Sarah Palin Is Eyeing More Than Just Money in Her ‘New York Times’ Defamation Suit

On a sunny Monday in November 2023, a group of lawyers made their way through Foley Square, the plaza outside the federal, state, and county courthouses in Lower Manhattan. The scene was chaotic. The New York attorney general’s fraud trial against the Trump Organization was underway, and Donald Trump was scheduled to be on the stand that day. Protesters, camera crews, and law enforcement swarmed the area.

These lawyers, however, weren’t here for Trump. Instead, they walked into the federal Thurgood Marshall Courthouse and rode the elevator to the seventeenth floor, the home of the Second Circuit Court of Appeals.

Led by Shane Vogt, who seven years earlier had helped Hulk Hogan destroy Gawker, the lawyers were about to argue a case that, though it wasn’t generating much fanfare compared to the Trump circus, had potentially greater ramifications. It had become—and to this day it remains—a primary vehicle for attacking the Supreme Court’s famous decision in New York Times v. Sullivan.

In that 1964 case and a handful of ensuing decisions, the court ruled that public figures could not prevail in libel lawsuits unless they could prove that a publisher acted with “actual malice”—in other words that it knew what it was writing was false or acted with reckless disregard as to its accuracy. By insulating news outlets from weaponized libel lawsuits, the rulings ushered in an era of hard-nosed investigative journalism.

Not coincidentally, Donald Trump and some of his allies wanted the Supreme Court to overturn the precedent.

Vogt got involved in the case in the spring of 2016. He was fresh off his successful lawsuit against Gawker—which had been secretly financed by Peter Thiel, who had long wanted to crush the site—when he received an unsolicited call from an aide to Sarah Palin. In the years since John McCain selected her as his running mate in 2008, the former Alaska governor had been fading back into obscurity. Palin had tried various tactics to arrest this fall, including reality-TV cameos. Now, the aide explained to Vogt, Palin wanted to file a libel lawsuit.

Her intended target was the rapper Azealia Banks. Days earlier, Banks had come across an online article purporting to quote Palin saying that “Negroes loved being slaves and they were doing just fine under our rules.” Banks hadn’t realized that the article, which was spreading via social media, was from a satirical website and that the quotes were fake. She took to Twitter and unloaded on Palin, suggesting in profane terms that she be forced to have sex with large Black men.

It seemed like a golden opportunity for the ex-governor to shoehorn herself back into the headlines. She issued a statement to People magazine: “I’m suing Azealia Banks and can’t wait to share my winnings with others who have gone defenseless against lies and dangerous attacks far too long.” People quoted an unnamed “source in the Palin camp” as saying that the former governor was “in discussions with attorneys” about the planned lawsuit.

Vogt wasn’t one to shy away from a fight with long odds. But the problem, as he informed Palin’s aide, was that her proposed lawsuit against Banks did not seem promising, not least because the rapper had quickly deleted and apologized for her over-the-top tweets. And so Palin decided not to sue.

That was the end of the matter—at least for the following year. Then, early on a Wednesday morning in June 2017, James Hodgkinson, a Trump-hating leftist armed with a semiautomatic rifle and a handgun, opened fire on Republican lawmakers at a baseball practice in Alexandria, Virginia. Six people were injured.

The near-tragedy would provide Palin with another opportunity to sue for libel—and Vogt with a chance to challenge the Sullivan decision.

Elizabeth Williamson, an editorial writer at the New York Times, had initially heard the news of the shooting on the radio. She’d been working in Washington, covering Congress and politics, since 2003, and she’d previously met some of the lawmakers who’d come under fire that morning.

She emailed her colleagues on the editorial page in New York and proposed that they write a quick opinion piece about the attack. After a bunch of back-and-forth, they decided that the focus should be on “the rhetoric of demonization and whether it incites people to this kind of violence,” as Williamson’s boss, James Bennet, put it in an email.

