Palin v. New York Times Co.

22-558-cv
Palin v. New York Times Co.
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2023
A RGUED: NOVEMBER 6, 2023
DECIDED: A UGUST 28, 2024
No. 22-558
S ARAH PALIN,
Plaintiff–Appellant,
v.
THE NEW Y ORK TIMES C OMPANY and JAMES B ENNET,
Defendants–Appellees.*
________
Appeal from the United States District Court
for the Southern District of New York.
________
Before: WALKER , R AGGI, AND SULLIVAN, Circuit Judges.
________
Plaintiff Sarah Palin appeals the dismissal of her defamation
complaint against defendant The New York Times (“the Times”) and its
former Opinion Editor, defendant James Bennet, for the second time.
* The Clerk of Court is respectfully directed to amend the official caption in this
case to conform with the caption above.

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No. 22-558-cv
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We first reinstated the case in August 2019 following an initial
dismissal by the district court (Rakoff, J.) under Federal Rule of Civil
Procedure 12(b)(6). Palin’s claim was subsequently tried before a jury
but, while the jury was deliberating, the district court dismissed the
case again—this time under Federal Rule of Civil Procedure 50. We
conclude that the district court’s Rule 50 ruling improperly intruded
on the province of the jury by making credibility determinations,
weighing evidence, and ignoring facts or inferences that a reasonable
juror could plausibly have found to support Palin’s case.
Despite the district court’s Rule 50 dismissal, the jury was
allowed to reach a verdict, and it found the Times and Bennet “not
liable.” Unfortunately, several major issues at trial—specifically, the
erroneous exclusion of evidence, an inaccurate jury instruction, a
legally erroneous response to a mid-deliberation jury question, and
jurors learning during deliberations of the district court’s Rule 50
dismissal ruling—impugn the reliability of that verdict.
The jury is sacrosanct in our legal system, and we have a duty
to protect its constitutional role, both by ensuring that the jury’s role
is not usurped by judges and by making certain that juries are
provided with relevant proffered evidence and properly instructed
on the law. We therefore VACATE and REMAND for proceedings,
including a new trial, consistent with this opinion.
________
S HANE B. V OGT, Turkel Cuva Barrios, P.A., Tampa,
FL (Kenneth G. Turkel, Turkel Cuva Barrios, P.A.,
Tampa, FL; Michael Munoz, S. Preston Ricardo,
Golenbock Eiseman Assor Bell & Peskoe LLP,

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New York, NY, on the brief) for Plaintiff–Appellant
Sarah Palin.
JAY WARD B ROWN, Ballard Spahr LLP, New York,
NY (David L. Axelrod, Jacquelyn N. Schell,
Thomas B. Sullivan, on the brief), for Defendants–
Appellees The New York Times Company and James
Bennet.
Theodore J. Boutrous, Jr., Jillian N. London,
Gibson, Dunn & Crutcher LLP, Los Angeles, CA;
Bruce D. Brown, Katie Townsend, Reporters
Committee for Freedom of the Press, Washington,
DC; Connor Sullivan, Gibson, Dunn & Crutcher
LLP, New York, NY, for amici curiae The Reporters
Committee for Freedom of the Press and 52 Media
Organizations.
________
JOHN M. WALKER , JR ., Circuit Judge:
Plaintiff Sarah Palin appeals the dismissal of her defamation
complaint against defendant The New York Times (“the Times”) and its
former Opinion Editor, defendant James Bennet, for the second time.
We first reinstated the case in August 2019 following an initial
dismissal by the district court (Rakoff, J.) under Federal Rule of Civil
Procedure 12(b)(6). Palin’s claim was subsequently tried before a jury
but, while the jury was deliberating, the district court dismissed the
case again—this time under Federal Rule of Civil Procedure 50. We
conclude that the district court’s Rule 50 ruling improperly intruded
on the province of the jury by making credibility determinations,

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weighing evidence, and ignoring facts or inferences that a reasonable
juror could plausibly have found to support Palin’s case.
Despite the district court’s Rule 50 dismissal, the jury was
allowed to reach a verdict, and it found the Times and Bennet “not
liable.” Unfortunately, several major issues at trial—specifically, the
erroneous exclusion of evidence, an inaccurate jury instruction, a
legally erroneous response to a mid-deliberation jury question, and
jurors learning during deliberations of the district court’s Rule 50
dismissal ruling—impugn the reliability of that verdict.
The jury is sacrosanct in our legal system, and we have a duty
to protect its constitutional role, both by ensuring that the jury’s role
is not usurped by judges and by making certain that juries are
provided with relevant proffered evidence and properly instructed
on the law. We therefore VACATE and REMAND for proceedings,
including a new trial, consistent with this opinion.
I. BACKGROUND
Unless otherwise indicated, the following background
information was presented to the jury in the form of exhibits and
testimony at trial. Because Palin was the non-movant, we view the
evidence in the light most favorable to her. See Cobb v. Pozzi, 363 F.3d
89, 101 (2d Cir. 2004). No statement in this opinion should be
understood as resolving issues of fact.
On June 14, 2017, the Times’ Editorial Board published the
editorial challenged in this case, entitled “America’s Lethal Politics”
(“the editorial”), which compared two political shootings. Suppl.

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App’x 440 (PX-4).1 In the first attack, on January 8, 2011, Jared
Loughner killed six people and injured thirteen others, including
Democratic Congresswoman Gabrielle Giffords, during a constituent
event held by Giffords in Arizona (“the Loughner shooting”).2 In the
second, which took place in 2017 in Virginia on the day the editorial
was published, James Hodgkinson seriously injured four people,
including Republican Congressman Stephen Scalise, at a practice for
a congressional baseball game (“the Hodgkinson shooting”).
In comparing these two tragedies, the editorial made
statements about the Loughner shooting that are the subject of this
defamation action. It stated that there was a “clear” and “direct”
“link” between the Loughner shooting and the “political incitement”
that arose from a digital graphic published in March 2010 by former
Alaska governor and vice-presidential candidate Sarah Palin’s
political action committee (“the challenged statements”3). Id. The
1 “PX” refers to plaintiff’s exhibits received into evidence at trial; “DX” refers to
defendants’ exhibits received into evidence at trial; “App’x” refers to the Joint
Appendix; “Sp. App’x” refers to the Special Appendix; and “Suppl. App’x” refers
to defendants’ Supplemental Appendix.
2 Among those killed was Judge John M. Roll, who attended the event in his
capacity as Chief Judge of the United States District Court for the District of
Arizona.
3 In full, the paragraphs of the editorial containing the challenged statements read:
“Was [the Hodgkinson shooting] evidence of how vicious American
politics has become? Probably. In 2011, when Jared Lee Loughner opened
fire in a supermarket parking lot, grievously wounding Representative
Gabby Giffords and killing six people, including a 9-year-old girl, the link
to political incitement was clear. Before the shooting, Sarah Palin’s political

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graphic was a map that superimposed crosshairs over twenty
congressional districts represented by Democrats—including
Giffords’ district. Id. at 459 (DX-61). In fact, a relationship between
the crosshairs map and the Loughner shooting was never established;
rather, at the time of the editorial, the attack was widely viewed as a
tragic result of Loughner’s serious mental illness.
A. The Editorial
The idea of publishing an editorial about the Hodgkinson
shooting was first raised by Elizabeth Williamson, a writer for the
Times, on the morning of June 14, 2017 in an email to James Bennet
and other members of the Times’ Editorial Board. A follow-up email
from Williamson indicated that Hodgkinson might have had
“POSSIBLE . . . pro-Bernie, anti-Trump” views. App’x 1694 (PX-119).
Editorial Board members weighed in on Williamson’s idea. Bennet
asked “whether there’s a point to be made about the rhetoric of
demonization and whether it incites people to this kind of violence,”
adding that “if there’s evidence of the kind of inciting hate speech on
the left that we, or I at least, have tended to associate with the right
action committee circulated a map of targeted electoral districts that put
Ms. Giffords and 19 other Democrats under stylized cross hairs.
Conservatives and right-wing media were quick on Wednesday to demand
forceful condemnation of hate speech and crimes by anti-Trump liberals.
They’re right. Though there’s no sign of incitement as direct as in the Giffords
attack, liberals should of course hold themselves to the same standard of
decency that they ask of the right.” Suppl. App’x 440 (PX-4) (emphasis
added).

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(e.g., in the run-up to the Gabby Giffords shooting) we should deal
with that.” Id.
Williamson conducted research for the editorial with the aid of
the Board’s editorial assistant, Phoebe Lett. Prompted by Bennet’s
suggestions, she asked Lett whether there was a prior Times editorial
“that references hate type speech against [Democrats] in the runup to
[the Loughner] shooting,” since “James [had] referenced that.” Id. at
1699 (PX-126). Lett forwarded the email to Bennet, who clarified that
he was asking if the Times had “ever writ[ten] anything
connecting . . . the [Loughner] shooting to some kind of incitement.”
Id. He asked Lett to “send [him] the pieces [she] sent [Williamson],”
and he forwarded to Williamson other pieces that he received from
Lett. Id.; see id. at 1702 (PX-128). Specifically, Lett sent Bennet the
following three Times articles, the first of which was sent to
Williamson by Lett at Bennet’s suggestion and the latter two of which
Bennet forwarded to Williamson himself:
• “No One Listened to Gabrielle Giffords” by Frank Rich (Jan.
15, 2011), which stated that “[w]e have no idea” whether
Loughner saw the crosshairs map and referred to
Loughner as being “likely insane, with no coherent
ideological agenda,” while also noting that that “does
not mean that a climate of antigovernment hysteria ha[d]
no effect on [Loughner].” Id. at 1705–07 (PX-133).
• “Bloodshed and Invective in Arizona” by the Times’
Editorial Board (Jan. 9, 2011), which noted that Loughner
“appears to be mentally ill,” indicated that Loughner
does not fall into “usual ideological categories,” and
stated that “[i]t is facile and mistaken to attribute [the

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Loughner shooting] directly to Republicans or Tea Party
members.” Id. at 1709–11 (PX-134).
• “As We Mourn” by the Times’ Editorial Board (Jan. 12,
2011), which quoted then-President Barack Obama’s
statement that “a simple lack of civility . . . did not” cause
the Loughner shooting and mentioned that Palin accused
journalists of “committ[ing] a ‘blood libel’4 when they
raised questions about overheated rhetoric” in
connection with the Loughner shooting. Id. at 1712–13
(PX-135).
Williamson drafted the editorial and uploaded it to
“Backfield,” part of the Times’ content management system, in the
late afternoon of June 14. Williamson’s draft (“the initial draft”) did
not contain the challenged statements. It stated only that Loughner’s
“rage was nurtured in a vile political climate” and that the “pro-gun
4 The term “blood libel” is typically “used to describe false and beyond-the-pale
charges throughout history that Jews committed unspeakable crimes.” Frank
James, Sarah Palin's 'Blood Libel' Charge Stirs New Controversy, NAT ’ L P UB . RADIO
(Jan. 12, 2011, 12:53 PM),
https://www.npr.org/sections/itsallpolitics/2011/01/12/132861457/sarah-palins-
blood-libel-use-stirs-new-controversy [https://perma.cc/83PD-33HE]. These
fabricated allegations were “used to justify atrocities against Jews over centuries.”
Id. Palin used the term in a video addressing assertions that her “political rhetoric
contributed to an atmosphere that made the [Loughner] shooting more likely.” Id.
In the video, Palin stated: “If you don’t like a person’s vision for the country,
you’re free to debate that vision. If you don’t like their ideas, you’re free to
propose better ideas. But, especially within hours of a tragedy unfolding,
journalists and pundits should not manufacture a blood libel that serves only to
incite the very hatred and violence they purport to condemn. That is
reprehensible.” Id. (emphasis added).

