The judge overseeing Sarah Palin’s libel trial against the NY Times has announced that he is dismissing her case even as the jury is now deliberating. The Washington Post’s Erik Wemple has been live-tweeting the developments:

Judge Rakoff in the Palin v. NYT case is now ruling on the newspaper's Rule 50 motion, which seeks a ruling in favor of NYT based on the contention that Palin hasn't provided enough evidence to support a claim under the law.

— ErikWemple (@ErikWemple) February 14, 2022

The NY Times argued that James Bennet was the most ignorant editor on the planet and Judge Rakoff believed them.

Rakoff now going through the instructions that he'd given to the jury regarding the "actual malice" standard and the high evidentiary hurdles that you need to clear to prove it.

— ErikWemple (@ErikWemple) February 14, 2022

Since Palin’s attorneys didn’t prove Bennet knew the statements were false there’s no proof he “recklessly disregarded” those facts. But the only reason Bennet didn’t know the facts is because when people repeatedly sent him links about the case he refused to look at them. He could have done a 2 minute Google search on his own but by choosing to remain blissfully ignorant for six years between the 2011 mass shooting in Tucson and the publication of the 2017 editorial, he’s not showing reckless disregard for the truth.

Rakoff is arguing that the contention that Bennet acted with "actual malice" is undermined by the fact that he sent his edit to a colleague, Elizabeth Williamson, with instructions to "please take a look."

— ErikWemple (@ErikWemple) February 14, 2022

As long as the people around you are just as ignorant as you are, you can’t possible libel anyone. As I argued a few days ago, the problem is that critical information from outside the Times’ bubble couldn’t make it’s way in.

Despite all of the layers of fact-checking and supposed expertise on staff, no one working on the editorial that day knew what they were talking about. They didn’t know that the 2011 shooting had no connection to Sarah Palin. They didn’t know that Democratic PACs had run similar targeting graphics before Palin did. They couldn’t think of any examples of left-wing violence potentially incited by political rhetoric…

And that’s how you wind up with highly paid NY Times staffers whose only note of hesitation is that maybe they were being a bit unfair to the left for making the comparison to Palin. Yes, the impulse to make the comparison in the first place was an attempt to both-sides the piece but the deeper problem was the deeply partisan ignorance of everyone involved. The only person who knew better was Ross Douthat, a conservative columnist who emailed later that night to say the piece didn’t make sense. Having a conservative as a fact-checker in the first place would have spared everyone a lot of trouble. Maybe the Times should embrace a little ideological diversity.

Judge Rakoff did allow it was “unfortunate editorializing” by the NY Times which is a hell of a way to describe the most powerful paper in the country connecting an innocent person to a mass murder. But he’s basically saying he has not choice in this case because the standard set by the 1964 case Times v. Sullivan is so high.

Rakoff: "I don’t mean to be misunderstood: I think this is an example of very unfortunate editorializing on the part of the Times."

— ErikWemple (@ErikWemple) February 14, 2022

Wemple says this kind of decision is pretty common in cases like this, though he’s not sure about issuing the decision while the jury is deliberating.

Such motions are common in these cases, though I cannot speak to how common it is to issue a ruling while the jury is still deliberating.

— ErikWemple (@ErikWemple) February 14, 2022

This ruling puts Judge Rakoff pretty much where he was in 2017, when he tossed the Palin case on the motion to dismiss. He argued that this was a case of negligent journalism, not the assertion of knowing falsehood/reckless disregard that a public figure must prove.

— ErikWemple (@ErikWemple) February 14, 2022

The judge expects an appeal which is why he’s allowing the jury to continue to deliberate:

Judge Rakoff noted that his ruling “will inevitably go up on appeal.”

As a result, he will allow the jury to have its say.

“The Court of Appeals, I think, will greatly benefit from knowing how the jury will decide,” Rakoff said.

He said that the jury’s verdict will inform the Second Circuit of their view of the facts.

Assuming he’s right and this is appealed, could it eventually make it to the Supreme Court? Several reports have noted that two current justices on the court have expressed interest in revisiting Times v Sullivan so maybe they’ll see this as an opportunity. If Palin issues any kind of statement today, I’ll add it below.

Update: The jury wasn’t sequestered so if they aren’t done with the case today then tonight they’ll go home and learn that their deliberations don’t matter. Sarah Isgur’s profile says she’s a Harvard law grad.

Wait…Judge Rakoff granted a motion for a directed verdict BEFORE the jury finished deliberating and the jury isn't sequestered if they go into day 3? That in and of itself would be grounds for appeal. What am I missing here. https://t.co/2eUo89gD3l

— Sarah Isgur (@whignewtons) February 14, 2022

She even predicts this could lead to a mistrial:

But he's tainted the deliberations. This is why you ask for motions AFTER a jury verdict. So in fact a defense verdict is now the opposite of bulletproof. It will be subject to a mistrial and redoing the whole thing.

— Sarah Isgur (@whignewtons) February 14, 2022