Williamson, Bennet, and their colleagues knew that this was not the first time that a lawmaker had been attacked by a crazed gunman. In 2011, Jared Lee Loughner had killed six people, including a federal judge and a young girl, and injured thirteen, including Representative Gabby Giffords, in Arizona. Loughner was later diagnosed as suffering from paranoid schizophrenia, and no evidence ever emerged that he had been motivated by politics.

But in the shooting’s immediate aftermath, many observers had assumed otherwise. And they had wrongly blamed Palin, whose political action committee a year earlier had posted on Facebook a map with rifle crosshairs over twenty Democratic congressional districts, including Gifford’s. “It’s time to take a stand,” the ad had implored.

Six years later, Williamson got to work writing her editorial about this latest spasm of violence. She finished the piece around 4:45 p.m. It linked both the Loughner and Hodgkinson shootings to “rage . . . nurtured in a vile political climate” and noted that Loughner’s act was preceded by Palin’s crosshairs map, though Williamson did not draw a direct causal connection.

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Editors read Williamson’s piece, and they weren’t satisfied. Its central argument felt muddy. Bennet, as the head of the editorial page, was one of the Times’ highest-ranking journalists. He also happened to be the brother of a Democratic senator from Colorado. He picked up Williamson’s draft a little after 5 p.m. The newspaper had an 8 p.m. deadline, and rather than give Williamson feedback and ask her to revise the editorial, Bennet decided to sharpen it himself. He would have to move fast.

Around 7:20, he sent the new version to Williamson, who was working from her home in Washington’s Palisades neighborhood. “I really reworked this one,” he wrote. “Please take a look.”

Williamson skimmed the edited piece. She trusted Bennet. “Looks great,” she responded.

This turned out to be a disastrous oversight—responsibility for which was shared with the small team of Times editors and fact-checkers who were supposed to serve as a backstop against errors. Bennet had changed the description of the Loughner shooting to say that “the link to political incitement was clear. Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.” He also noted that in that day’s Virginia shooting, there had been “no sign of incitement as direct as in the Giffords attack.” Bennet would later say that he hadn’t intended for the editorial to suggest that the crosshairs map provoked Loughner’s shooting spree, but he had drawn what looked like a straight line between the two.

The editorial, headlined “America’s Lethal Politics,” went up on the Times website at 9:45 p.m. Fifty minutes later, Ross Douthat, a Times columnist, emailed Bennet “to express [his] bafflement at the editorial.” He noted that there was “no evidence that Jared Lee Loughner was incited by Sarah Palin or anyone else, given his extreme mental illness and lack of any tangible connection to that crosshair map, the Tea Party or other right-wing cause.”

“Thanks,” Bennet replied a half hour later. “I’ll look into this tomorrow.”

But he was worried and logged on to Twitter right then. He immediately saw that others were leveling the same criticism: that the Times had falsely blamed the Loughner shooting on the Palin map.

By then it was approaching midnight. “Are you up?” Bennet texted Williamson. “The right is coming after us over the Giffords comparison. Do we have it right?”

Williamson had already turned in for the night. Bennet, however, was too anxious to sleep. A little after 5 a.m., he emailed Williamson and another colleague. “I don’t know what the truth is here,” he wrote. “I’d like to get to the bottom of this as quickly as possible this morning and correct the piece if needed.”

Bennet and Williamson then talked on the phone, and Bennet followed up with a text message asking for “a rock-solid version of what we should say” if she determined that the Times had to issue a correction.

“On it,” Williamson confirmed. “We’ll do the right thing.”

She quickly concluded that the piece indeed needed to be corrected. At 11:15 a.m.—about 14 hours after the editorial went online—the Times issued the correction, saying that the editorial “incorrectly stated that a link existed between political rhetoric and the 2011 shooting. . . . In fact, no such link was established.” The Times tweeted the correction to its tens of millions of followers, acknowledging that “we got an important fact wrong. . . . We’re sorry about this and we appreciate that our readers called us on the mistake.”