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right [was] criticized” at the time of the Loughner shooting. It also
noted that, before the shooting, Palin’s political action committee had
“circulated a map of targeted electoral districts that put Ms. Giffords
and 19 other Democrats under stylized crosshairs.”5 Suppl. App’x
454 (PX-141). The word “circulated” in the initial draft was
hyperlinked to a January 9, 2011 ABC News article entitled “Sarah
Palin’s ‘Crosshairs’ Ad Dominates Gabrielle Giffords Debate” (“the ABC
Article”), which stated that “[n]o connection ha[d] been made
between [the crosshairs map] and the [Loughner] shooting.” Id. at 457
(PX-142); see id. at 454–55 (PX-141).
Linda Cohn, an Editorial Board member, was the first person
to edit the initial draft. After making her edits, Cohn asked Bennet to
look at the piece, and Bennet added his own revisions to the draft.
Bennet’s changes were substantial: Williamson testified that Bennet
“rewrote [her] editorial” and, after receiving a complimentary email
from a colleague about the piece, Williamson responded that it “was
mostly a [Bennet] production” and that Bennet had been “super keen
to take it on.” App’x 238; id. at 1847 (PX-186); see also Sp. App’x 34
(quoting DX-136 (redline reflecting Bennet’s changes)). Bennet’s edits
added the challenged statements.
After saving his revisions in Backfield, Bennet emailed
Williamson, noting that he “really reworked this one” and
apologizing for “do[ing] such a heavy edit.” App’x 1846 (PX-163).
5 The initial draft and the published editorial both incorrectly implied that the
crosshairs symbols were placed on photos of Giffords and other Democratic
representatives, rather than on their congressional districts. See Suppl. App’x 454
(PX-141); id. at 440 (PX-4).

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Bennet also asked Williamson to “[p]lease take a look.” Id.
Williamson responded seven minutes later that the revised piece
“[l]ook[ed] great.” Id. Several other Times employees under Bennet
also reviewed the revised draft prior to its publication and made
minor edits, but none raised concerns regarding the challenged
statements. See, e.g., id. at 478–84, 655–57. The editorial was published
online on the Times’ website at approximately 9:45 pm on June 14,
2017 and appeared in the Times’ print edition the next morning.
Less than an hour after the editorial was published online, Ross
Douthat, a Times columnist, emailed Bennet to express serious
concerns. He wrote:
I feel I would be remiss if I didn’t express my bafflement
at the editorial that we just ran on today’s shootings and
political violence. There was . . . no evidence
that . . . Loughner was incited by Sarah Palin or anyone
else, given his extreme mental illness and lack of any
tangible connection to th[e] crosshair[s] map . . . . [O]ur
editorial seems to essentially reverse the fact pattern as I
understand it, making it sound like *Loughner* had the
clearer connection to partisan rhetoric, when to the best
of my knowledge he had none.
Id. at 1721 (PX-174). Bennet responded around a half-hour later that
he would “look into this tomorrow” but that his “understanding was
that in the [Loughner shooting] there was a gun sight superimposed
over [Giffords’] district; so far in [the Hodgkinson shooting] we don’t
know of any direct threat against any of the congressmen on the field.
That’s not to say any of it is ok, obviously, or that the violence in either

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case was caused by the political rhetoric. But the incitement in this
case seems, so far, to be less specific.” Id.
Douthat replied the next morning:
[T]he point is that the map had no link, none at at [sic] all,
to Giffords’ [attempted] murder. People assumed a link
initially – there was a Paul K[rugman] column that was
particularly vivid in blaming Republicans – but the
investigation debunked it. I think Loughner was
instigated by a non-answer she’d given him at a town
hall about one of his theories of grammar, or his
obsession with lucid dreaming, or something. His act
had nothing to do with the political climate, so far as
anyone can tell. Whereas the Alexandria shooter seems
to have had an explicit political motivation. So saying
that Giffords was a case of incitement and this one isn’t
reads like we’re downplaying that motive, while
strongly implying that Loughner had right-wing
motivations that he simply didn't have.
Id.
Douthat was not the only one who criticized the editorial. After
a swift public backlash, the Times revised the challenged statements
and issued two corrections. The first correction was published on
June 15, along with revisions to the challenged statements. The
correction read: “An earlier version of this editorial incorrectly stated
that a link existed between political incitement and the 2011 shooting
of Representative Gabby Giffords. In fact, no such link was
established.” Id. at 1483; see also Suppl. App’x 443 (PX-5). The second

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correction, released the next day, clarified that the map had overlaid
crosshairs on Democratic congressional districts, not photos of the
representatives themselves. See Suppl. App’x 447 (PX-6).
B. The Complaint, Initial Dismissal, and First Appeal
In June 2017, Palin filed a defamation complaint against the
Times in federal court. The Times moved in the district court to
dismiss for failure to state a claim. After the motion was fully briefed,
the district judge made the unusual decision to hold an evidentiary
hearing—with Bennet as the sole witness—to assess whether Palin
had sufficiently pled “actual malice” (i.e., that Bennet published the
challenged statements either knowing they were false or with reckless
disregard as to their falsity). Under New York Times Co. v. Sullivan,
376 U.S. 254, 283 (1964) and its progeny, actual malice is a required
element of a defamation claim when the plaintiff is a public figure.
See Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 665–66
(1989) (explaining that Sullivan’s actual malice requirement applies
not just to public officials but also to public figures generally).
Relying on Bennet’s testimony from the hearing, the district court
held that Palin had not sufficiently pled actual malice and dismissed
the case with prejudice in August 2017, subsequently denying Palin’s
motion for reconsideration and leave to replead.
In 2019, we vacated the dismissal, holding that Palin had
plausibly stated a defamation claim. See Palin v. New York Times Co.,
940 F.3d 804, 817 (2d Cir. 2019) (“Palin I”). We identified two errors
by the district court. First, it improperly relied on matters outside the
pleadings (specifically, Bennet’s testimony at the evidentiary hearing)
to decide the Times’ motion to dismiss without converting that
motion into one for summary judgment. Id. at 811. Second, it

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impermissibly credited Bennet’s testimony and weighed that
evidence in holding that Palin had not adequately alleged actual
malice. Id. at 814–15.
C. Pre-Trial Motion Rulings
Following remand, Palin filed the operative, first amended
complaint, which added Bennet as a defendant. After discovery, the
parties filed cross-motions for summary judgment. Palin’s motion for
partial summary judgment asserted that she was not required to
prove actual malice. The district court denied the motion, concluding
that Sullivan controlled.
The defendants’ motion for summary judgment contended
that: (1) Palin was also required to prove a second form of malice,
which we refer to as “defamatory malice” (i.e., that Bennet intended
or recklessly disregarded that ordinary readers would understand his
words to have the defamatory meaning alleged by Palin) and (2) no
reasonable jury could find either defamatory malice or actual malice.
The district court agreed that Palin was required to prove defamatory
malice, an issue of first impression in this circuit. It concluded,
however, that there was sufficient evidence to allow a rational juror
to find both defamatory malice and actual malice. Thus, the district
court denied the defendants’ motion, but it added defamatory malice
into the jury instructions as a required element to find the defendants
liable.
Before the trial began, the defendants filed a motion for
reconsideration requesting that the district court modify its order
denying the defendants’ summary judgment motion to reflect New
York’s November 2020 amendment of N.Y. Civil Rights L. § 76-a(2)

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(“the Anti-SLAPP Statute”), which required public-figure defamation
plaintiffs to prove actual malice. See Gottwald v. Sebert, 197 N.Y.S.3d
694, 704 (2023). The district court granted the motion, holding that
the amendment applied retroactively such that “Palin’s burden to
prove actual malice . . . by clear and convincing evidence is not only
required by the First Amendment to the United States Constitution
but also by New York State statutory law.” Sp. App’x 46.
Finally, the defendants moved for a ruling that the challenged
statements were not defamatory per se. See Celle v. Filipino Reporter
Enters., 209 F.3d 163, 176 (2d Cir. 2000) (noting that under New York
law, a defamation plaintiff must either establish special damages or
that the challenged statements were defamatory per se). The district
court orally denied the motion without prejudice, stating that it
would “revisit [the issue] at the charging conference.” App’x 58. It
later concluded that the challenged statements were “undoubtedly”
defamatory per se under New York law. Sp. App’x 54 n.24.
D. Jury Trial and Judgment as a Matter of Law
1. The Evidentiary Rulings
Before the trial in February 2022, the defendants submitted
motions in limine to exclude certain evidence.6 As relevant to this
6 The defendants sought to exclude evidence related to: (1) articles published by
entities under the same corporate umbrella as The Atlantic magazine, where Bennet
was editor-in-chief at the time of the Loughner shooting, that discussed either the
shooting or Palin and her family; (2) an article published in The New Republic
entitled “How the Media Botched the Arizona Shooting,” which Bennet received in
2011 as part of a list of three links to sources for a potential story; (3) Bennet’s
brother, a Democratic United States Senator; (4) the Times’ June 2020 publication
of an opinion piece by Senator Thomas Cotton, unrelated to the Loughner shooting

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appeal, after trial began, the district court orally granted two of these
requests, both of which it had earlier denied. First, it ruled that
evidence relating to Bennet’s brother, Michael Bennet (including that
Bennet’s brother was a Democratic U.S. Senator, that Bennet had
campaigned for his brother in 2010 during “the same time period
when the [crosshairs] map was out,” and that two of the
congressmembers whose districts were targeted on the crosshairs
map had endorsed Senator Bennet), was inadmissible because it was
irrelevant under Federal Rule of Evidence 402 and unfairly prejudicial
under Rule 403. App’x 584–86.
Second, the district court ruled that certain articles about the
Loughner shooting published by The Daily Dish and The Wire (the
“Excluded Articles”)—entities under the same corporate umbrella as
The Atlantic magazine, for which Bennet served as editor-in-chief at
the time of the Loughner shooting—would be excluded as irrelevant
under Rule 402, subject to reconsideration if Palin could establish
additional foundation for the articles’ admission. This decision was
never revisited, and the district court later reaffirmed its ruling.
or the crosshairs map, which preceded Bennet’s resignation from the Times; (5)
other controversies during Bennet’s tenure as the Times’ Opinion Editor unrelated
to the editorial at issue in this case; and (6) the Times’ decision to eliminate its
public editor position. The district court granted defendants’ motion to exclude
“evidence relating to Mr. Bennet’s departure from [the Times] and other
controversies during his time at [the Times] with respect to his departure.” App’x
59. It also excluded a subset of articles “about Ms. Palin’s son, Trig.” App’x 62.
All other exclusion requests were initially denied, although the district court
indicated that the requests could be re-raised at trial. As noted infra in Section
II(B)(2), on this appeal, Palin challenges only the exclusion of certain of these
articles and the exclusion of evidence regarding Bennet’s brother.

