As another New York City institution once said, it’s deja vu all over again for The New York Times and former Alaska Republican Gov. Sarah Palin.

Palin has the rare opportunity to retry her defamation case against the Times even though she lost it twice in a 24-hour period in early 2022. Jury selection is slated to begin Monday in federal court in Manhattan, after a judge’s misstep in the initial suit opened the door to a retrial.

The case was sparked by a 2017 Times editorial that, Palin’s attorneys argued, had accused her of inciting murder six years earlier in the shooting in Tucson, Ariz. that killed six people and gravely wounded then-Rep. Gabby Giffords. No proof was ever found suggesting the shooter was motivated by, or even knew about, the Palin ad cited by the editorial.

Conservative allies had hoped to use the case to upend protections for the press stemming from a six-decades-old U.S. Supreme Court ruling in a defamation case that also involved the Times. 

Thanks to that ruling, Palin had an uphill battle: the bar to prove defamation is high for public figures such as Palin — a former governor, vice presidential candidate and vocal supporter of President Trump. She has not been able to make a credible case that she suffered tangible damages as a result of the Times’ editorial, and the newspaper moved relatively quickly to remedy its errors.

But the media landscape has shifted since that first trial. CNN recently settled a case filed by a former security contractor whom it had accused of “black market” rescue operations after the fall of Kabul to the Taliban. A Florida jury had awarded the man $5 million in pain and suffering; CNN agreed to pay him more to stave off the jury’s decision on how much to award him in punitive damages. MSNBC settled a defamation claim brought by a physician falsely accused in 2020 of performing mass hysterectomies on female detainees at an Immigration and Customs Enforcement facility.

And Trump has sued several media and social media companies, including X (formerly Twitter) and Meta, ABC, CBS and the Des Moines Register. ABC, X and Meta settled. CBS is litigating vigorously against Trump although parent company Paramount is also exploring a settlement. (Paramount is in the midst of selling itself to the son of Trump’s billionaire ally Larry Ellison.)

The judge’s misstep

The editorial in question in the Palin case was posted late in the evening of June 14, 2017. The Times published a correction the next morning, acknowledging the lack of any link between Palin’s ad and Gifford’s shooting. The day after, it corrected a related element. The Times’ then-editorial page editor, James Bennet, who had inserted the incorrect claims into the passage, wrote an apology that was posted to the opinion section’s social media account. It was then reposted by the Times.

Palin’s odds at trial in 2022 looked long. And yet a reprieve unexpectedly arose at that trial’s close, thanks to the judge. Even as jurors deliberated, U.S. District Judge Jed S. Rakoff ruled that Palin had failed to make a credible case and announced he would find the Times not liable for defamation.

Rakoff said each item put forward by Palin’s lawyers as proof of the Times‘ ill will “consists either of gross supposition or of evidence so weak that, even together, these items cannot support the high degree of particularized proof” needed to move forward.

Rakoff announced his decision in court, out of hearing of the jury. He said he would not issue it formally until the jury’s verdict, which he said he would set aside.

The next day, the jury unanimously found against Palin.

Upon being questioned by the judge’s law clerk, however, several jurors conceded that they had learned of Rakoff’s ruling dismissing the case through push alerts on their smartphones before they had finished deliberating

Palin’s legal team appealed; a three-judge panel of the 2nd U.S. Circuit Court of Appeals sent the case back. The appellate judges found that Rakoff, a senior judge, had not followed proper procedures in evaluating her legal claims and that she had, indeed, made a case that “states a plausible claim for relief.”

While acknowledging the case is ultimately about the bounds of the First Amendment, the appellate court also cited the notifications jurors received on their phones.

The panel wrote they had “no difficulty concluding that an average jury’s verdict would be affected if several jurors knew that the judge had already ruled for one of the parties on the very claims the jurors were charged with deciding.”

Palin failed to convince the appeals court, however, to disqualify Rakoff from hearing the case. So, he will preside over the trial of her legal claim once more in a trial expected to last at least a full week.

The New York Times declined to comment ahead of the case. Palin’s lead trial attorney did not respond to NPR’s query for this story.

Unclear what Palin may gain from a victory

Beyond the opportunity to unravel some of the protections for the press in the 1964 U.S. Supreme Court ruling, it is not entirely clear what Palin is hoping to gain. Federal courts apply state law to defamation cases. A New York state law — passed after her suit was first filed — strengthens press freedoms.

As conceded in court papers Palin and the Times jointly presented to the judge on how the retrial will be handled, “Governor Palin is not seeking to recover and will not claim or assert loss of income, jobs, or other paid opportunities,” including in book sales or ad revenues from her website.

Among the questions proposed by Palin’s legal team for prospective jurors this time around: “Do you receive push notifications from any news websites or apps?”