Palin’s camp had not reached out to the Times to request a correction or apology. But 32 minutes after the Times fixed its error, Palin shared her own message on social media. It consisted of a screenshot of two paragraphs from an obscure website called Blasting News. “Palin has not been in the public eye recently,” the snippet read. “The irony would be all too delicious if she returned to the national stage by taking the New York Times to court and suing it for the attempted assassination of her character.” To that text, Palin added her own note: “am talking to attorneys this AM and exploring options.”

This time, when the same Palin aide reached out, Shane Vogt thought the former governor had a case.

As a politician, Palin had mastered two very effective tactics, ones that Trump would supercharge when he burst onto the political scene years later. First was a knack for spreading falsehoods, such as her claim that President Obama’s health plan used “death panels” to ration medical care. Second was a constant thrum of attacks designed to delegitimize the “lamestream media” that kept calling her out.

No news outlet presented a more inviting target than the Times. Palin derided the newspaper on the campaign trail, on TV, and in interviews. At one point, she’d even taunted the Times for renting out part of its headquarters. “I ain’t saying you a golddigger,” she wrote on Facebook, butchering the Kanye West lyrics, “but there’s a reason you messin’ with broke, broke, broke.”

Now, with Trump assailing the Times and the rest of the “fake news” media from the White House, Palin saw a chance to go mano a mano with her old nemesis.

Vogt did, too. He believed he could build a case that the members of the Times editorial board not only didn’t like Palin but also had every reason to know that her crosshairs map was not connected to the Arizona massacre.

Less than two weeks after the Times ran and corrected its editorial, Vogt filed a lawsuit in federal court in Manhattan. “Mrs. Palin brings this action to hold The Times accountable for falsely stating to millions of people that she . . . is part of a pattern of ‘lethal’ politics and responsible for inciting an attack.” The suit accused the editorial writers of engaging in “a purposeful avoidance of the truth,” noting that the newspaper in other instances had correctly stated that there was no evidence connecting the Loughner shooting to the Palin map. And it claimed that the editorial had caused “damage to her reputation, humiliation, embarrassment, mental suffering, shame and emotional distress.” The suit sought damages “far in excess of $75,000,” the threshold required to ensure that a civil action remained in federal rather than state court.

The Times was accustomed to such lawsuits—and it had an impeccable record of beating them. In fact, it hadn’t been on the losing end of a libel lawsuit in the United States since the early 1960s.

Now the Times’ in-house attorneys contacted their counselors at the law firm Ballard Spahr. The lawyers assigned to this case would include Lee Levine, a pillar of the First Amendment bar, and Jay Ward Brown, a journalist turned lawyer with a quarter of a century of experience representing the Times and other news organizations. The lawsuit struck Brown as flimsy—the newspaper had swiftly corrected the editorial—but he and his colleagues suspected that its raison d’être was a whole lot more than recovering damages for the former governor. Their bet was that, like Vogt’s Gawker case, this one was being financed by a deep-pocketed donor, presumably someone with animus toward the Times, the Sullivan decision, or both. If that were the case, the plaintiffs were probably aiming to drag things out and ultimately get the case to the Supreme Court.

In July, Brown submitted a motion to dismiss the lawsuit. Even if its claims were taken at face value, he argued, they did not show that the Times had acted with actual malice. The editorial had been sloppy but not a deliberate smear.

The case was assigned to an iconoclastic federal judge named Jed Rakoff. In order to decide whether Palin and Vogt’s claims were plausible, Rakoff wanted to better understand how the editorial had come to be. So he asked Bennet to testify at what’s known as an evidentiary hearing.

This was a break from normal procedure—and the first in what would be a series of serious procedural miscues. A judge is supposed to evaluate a motion to dismiss based on what’s alleged in a lawsuit, not on evidence that he collects elsewhere. But Rakoff wasn’t one to be hemmed in by tradition. At the hearing in August 2017, he quizzed Bennet about what he meant by the words he wrote, about his state of mind, about grammar and sentence structure.

“What I wasn’t trying to say was that there was a direct causal link between this map and the shooting,” Bennet explained at one point. He said he didn’t recall reading prior pieces in the Times or The Atlantic magazine—where he’d been the top editor at the time of the Loughner attack—that made clear that there was no known connection between the shooting and the crosshairs map.