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2. The Rule 50 Judgment
On February 10, 2022, following the close of evidence but
before jury deliberations began, the defendants moved under Federal
Rule of Civil Procedure 50(a) for judgment as a matter of law. The
district court construed the motion to assert that Palin had not offered
legally sufficient evidence to prove: (1) actual malice; (2) defamatory
malice; (3) that the challenged statements were “of and concerning”
her; and (4) that the challenged statements were materially false. See
Sp. App’x 47. The district court initially reserved judgment in order
to hear closing arguments and receive further submissions.
On February 14, however, in the midst of jury deliberations, the
district court ruled in favor of the defendants after concluding that no
reasonable jury could find actual malice by clear and convincing
evidence. The district court’s ruling denied the parts of the
defendants’ Rule 50 motion directed at the “of and concerning” and
material falsity elements of Palin’s claim and did not substantively
address whether Palin had failed to prove defamatory malice. The
district court informed the parties of its ruling outside of the presence
of the jury.
The district judge stated that he would dismiss the complaint
only after the jury returned its verdict, reassuring counsel that the jury
would not learn about his decision in favor of the defendants and thus
would be capable of reaching an independent verdict. Before
excusing the jurors that evening, the district court reminded them to
“turn away” from anything they saw “in the media about this case.”
App’x 1214.

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3. The Mid-Deliberation Jury Instruction
After the jury had deliberated for about an hour the next
morning, it submitted the following note to the district judge:
Your Honor, Per your instructions we need to show “the
plaintiff proved that there was a high probability that Mr.
Bennet actually doubted the truth of the challenged
statement . . .” If a juror were able to make this inference from
a response by Mr. Bennet from a question put forth by the
defense, would the fact the defense posed the question
invalidate this inference, and can it contribute to the evidence
brought forth by the plaintiff?
App’x 1579.
After discussing the note with counsel, and over an objection
by Palin’s attorney, the district judge replied:
In response to your first inquiry, you are free to draw any
reasonable inference you choose to draw from any answer
received in evidence, regardless of which side posed the
question to which the answer was given.
In response to your second inquiry, an answer given by Mr.
Bennet and a reasonable inference drawn therefrom is not
sufficient in itself to carry the plaintiff’s burden of showing by
clear and convincing evidence that there was a high probability
that Mr. Bennet actually doubted the truth of a challenged
statement prior to publication, but it can contribute to the other
evidence brought forth by the plaintiff.

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No. 22-558-cv
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App’x 1580. After the jury received this response, it deliberated for
about three more hours and then returned a unanimous verdict of
“not liable.” See App’x 1229–31.
4. Jurors’ Receipt of Push Notifications
Later that evening, the district judge’s law clerk interviewed
jurors to see if they had any problems understanding the court’s legal
instructions during trial. Such interviews are the district judge’s
“uniform practice,” “so that improvements can be made in future
cases.” App’x 1559. In these interviews, “several” jurors reported
that, prior to rendering the verdict, they had learned that the court
had made a Rule 50 determination in favor of the defendants via
“involuntarily received ‘push notifications’ on their smartphones.”7
Id. The law clerk reported this information to the district judge.
The record does not establish how many jurors received such
notifications or at what time before the jury returned its verdict the
notifications were received. It is also unknown from which news
outlets jurors received push notifications and precisely what the
notifications said.
Palin subsequently filed post-trial motions—seeking a
retroactive disqualification of the district court judge as of August 28,
2020 and the setting aside of all judgments he had made since that
7 “Push notifications are the alerts that apps send to your phone . . . even when the
apps aren’t open.” Abigail Abesamis Demarest, What are push notifications? How
the pop-up alerts sent by apps, devices, and browsers work, B US . I NSIDER (Apr. 23, 2021,
3:24 P.M.), https://www.businessinsider.com/guides/tech/what-are-push-
notifications [https://perma.cc/FW78-KJGV]. Thus, a push notification from a
news application can appear at the top of an individual’s smartphone or on the
lock screen of their phone even if they do not open that application.

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date, reconsideration of the Rule 50 judgment, and a new trial—which
the district court denied.
II. DISCUSSION
The central issue in this appeal is whether the evidence at trial
was sufficient for Palin to prove that the defendants published the
challenged statements with actual malice, as required for
public-figure defamation plaintiffs. See Sullivan, 376 U.S. at 279–80
(introducing the actual malice rule for public officials); Harte-Hanks
Commc’ns, Inc., 491 U.S. at 665–66 (stating that the actual malice rule
applies to public figures generally). Proving actual malice requires
showing that an allegedly defamatory statement was made “with
knowledge that it was false or with reckless disregard of whether it
was false or not.” Sullivan, 376 U.S. at 280. “[T]he concept of ‘reckless
disregard’” includes when a defendant acts “with a high degree of
awareness of [the published statement’s] probable falsity” or
“entertain[s] serious doubts as to [its] truth.” Harte–Hanks Commc'ns,
Inc., 491 U.S. at 667 (internal quotation marks and citations omitted).
Palin does not dispute her public-figure status but claims that
the actual malice standard is either no longer good law or does not
apply to this case. Both arguments are barred by the “law of the case”
doctrine because they were “ripe for review at the time of [Palin’s]
initial appeal but . . . nonetheless foregone.” United States v. Frias, 521
F.3d 229, 234 (2d Cir. 2008) (internal quotation marks omitted). Our
mandate following the first appeal determined that Palin must show
actual malice, see Palin I, 940 F.3d at 809, a decision which we decline
to revisit, see United States v. Aquart, 92 F.4th 77, 87 (2d Cir. 2024)
(stating that an appeals court departs from the law of the case doctrine
“sparingly and only when presented with cogent and compelling

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20
reasons” (internal quotation marks omitted)). Moreover, we do not
view this case as distinguishable from Sullivan and its progeny and
are thus bound by the doctrine of stare decisis to reject Palin’s
argument.
“When there are multiple actors involved in an organizational
defendant’s publication of a defamatory statement, the plaintiff must
identify the individual responsible for publication of a statement, and
it is that individual the plaintiff must prove acted with actual malice.”
Dongguk Univ. v. Yale Univ., 734 F.3d 113, 123 (2d Cir. 2013). In this
case, the parties stipulated that it is Bennet’s state of mind that is
relevant to determining whether there was actual malice in
publishing the editorial.
The plaintiff must prove actual malice by clear and convincing
evidence. Dalbec v. Gentleman's Companion, Inc., 828 F.2d 921, 927 (2d
Cir. 1987). This means that “[i]t is not enough for the plaintiff merely
to assert ‘that the jury might, and legally could, disbelieve the
defendant’s denial of legal malice.’” Contemp. Mission, Inc. v. New
York Times Co., 842 F.2d 612, 621–22 (2d Cir. 1988) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (alterations omitted)).
Rather, a plaintiff must offer some degree of “concrete evidence from
which a reasonable juror could return a verdict in h[er] favor” on the
question of actual malice. Id. at 621 (internal quotation marks
omitted). We have held, however, that such malice may be proven by
inferential and circumstantial evidence “because it is a matter of the
defendant's subjective mental state, revolves around facts usually
within the defendant's knowledge and control, and rarely is
admitted” by the defendant. Dalbec, 828 F.2d at 927.

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On appeal, Palin attacks both the Rule 50 decision and the jury
verdict. She attacks the former on the basis that the district court
erroneously disregarded or discredited her evidence of actual malice
and improperly substituted its own judgment for that of the jury. She
requests vacatur of the jury’s verdict on the grounds that multiple
prejudicial errors during trial affected that verdict. Finally, she seeks
the disqualification of the district judge.
For the reasons that follow, we agree with Palin that both the
judgment for defendants as a matter of law and the jury verdict must
be vacated. We do not find it necessary to remand the case to a
different district judge.
A. The Rule 50 Judgment
We review a district court’s ruling on “a Rule 50 motion . . . de
novo, construing all facts in favor of the nonmoving party.” Runner v.
N.Y. Stock Exch., Inc., 568 F.3d 383, 386 (2d Cir. 2009). Judgment as a
matter of law should be granted only when “a party has been fully
heard on an issue” and there is no legally sufficient evidentiary basis
for a “reasonable jury” to “find for the party on that issue.”
Fed. R. Civ. P. 50(a)(1). The court considering a Rule 50 motion “may
not make credibility determinations or weigh the evidence.” Harris v.
Niagara Mohawk Power Corp., 252 F.3d 592, 597 (2d Cir. 2001) (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
The district court based its judgment for defendants solely on
its conclusion that, as a matter of law, the trial evidence was
insufficient to permit a jury to find that the defendants acted with

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actual malice.8 We disagree with that conclusion. After reviewing
the record and making all reasonable inferences in Palin’s favor as the
nonmoving party, we conclude that there exists sufficient evidence,
detailed below, for a reasonable jury to find actual malice by clear and
convincing evidence.
1. Bennet’s Testimony
During cross-examination by the defense, defendant Bennet,
who was called as a witness by the plaintiff, stated what could be
plausibly viewed as an admission: “I didn’t think then and don’t think
now that the [crosshairs] map caused Jared Loughner to act.”9 App’x
806. But the district court dismissed out of hand the possibility that
Bennet’s statement could be viewed as an admission supporting a
finding of actual malice. The district court concluded that such an
interpretation was “not a reasonable reading of Bennet’s answer
and . . . would be inconsistent with [his] testimony overall.”
8 This judgment “rest[ed] independently on both federal law, via the First
Amendment, and on New York State statutory law, via Civil Rights L. § 76-a(2).”
Sp. App’x 56. But because the First Amendment and New York’s amended
Anti-SLAPP Statute share the same substantive requirement (that a public-figure
defamation plaintiff must prove actual malice by clear and convincing evidence),
we need not decide—and do not decide—whether the Anti-SLAPP Statute’s
amendment applies retroactively.
9 Bennet was responding to the question of why he did not research “whether or
not Jared Loughner had seen the crosshairs map.” App’x 805. His full response
reads: “I was functioning as the editor, not the reporter on the piece, so I wouldn’t
normally do the reporting in a situation like this, particularly when we were on a
tight deadline. But also . . . I didn’t think then and don’t think now that the map
caused Jared Loughner to act. I didn’t think we were saying that, and therefore I
wouldn’t have—the question wouldn’t have entered my mind, didn’t enter my
mind to research that question.” Id. at 806.

