Sarah Palin arrives for the trial in her defamation lawsuit in New York. Reuters

Jan Wolfe, Reuters

A surprising and unusual ruling against Sarah Palin in her defamation case has narrowed the former Alaska governor’s route to victory but the high-profile suit is far from over, legal experts said.

In an abrupt twist in a trial seen as a test of longstanding protections for American media, US District Judge Jed Rakoff on Monday announced plans to throw out the lawsuit — even as jurors were still deliberating.

Rakoff, who did not inform the jurors of his plan, said Palin had failed to prove the Times defamed her in a 2017 editorial that erroneously linked her political rhetoric to a mass shooting.

Rakoff allowed jurors to keep deliberating to reach a verdict as he announced his plans from the bench and said he would enter a formal dismissal only after they reached their own verdict.

Media law experts said it was not unprecedented for judges to issue so-called directed verdicts in defamation cases but the timing of Rakoff’s announcement was highly unusual.

The U.S. Supreme Court has said that, given the importance of protecting freedom of the press, it can be appropriate for judges to take defamation cases out of the hands of jurors, said David Logan, a Roger Williams University law professor. “The trial judge has an independent role to play in evaluating actual malice,” Logan said.

However, it was more common for a judge to issue a directed verdict either before a jury begins its deliberations or after they have reached a verdict.

“The dispute isn’t about what he (Rakoff) is doing,” said Alexandra Lahav, a law professor at the University of Connecticut. “It is that he communicated his thinking at this stage of the case.”

Rakoff said while the Times had engaged in “unfortunate editorializing,” the newspaper did not act with “actual malice,” a requirement in U.S. defamation cases involving public figures.

The judge added the jury verdict could still help the parties and the appellate courts resolve the case.

The New York Times will be in a stronger position if the jury also rules in its favor, said Eric David, a media lawyer at Brooks Pierce. In general, appeals courts are reluctant to second-guess factual determinations by jurors, David said.

“A jury verdict for the New York Times would be much more appeal-proof than a directed verdict,” he said.

If the jury rules for Palin, the case becomes more complicated. The 2nd U.S. Circuit Court of Appeals will then review Rakoff’s directed verdict and decide whether it agrees with him that Palin failed to prove actual malice. If not, it can reinstate the jury verdict.

Palin is expected to argue on appeal that she presented strong evidence of “actual malice,” but in any event the “actual malice” standard needs to be revisited by the US Supreme Court.

Last year, Supreme Court Justices Clarence Thomas and Neil Gorsuch wrote dissenting opinions making clear they think the “actual malice” framework is outdated, but it is unclear if other justices would join them. While the timing of Rakoff’s directed verdict was unusual, Lahave said there was a certain efficiency to it given jurors took time out of their lives to hear the case and lawyers were paid a lot of money to argue it. “You don’t want all those costs to go to waste,” Lahav said. “So the way to do is that is to make sure the jury verdict is preserved so they don’t have to do it all again.”