Less than two weeks later, Rakoff ruled. “What we have here is an editorial, written and rewritten rapidly in order to voice an opinion on an immediate event of importance, in which are included a few factual inaccuracies somewhat pertaining to Mrs. Palin that are very rapidly corrected,” he wrote, repeatedly citing Bennet’s testimony. That was not actual malice. The lawsuit was dismissed.

But nobody thought the fight was over. Two days before Thanksgiving, Vogt notified the court that Palin intended to appeal.

It would be nearly two years before a three-judge panel on the Second Circuit Court of Appeals reached its decision in 2019. The judges concluded that Rakoff should not have heard, much less relied upon, Bennet’s testimony in the evidentiary hearing. The case was sent back to Rakoff with instructions to let discovery get underway.

Thus began another two-plus years of legal wrestling and waiting. The Times lawyers still believed that someone was secretly financing this lawsuit; they doubted that Palin, whose income by this point derived in large part from creating personalized videos for strangers on the Cameo platform, would be able to afford the seven-figure bill for a yearslong case.

When I asked Vogt about this, he refused to discuss his fee arrangements but said that “there’s no third-party financing or anything like that. Palin is the person responsible for paying the fees.” In a subsequent conversation, he implied that Palin hadn’t been able to pay all of those fees but that he wasn’t going to walk away from her. “We don’t always get full payments from our clients for everything,” he said.

Palin’s side was no longer hiding its ultimate purpose: overturning New York Times v. Sullivan. Vogt filed a motion urging Rakoff to preemptively rule in Palin’s favor on the grounds that she shouldn’t be subjected to the actual malice standard: “It has become clear that the rule is obsolete and unworkable, incapable of consistent application, and holds no footing in the modern speech landscape.”

A federal judge couldn’t buck a higher court’s precedent, but by complaining about Sullivan early on, Vogt could create a paper trail that might be useful if the case were to reach the Supreme Court—which, he told me, he “would like it to.”

As expected, Rakoff rejected Palin’s plea. The case would go to trial in 2022, more than four and a half years after the editorial had been published.

Jay Brown drove six hours to New York from his home in the foothills of Virginia’s Blue Ridge Mountains. The whole Ballard Spahr team would be staying at the dingy Four Points hotel in Lower Manhattan. It was a brisk 15-minute walk from the Daniel Patrick Moynihan Courthouse and would serve as the trial team’s base of operations. Brown had lodged there before, and he knew the hotel’s shortcomings. In addition to boxes of evidence, he had packed his Toyota RAV4 with several lamps to supplement the hotel rooms’ dim lighting.

The trial got underway on February 3. As they entered the court that morning, the lawyers had to navigate through a mighty media scrum on the lookout for Palin. It was so hectic that, going forward, Brown and his team decided they would sneak through back alleys on their approach to the courthouse.

The jury was seated inside the courtroom, with windows overlooking the Manhattan and Brooklyn skylines. It was packed with lawyers, clerks, security, journalists, supporters of the governor, and a sketch artist. Vogt stood to present his opening statement.

“We come into this case with our eyes wide open and keenly aware of the fact that we’re fighting an uphill battle” in terms of Palin’s reputation in a heavily Democratic city, Vogt began. “To be clear, we’re not here trying to win your votes for Governor Palin or any of her policies. We’re here to prove a libel case to you.” He concluded by saying that the biased Bennet had set out to smear Palin. “What they did to Governor Palin was malicious.”

Jay Brown’s colleague, Dave Axelrod, took the lead with the jury. The Times made a mistake, he explained. It learned of its mistake. It fixed its mistake—all by the following morning. What’s more, Axelrod said, Palin’s reputation hadn’t been harmed one bit.

Over the course of the ten-day trial, two witnesses would stand out as pivotal: Bennet and Palin. Bennet went first.