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23
Sp. App’x 69. Crediting Bennet’s explanation that he did not intend
to convey in the editorial that the crosshairs map directly caused
Loughner to act, the district court interpreted Bennet’s “admission”
to be merely a statement that the question of whether the crosshairs
map spurred Loughner’s attack never entered his mind. Id.
But in deciding a Rule 50 motion, a district court may not credit
the movant’s self-serving explanations or adopt possible exculpatory
interpretations on his behalf when interpretations to the contrary
exist. Furthermore, the district court was plainly incorrect to
conclude that Bennet’s testimony cannot “reasonabl[y]” be
understood to “indicate[] that Bennet did not believe that what he was
writing was true.” Id. Bennet’s statement—that he “didn’t think,”
when revising the editorial, that “the [crosshairs] map caused Jared
Loughner to act”—can permissibly be read to suggest that Bennet
entertained serious doubts as to his assertion that the map and
shooting had a “clear” and “direct” “link.” App’x 806; see Milkovich
v. Lorain J. Co., 497 U.S. 1, 20 n.7 (1990) (explaining that the statement,
“I think Jones lied,” may establish malice if “the speaker really did
not think Jones had lied but said it anyway”). The jury may ultimately
accept the district court's understanding of Bennet’s words—but, as
we previously cautioned, “it is the jury that must decide.” Palin I, 940
F.3d at 815.
2. The ABC Article Hyperlink
The ABC Article hyperlinked in Williamson’s initial draft—
which remained in the article following Bennet’s edits—
unequivocally states that “[n]o connection has been made between
[the crosshairs map] and the [Loughner] shooting.” Suppl. App’x. 457
(PX-142). Had Bennet read this article, its contents would at a

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24
minimum allow a rational juror to plausibly infer that Bennet
recklessly disregarded the truth when he published the challenged
statements.
The district court erroneously ignored this potential inference,
in part because it credited Bennet’s denial that he had ever clicked the
hyperlink and read the article. But a district court may not make
credibility determinations when considering a Rule 50 motion and,
“although the court should review the record as a whole, it must
disregard all evidence favorable to the moving party that the jury is
not required to believe.” Legg v. Ulster Cnty., 979 F.3d 101, 114 (2d Cir.
2020) (alteration omitted) (quoting Reeves, 530 U.S. at 150–51). Here,
the jury was not required to believe Bennet’s testimony, which could
be viewed as self-serving. The district court’s acceptance of that
testimony in the jury’s stead improperly infringed on the jury’s
exclusive role.
The district court also erred in concluding that Palin “adduced
no affirmative evidence” from which a jury could presume that
Bennet read the ABC Article. Sp. App’x 64. Under our caselaw,
inferential and circumstantial evidence can satisfy the “affirmative
evidence” requirement set forth in Anderson. See Dalbec, 828 F.2d at
927 (inferential evidence may be used to prove actual malice);
Anderson, 447 U.S. at 257 (“We repeat, however, that the plaintiff, to
survive the defendant’s motion [for summary judgment], need only
present evidence from which a jury might return a verdict in his
favor.”). Here, Williamson testified that, although editorial writers
were “the first line of fact-checking” for the pieces they drafted, when
“someone rewrote a draft” that someone else prepared, the person
who did the rewrite had “primary responsibility for fact-checking the

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25
portion that they rewrote.” App’x 177–78. A jury could reasonably
conclude that Bennet would therefore have been responsible for
fact-checking the sentence containing the hyperlink to the ABC
Article because, although his revisions to that sentence were minor,
his revisions to the preceding sentence—where he added that “the
link to political incitement was clear”—substantially changed the
nature of the sentence that contained the hyperlink. See Sp. App’x 34
(quoting DX-136). A jury could also reasonably believe that such fact-
checking obligations would include clicking on and reading through
articles hyperlinked in the edited portions of an editorial draft to
ensure the accuracy of any changes. And, thus, it could infer that it
was more likely than not that Bennet read the ABC Article as part of
his editing duties.
3. Prior Times Opinion Pieces
Bennet admitted at trial that, while conducting his editorial
research, he “must have read” the three prior Times opinion pieces
on the Loughner shooting that Lett sent to him and that he sent or had
Lett send to Williamson (namely, “No One Listened to Gabrielle
Giffords,” “Bloodshed and Invective in Arizona,” and “As We Mourn”).
App’x 694, 719; see id. at 692–94, 718–19. These articles were received
into evidence, but the district court concluded that they “provide[d]
no basis for finding that Bennet knew or suspected that his revision
introduced false statements of fact into the [e]ditorial” because the
articles do not “contradict the facts asserted in the [c]hallenged
[s]tatements.” Sp. App’x 61; see id. at 60–62. We disagree. The articles
can also be plausibly read as casting significant doubt on any link
between the Loughner shooting and the crosshairs map.

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No. 22-558-cv
26
For example, in “As We Mourn,” President Obama’s denial that
political incivility caused the shooting, coupled with Palin’s implied
condemnation of any assertion that Loughner took inspiration from
her, could suggest to a reasonable juror that the crosshairs map was
unrelated to the attack. App’x 1712–13 (PX-135). Although “No One
Listened to Gabrielle Giffords” stated that the fact that Loughner had “no
coherent ideological agenda[] does not mean that a climate of
antigovernment hysteria ha[d] no effect on him,” its disclosure that
“[w]e have no idea” whether Loughner saw the crosshairs map can
reasonably be viewed as undermining Bennet’s assertion that there
was a was a “clear” and “direct” “link” between the shooting and the
map. Compare id. at 1705–07 (PX-133), with Suppl. App’x 440 (PX-4).
Finally, “Bloodshed and Invective in Arizona” not only reiterates
that Loughner does not fall into “usual ideological categories” but can
be seen as directly contradicting the challenged statements by its
pronouncement that “[i]t is facile and mistaken to attribute [the
Loughner shooting] directly to Republicans or Tea Party members.”
App’x 1710 (PX-134). The district court admitted this “tension” but
discounted it by chalking the difference up to “statements of opinion”
and “arguments made by the[] pieces” rather than “contradictions in
their presentations of the relevant facts.” Sp. App’x 62–63. But as the
Supreme Court has noted, “expressions of ‘opinion’ may often imply
an assertion of objective fact.” Milkovich, 497 U.S. at 18. And a
reasonable juror could easily interpret “Bloodshed and Invective in
Arizona” as indicating that blaming Palin (or any other Republican)
for the Loughner shooting was “mistaken” as a matter of fact and not
simply as a matter of opinion.

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27
In sum, both how to interpret and what weight to assign to
these articles must be left to the jury. See Legg, 979 F.3d at 114.
Judgment for defendants as a matter of law was unwarranted because
a reasonable jury could believe (although it would not be required to
do so) that Bennet acted with “reckless disregard of the truth” by
publishing the challenged statements after reading the articles.
Church of Scientology Int’l v. Behar, 238 F.3d 168, 173 (2d Cir. 2001).
4. Possible Prior Knowledge
The district court acknowledged that “Bennet theoretically
could have had prior knowledge regarding the relationship—or lack
thereof—between the crosshairs map and the [Loughner] shooting”
outside of any research he conducted for the editorial. Sp. App’x 66.
Its conclusion, however, that “the record belies this possibility,” relied
substantially on Bennet’s self-serving testimony indicating that “he
was not aware of the details of the Loughner case and that he did not
recall the controversies surrounding the crosshairs map before the
[e]ditorial was written.” Sp. App’x 66; see id. at 66–68. Such crediting
of Bennet’s testimony in resolving a Rule 50 motion was error. See
Harris, 252 F.3d at 597.
Moreover, the district court’s determination that “Palin offered
no admissible evidence that would undermine Bennet’s testimony”
on this issue, Sp. App’x 66, ignored plausible inferences tending to
support the conclusion that Bennet would have known when he
revised the editorial that there was no link between the crosshairs
map and the Loughner shooting. For example, the Rule 50 decision
gave no weight to the fact that Bennet was a well-read journalist and
a long-time senior editor, whose job required him to be generally
aware of current events. At the time of the Loughner shooting in

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No. 22-558-cv
28
January 2011, which Bennet acknowledged was “a big story” with
“blaring headlines,” Bennet was the editor-in-chief of The Atlantic.
App’x 704. Bennet acknowledged that “keep[ing] up” with “the
competition” by reading their articles was “really important in [his]
job” at The Atlantic and that he “regularly read[]” “or at least
browsed” a “long list of publications.” App’x 703. A rational juror
could infer from these facts that Bennet read one or more articles
around the time of the Loughner shooting that discredited any link
between the shooting and the crosshairs map.
The district court opinion similarly failed to consider evidence
of Bennet’s recall abilities. Bennet’s co-worker testified that she
“observed him demonstrating an ability to recall articles that had
been written several years ago,” which could indicate to a rational
juror that Bennet had a strong memory for articles that he had read.
App’x 495–96. Bennet also testified to recalling at least some details
about the Loughner shooting coverage: he said he had read articles at
the time that determined that Loughner “was deranged” and “that
there had been a debate . . . after that shooting about . . . exactly this
issue, about, you know, inciting rhetoric.” App’x 705, 787–88. A
reasonable juror could find that remembering these details but not
any that contradicted the challenged statements is more indicative of
deliberately selective recall than of true memory loss.
From the foregoing evidence, it can be plausibly inferred that
Bennet both consumed and remembered media coverage discrediting
any link between the Loughner shooting and the crosshairs map.
There is no way for us to assess what weight, if any, a jury might
ascribe to this circumstantial evidence. But it was error for the district

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No. 22-558-cv
29
court to both credit Bennet’s testimony on this issue and to ignore
contrary evidence in resolving the Rule 50 motion.
Finally, as discussed later in Section II(B)(2), infra, the district
court also erred in excluding—both from its Rule 50 analysis and at
trial—additional circumstantial evidence of Bennet’s potential prior
knowledge. Namely, it improperly rejected: (1) the Excluded Articles,
which Palin offered to show that Bennet “knew that the allegations of
a link between Loughner and the [crosshairs] map had been
discredited,” Sp. App’x 67 n.32, and (2) evidence regarding Bennet’s
relationship with his brother, a Democratic U.S. Senator (“Senator
Bennet”), which Palin argued “could establish bias” and “would have
made . . . Bennet more likely to have been aware of the [crosshairs]
map” and any controversy surrounding it, see id. at 67 n.31.
5. “Incompatible” Evidence
In addition to improperly discounting Palin’s evidence, the
district court also impermissibly viewed Bennet’s evidence in the
light most favorable to him. For example, it deemed “incompatible”
with the conclusion that Bennet acted with actual malice (1) Bennet’s
compliance with the Times’ standard editing process, (2) his
attempted apology to Palin,10 and (3) his post-publication exchanges
with Ross Douthat and other colleagues. Sp. App’x 72; see id. at 72–
78. In so doing, the district court failed to draw all reasonable
10 Bennet drafted the following response to a reporter’s question: “I’m not aware
that Sarah Palin has asked for an apology, but, yes, I, James Bennet, do apologize
to her for this mistake.” Sp. App’x 44 n.17 (quoting DX-60). This apology was
never passed along to the reporter by the Times’ public relations team, however,
so Palin never received it. Id. at 77.

