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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.

Patrick Palace is a litigator who has made some life changes. He grew out his hair, sports athleisure wear more than suits, and focuses on legal technology and systems to expand his Tacoma, Washington, firm rather than trying to be the No. 1 trial lawyer and rainmaker.  

A workers’ compensation attorney who also does plaintiffs personal-injury cases, he acquired five law practices in two years. Palace is also a former Washington State Bar Association president, and he’s trying to convince other lawyers to embrace innovation and change in the profession rather than beat it back.

His current volunteer work includes serving as vice chair of the ABA Center for Innovation and secretary of the National Conference of Bar Presidents—two groups with members who sometimes don’t agree on regulation changes in the law. “I’m a bridge,” says Palace, who supports re-regulation to allow law firm ownership by and limited licensing of nonlawyers. 

“Guys like me can show how much their own firms leveraged technology and how many opportunities are out there. So bar leaders can be megaphones of opportunity, not naysayers of fear,” adds the Palace Law founder. 

Palace grew up in Washington and attended Loyola University Chicago School of Law because he wanted to see what living in a large city was like. He graduated in 1991 and returned home the same year, initially working as defense lawyer for police misconduct cases. He switched to plaintiffs work in 1995 as a sole practitioner.

Today, Palace Law employs 11 lawyers and 27 legal professionals. Most everyone in the practice, including himself, works offsite, and he estimates that approximately 80% of the firm’s new business starts through online contacts.

“We use technology to keep lawyers and staff working at the top of their skill set and give as much of the lower-end work as possible to technology to complete, preferably without human intervention,” he adds.

The tech tools include a “Patbot,” a chatbot that uses consumers’ information to analyze their cases, create forms and write letters. The website also has a case value calculator, which is free.

“There’s plenty of money to be made in the law. I don’t have to monetize everything, and it shouldn’t be my purpose to make money off of everyone who calls me,” says Palace, 57. He sees himself as an experimenter rather than a builder and often consults Twitter when shopping for law firm technology.

“I don’t always take the company that’s producing the tool as the best source, but I often listen to those who are using it, and sometimes those who invested in it,” adds Palace, who shifted from litigation work to law firm management and strategy four years ago.

His personal life has changed too. A former student of mixed martial arts, Palace now practices yoga. He also enjoys hiking and fishing, and he has a winery, Sunken Cellars, which ages its products underwater in Puget Sound.

“I’ve gotten a little closer to my roots,” Palace says. “That helps when I’m out on the road and speaking about mindfulness, work-life balance and how to be successful by scaling or changing firm culture, so long as the culture is strong and positive.”

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