Former Alaska Gov. Sarah Palin speaks during a conference in...

Former Alaska Gov. Sarah Palin speaks during a conference in 2015.   Credit: AP/Cliff Owen

A panel of federal appeals judges in Manhattan on Friday expressed concern about the dismissal of Sarah Palin’s libel suit against The New York Times over a 2017 editorial that incorrectly claimed her political committee incited the shooting of Rep. Gabrielle Giffords in Arizona in 2011.

The lawsuit was tossed last year by Manhattan U.S. District Judge Jed Rakoff, who ruled there wasn’t a plausible claim the Times acted with malice after letting editorial page editor James Bennet testify that the false claim was an inadvertent error and was quickly corrected.

But at oral arguments before the Second U.S. Circuit Court of Appeals, Palin’s lawyers said the judge should have ruled based on the sufficiency of the allegations in their complaint and not substituted himself for a jury by listening to Bennet testify and assessing his credibility.

All three judges agreed the step was a break with protocol. “This is tremendously unusual to have a hearing like this,” said Judge Denny Chin, while Judge John Keenan expressed concern about letting a judge “willy nilly” break with the standard procedure set out in federal rules.

“This is such an unusual procedure,” said the third member of the panel, Judge John Walker. “It seems to me we have entered into the area of a trial.”

The Times’ June 2017 editorial followed the shooting of Louisiana Rep. Steve Scalise. Lamenting violent political rhetoric, it mistakenly said Palin's committee put out a map in 2011 with crosshairs targeting Giffords that had incited shooter Jared Loughner. In fact, no such link was ever shown.

Public figures like Palin suing for libel must show malice — that a newspaper knew it was printing falsehoods, or recklessly disregarded the truth. After hearing Bennet testify that he didn’t remember stories in the Times and elsewhere that debunked claims that Palin incited Loughner and quickly corrected his error, Rakoff said there was no basis to allege malice.

But Walker said the judge shouldn’t have taken Bennet’s word for it without even giving Palin a chance to gather information from others at the Times to try to show Bennet was being disingenuous and had recklessly smeared Palin because he despised her political philosophy.

“He was exposed to all of these articles,” Walker said to Times lawyer Lee Levine. “He says, ‘Oh, I never read it.’ He’s a highly functioning person. He’s the editor of the editorial page . . . The jury at least could consider that, couldn’t they?”

Levine said Rakoff didn’t trust Bennet, he just considered it illogical to claim malice in light of the Times’ quick correction. But Walker said a jury might find otherwise.

“One could argue . . . that of course he knew he was going to correct it,” he said. “I’ll put it out there and then if I’m corrected I’ll correct it. It could have been premeditated.”

The judges took the case under advisement and didn’t indicate when they will rule.

Latest video