Vogt cast him as a creature of the establishment, “born to privilege and raised in a family with a strong Democrat tradition,” as Vogt had put it in a court filing. He ticked through Bennet’s private-school pedigree, then got him to confirm for the jury that he had campaigned and even edited speeches for his brother, Senator Michael Bennet, in 2010, around the time that SarahPAC published its crosshairs map.

One of the challenges for Vogt was to convince the jury that the Times’ swiftly issued correction did not make up for its initial malicious act. The correction hadn’t mentioned Palin by name, instead simply stating that the newspaper had wrongly drawn a connection between the shooting and political incitement. The Times owed her an apology, Vogt maintained.

“Did you reach out to Governor Palin to apologize?” he asked Bennet.

“I didn’t, because I learned that our policy was not to do that. And I raised my concerns about that policy, but it remained in place.”

Bennet left the stand. Palin replaced him.

Vogt asked her what impact the editorial had had on her. “Well,” she replied, “it’s hard to lay your head on the pillow and have restful nights when you know that lies are told about you.”

During cross examination, Axelrod asked if she had ever sought a correction from the Times.

“No,” she said. “They just accused me of inciting murder. I didn’t think I was going to get a friendly response.” (By the time Palin started tweeting about the editorial, the Times was already rushing to correct it.)

What about the harm that she had suffered? Had any of her family members asked about the editorial or expressed dismay?

Your parents? “I don’t recall.”

Your sister? “I don’t recall specifically.”

Your other sister? “Same answer.”

Your brother? “No.”

Your kids? “At some point,” though it might have been “months later,” after she had filed the lawsuit. This did not sound like someone who had endured severe emotional distress.

Closing arguments began on Friday, February 11. It was 60 degrees and sunny, the type of winter day in New York that might convince even hardened skeptics that the planet was overheating.

Vogt’s law partner, Ken Turkel, spoke first. “What this dispute is about, in its simplest form, is really power and lack of power,” he began. He harped on the Times’ lack of direct apology to Palin, which he said was “indicative of an arrogance and a sense of power that’s uncontrolled and for which Governor Palin’s only remedy is to use our system here, our judicial system.”

Turkel wrapped up after an hour and 45 minutes. He invited the jury to award what it saw fit—even if that was just $1. “All they had to do was dislike her a little less, and we are not sitting here today.”

Next it was Axelrod’s turn. If Bennet had been trying to defame Palin, would he have reacted so quickly when Ross Douthat first flagged the problem with the editorial? Would he have immediately texted Williamson or sent marching orders at five o’clock in the morning? “Does that make any sense?” Axelrod asked. “No, of course not.”

The defense rested its case by reminding jurors about the stakes. This wasn’t just about Sarah Palin, James Bennet, and the New York Times. “At bottom, this case is about whether a newspaper can publish stories and express opinions that are critically important without fear that a powerful person will seize on an honest mistake that was corrected almost immediately and tie up the paper in litigation and potential liability,” Axelrod concluded.

Before the case was submitted to the jury, Jay Brown had filed what’s known as a Rule 50 motion. It asked the judge to decide that, based on the evidence presented during trial, no reasonable jury could find for Palin because there was insufficient evidence that Bennet or the Times had acted with actual malice.

With the jurors out of the courtroom, Rakoff had heard arguments from both sides about whether he should grant the motion and essentially short-circuit the lawsuit. A few days later, he informed the lawyers that he would reveal his decision but also would let the jurors work toward reaching a verdict. That way, in the event of an appeal, higher courts would have the benefit of both his and the jury’s determinations.

“I think this is an example of very unfortunate editorializing on the part of the Times,” Rakoff explained to the mostly full courtroom. “But having said that, that’s not the issue before this court. My job is to apply the law. The law here sets a very high standard for actual malice. And in this case, the court finds that that standard has not been met.” He had ruled for Bennet and the Times.

Rakoff noted that he would not formally issue his ruling until after a verdict was handed down by the jury, which “of course will not know about my decision.” But he had just divulged it in open court. Within minutes, news outlets had issued alerts announcing that Rakoff planned to throw out Palin’s suit. That evening, Rakoff wished the jurors a happy Valentine’s Day and reminded them not to read any news about the case.