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No. 22-558-cv
30
inferences in Palin’s favor and avoid drawing inferences in the
defendants’ favor. See Runner, 568 F.3d at 386 (all facts should be
construed in favor of the nonmoving party); United States v. Mariani,
725 F.2d 862, 865 (2d Cir. 1984) (“The court should not substitute its
own determination of the credibility of witnesses, the weight of the
evidence and the reasonable inferences to be drawn for that of the
jury.”).
Of course, the evidence cited by the district court could be
construed in Bennet’s favor and a jury would be free to do so. But the
same evidence could also be reasonably interpreted in a way that does
not support Bennet’s case. A rational jury could disbelieve that the
Times’ editing process could do much to restrain “the boss” of the
editorial team, who had “ultimate decision-making authority” over
the editorial. App’x 605 (testimony of Linda Cohn). It could also find
that Bennet’s attempted apology, given in response to a reporter’s
question, was made for public relations purposes or to decrease the
likelihood Palin would sue rather than out of remorse for an
inadvertent error. Nor do Bennet’s emails to Douthat foreclose the
possibility that Bennet acted with actual malice. They could even
support an inference of actual malice, because Bennet’s choice to wait
until the next morning to address Douthat’s serious concerns over the
editorial could be viewed as an attempt to wait out the controversy.
See App’x 1721 (PX-174).11 Viewed in the light most favorable to
Palin, none of this evidence (nor any other evidence cited by the
11 The evidence shows that the only step Bennet took on the night of June 14 to
follow up on Douthat’s email was texting Williamson at 11:38 p.m. to state “the
right is coming after us over the Giffords comparison. Do we have it right?”
App’x 1849. Receiving no response, Bennet did nothing further until the next
morning.

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No. 22-558-cv
31
district court) is so “incompatible” with actual malice as to permit a
ruling of non-liability as a matter of law.
In sum, taking the evidence as a whole, we conclude that there
is a “legally sufficient evidentiary basis” for a reasonable jury to find
for the non-movant plaintiff on the question of actual malice, which
means that the question must be left to a jury. Fed. R. Civ. P. 50(a)(1);
Harris, 252 F.3d at 597. We therefore vacate the Rule 50 judgment “to
avoid judicial usurpation of the jury function.” Mariani, 725 F.2d at
865. Of course, we take no position on the ultimate merits of Palin’s
claim. Our analysis makes all reasonable inferences in Palin’s favor,
as we must in addressing the Rule 50 decision, but that does not mean
that jurors will necessarily draw the same inferences.
6. Defamation Per Se
The defendants also argue that even if we find sufficient
evidence of actual malice as a matter of law, we should nonetheless
rule for them because Palin was required, but failed, to prove special
damages—i.e., “the loss of something having economic or pecuniary
value which must flow directly from the injury to reputation caused
by the defamation,” Celle, 209 F.3d at 179 (internal quotation marks
omitted). But here we agree with the district court’s conclusion that
Palin was not, in fact, obliged to prove special damages because the
challenged statements were defamatory per se, meaning that they
tended “to expose the plaintiff to public contempt, ridicule, aversion
or disgrace, or induce an evil opinion of [her] in the minds of right-
thinking persons, and to deprive [her] of their friendly intercourse in
society.” Sp. App’x 54 n.24 (quoting Rinaldi v. Holt, Rinehart &
Winston, Inc., 42 N.Y.2d 369, 379 (1977)); see Rinaldi, 42 N.Y.2d at 379
(concluding that defamatory per se statements in any “written or

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No. 22-558-cv
32
printed article” are actionable without alleging special damages
(internal quotation marks omitted)).12
B. The Jury Trial
Having determined that the defendants were not entitled to
judgment as a matter of law by the district court, we must now assess
the validity of the jury’s verdict. Palin argues that four errors
prejudiced the trial’s outcome: (1) an insufficient voir dire process;
(2) the improper exclusion of evidence; (3) the requirement that the
jury must find defamatory malice to hold the defendants liable; and
(4) the mid-deliberation jury instruction on actual malice. Jurors’
receipt of push notifications during their deliberations alerting them
to the district court’s Rule 50 decision in the Times’ favor may also
have prejudiced the trial verdict. Although Palin likely forfeited this
issue by failing to sufficiently argue it on appeal, we nonetheless
exercise our discretion to review it because it involves a purely legal
(and easily resolved) question on an important subject, and because a
new trial is required in any event.
The district court’s voir dire proceeding, evidentiary rulings,
and decision not to order a new trial on account of the push
notifications are reviewed for an abuse of discretion. See United States
v. Tsarnaev, 595 U.S. 302, 313 (2022) (voir dire); United States v. Pepin,
514 F.3d 193, 202 (2d Cir. 2008) (evidentiary rulings); Manley v.
12 The defendants further argue that we should rule for them as a matter of law
because Palin failed to prove defamatory malice (i.e., that Bennet intended or
recklessly disregarded that ordinary readers would understand the challenged
statements to have the defamatory meaning alleged by Palin). As discussed in
Section II(B)(3) of this opinion, however, Palin does not need to prove defamatory
malice as an element of her defamation claim.

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No. 22-558-cv
33
AmBase Corp., 337 F.3d 237, 251 (2d Cir. 2003) (decision whether to
order new trial after jurors exposed to extrinsic information). “Either
an error of law or a clear error of fact may constitute an abuse of
discretion.” Schering Corp. v. Pfizer Inc., 189 F.3d 218, 224 (2d Cir. 1999)
(internal quotation marks omitted). Because Palin objected at or
before trial to the inclusion of a defamatory malice requirement and
to the content of the mid-deliberation actual malice instruction, we
review these jury charges de novo. See Ashley v. City of New York, 992
F.3d 128, 142 (2d Cir. 2021); see also Dupree v. Younger, 598 U.S. 729,
736 (2023) (holding that “purely legal issue resolved at summary
judgment” need not be raised at trial to preserve issue for appeal).
After applying these standards to each of the five claims of
error, we conclude that four of them—the evidentiary rulings, the
defamatory malice requirement, the mid-deliberation actual malice
instruction, and some jurors’ receipt of push notifications regarding
the district court’s Rule 50 decision—necessitate a new trial. We
address each of the five trial issues in turn.
1. Voir Dire Proceeding
Palin claims that the district court’s voir dire proceeding was
legally insufficient. Specifically, she faults the district judge for
declining to ask her proposed questions about the news sources to
which the potential jurors subscribed. Palin asserts that these
questions were intended to reveal possible bias (e.g., by identifying
who subscribed to the Times and determining what “extra-judicial
information” about the case potential jurors may have encountered).
Appellant’s Br. at 37.

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No. 22-558-cv
34
District courts have “broad discretion” in “deciding what
questions to ask prospective jurors.” Tsarnaev, 595 U.S. at 313. A
court’s failure to ask certain voir dire questions must render a trial
“fundamentally unfair” for reversal to be appropriate. See Mu'Min v.
Virginia, 500 U.S. 415, 426 (1991). As a result, reversal on these
grounds is extremely rare. See United States v. Bright, No. 20–3792,
2022 WL 53621, at *1 (2d Cir. Jan. 6, 2022) (summary order) (noting
that the Second Circuit had “never reversed a conviction for the
failure to ask a particular question of prospective jurors”); but see
United States v. Nieves, 58 F.4th 623, 636–37 (2d Cir. 2023) (holding that
district court abused its discretion by not asking prospective jurors
about gang-related bias). We have identified three limited
circumstances under which “a voir dire may be so insufficient as to
call for a reversal.” United States v. Lawes, 292 F.3d 123, 129 (2d Cir.
2002). Viewed as a whole, the record must show either:
(i) a voir dire so demonstrably brief and lacking in substance as
to afford counsel too little information even to draw any
conclusions about a potential juror’s general outlook,
experience, communication skills, intelligence, or life-style;
(ii) a failure to inquire about, or warn against, a systematic or
pervasive bias, including one that may be short-lived but
existent at the time of trial, in the community that would have
been cured by asking a question posed by a party; or (iii) a
record viewed in its entirety suggesting a substantial possibility
that a jury misunderstood its duty to weigh certain evidence
fairly that would have been clarified by asking a requested voir
dire question.

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No. 22-558-cv
35
Id. (citations omitted). Only the first and second of these possibilities
are presented here.
First, while the voir dire proceeding in this case was atypically
limited, it was not “so demonstrably brief” that it prevented counsel
from “draw[ing] any conclusions about a potential juror[].” Id.
(emphasis added). The district court questioned prospective jurors
about what they and their partners did for a living and what county
or borough they lived in. Although minimal to the point of being
borderline insufficient, these questions provided at least some context
for counsel to draw upon. While the additional voir dire questions
that Palin proposed “might have been helpful to [her] in deciding
how to exercise [her] peremptory challenges, we conclude that [their]
absence did not render [the] trial ‘fundamentally unfair.’” United
States v. Miller, 752 F. App’x 51, 53 (2d Cir. 2018) (summary order)
(quoting Mu'Min, 500 U.S. at 426).
Second, the district court did not entirely “fail[] to inquire
about” prospective jurors’ potential biases. Lawes, 292 F.3d at 129. A
trial court can meet its baseline obligation to uncover bias by “ask[ing]
generalized questions about jurors’ ability to serve impartially” after
“present[ing] sufficient context about the case for jurors’
answers . . . to actually convey [pertinent] information.” Nieves, 58
F.4th at 639. The district court did so here by providing the jury pool
with a short description of the case—highlighting that it involved
Palin and the Times—and then inquiring whether anything about its
description made individuals feel as if they could not “serve as . . . fair
and impartial juror[s].” App’x 2148; see also id. at 2152 (specifying
Bennet as an additional defendant). When several potential jurors
responded that they likely could not evaluate the case fairly due to

