Tuesday, August 1, 2017




Hyperlink Looms 

Large in Palin Fight With NY Times;

— During 90 minutes of sharp questioning Monday, a federal judge asked why a New York Times editorial tying Sarah Palin to a mass shooting appeared to be contradicted by a hyperlink posted in its online version.


Federal Judge Jed  Rakoff today reserved his decision in the Palin vs New York Times slander lawsuit until the end of August. This is highly significant on many levels.
Firstly the challenge, even before the case commenced was, on the face of it, massive;
“Can a housewife from Wasilla, Alaska prevail in a libel case against the liberal New York Times in front of a Federal Judge appointed by Democratic president Bill Clinton in overwhelmingly Democratic New York?”

Secondly the barrier to a successful suit for slander has been insurmountable since “New York Times vs Sullivan”
“But Palin’s lawsuit is different.  Why?  Because the newspaper’s own published stories demonstrate that the editorial it ran was false.  A reasonable journalist would know it was false.  You’d have to be a complete idiot not to know it.”

Clearly Judge Rakoff, even though beloved by the radical leftists Matt Taibbi is no idiot and no matter what his subsequently ruling is the fact that he did not summarily dismiss Palin’s case is of much significance. This lack  of dismissal shows that “Sullivan” if not breached, has been scaled to some degree.
On the other hand what is Indicative of a dismissal later this month is the judge sees no reason why discovery should go forward at this time

Even if the case is dismiss under “Sullivan” in August the fact that it went to a reserved decision gives solid ground for appeal up to the Supreme Court with it’s now conservative majority. This may give the NY Times legal team even further cause for considering a settlement.
Indeed, the New York Times legal team has some hard thinking to do now. 

Do they take a chance that Judge Rakoff allows the case to go to a jury trial where there would then be the possibility of a multi-million dollar award against the newspaper or do the go for a settlement out of court with a payment and an apology. The latter may seem to be the safest course for the paper unless they are utterly confident the judge will rule for dismissal. The fact that he did not do so initially may give them pause.

Judge Rakoff’s background may give them further pause for thought especially as “Palin’s legal team has served notice that she plans to subpoena “twenty-three non-party current and former Times reporters, editors and other employees — most of whom had nothing to do with the editorial at issue.”The subpoenas are part of Palin’s effort to obtain “documents that might reveal, among other things, their ‘negative feelings’ toward her,” the Times told the judge”

Given this background, the venue and the Establishment on trial that Judge Rakoff reserved his decision Palin may indeed end up winning at a higher court.

”He's a judicial activist who ruled the death penalty unconstitutional in 2002, and was overturned by the Appeals Court. The New York Times said some very nice things about him in regard to that case. From Wikipedia:

The New York Times called the ruling "a cogent, powerful argument that all members of Congress - indeed, all Americans - should contemplate".
Last year Rakoff ruled that transgender kids under 18 cannot be denied medicaid coverage for hormone therapy and transition surgery. The NYT called that ruling a "health care milestone."
Groundbreaking Decision in Cruz v. Zucker

Also last year he wrote a piece in the New York Review of Books decrying the lack of access for average citizens to the courts in ordinary lawsuits because of the costs involved. Of course the Palin case is a whole different situation.

Why You Won’t Get Your Day in Court
I haven't been able to find anything about his thoughts on the case law surrounding New York Times v. Sullivan, the landmark ruling in cases such as Palin's.

Rakoff is a leading authority on the securities laws and the law of white collar crime, and has authored many articles on the topic, as well as leading treatises on RICO and corporate sentencing. 

Speaking about the federal mail fraud statute, Rakoff wrote, "To federal prosecutors of white-collar crime, the mail fraud statute is our Stradivarius, our Colt .45, our Louisville Slugger, our Cuisinart -- and our true love. We may flirt with other laws and call the conspiracy law 'darling,' but we always come home to the virtues of [mail fraud], with its simplicity, adaptability, and comfortable familiarity. It understands us and, like many a foolish spouse, we like to think we understand it."[14] 

Judge Rakoff is also co-editor, with Judge Leonard B. Sand, and others, of Modern Federal Jury Instructions.

Rolling Stone magazine Matt Taibbi wrote in 2011, "Federal judge Jed Rakoff, a former prosecutor with the U.S. Attorney's office here in New York, is fast becoming a sort of legal hero of our time."[15]
In addition to pushing back against what he has described as superficial punishment by the SEC for companies accused of fraud, Rakoff has held the federal death penalty unconstitutional, sharply criticized the U.S. sentencing guideline, inserted himself into corporate governance reform at WorldCom, and pushed for the public release of documents.[16][17]

He is well-known among lawyers for showing little patience with delays and moving cases along rapidly. The judge says he feels bad taking lawyers and others to task, but he saw in private practice how delays and gamesmanship made the American legal system too slow and expensive for the average person. "The price of being a nice guy is too high—much too high—in terms of the system of justice", Rakoff added.[18]

14. Jed S. Rakoff, The Federal Mail Fraud Statute (Part 1), 18 Duq. L. Rev. 771 (1980)
15. Matt Taibbi,"Finally, a Judge Stands up to Wall Street", Rolling Stone, November 7, 2011.
16. Rothfeld, Michael (2011-11-09). "No Mr. Nice Guy—Just Ask Wall Street". WSJ. Retrieved 2016-12-10.
17. Louise Story, "Plain Talk From Judge Weighing Merrill Case", The New York Times, August 23, 2009.
18. Rothfeld, Michael (2011-11-09). "No Mr. Nice Guy—Just Ask Wall Street - WSJ". Online.wsj.com. Retrieved 2016-12-10.

 H/T "Al B"

No comments: