When a jury ruled in favor of the New York Times over Sarah Palin on Tuesday after hearing days of evidence as part of her defamation lawsuit against the newspaper, many legal and media observers were quick to say they expected the former Alaska governor to appeal.
Indeed, the federal judge who presided over the case said as much himself when he, too, decided for the Times the day before.
In a surprising ruling that came some 24 hours before the jury reached its own verdict in the case, US District Court Judge Jed Rakoff said he would dismiss Palin’s claim as a matter of law no matter what the nine jurors decided.
As part of what is known as a directed verdict, Rakoff said he had concluded Palin’s attorneys failed to meet the legal standard of defamation by not proving that the Times staff acted with “actual malice” when they incorrectly asserted her political action committee incited a deadly shooting.
Importantly, Rakoff never told the jurors about his decision and instead allowed them to keep deliberating. Aware that news outlets were going to write about his decision, he repeated a warning to the jurors before they left for the day on Monday that he’d previously given them at the start of the trial: Avoid reading anything in the press about this high-profile case and instead come to your conclusions based solely on the evidence presented to you in court.
But in the smartphone era, that’s easier said than done.
In a new order in the case on Wednesday, Rakoff notified attorneys that several jurors told his law clerk after their verdict was announced that they had inadvertently learned of his decision through news alerts on their phones.
“These jurors reported that although they had been assiduously adhering to the Court's instruction to avoid media coverage of the trial, they had involuntarily received ‘push notifications’ on their smartphones that contained the bottom-line of the ruling,” he wrote.
Several outlets, including BuzzFeed News and the New York Times itself, alerted readers to the judge’s decision via push alerts on Monday, although for these notifications to appear on phones, users must first download the relevant apps and then have alerts enabled via their settings.
The jurors — who included, among others, a museum docent, a creative director, a receptionist, and a hedge fund worker — were not sequestered during their deliberations, meaning they were free to return home each night, albeit under strict instructions not to talk about the case or conduct their own research.
But the judge’s slightly unusual decision to rule on the motion to dismiss while the jury was deliberating invariably meant some jurors couldn’t avoid learning of his decision.
“A lot of people were saying that’s what was likely to happen, that the jury would find out,” said University of Connecticut professor Alexandra Lahav, who studies procedural law. “I guess the risk materialized.”
Lahav described this as a “generational” issue that perhaps the 78-year-old judge might not fully have considered. “I think there were some people who thought automatically obviously the jury will get a push notification and others who didn’t,” she said. “What I noticed is people who are very savvy with social media and smartphones, their minds immediately went to the smartphone thing.”
Lahav said she could not immediately recall another case where such an issue had arisen. “I think this is a first,” she said. “At least I’ve never heard of it.”
In his Wednesday order, Rakoff stressed that the jurors had “repeatedly assured” his court that the notifications “had not affected them in any way or played any role [whatsoever] in their deliberations.”
He also noted that neither party had objected to him ruling on the motion to dismiss while the jury was still deliberating. At least one attorney had indicated there was a risk of jurors seeing push notifications, so the judge brought them in on Monday afternoon ostensibly under the guise to wish them a happy Valentine’s Day before reminding them to turn away from any headlines they might see about the case.
Palin’s attorneys did not respond to a request for comment about whether the push notifications might be involved in any planned appeal to the 2nd Circuit.
However, Lahav noted that any appeal would have to first be concerned with arguing Rakoff was wrong on the law in his actual malice ruling.
The judge had indicated that letting the jury reach a verdict of its own would mean that any appeals court could choose to simply reinstate the jury’s verdict, but now Palin’s attorneys might have a case to argue that they deserve a new trial altogether.
But Lahav said she did not expect such an argument to be successful.
She pointed to a procedural question that the jurors asked the judge on Tuesday while still deliberating as evidence that they were continuing to seriously consider the case.
Lahav was also unsurprised that both judge and jury ultimately found the Times not liable. “Judges and juries agree about 80% of the time on liability, so this seemed pretty standard stuff to me,” she said.