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36
their personal feelings about Palin, the district court excused these
persons. The district court also ensured that neither the potential
jurors nor their immediate family members had personal
relationships with the parties, attorneys, witnesses, or other relevant
figures in the case.
Although it would have been prudent to make a more fulsome
inquiry into jurors’ potential biases given the highly public nature of
the case, the district court was not required to “question[] prospective
jurors . . . about the specific contents of any news reports they may
have seen.” United States v. Rahman, 189 F.3d 88, 121 (2d Cir. 1999)
(per curiam). It needed only to confirm that potential jurors had not
formed an opinion about the case in advance that would prevent
them from being impartial. See id. The district judge met that
minimum requirement by asking whether any of the prospective
jurors had “heard or seen anything about this case in the media” and
confirming that those who had been so exposed would not have a
problem “put[ting] that out of [their] mind[s]” and “being . . . fair and
impartial juror[s].” App’x 2153. When a potential juror voiced doubts
that he could be impartial given what he had read about the case in
the news, the district court excused him.
In sum, even if the district court’s voir dire proceeding might
be deemed deficient under a more demanding standard of review,
Palin does not clear the high bar for reversal we apply to voir dire
challenges. Thus, a new trial is not warranted on this ground.
2. Evidentiary Rulings
Palin next argues that reversal is required because the district
court erroneously excluded certain evidence she sought to offer at

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37
trial, contravening what she characterizes as our “[m]andate” in Palin
I. Appellant’s Br. at 10, 38. This evidence falls into two general
categories, detailed in Section I(D)(1), supra: (1) the Excluded Articles,
published by The Daily Dish and The Wire,13 and (2) certain evidence
related to Bennet’s brother, Senator Michael Bennet. We disagree
with Palin that admitting this evidence was required by our prior
opinion but agree that excluding the evidence was an abuse of
discretion. These exclusions affected Palin’s substantial rights,
warranting a new trial.
a. Palin I’s Mandate Does Not Control This Issue
Palin misunderstands Palin I’s mandate. “[A] mandate is
controlling only ‘as to matters within its compass.’” New Eng. Ins. Co.
v. Healthcare Underwriters Mut. Ins. Co., 352 F.3d 599, 606 (2d Cir. 2003)
(quoting Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168 (1939)). In
making its evidentiary rulings, the district court was not bound by
our discussion of evidence in Palin I, which addressed a different legal
question.
Our mandate in Palin I was limited to reversing the Rule
12(b)(6) dismissal of Palin’s complaint. See Palin I, 940 F.3d at 817. In
order to explain how Palin’s complaint alleged a plausible defamation
claim, Palin I offered examples of evidence that, if admissible, might
be favorable to Palin at trial. No such admissibility rulings were in
question at that stage of the case, however, and none were made.
13 The exact titles of the Excluded Articles are not identified in the record except
for an article published by The Wire entitled “Ten Days That Defined 2011.”

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38
b. The Excluded Articles
At trial, Palin attempted to introduce into evidence articles
published by The Wire and The Daily Dish that disputed the existence
of any link between the crosshairs map and the Loughner shooting,
as well as a list of dozens of articles on The Atlantic’s website that
referenced Jared Loughner. When the district court excluded the
articles from the evidence presented to the jury, it stated that it would
reconsider its ruling if Palin established additional foundation for the
articles’ admission. The defendants argue that because no such
reconsideration occurred, there is “no [final] decision for this [c]ourt
to review.” Appellees’ Br. at 44. But the district court’s offer to
reconsider did not affect the exclusion ruling. It did nothing more
than reflect the district court’s power to reconsider before final
judgment. See Fed. R. Civ. P. 54(b). After the district court entered
the final judgment, its evidentiary decisions (along with all other
interlocutory rulings) merged into that judgment and became subject
to appellate review. See Marquez v. Silver, 96 F.4th 579, 581 (2d Cir.
2024).
The sole case cited by the defendants in support of their
argument—United States v. Djibo, 850 F. App'x 52 (2d Cir. 2021)
(summary order)—is both non-precedential and significantly
distinguishable. Unlike in this case, in which the district judge clearly
stated that he had “ruled in [the defendants’] favor,” App’x 594, the
Djibo district court “reserved decision,” 850 F. App’x at 57.
Having concluded that the articles’ exclusion is reviewable, we
turn now to the ruling itself. Under Rule 402, relevant evidence,
which is evidence that has “any tendency” to make a material fact
“more or less probable than it would be without the evidence,”

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39
Fed. R. Evid. 401, is presumptively admissible. See Fed. R. Evid. 402;
see also Daubert v. Merrell Dow Pharms., 509 U.S. 579, 587 (1993) (stating
that Rule 402's “basic standard of relevance . . . is a liberal one”).
Sometimes the relevancy of evidence depends upon the existence of a
particular preliminary fact. This is referred to as “conditional
relevancy.” See Fed. R. Evid. 104(b) advisory committee’s note to
1972 proposed rule (internal quotation marks omitted). In such cases,
“proof must be introduced sufficient to support a finding that the
[conditional] fact . . . exist[s].” Fed. R. Evid. 104(b).
But it is not the province of judges to ultimately weigh this
proof, lest “the functioning of the jury as a trier of fact . . . be greatly
restricted and in some cases virtually destroyed.” Fed. R. Evid. 104(b)
advisory committee’s note to 1972 proposed rule; see also Huddleston
v. United States, 485 U.S. 681, 690 (1988) (“In determining whether [a
party] has introduced sufficient evidence to meet Rule 104(b), the trial
court neither weighs credibility nor makes a finding that the [party]
has proved the conditional fact . . . .”). Instead, judges are assigned
only a limited gatekeeping function: they must “examine[] all the
evidence in the case and decide[] whether the jury could reasonably
find the conditional fact . . . by a preponderance of the evidence.”
Huddleston, 485 U.S. at 690 (emphasis added). When conducting this
examination, “the trial court must consider all evidence presented to
the jury” because “[i]ndividual pieces of evidence, insufficient in
themselves to prove a point, may in cumulation prove it.” Id. at 690–
91 (internal quotation marks omitted).
Here, the Excluded Articles’ relevance was conditioned on
whether Bennet read and remembered them, which was a separate
jury question. If Bennet was aware, when he drafted the challenged

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No. 22-558-cv
40
statements, that these articles disputed a connection between the
Loughner shooting and the crosshairs map, it would make it more
probable that he drafted those statements while knowing they were
false or while recklessly disregarding their falsity. After carefully
reviewing the record, we hold that the district court abused its
discretion in concluding that a reasonable juror could not find by a
preponderance of the evidence that Bennet read and remembered the
Excluded Articles.
First, the district court’s factual finding that Palin never
provided “any . . . evidence that Bennet had . . . read the [Excluded
Articles],” Sp. App’x 67–68 n.32, was clearly erroneous. Bennet’s own
deposition testimony indicated that he regularly engaged with the
articles’ publishers, The Daily Dish and The Wire, around the time of
the Loughner shooting. Although he lacked editorial control over The
Daily Dish, its articles were nonetheless published on The Atlantic’s
website while Bennet served as The Atlantic’s editor-in-chief.14 See
14 The district court was initially misled on this point by defendants’ counsel, who
insisted that “[t]he Daily Dish was a separate website,” such that Bennet’s
statement in his deposition that he “consum[ed]” The Atlantic’s website would not
support a conclusion that Bennet encountered any Daily Dish articles. App’x 409–
11; Dist. Ct. Dkt. 109-4 at 123. But Palin’s counsel later clarified that The Atlantic’s
website did host at least one Daily Dish article regarding Jared Loughner. See
App’x 586. In fact, Palin’s list of Loughner-related articles hosted on The Atlantic’s
website—a list she sought to introduce as evidence, App’x 586–87—indicated that
the website hosted at least nine Daily Dish articles referencing Loughner. See Dist.
Ct. Dkt. 109-69; App’x 1726–44. Nonetheless, the district court concluded that
Palin had not given sufficient reason to think that Bennet had read any of the Daily
Dish articles that she sought to introduce.

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No. 22-558-cv
41
Dist. Ct. Dkt. 109-4 (Deposition of James Bennet (“Bennet Dep.”)) at
48–49, 53; see also id. at 42 (“[T]he editor who oversaw [The Atlantic’s]
website . . . reported to [Bennet].”); id. at 49 (The Atlantic “took
responsibility for the . . . digital production of the site” on which The
Daily Dish’s articles were published). Bennet not only “regular[ly]
read[]” that website, both out of personal interest and for professional
purposes, id. at 123, but specifically indicated that he was a “huge
admirer” of The Daily Dish editor’s “writing and thinking,” id. at 47.
In fact, Bennet was partially responsible for The Daily Dish’s migration
onto The Atlantic’s site. See id. at 47–48. The Wire, which primarily
served to aggregate news articles published by other sites, was a
“sister site” of The Atlantic. Id. at 124–25. Bennet was familiar with
The Wire’s site and was subscribed to its email list, at least as of
November 28, 2011.15 See id. at 125; Dist. Ct. Dkt. 109-139 (Bennet Dep.
Ex. 226). The specific article from The Wire that Palin was prevented
from introducing at trial, titled “Ten Days That Defined 2011,” was
published a month later, on December 29, 2011, and Bennet testified
at his deposition that “[i]t’s possible” that he read that article. Bennet
Dep. at 128. Viewed cumulatively, there was sufficient evidence from
which a reasonable juror could infer that Bennet read the Excluded
Articles.
A reasonable juror could also infer that Bennet remembered
those articles. As discussed in Section II(a)(4), supra, there was
evidence to the effect that Bennet generally had a good memory for
articles that he had read. And news about the Loughner shooting
15 The date Bennet initially subscribed to the email list is not clear from the record,
nor is it apparent whether he ever unsubscribed.

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No. 22-558-cv
42
might have been particularly memorable for Bennet, given: (1) his
personal belief that the shooting “was a big story,” id. at 97, and (2)
his possible interest in the subject of gun control which, Palin claims,
is evidenced by the fact that Bennet was involved in a forum on the
topic hosted by The Atlantic in 2014. As mentioned earlier, Bennet
testified that he recalled at least some details about the media
coverage following the Loughner shooting. See Section II(a)(4), supra.
A rational juror could conclude that Bennet also recalled the
debunking of any connection between the shooting and the crosshairs
map but was economical about the truth out of self-interest. See
Dalbec, 828 F.2d at 927 (noting that actual malice “rarely is admitted”).
Second, the district court committed an error of law when it
accepted Bennet’s testimony denying awareness of the Excluded
Articles.16 Determining whether Bennet’s denials were credible and
weighing Bennet’s evidence against Palin’s was the jury’s
responsibility. See Huddleston, 485 U.S. at 690. It was not for the court
to believe Bennet’s denial, much less rely upon it. The district court
was tasked with answering only a limited threshold question:
whether Palin introduced “evidence sufficient to support a finding
that” Bennet read and recalled the articles. Id. (quoting
16 See, e.g., App’x 116–17 (finding Palin’s admissibility arguments “thin” given
Bennet’s testimony that he had “no recollection of reading” the articles); id. at 405
(“[A]ssuming [Bennet] testifies that he never saw [the articles], let me hear . . . why
the jury could nevertheless . . . infer that he did see them.”); id. at 407 (“What
would be the argument . . . that it was more likely than not that he did read [the
articles], despite his denial?”); id. at 470 (“What evidence . . . would make it more
likely than not . . . that . . . Bennet saw any particular article in The Daily Dish if his
testimony is that he didn’t see [it]?”).

