This section contains the nature of the case and procedural background.

On June 14, 2017, D's Editorial Board published 'America's Lethal Politics' (the editorial), which compared two political shootings. 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). 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). 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). The graphic was a map that superimposed crosshairs over twenty congressional districts represented by Democrats-including Giffords' district. 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. 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 (D) 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.Editorial Board members weighed in on Williamson's idea. Bennet (D) 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 we should deal with that.' The initial draft stated only that Loughner's 'rage was nurtured in a vile political climate' and that the 'pro-gun 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.' Bennet (D) rewrote the editorial. Several other D employees under Bennet (D) also reviewed the revised draft prior to its publication and made minor edits, but none raised concerns regarding the challenged statements. Bennet (D) linked the violence to P. The editorial was published and less than an hour after the editorial was published online, Ross Douthat, a Times columnist, emailed Bennet (D) to express serious concerns: 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. (It gets worse from there and becomes immediately obvious that Bennet (D) lied). The first 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.' The second correction clarified that the map had overlaid crosshairs on Democratic congressional districts, not photos of the representatives themselves. In June 2017, P filed a defamation complaint. D 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 (D) as the sole witness-to assess whether P had sufficiently pled 'actual malice.' The district court held that P had not sufficiently pled actual malice and dismissed the case with prejudice in August 2017, subsequently denying P's motion for reconsideration and leave to replead. The Appeals court vacated the dismissal, holding that P had plausibly stated a defamation claim. P then filed a first amended complaint, which added Bennet (D) as a defendant. After discovery, the parties filed cross-motions for summary judgment. P'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. Ds' motion for summary judgment contended that: (1) P was also required to prove a second form of malice, which we refer to as 'defamatory malice' (i.e., that Bennet (D) intended or recklessly disregarded that ordinary readers would understand his words to have the defamatory meaning alleged by P) and (2) no reasonable jury could find either defamatory malice or actual malice. The district court agreed that P 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 motion, but it added defamatory malice into the jury instructions as a required element to find the Ds liable. Before the trial began, Ds 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 to its Anti-SLAPP Statute, which required public-figure defamation plaintiffs to prove actual malice. The district court granted the motion, holding that the amendment applied retroactively such that 'P'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.' Ds moved for a ruling that the challenged statements were not defamatory per se. S The district court orally denied the motion without prejudice, stating that it would 'revisit [the issue] at the charging conference.' It later concluded that the challenged statements were 'undoubtedly' defamatory per se under New York law. On motions in limine ruled that evidence relating to Bennet's (D) brother, Michael Bennet (including that Bennet's (D) brother was a Democratic U.S. Senator, that Bennet (D) 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. The district court ruled that certain articles about the Loughner shooting published by The Daily Dish and The Wire -entities under the same corporate umbrella as The Atlantic magazine, for which Bennet (D) served as editor-in-chief at the time of the Loughner shooting-would be excluded as irrelevant under Rule 402, subject to reconsideration if P could establish the additional foundation for the articles' admission. This decision was never revisited, and the district court later reaffirmed its ruling. Following the close of evidence but before jury deliberations began, Ds moved under Federal Rule of Civil Procedure 50(a) for judgment as a matter of law. In the midst of jury deliberations, the district court ruled in favor of Ds after concluding that no reasonable jury could find actual malice by clear and convincing evidence. 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 Ds and thus would be capable of reaching an independent verdict. 'Several' jurors reported that, prior to rendering the verdict in favor of Ds, 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.' P 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 date, reconsideration of the Rule 50 judgment, and a new trial-which the district court denied. P appealed.

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