems understanding the legal instructions.

A push notification from a news application can appear at the top of a cellphone or on a lockscreen even when the app is closed, the 2nd Circuit explained.

Jurors said they were not prejudiced by the push notifications, which were “an unfortunate surprise” to Rakoff, the appeals court said. But Rakoff was wrong in concluding that the jury verdict was not prejudiced, the appeals court concluded.

“Given a judge’s special position of influence with a jury, we think a jury’s verdict reached with the knowledge of the judge’s already-announced disposition of the case will rarely be untainted, no matter what the jurors say upon subsequent inquiry,” the 2nd Circuit said. “We therefore conclude that a new trial is warranted on this basis.”

The 2nd Circuit panel also said Rakoff erred by excluding some evidence offered by Palin and by improper jury instructions.

The New York Times editorial had linked a 2011 shooting that wounded then-U.S. Rep. Gabby Giffords, a Democrat from Arizona, to a map by Palin’s political action committee showing targeted electoral districts in a crosshairs. Six people were killed in the shooting, including a federal judge.

The New York Times had declared that “the link to political incitement was clear,” even though the attack was viewed as stemming from the perpetrator’s mental illness, according to the 2nd Circuit.

The New York Times later issued corrections saying the crosshairs were placed over targeted electoral districts, not photos of politicians, and saying there was no established link between political rhetoric and the shooting.

Palin sued the New York Times and James Bennet, then the editorial page editor, who had written the sentence about the link to political incitement being clear.

The 2nd Circuit said Rakoff should have allowed evidence that Bennet’s brother, Michael Bennet, was a Colorado Democratic U.S. senator, that Bennet was involved in his brother’s 2010 reelection bid, that the crosshairs map targeted the districts of two Democrats in the House of Representatives who endorsed Bennet’s brother, and that Palin had endorsed the person running against Sen. Bennet.

The appeals court said the evidence was relevant, and it could lead a reasonable juror to infer that Bennet had “a reason to personally dislike Palin, and that it was therefore more likely that he intentionally or recklessly, rather than inadvertently, connected her” to the shooter who wounded Giffords.

Rakoff should also have allowed introduction of three prior New York Times opinion articles that could “be plausibly read” as casting significant doubt on links between the shooting and the crosshairs map, the 2nd Circuit said. Bennet had testified that he “must have read” the prior articles.

Judge John M. Walker Jr., an appointee of former President George H.W. Bush, wrote the panel opinion. It was the second time that the 2nd Circuit ruled in the case. Rakoff had previously tossed the case without a trial, but the appeals court ruled in 2019 that he followed the wrong procedure and reinstated the lawsuit.

The case is Palin v. New York Times Co.

As a law professor, one of the most rewarding parts of my job is helping students navigate their burgeoning legal careers and find positions that bring professional satisfaction and success. I am always delighted when students appear in my office with an offer in hand or a story about an amazing case that they worked on over the summer.

Correspondingly, one of the worst parts of my job is witnessing the disappointment, embarrassment and uncertainty that students face when a hoped-for offer doesn’t arrive, a job doesn’t work out, or something goes wrong at an internship or summer placement.

While my students have found professional success in a wide variety of settings—large law firms, small firms, nonprofits, government agencies, courts, etc.—I have been highly troubled by the number of students who have been subjected to hiring and employment practices at small firms that I would describe as unethical at best and deceptive and exploitative at worst.

Here are just a few examples from my 11 years as a professor at law schools in three states (with superficial details changed to protect the privacy of the students involved).

  • A student who, after working for two summers at a small firm, was offered a “three-phase employment plan,” in which the firm offered to (1) pay her a (very) low salary for her first three months, (2) the same salary for the next three months on the condition that she generate an equivalent amount of revenue or pay back the difference, and then (3) stop paying her a salary from the sixth month onward but charge her a fee to use the firm’s printer. The hiring partner told her that she should plan to have developed her own book of business by that point.

  • A small firm that hired multiple summer associates with the promise that everyone would receive offers of permanent employment at the end of the summer. After putting in long hours for the next three months, every summer associate except the hiring partner’s son and a prominent potential client’s daughter were told that they would not be receiving the offers of which they had been assured.