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No. 22-558-cv
43
Fed. R. Evid. 104(b)). As we have just indicated, the answer to that
narrow question is yes—and the district court erred in holding
otherwise.
The district court’s abuse of discretion alone is not enough to
warrant a new trial, however: it must also have “affect[ed] a party’s
substantial rights.” Schering Corp., 189 F.3d at 224. “This occurs when,
for example, a district court excludes a party’s primary evidence in
support of a material fact, and failure to prove that fact defeats the
party’s claim.” Id.
Because actual malice “is a matter of the defendant's subjective
mental state,” proving it often requires inferential or circumstantial
evidence. Dalbec, 828 F.2d at 927. The content of the Excluded Articles
is such that—were a jury to find that Bennet both read and
remembered the articles (as a reasonable jury could, but would not be
required, to find)—a strong inference of actual malice could be
drawn. “Ten Days That Defined 2011” bemoaned “people rushing to
point at . . . Palin’s infamous [crosshairs] map” after the Loughner
shooting, concluding that “[i]n truth, Loughner is clinically insane
and this was not really about politics at all.” Dist. Ct. Dkt. 109-91
(Bennet Dep. Ex. 153). Although it is unclear from the record exactly
which articles from The Daily Dish were excluded at trial, the district
court indicated in its Rule 50 judgment that those articles can similarly
be read as “ultimately discredit[ing] that the [crosshairs] map played
a role in [the Loughner shooting].” Sp. App’x 67 n.32.
The district court’s exclusion of these articles was error, and it
affected Palin’s substantial rights by substantially limiting the
relevant inferences that she and the jury could draw in support of a
key element of her claim, warranting a new trial.

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No. 22-558-cv
44
c. The Excluded Evidence Regarding Senator
Michael Bennet
Turning to the second category of prohibited evidence,
evidence regarding Bennet’s brother, Michael, we first address the
defendants’ mootness argument. The defendants argue that, while
Palin challenged the district court’s Rule 402-based exclusion of this
evidence, her appeal failed to contest the district court’s rejection of
the evidence under Rule 403. The defendants assert that this moots
the issue because, even if we reverse the Rule 402 ruling, the
unchallenged Rule 403 ruling would stand.
It is true that arguments not raised on appeal are generally
deemed forfeited (often mischaracterized as waiver17). But because
this “rule is prudential, not jurisdictional, . . . we have discretion to
consider [forfeited] arguments.” Dean v. Blumenthal, 577 F.3d 60, 67
n.6 (2d Cir. 2009) (per curiam) (internal quotation marks omitted).
One of the rule’s key aims is to promote judicial economy. See Thomas
v. Arn, 474 U.S. 140, 147–48 (1985). While it is typically inefficient to
address arguments not made by the parties, in this case we are
concerned that not doing so may be more wasteful: because a new trial
is already required, correcting the district court’s errors now, even
though forfeited, will best conserve judicial resources. See United
States v. Greenfield, 831 F.3d 106, 124 n.18 (2d Cir. 2016) (considering
17 “The term ‘waiver’ is best reserved for a litigant’s intentional relinquishment of
a known right. Where a litigant’s action or inaction is deemed to incur the
consequence of loss of a right, or . . . a defense, the term ‘forfeiture’ is more
appropriate.” Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61 (2d Cir. 1999); see also
Puckett v. United States, 556 U.S. 129, 138 (2009) (noting that waiver occurs where a
party “intentionally relinquishe[s] or abandon[s]” an argument).

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No. 22-558-cv
45
forfeited argument “in the interest of judicial economy”); United States
v. Brennan, 650 F.3d 65, 131 n.67 (2d Cir. 2011) (remanding “arguably
forfeited” issue back to the district court since “remand . . . [was]
required in any event”). We therefore excuse Palin’s forfeiture and
turn to the merits of the district court’s ruling.
First, the district court abused its discretion by excluding all
evidence regarding Bennet’s brother as irrelevant under Rule 402. In
2010, the same year that the crosshairs map was released, Bennet’s
brother was running for re-election as a Democratic U.S. Senator. The
map targeted the districts of two House Democrats who endorsed
Senator Bennet; Palin—a Republican and known pro-gun advocate—
endorsed Senator Bennet’s opponent. Bennet was involved in his
brother’s 2010 re-election bid, editing speeches and traveling with his
brother for the last two weeks of the campaign. Two days prior to the
Loughner shooting, a man threatened to shoot up Senator Bennet’s
offices, an incident of which James Bennet could have been aware. See
Dist. Ct. Dkt. 41-34 at 70 (transcript of James Bennet testimony at
pre-discovery hearing in this case acknowledging recollection of
threat); but see Bennet Dep. at 144–45 (stating he did not recall threat).
This evidence was relevant. 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. Furthermore, to a reasonable juror, the threat to
Senator Bennet just prior to the Loughner shooting might have
heightened James Bennet’s sensitivity to stories about political
shootings, making more likely the possibility that he learned of the
crosshairs map controversy. Were the jury to draw such an inference,

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No. 22-558-cv
46
it would likely bear upon the credibility of Bennet’s assertions that he
was unaware of the controversy when drafting the challenged
statements.
Second, the district court abused its discretion by rejecting this
evidence under Rule 403, which allows the exclusion of relevant
evidence only “if its probative value is substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, [or] misleading
the jury . . . .” Fed. R. Evid. 403 (emphasis added). The district court
made no mention of prejudice on the record and instead simply
announced that it agreed that the proposed evidence was barred “on
both 402 grounds and 403 grounds.” App’x 585–86. Nor did the
district court’s Rule 50 order identify any prejudice. See Sp. App’x 67
n.31. Given that, for the reasons already stated, the district court
improperly discounted the evidence’s probative value, because it
articulated no countervailing prejudice, we conclude that the district
court’s exclusion of the evidence on Rule 403 grounds was an abuse
of discretion. See United States v. Dwyer, 539 F.2d 924, 928 (2d Cir.
1976) (“Since the probative value of the evidence proffered was so
great, it should not have been excluded in the absence of a significant
showing of unfair prejudice.”). Excluding this evidence without a
showing of unfair prejudice affected Palin’s substantial rights and
was an abuse of discretion further warranting a new trial. See Schering
Corp., 189 F.3d at 224.
To be clear, we do not hold that any and all evidence regarding
Senator Bennet should have been allowed at trial. It is James Bennet
who is a party to this case, not his brother. But the evidence Palin
intended to introduce, see App’x 584–85, should have been admitted

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No. 22-558-cv
47
because it bears on James Bennet’s own potential bias against Palin
and his possible awareness of the falsity of the challenged statements.
3. Defamatory Malice Requirement
In ruling on the parties’ motions for summary judgment, the
district court agreed with the defendants’ argument that Palin was
required to prove “defamatory malice”—i.e., that Bennet intended or
recklessly disregarded that ordinary readers would understand his
words to have the defamatory meaning alleged by Palin. The district
court concluded, however, that a reasonable jury could find that
Bennet had defamatory malice in drafting the challenged statements.
Therefore, it denied defendants’ summary judgment motion on the
issue but instructed the jury that it must find defamatory malice in
order to hold the defendants liable. Palin asserts that proving
defamatory malice is not required in public-figure defamation cases,
while the defendants contend that showing defamatory malice is
required—and that we should grant them judgment as a matter of law
because Palin failed to make such a showing (an argument that the
district court denied as moot and did not substantively address in its
Rule 50 judgment).
Neither this circuit nor the Supreme Court has directly ruled on
whether a public-figure defamation plaintiff must prove defamatory
malice, although at least one Supreme Court Justice has indicated that
no such requirement exists. See Greenbelt Coop. Publ’g Ass'n v. Bresler,
398 U.S. 6, 22 (1970) (White, J., concurring) (arguing that Sullivan’s
actual malice standard should not be “extended to preclude liability
for injury to reputation caused by employing words of double
meaning, one of which is libelous, whenever the publisher claims in

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No. 22-558-cv
48
good faith to have intended the innocent meaning”). We therefore
address this question as a matter of first impression.
Although some of our sister circuits have recognized that proof
of an author’s understanding as to a statement’s defamatory meaning
can be an element of the cause of action, they have done so in so-called
“defamation-by-implication cases”—i.e., cases where “the alleged
defamatory statement has two possible meanings, one that is
defamatory and one that is not.” Kendall v. Daily News Publ’g Co., 716
F.3d 82, 89 (3d Cir. 2013); see, e.g., Howard v. Antilla, 294 F.3d 244, 252
(1st Cir. 2002); Kendall, 716 F.3d at 90; Chapin v. Knight-Ridder, Inc., 993
F.2d 1087, 1092–93 (4th Cir. 1993); Compuware Corp. v. Moody's Invs.
Servs., Inc., 499 F.3d 520, 528–29 (6th Cir. 2007); Saenz v. Playboy Enters.,
841 F.2d 1309, 1318 (7th Cir. 1988); Newton v. Nat’l Broad. Co., 930 F.2d
662, 681 (9th Cir. 1990); Klayman v. City Pages, 650 F. App’x 744, 749
(11th Cir. 2016); White v. Fraternal Ord. of Police, 909 F.2d 512, 520 (D.C.
Cir. 1990). Those courts have held that it is only in defamation by
implication cases that plaintiffs “must show something beyond
knowledge of, or recklessness in regard to, the falsity of the
statement’s defamatory meaning,” because it is only in such cases that
a defendant can claim not to have intended the defamatory meaning.
Kendall, 716 F.3d at 90; see, e.g., Dodds v. Am. Broad. Co., 145 F.3d 1053,
1063–64 (9th Cir. 1998) (requiring plaintiff to prove actual malice as to
defamatory meaning where broadcaster implied, but did not state
explicitly, that plaintiff used crystal ball to make judicial decisions).
We need not decide whether to join these courts in holding that
a plaintiff must prove actual malice as to defamatory meaning
because this is not a defamation-by-implication case. The challenged
statements here are unambiguous and facially defamatory because

