If we were the Second United States Circuit Court of Appeals — a stretch to be sure — we would reject Judge Jed Rakoff’s dismissal of Governor Palin’s libel case against the New York Times and hold the judge himself in contempt of court. The whole reason this case went to trial, after all, is because the Second Circuit overturned Judge Rakoff’s attempt to dismiss her claim in the first place.
In the event, Judge Rakoff presided over a trial that was an exercise in truculence. When it looked like the jury might find for Mrs. Palin, His Honor announced in open court that he was going to throw out any verdict the jury might bring in against the Times. Then he brought the jury in to, ostensibly, wish them a Happy Valentine’s day. He hinted that there might be news in the case but told the jurors not to read it. The Times had already put out a push notification.
The un-sequestered jurors returned the next day with what amounted to — surprise — a bouquet of roses for the Times. We can’t prove that they'd heard the news that the judge had already decided the case. Then again, too, the judge can’t prove that they didn’t. Imagine how Mrs. Palin feels, a mother whom the Times falsely accused of having incited the slaughter at Tucson in which Congresswoman Gabrielle Giffords was almost killed.
The judge might have stayed his own tongue and waited for the jury. If the jury then had found against Mrs. Palin, he’d have been in a better spot. Now it is not only the jury, but the court itself that Mrs. Palin could well put under review if she appeals. The riders of the Second Circuit would be unlikely to go for contempt. It’s not unlikely that they’d open up the questions raised in the Southern District afresh.
That — as our A.R. Hoffman reports elsewhere in our columns — is because the judge’s dismissal of the case would be considered “de novo.” That means that the appeals court would not need to give any deference to Judge Rakoff’s conclusion that Mrs. Palin failed to meet the standard for “actual malice.” The circuit riders get to decide that question by their own lights, with no preconceptions.
Normally it would be more difficult for the Second, or any, Circuit to toss aside a jury’s verdict. In this case, though, it might be easier to do that because of Judge Rakoff’s haling the jury into open court and hinting that he’d already made big news in the case. Was the jury tainted? Even without that question, the Second Circuit could conclude that the jury’s verdict was, on the merits, “clearly erroneous.”
The circuit sages could look at the record and demand to know: If the facts adduced in the Times case don’t amount to “actual malice,” then what in blazes would constitute actual malice? This species of malice is supposed to mean either uttering a libel knowing that it was false or uttering it with reckless disregard for the truth. To us it looks like the erstwhile editorial page editor of the Times is in jeopardy either way.
We’re well aware that we will share the fate of the press. Lord knows we’ve made our share of mistakes. If what the Times did to Mrs. Palin is not actual malice, though, then the law of precedent has no meaning. In our view, it would be better for the press that the law have real meaning. If it doesn’t, then the Second Circuit or the Supreme Court has a chance to step in and put paid to the meaninglessness of Times v. Sullivan.