Retired NFL quarterback Brett Favre contends a new ruling by a federal appeals court in former Alaska governor and 2008 GOP vice presidential nominee Sarah Palin’s defamation lawsuit against the New York Times strengthens his defamation lawsuit against sports talk show host Shannon Sharpe.
Last Thursday, attorneys for Favre wrote a letter to the clerk of the U.S. Court of Appeals for the Fifth Circuit urging the court to consider last Wednesday’s decision by the U.S. Court of Appeals for the Second Circuit to reinstate Palin’s case and order a new trial. As Favre sees it, the Second Circuit’s logic is applicable to his case, which U.S. District Judge Keith Starrett dismissed last October on grounds that nothing Sharpe said about Favre—including that Favre “stole money” in the form of welfare funds—constituted defamation.
Both Favre and Palin insist jurors, not judges, should determine whether they were defamed.
Palin’s case, as Sportico detailed in 2022, is unrelated to sports but could set important precedent on the liberties sports journalists, talk show hosts and podcasters take when describing sports figures who are accused of illegal acts.
In 2017, a Times editorial mistakenly stated that Palin’s political action committee, SarahPAC, had “circulated a map of targeted electoral districts that put [U.S. Rep. Gabby] Giffords and 19 other Democrats under stylized crosshairs.”
In reality the map placed crosshairs on congressional districts, not members of Congress. Giffords was seriously wounded when Jared Loughner killed six people—including Christina-Taylor Green, the 9-year-old granddaughter of former MLB manager Dallas Green—at a political rally in Arizona in 2011. The editorial suggested there was a “link” between the graphic (which, as described in the editorial, didn’t actually exist) and the Loughner shooting. Within a day the Times corrected the error and acknowledged the mistake.
While there was no dispute the Times erred, U.S. District Judge Jed Rakoff dismissed Palin’s case while a New York jury was deliberating. He proceeded to let jurors, some of whom learned from their phones about Rakoff’s decision, render a verdict (the jury also sided against Palin). The court determined former Times editorial page editor James Bennet, a brother of U.S. Senator Michael Bennet (D-Col.), didn’t act with “actual malice.” In order to prevail in defamation claims, public figures must show the defendant made a statement knowing it was false or with reckless disregard as to whether it was false.
Palin appealed and has convinced the Second Circuit that Rakoff erred in several ways.
Writing for a three-judge panel, Second Circuit Judge John M. Walker Jr. stated that Rakoff “abused” his “discretion” by excluding all evidence regarding Senator Bennet, whose opponent Palin had endorsed, as inadmissible. Walker highlighted the map targeted the districts of two House Democrats who had endorsed Bennet, whose views on gun rights differ widely from Palin. Walker also noted that James Bennet edited his brother’s political speeches and traveled with him on the campaign.
“This evidence was relevant,” Walker stressed. “A reasonable juror could infer that the aforementioned evidence gave Bennet a reason to personally dislike Palin and that it was therefore more likely that he intentionally or recklessly, rather than inadvertently, connected her to the Loughner shooting.”
Walker also chastised Rakoff for concluding that Palin failed to provide evidence that James Bennet read articles published by The Daily Dish and The Wire that disputed a link between the map and the Loughner shooting. Walker highlighted that Bennet regularly read those publications. “A rational juror,” Walker wrote, “could conclude that Bennet recalled the debunking of any connection between the shooting and the crosshairs map but was economical about the truth out of self-interest.”
Rakoff’s unconventional decision to toss the case while the jury was deliberating also drew heavy criticism. Jurors learned from push notifications on their phones that Rakoff had found for the Times. Rakoff let the jury continue to deliberate and would have set aside a verdict in favor of Palin. The former running mate of the late Senator John McCain argues this arrangement was highly prejudicial to her case—jurors learned the judge’s views while they were deciding.
Walker noted that Rakoff didn’t cause the push notifications, which “came as an unfortunate surprise” to the now 81-year-old judge. But Walker found the incident highly problematic for purposes of ensuring a fair trial.
“We have no difficulty concluding that an average jury’s verdict would be affected if several jurors knew that the judge had already ruled for one of the parties on the very claims the jurors were charged with deciding.” Walker further underscored that appellate courts “have a duty to protect” a jury’s “constitutional role” and “sacrosanct” place “in our legal system.” He added a jury’s role should not be “usurped by judges.”
Back to Favre. He maintains Starrett, like Rakoff, went too far in taking away a defamation case from jurors. Favre, who has been sued by the Mississippi Department of Human Services but has not been charged with a crime and insists he acted lawfully and ethically, wants his defamation case restored and a trial date set.
Favre also points out that another person he has sued for defamation, Mississippi Secretary of State Shad White, has published a new book, Mississippi Swindle: Brett Favre and the Welfare Scandal That Shocked America. Favre argues that White, who is counter suing Favre and demands the Hall of Fame QB pay back Temporary Assistance for Needy Families funds with interest, uses the word “steal” in the context of “unlawfully diverting and receiving funds.” White, Favre says, wrote that he and others “stole millions in welfare funds.”
As Favre sees it, White’s use of “steal” contextually supports Favre’s argument that Starrett “erred in holding as a matter of law that Sharpe’s using ‘steal’ was merely rhetorical hyperbole.” Favre insists that “steal” doesn’t just mean “entering homes and taking money” but could also refer to an allegation someone “stole” welfare money.
In July a three-judge panel on the Fifth Circuit heard oral arguments by attorneys for Favre and Sharpe. The parties await a ruling by Judges Leslie Southwick, Kyle Duncan and Jeremy Kernodle.
Michael McCann was a colleague of Leslie Southwick in the mid-2000s when both taught at Mississippi College School of Law.