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No. 22-558-cv
49
they claimed there was a “direct” and “clear” “link” between the
crosshairs map and the Loughner shooting. Thus, this is an
“ordinary” defamation case in which the intent to defame can be
established by showing “that the defendants knew their statement
was false,” not a case in which the challenged statement was
susceptible to both “defamatory and nondefamatory meanings.”
Kendall, 716 F.3d at 90. The district court therefore erred by
instructing the jury that Palin was required to prove actual malice as
to defendants’ understanding of the editorial’s defamatory meaning.
Such an “erroneous instruction requires a new trial unless the
error is harmless.” LNC Invs., Inc. v. First Fid. Bank, N.A. N.J., 173 F.3d
454, 460 (2d Cir. 1999) (internal quotation marks omitted). Errors that
create a false impression “regarding the standard of liability” are not
harmless. Id. at 463 (internal quotation marks omitted). Because the
jury could have based its verdict solely on finding a lack of
defamatory malice—an erroneous standard of liability—the jury
instruction on defamatory malice necessitates a new trial.
4. Mid-Deliberation Actual Malice Instruction
Palin also challenges the district court’s response to the jury’s
mid-deliberation question of whether an “inference [made] from a
response by Mr. Bennet from a question put forth by the defense”
could “contribute to the evidence brought forth by the plaintiff” to
conclude that “there was a high probability that Mr. Bennet actually
doubted the truth of the challenged statement[s].” App’x 1579
(internal quotation marks omitted). She contends that the response
given to the jury—that “an answer given by Mr. Bennet and a
reasonable inference drawn therefrom is not sufficient in itself to
carry the plaintiff’s burden of showing” actual malice, “but it can

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No. 22-558-cv
50
contribute to the other evidence brought forth by the plaintiff”—
misstated the law. App’x 1580. We agree with Palin.
In formulating its response, the district court appears to have
assumed that the jurors were asking whether their disbelieving a
statement by Bennet (presumably a denial of knowledge) could be
taken as affirmative proof of the opposite. If that had been the case,
the aforementioned response would have been more accurate:
because actual malice must be found by clear and convincing
evidence, a negative inference based on a jury’s disbelief of a witness’s
statement by itself is ordinarily insufficient proof. See Anderson, 477
U.S. at 256–57; Contemp. Mission, 842 F.2d at 621–22. The district court
failed, however, to consider the entirely plausible possibility that the
jury was instead wondering whether a positive inference drawn from
Bennet’s testimony on cross-examination—that is, a direct inference
made from something that Bennet affirmatively stated and which the
jury believed—could be used to find actual malice.
The district court justified its overly narrow view by asserting
that “Bennet offered no testimony from which the jury could properly
draw a direct inference of actual malice.” Sp. App’x 152. But that was
incorrect. As we explained in Section II(A)(1), a reasonable juror
could directly infer actual malice from Bennet’s statement, given in
response to a question asked by the defense, that “I didn’t think then
and don’t think now that the [crosshairs] map caused Jared Loughner
to act.” App’x 806. A juror could also have drawn an inference of
actual malice based on Bennet’s concession that he “must have read”
the three prior Times opinion pieces on the Loughner shooting that
Lett sent to him, which could have placed him on notice that the
crosshairs map had not incited the Loughner shooting. App’x 694; see

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No. 22-558-cv
51
supra Section II(A)(3). Although Bennet’s concession to having read
the Times opinion pieces was elicited from a question posed by the
plaintiff, rather than by the defense, and thus outside the scope of the
jury’s question, the district court’s reply to the jury’s question implied
that no inference from any of Bennet’s responses—regardless of which
party’s questions he was responding to—would be sufficient to find
actual malice. The district court’s instruction may have caused the
jury to treat a positive inference drawn from Bennet’s testimony as
inadequate when, without the instruction, the jury might otherwise
have found it determinative.
This error—made at a “critical portion” of the trial when the
jury was deliberating—was not harmless. Girden v. Sandals Int'l, 262
F.3d 195, 205 (2d Cir. 2001) (internal quotation marks omitted). While
the district court and the defendants contend that any error was cured
by earlier instructions given to the jury, that cannot be the case where,
as here, the mid-deliberation instruction contradicts the
pre-deliberation instructions on a material point. Compare App’x 1944
(“The law makes no distinction between direct and circumstantial
evidence.”), with id. at 1580 (indicating that inferential evidence from
Bennet’s testimony cannot, by itself, prove actual malice). And the
fact that the jury had a mid-deliberation question at all indicates that
it required further clarification beyond what the pre-deliberation jury
instructions provided. In any event, the mid-deliberation
mis-instruction created a substantial risk of confusion on a
“potentially dispositive issue.” Restivo v. Hessemann, 846 F.3d 547, 572
(2d Cir. 2017) (internal quotation marks omitted); see Hathaway v.
Coughlin, 99 F.3d 550, 554 (2d Cir. 1996) (holding that the district court
committed reversible error where its erroneous jury instruction went
“to the very heart of the plaintiff’s claim, and effectively preclude[d]

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a finding of liability where one may be warranted”). Thus, a new trial
is required.
5. Jurors’ Receipt of Push Notifications
The last trial issue we address is the jurors’ exposure during
deliberations to push notifications announcing that the district court
found for the defendants in deciding the Rule 50 motion.
“Justice demands that jurors ‘decide the case solely on the
evidence’ before them, without any outside influence.” Manley, 337
F.3d at 251 (quoting United States v. Olano, 507 U.S. 725, 738 (1993)).
We have shown particular concern over the potential prejudice of
external messages that “attempt to tell the juror how she should
decide the case,” id. at 252, and have stated that reversal may be
required where a judge expresses his opinion on an ultimate issue of
fact before the jury, see Manganiello v. City of New York, 612 F.3d 149,
169 (2d Cir. 2010).
“Where an extraneous influence is shown, the court must apply
an objective test, assessing for itself the likelihood that the influence
would affect a typical juror.” Bibbins v. Dalsheim, 21 F.3d 13, 17 (2d
Cir. 1994) (per curiam) (internal quotation marks omitted). This test
focuses on two factors: “(1) the nature of the information or contact at
issue, and (2) its probable effect on a hypothetical average jury.”
Manley, 337 F.3d at 252 (internal quotation marks omitted).
The defendants contend that Palin forfeited this issue by failing
to argue on appeal that the notifications likely impacted the jury’s
verdict—an argument that Palin previously made to the district court
in her post-trial motion. “It is a settled appellate rule that

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issues . . . unaccompanied by some effort at developed
argumentation, are deemed” forfeited. Tolbert v. Queens Coll., 242 F.3d
58, 75 (2d Cir. 2001) (internal quotation marks and citation omitted).
This is true even if an appellant argued the same issues more fully
before the district court that she left undeveloped on appeal. See JP
Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418,
428 (2d Cir. 2005).
Palin implicitly references the push notifications issue in her
opening brief’s statement of the issues and argument summary
sections. See Appellant’s Br. at 2 (asking “[w]hether the District Court
erred by . . . announcing its [Rule 50] decision during jury
deliberations”); id. at 28 (“[T]he District Court
erroneously . . . announced [the Rule 50] decision during jury
deliberations.”). But, outside of a brief footnote in her statement of
the case, Palin never attempts any “effort at developed
argumentation” regarding why jurors’ receipt of the notifications
necessitates a new trial. Tolbert, 242 F.3d at 75. Because the issue is
adverted to in only “a perfunctory manner,” id., it is likely forfeited.
See, e.g., id. (“A contention is not sufficiently presented for appeal if it
is conclusorily asserted only in a footnote.”); Niagara Mohawk Power
Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 107 (2d
Cir. 2012) (concluding that a brief’s two “cursory” references to an
issue—one in the list of issues presented for review and the other in a
footnote in the statement of facts—did not sufficiently present the
issue for appellate review); United States v. Restrepo, 986 F.2d 1462,
1463 (2d Cir. 1993) (noting that a “[r]eference to a claim in a footnote,
without its having been identified in the manner required by [R]ule
28 as . . . part of the argument, . . . [is] insufficient to present the claim
for review on direct appeal” (citing Fed. R. App. P. 28)).

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We have discretion, however, “to decide the merits of a
forfeited claim or defense where the issue is purely legal and there is
no need for additional fact-finding . . . .” Patterson v. Balsamico, 440
F.3d 104, 112 (2d Cir. 2006). Because a new trial is required in any
event, we choose to exercise that discretion here to address the push
notifications issue, which involves no disputed questions of fact and
can be resolved by a straightforward application of the objective test
outlined in Bibbins. See Brennan, 650 F.3d at 131 n.67 (remanding
“arguably forfeited” issue since “remand . . . [was] required in any
event”); Restrepo, 986 F.2d at 1463 (remanding issue that was
otherwise forfeited in direct appeal because the issue was, in any
event, also subject to collateral attack).
Turning to the merits, we note at the outset that the district
court did not proximately cause the push notifications. Indeed, they
came as an unfortunate surprise to the district judge. But we do find
error in the district court’s conclusion that the jury’s verdict was not
prejudiced because the jurors assured his law clerk that the push
notifications “had not . . . played any role whatever in their
deliberations.” Sp. App’x 84–85. It is well-settled that “an analysis of
prejudice cannot be based on the subjective reports of the actual
jurors.” Manley, 337 F.3d at 252. And, after applying the required
objective test, 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. Given a judge’s special position of influence
with a jury, we think a jury’s verdict reached with the knowledge of
the judge’s already-announced disposition of the case will rarely be
untainted, no matter what the jurors say upon subsequent inquiry.
We therefore conclude that a new trial is warranted on this basis.

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C. Disqualification
Finally, Palin asserts that the district judge erred in not
disqualifying himself pursuant to 28 U.S.C. § 455(a) before ruling on
her post-trial motion. Section 455(a) states that any federal judge
“shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” As evidence of the district judge’s
partiality, Palin cites the judge’s trial rulings that she has challenged
on appeal (including his initial dismissal of the complaint, erroneous
evidentiary rulings, and determination that Palin was required to
prove actual and defamatory malice) and the judge’s comments to a
reporter about the jurors’ receipt of push notifications. A district
judge’s non-recusal decision is reviewed for an abuse of discretion.
United States v. Brinkworth, 68 F.3d 633, 637 (2d Cir. 1995).
“[J]udicial rulings alone almost never constitute a valid basis
for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540,
555 (1994). While they may do so where a trial judge displays such a
“deep-seated and unequivocal antagonism that [it] would render fair
judgment impossible,” Palin provides no such evidence. Id. at 556.
Moreover, while Canon 3A(6) of the Code of Conduct for United
States Judges states that a “judge should not make public comment
on the merits of a [pending] matter,” Palin fails to explain how the
district court’s statement to a reporter confirming that jurors had
received push notifications constitutes a statement “on the merits” of
the case.
The “[m]ere conclusions [and] opinions” that Palin offers as to
why she believes the district judge is, or appears to be, biased do not
“constitute legally sufficient grounds for recusal.” Hodgson v. Liquor
Salesmen's Union Loc. No. 2, 444 F.2d 1344, 1348 (2d Cir. 1971). On

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remand, we are confident that the district judge will adhere to the
principle of complete impartiality, and its appearance, in fulfilling his
future judicial responsibilities in this case.
C ONCLUSION
For the forgoing reasons, we VACATE both the district court’s
Rule 50 judgment and the jury’s verdict and REMAND the case to the
district court for further proceedings, including a new trial, consistent
with this opinion.

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