New York CNN Business  — 

Judge Jed Rakoff, the judge overseeing former Alaska Gov. Sarah Palin’s defamation lawsuit against the New York Times, said Monday afternoon that he will dismiss the suit, ruling that Palin’s team did not prove a key element of its case.

Rakoff’s ruling came while the jury is deliberating over a verdict – and Rakoff said he will allow the jury to continue deliberating and to reach a verdict, and will dismiss the case once it has done so.

Rakoff presented his findings – a clear round-one win for The Times – with an eye toward an inevitable appeals process.

The judge said Palin did not prove “actual malice,” which is the standard her legal team had to meet in her defamation case. The landmark 1964 New York Times vs. Sullivan case specifies that public figures who sue for defamation must prove that the offender knew the claim was false or showed “reckless disregard” for the truth.

The Times said all along that it made an honest error involving Palin -— and issued a swift correction. Palin argued that the publication smeared her on purpose.

Rakoff sided with The Times after hours of discussion about the publication’s motion that the Palin camp had not presented a “legally sufficient evidentiary basis” for the case.

“I think this [was] an example of very unfortunate editorializing on the part of the Times,” Rakoff said in court Monday. “The law here sets a very high standard [for actual malice]. The court finds that that standard has not been met.”

Rakoff ruled that the jury will continue to deliberate on whether the Times is liable for defaming Palin. If the jury comes back with a verdict finding the Times was not liable, the judge indicated that he will allow the jury’s verdict to stand. If the jury finds the Times liable, Rakoff is expected to set aside its verdict and replace it with a verdict as a matter of law in favor of The Times.

Rakoff said he was “not altogether happy with having to make this decision in favor of the defendants.”

Attorneys for The Times hugged each other after the decision was made in court. Palin’s attorneys had no comment when asked by CNN.

“The New York Times welcomes today’s decision,” a spokesperson said. “It is a reaffirmation of a fundamental tenet of American law: public figures should not be permitted to use libel suits to punish or intimidate news organizations that make, acknowledge and swiftly correct unintentional errors.”

The jury of nine, five women and four men, has deliberated for more than nine hours. Rakoff has released the jury for the day; it is expected to resume deliberations on Tuesday at 9:30am.

“I love this jury and wish you a Happy Valentine’s day,” Rakoff said when he told the jury to “turn away” if faced with any media reports regarding the trial.

Why appeals are expected

Rakoff said earlier on Monday that no matter the jury’s decision, “this is the kind of case that will inevitably go up on appeal.”

First Amendment scholars agree with him. Some conservative heavyweights want the courts to revisit the high bar established in the 1964 case. The Palin case may be a vehicle to do so.

“Two things are going on here,” former deputy assistant attorney general Harry Litman said on CNN Monday afternoon. “There’s the actual drama between Palin and The New York Times.” Then, he said, “there’s this higher threshold” for public figures who try to sue for defamation.

“Now, when she loses, and she will lose no matter what… It will go up to the second circuit and potentially the Supreme Court,” Litman said, “on whether this high threshold in American law, which everyone thought would never be disturbed, in fact should be changed.”

The lawsuit

Palin sued the Times and its former editorial page editor James Bennet in 2017 after they published an editorial that erroneously linked a map that Palin’s political action committee had posted to a shooting in 2011 that killed six and injured former Congresswoman Gabrielle Giffords.

The editorial in question was called “America’s Lethal Politics” and it was published on the day of the shooting at a baseball practice that injured Congressman Steve Scalise. It was meant to address heated political rhetoric ahead of the shooting, but it erroneously said that there was a “clear” link between a map that had crosshairs over congressional districts, including Giffords’, and the shooting that injured her. Bennet testified that he added language about there being a clear link and that once he realized his error, he worked to quickly issue a correction.

Palin testified she was “mortified” that the Times falsely accused her of inciting the murder of those six people, which included a federal judge and a 9-year-old girl, six years after that deadly shooting.

Bennet testified that he was surprised that some people interpreted the editorial as saying the man who shot Giffords and others was incited by Palin, testifying “that is not the message we intended to send.”