The next day, the jury reached its verdict. The verdict envelope was passed to the clerk.

“Mr. Foreman, please rise,” the clerk instructed. “As to the plaintiff’s libel claim, you the jury find the defendant liable or not liable, you say?”

“Not liable.” The verdict was unanimous. Brown and Axelrod wrapped Bennet in a hug.

But the victory was fleeting.

Before the jurors left the building, Rakoff’s clerk conducted routine exit interviews, asking them if there was anything that could have been done differently or more clearly during the trial. Rakoff regarded this as an important way to make him a better judge, and his clerks had done similar interviews in hundreds of other cases. This time, something unexpected came up: a few jurors mentioned that they’d seen the news alerts about Rakoff’s plan to dismiss the case. The jurors insisted that they hadn’t been swayed by the alerts, but it was impossible to know if the news had subtly colored the deliberations.

Rakoff was stunned. He was 78 and, by his own admission, far from tech-savvy. It hadn’t occurred to him that jurors might see the news pop up on their locked phone screens. He informed the lawyers for both sides about what his clerk had learned. There had been little doubt that Palin would appeal the verdict. Now there was none.

Vogt’s appeal to the Second Circuit asked for a new trial. It faulted Rakoff for not allowing Palin’s side to present evidence of Bennet’s supposed political bias and his knowledge—including in the form of Atlantic articles that ran while Bennet edited the magazine—that the crosshairs map did not spur the Arizona shooting. It blamed the judge for prematurely announcing his Rule 50 decision. And it took issue with some of Rakoff’s instructions to the jury.

The appeal also trained its sights on Sullivan. Vogt again argued that the 1964 decision was outdated and that Palin didn’t meet the Supreme Court’s original understanding of a public figure.

Oral arguments were held in the same Thurgood Marshall Courthouse that had been the venue for the previous appeal years earlier. Vogt navigated through the crowds that had gathered in anticipation of Trump’s appearance at his fraud trial. Inside the ornate seventeenth-floor courtroom, he and Jay Brown faced three Republican-appointed judges.

Vogt started off by attacking Sullivan, but the judges told him he was wasting his time; that was the Supreme Court’s call.

That was the low point for Vogt. Going forward, the judges seemed to be taking his and Palin’s side, including wondering aloud whether the push alerts announcing Rakoff’s Rule 50 decision had “tainted” the jury.

Vogt and Brown had both come into court that morning recognizing the high stakes. At the very least, a costly and protracted retrial was on the line. At most, a crucial First Amendment precedent was up for grabs.

By the time oral arguments ended after an hour, the stakes hadn’t changed, but the playing field had. Vogt walked into Foley Square. The sky had grown overcast, the air chilly. It was almost exactly a year before the 2024 presidential election, and protesters were waving signs and shouting about the dangers that Trump posed to democracy. Vogt wasn’t bothered. Things seemed to be unspooling just as he had hoped.

His confidence would prove well founded. In August 2024, the appeals court handed down its decision. The judges faulted Rakoff for wrongly excluding evidence, giving incorrect instructions to the jury, and prematurely announcing his Rule 50 findings. Rakoff’s mistakes, the judges wrote, “impugn the reliability” of the jury’s verdict in favor of the Times. The only solution, they concluded, was a retrial.

Palin was pumped. And why not? A new trial guaranteed that this seven-year legal war would extend into at least 2025, keeping her name in the news and—who knows—maybe even winning her some money in the process.

Vogt, too, was thrilled. His mission hadn’t changed. The new trial was scheduled for April. He wanted to beat the Times in Rakoff’s courtroom, of course, but regardless of which side prevailed at trial, a fresh cycle of appeals was all but inevitable.

And that was where the real pay dirt might lie: another opportunity to invite the Supreme Court to reconsider Sullivan and make it legally and financially riskier for people to criticize or question the rich, famous, and powerful.