By Jody Godoy and Jonathan Stempel

NEW YORK (Reuters) -A U.S. judge said on Monday he will throw out Sarah Palin’s defamation lawsuit against the New York Times, after concluding that an editorial in the newspaper did not maliciously link the former Alaska governor and 2008 Republican U.S. vice presidential candidate to a mass murder.

In an abrupt twist in a trial seen as a test of longstanding protections for American media, U.S. District Judge Jed Rakoff in Manhattan said Palin’s lawsuit must be dismissed because she failed to show the Times acted with “actual malice,” the standard in lawsuits involving public figures.

The judge ruled on the trial’s eighth day while jurors were still deliberating, and did not inform them of his plan. Rakoff said he plans to enter a formal dismissal only after jurors, who began deliberations on Friday, reach their own verdict.

Rakoff said he expected Palin to appeal, and that the appeals court “would greatly benefit from knowing how the jury would decide it.”

His action effectively takes the case out of the hands of jurors. “If you see anything in the media about this case, just turn away,” Rakoff told them before dismissing them for the day.

Speaking to reporters outside the courthouse, Palin, 58, criticized Rakoff, while declining to discuss the outcome because deliberations were continuing.

“This is a jury trial, and we always thank jurors. We always appreciate the system,” she said. “So whatever happened in there kind of usurps the system that I believe we are used to, and respect, and works.”

In an email, Times spokeswoman Danielle Rhoades Ha called Rakoff’s action “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.”

CHALLENGING SUPREME COURT PRECEDENT

Palin sued the Times and its former editorial page editor James Bennet over a June 14, 2017, editorial that incorrectly linked her to the January 2011 mass shooting that wounded Democratic U.S. congresswoman Gabby Giffords.

She has said that if she lost at trial, her appeal might challenge New York Times v. Sullivan, the 1964 U.S. Supreme Court decision establishing the “actual malice” standard for public figures to prove defamation.

Gautam Hans, a Vanderbilt University law professor, said Rakoff’s order, while unusual, was reasonable and would likely survive any appeal.

“It is very difficult for plaintiffs to prevail in defamation cases,” Hans said. “That’s one reason you see some antipathy toward the current state of the law, including from some Supreme Court justices.”

Two conservative Supreme Court justices, Clarence Thomas and Neil Gorsuch, have suggested revisiting the Sullivan decision.

Headlined “America’s Lethal Politics,” the editorial addressed gun control and lamented the rise of incendiary political rhetoric.

It was written the same day as a shooting at a congressional baseball practice in Alexandria, Virginia where Republican U.S. congressman Steve Scalise was wounded.

One of Bennet’s colleagues prepared a draft that referred to the January 2011 shooting in a Tucson, Arizona, parking lot where six people were killed and Giffords was wounded.

Bennet inserted language that said “the link to political incitement was clear” between the Giffords shooting and a map previously circulated by Palin’s political action committee that the draft editorial said put Giffords and 19 other Democrats under crosshairs.

The Times corrected the editorial the next morning. Bennet testified that he made the additions too quickly under deadline pressure, and intended no harm to Palin.

‘NOT ALTOGETHER HAPPY’

Rakoff, an appointee of Democratic former President Bill Clinton, said he was “not altogether happy” about ordering a dismissal, calling the original editorial “an example of very unfortunate editorializing on the part of the Times.”

But the judge went on: “My job is to apply the law. The law here sets a very high standard for actual malice, and in this case the court finds that that standard has not been met.”

Actual malice required a showing that the Times knew its editorial was false, or had reckless disregard for the truth.

Eric David, a media lawyer at Brooks Pierce in Raleigh, North Carolina, said a jury verdict favoring the Times would be “much more appeal-proof” because appeals courts are reluctant to second-guess jurors’ factual determinations.

Palin was the late Senator John McCain’s running mate in the 2008 presidential election.

That campaign made Palin a Republican Party star and hero to many conservatives who viewed her as an outsider willing to take on liberals and established institutions including the news media. She served as Alaska’s governor from 2006 to 2009.

On the witness stand, Palin compared herself to the biblical underdog David against the Times’ Goliath, while accusing the newspaper of trying to “score political points.”

But she struggled under cross-examination to provide specific examples about how the editorial harmed her reputation and cost her opportunities.

(Reporting by Jody Godoy and Jonathan Stempel in New York; Additional reporting by Jan Wolfe in Washington, D.C.; Editing by Will Dunham, Noeleen Walder and Cynthia Osterman)

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