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Judge to dismiss Sarah Palin lawsuit against 'New York Times'

MARY LOUISE KELLY, HOST:

A federal judge says he is dismissing Sarah Palin's complaint against The New York Times. The former Republican vice-presidential nominee, former governor of Alaska, had accused the paper of defaming her with an editorial - an editorial that linked one of her political action committee's ads to the shooting of a former Democratic congresswoman. The judge says Palin's lawyers failed to meet the high standards required for public figures to make that case.

NPR media correspondent David Folkenflik is here now to explain all. Hey, David.

DAVID FOLKENFLIK, BYLINE: Hey, Mary Louise.

KELLY: All right. What else did the judge say in dismissing this case?

FOLKENFLIK: Well, this was a wild one. Judge said that - he said - this is a direct quote - "Ms. Palin was subjected to an ultimately unsupported and very serious allegation that the paper and, et cetera, chose to revisit seven years or so after the underlying events. I think it's an example of a very unfortunate editorializing on the part of the Times." But then he said, that's not what I'm here to decide. I'm here to decide the law.

And there's this standard called actual malice required of public figures to prove of the press and figures in defamation cases that make it real hard for public figures to do that. They have to show that somebody knew that what they were publishing was untrue or to act with such reckless disregard for the facts that they should have known.

KELLY: Yeah. Now, the judge, he did let this case go to trial, obviously, and he's letting the jury go ahead and deliberate. Why dismiss the case now? It's such unusual timing.

FOLKENFLIK: Right. And the jurors are the only ones in the world who might not know that this decision is coming in. He was asked by the Times' lawyers at the outset of the trial to dismiss it. He said no. He wanted to allow the lawyers for Governor Palin to present her case in full. And then they brought it again.

And what he argued was they effectively hadn't provided the evidence to - not to convince him that they were right but to convince him that there was a case to be made for Sarah Palin that actual malice had occurred in this instance. And so he's saying, look, I want this to be the case, but I'm going to let the jury make its conclusion before I enter this ruling.

KELLY: So the significance of this decision by the judge today to dismiss is what? I mean, I gather he believes this is going to get appealed. But what do we know in terms of precedent, in terms of where this will land?

FOLKENFLIK: Well, this is significant. It upholds the importance in the primacy, effectively, of a decision also involving The New York Times, a case called Times v. Sullivan decided by the Supreme Court in 1964 that established this standard. And it's a standard that's coming under some criticism from law professors and even from several sitting Supreme Court justices at various points in their career, that they think perhaps this is too stringent. It makes it too difficult to hold major news outlets accountable for the way in which they represent and sometimes misrepresent public figures. So that's come under erosion. He's saying this is the standard that needs to be applied, and they haven't met it.

KELLY: Right. And I gather part of what Sarah Palin and her attorneys were trying to argue was that she was no longer as much of a public figure, so that higher standards might not apply to her.

FOLKENFLIK: And in fact, they were doing that and they were also arguing - failingly but they were also arguing let's make an emotional appeal. Let's send a message to the media, as Sarah Palin did so often when she was a lively political figure.

KELLY: Any reaction yet from Sarah Palin or her legal team?

FOLKENFLIK: We haven't heard anything yet. It'll be very interesting to see both what the jury decides and then assuming she appeals, you know, depending on which way the jury goes, even though their jury - their verdict doesn't hold, whether the appellate court says, you know what? We're going to reach back and make that the standing order of what occurred in this case.

KELLY: Fascinating. NPR's David Folkenflik again there with the headline today - a federal court judge has dismissed Sarah Palin's lawsuit accusing The New York Times of defamation. David Folkenflik, thanks.

FOLKENFLIK: You bet.

(SOUNDBITE OF DEERHUNTER'S "AD ASTRA") Transcript provided by NPR, Copyright NPR.

David Folkenflik was described by Geraldo Rivera of Fox News as "a really weak-kneed, backstabbing, sweaty-palmed reporter." Others have been kinder. The Columbia Journalism Review, for example, once gave him a "laurel" for reporting that immediately led the U.S. military to institute safety measures for journalists in Baghdad.