  • A student who received an offer from a small firm that wanted him to open a branch office in another town completely on his own. The firm offered to pay him $40,000per year and give him a stack of law books that it had purchased from a recent library closure but noted that he would have to pay for his own insurance and his own subscription to online legal research service Westlaw. When the student pushed back, the firm agreed to raise the offer to $60,000 per year and promised that, eventually, he would earn back some amount of the additional revenue that he generated at a percentage to be negotiated later.

In addition to other such troubling examples, I have frequently witnessed 2Ls and 3Ls performing significant amounts of unpaid or low-paid work at small firms during the semester. These students sometimes struggle to keep up with their classes and the demands of their supervising attorneys.

Many of those students, moreover, never receive offers from those firms and are left scrambling to find other permanent employment near graduation. Meanwhile, my sense is that these firms see no problem with such outcomes and instead commend themselves for having given students an opportunity to gain experience.

In some of these situations, the attorneys involved may have been overwhelmed by hefty workloads or truly miscalculated the hiring and supervisory capacities of their small firms. They may also have been out of touch with the current legal market and reasonable compensation ranges.

In others, I think that such firms have purposely exploited law students, extracting considerable amounts of work from them while dangling the prospect of long-term employment that they know they will never be able to offer. Finding a law student to intern is indeed a cheaper option than hiring another attorney, paralegal or assistant.

I am sympathetic to the unique workload and economic challenges faced by small firms. I am also aware that such firms can—and very often do—offer law students opportunities that larger firms cannot: opportunities to perform more significant legal work earlier in their careers.

I have had scores of law students find immensely satisfying employment at small firms and even start their own. Additionally, local small firm attorneys are often some of the most supportive and engaged alums that law schools have.

But I also think that the lack of transparency surrounding small firm hiring increases the risk of unsavory employment practices—a risk that law schools, the bar and small firms themselves should work to reduce.

Unlike large firms, which typically compensate associates in a given region similarly and whose hiring and compensation practices frequently find exposure on sites like Above the Law, small firms vary enormously and are often black boxes with respect to compensation. Law students understandably struggle to determine whether an offer from a small firm is a fair one and often don’t yet have the experience to know when a term of employment is unusual or objectionable.

The common issues with large firms are well known and widely discussed: grueling hours, difficult partners and high attrition, particularly among women and people of color. I worry, however, that in our profession’s very laudable efforts to improve the workplace at big firms, small firms have largely escaped scrutiny.

Worse, the attention on big firms seems to have created a mythology in the minds of many law students that working for large firms necessarily entails high compensation in exchange for terrible hours and poor treatment, whereas small firms are their gentler, more family-friendly—though lower-paying—alternatives. Experienced members of our profession know that to be a false dichotomy, but law students may not.

To combat these issues, law schools have to offer students closer guidance in contemplating job offers from small firms. They should keep track of which firms engage in dubious employment practices and caution students away from them. Law schools also have to teach law students how to do due diligence before accepting a job. Schools should encourage students to research how other small firms in the area are compensating attorneys doing similar work, check the disciplinary history of the lawyers at the firm, and ask tactful but thoughtful questions about the firm’s finances.

State bars should take a more active role in monitoring the employment practices of small firms and whether such firms are providing adequate supervision of law student interns. State bars should also provide more CLE opportunities designed to ensure that small firm attorneys are up to date on employment laws, ethical hiring standards and current norms in compensation.

Finally, small firms have to engage in careful self-reflection before hiring law students. They should not hire law students whom they cannot adequately supervise or fairly compensate. Additionally, they should be as transparent and upfront as possible with students about the possibility of future employment.

While having law student interns is undoubtedly helpful, particularly if a firm is struggling under the weight of a daunting caseload or financial uncertainty, the risks inherent in small firm practice should not be borne by some of the most vulnerable members of our profession.

---

Tracy Hresko Pearl is professor at the University of Oklahoma College of Law. She researches and writes in the areas of law and technology, criminal procedure and torts. Before becoming an academic, she was an associate at Hogan Lovells in Washington, D.C., and a law clerk for judges in the U.S. District Court for the Eastern District of Virginia and the 10th U.S. Circuit Court of Appeals at Denver.

---

ABAJournal.com is accepting queries for original, thoughtful, nonpromotional articles and commentary by unpaid contributors to run in the Your Voice section. Details and submission guidelines are posted at “Your Submissions, Your Voice.”

---

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.