Will the third time prove to be the charm for Governor Palin in her libel case against the New York Times? We hope so. It’s certainly satisfying that the riders of the Second Circuit just granted the Alert Alaskan, as we’ve taken to calling her, a new trial after finding that the judge in the case, Jed Rakoff, had made numerous errors in the trial two years ago. The errors include ruling from the bench against Ms. Palin, while the jury was out deliberating.

That was in 2022, and the matter has been hung up in the Second Circuit since then. We thought it would have been an easy decision for the distinguished riders of the circuit. The circuit, after all, had over-ruled the trial judge, in 2017, when he attempted to dispose of the case without holding a trial. They’d ordered a proper trial, the one held in 2022, in which Judge Rakoff behaved with almost a mockery of the Second Circuit, not to mention of Ms. Palin.

Yet when Ms. Palin went back to the Second Circuit, the matter slowed to a crawl. As the months, then years, rolled by, we began to worry that the judges of the circuit had come down with the dropsy. So we’re happy to be able to say that the result was worth waiting for. A unanimous panel, including three circuit sages — Judges John Walker, Reena Raggi, and Richard Sullivan — put the hay down where us mules can get to it.

They cited “erroneous exclusion of evidence, an inaccurate jury instruction, a legally erroneous response to a mid-deliberation jury question, and jurors learning during deliberations” of Judge Rakoff’s decision to dismiss. They reckoned Judge Rakoff “improperly intruded on the province of the jury by making credibility determinations, weighing evidence, and ignoring facts or inferences” that a reasonable juror could have found for Ms. Palin.

It’s hard to recall a dressing down of a judge by a circuit more devastating. It’s a disappointment for the Times, which had by its own admission, at this point, erred in suggesting, in an editorial, that one of Ms. Palin’s political committees had incited, by way of an advertisement featuring “stylized crosshairs,” the shooting that injured Congresswoman Gabrielle Giffords and killed six others. A Times spokesman, Charlie Stadtlander, said that the paper is “confident we will prevail in a retrial.”

The elephant in the courtroom, though, is whether the time has come to revise the rules of libel that have obtained in America since the Supreme Court handed down its decision in Times v. Sullivan. That’s the case in which the courts made it harder for public figures — like Governor Palin — than it is for private parties to win a libel case. Journalists and their publications, including our own, have sheltered, gratefully, under Sullivan for years.

Sullivan sets a high — nigh unattainable — bar for a public figure to prove a libel case: a finding that a newspaper acted with “actual malice,” meaning reckless disregard for the truth. Judge Rakoff dismissed the case because he found that Ms. Palin had failed to prove the Times’s malice. “We disagree with that conclusion,” the circuit just declared, finding “sufficient evidence” for “a reasonable jury to find actual malice by clear and convincing evidence.”

That finding raises the stakes for when the Times and Ms. Palin return to court, even as some on the Supreme Court, like Justice Clarence Thomas, seem eager to lower the bar set by Sullivan. It’s a reminder that jurors, not judges, have the task of deciding questions of fact in trials. “The jury is sacrosanct in our legal system,” the circuit riders aver, “and we have a duty to protect its constitutional role.” Juries, they say, must not be “usurped by judges.” 

Why, then, are the riders keeping Judge Rakoff on the case? Ms. Palin failed to prove “deep-seated and unequivocal antagonism” by the judge that “would render fair judgment impossible,” the riders contend. “We are confident,” they add, that he “will adhere to the principle of complete impartiality, and its appearance, in fulfilling his future judicial responsibilities in this case.” Let’s all hope the circuit judges are proven right on that head.