today is whether a person in a while for him has the right to avoid scrutiny when having been paid millions of dollars of fees satisfy a private business interest in interest which is governed by a commercial kuna gary cole those people manipulate facts case in a little context so do i get that you're arguing that no specific factual statement was untrue but the omissions around them made them untrue there were certain a player system he might have known about it but it was a player player created system that unfortunately was one of the floors in the reporting one of the floors in the courts and now it's his what mr was it took the system imposed by the players which every football team has a kind of kangaroo court which is it basically used to fund end of the year dinners or trips juxtaposed that system with mr turner trying to teach the players to take responsibility for their own actions and not to blame others there was no me no reason no basis to include mr turner's use of the word judas in the context of the player system unless there had been a preordained terminations that some of the coaches of the dolphins this report for commissioner goodell the n f l was suffering from horrific publicity about its neglect of the concussion issues it had taken allegation which incidentally was investigated by deborah voice another firm paid several million dollars that that our geisha was false there was one thing after another so then martin left the team there were insinuations in the media that he left because of his own sexual orientations insensitivity in the n f l couldn't we stand being alleged again to be insensitive to these kinds of issues whether it was domestic violence or brain damage or wherever so rather than an investigative report being being  allegation and what we would have proved if we've been able to go enter into discovery was that commissioner go to goodell pre or doesn't matter if you preordained it or not if there's no defamatory statement you're not getting anywhere so you've got to come up with a the family tory statement it is almost a classic case of defamation by implication by the way the defendants omitted facts juxtaposed facts that weren't connected and buried facts in order not to fit that preordained that preordained agenda so i respectfully submit your honor so why don't you tell me give me an example of what was the you say constitute defamation either directly or by implication mr wells for instance talked about the player a incident been insulting by his teammates and focused on with regard to mr turner the end of the year christmas party with the offensive lineman and whe event there were also another six or so players who were at the party who said that that player a dolphin incident had nothing to do with teasing player a about his sexual orientation no one took it that the only person who ever took it that way was mr wells the report says martin another player reported they were surprised coach trying to do this we're not clear about what player a thought about it or hear about and the report about martin basically and he thought he drew certain inferences from it they were taunting him about being gay because you got a male doll and everybody else got female self like everybody else got female dolls right issue and play you got a male doll and i'm saying what you say play a knew what it was about but the report is not focusing on what player a says because you are here about  all part of the regular activities the joking whatever that's in the report and so not all mid that is in the report but what isn't in the report is player a's perception which isn't in the report of the other six players perception and we don't know it isn't in the report which if this really were bound martin mr well as would have included was a proper characterization of mr martin and mr martin's emotional difficulties from high school the fact that he didn't even like football the fact that he had engaged himself in these kind of sophomore attack to that he's going to strip clubs and  inmate as homo sexual remarks and that mr martin in fact let the football team because he had been demoted the week before mr wells kept all of that out because that wouldn't have satisfied the narrative because it wo justified this ability to characterize goodell as being the new sheriff who wasn't going to tolerate that question about jurisdiction you have to allege the citizenship of all the partners state respectfully what we did was we made that general comment and then this court i believe it was asked paul weiss to confirm that none of them were citizens of the state and paul wasted all wise said that none of them ts in this report we can't afford a district court judgment on any ground and in this case why couldn't we have farmed this judgment on the basis that your client is a public official and you just to answer your question about the jurisdiction that was a question raised by this court about subject matter jurisdiction we went back to the district court we have paul weiss filed an affidavit and in the docket in the district court an order was entered on june thirtieth of this year june thirty two thousand and seventeen docket number ninety eight it is judge calles opinion after that material went back to judge calles finding now the jurisdiction was proper i florida residents we have nothing against the state of florida but that it is a fact that that there was a big managers if i if i may begin just just by answering some of the statements that was absolutely not your honor number one your honor is absolutely right about the buts case and indeed we cited in the brief it's not just buts there's a whole line of cases about football coaches basketball coaches players and assistant coaches and it was confusing to us to see that the plaintiffs in this court as the plaintiff attempted in the district court tried to distinguish those cases by saying well in those cases the plaintiff was a limited time in the district court at the argument on actual malice as we did on on these other issues the it is very plain that mr turner for this purpose is a limited purpose public figure and there is no allegation of actual malice and as and as i believe your honor may know in the michelle vs new york post case written by judge marcus in two thousand and sixteen that is precisely what this court did there was a dismissal on grounds of opinion and that panel said we're going to reach an issue that the district court did not reach actual malice and it's not only is that something that i respectfully submit the court of appeals can do when it's efficient and makes sense but it's something that the court of appeals has a special role to do in these kinds of cases in the bows case in the u s supreme court that court said courts of appeals pay special attention to constitutional issues and particularly issues of actual malice and the attempt to plead actual malice here is it is precisely the kinds of allegations that have been rejected again and again and again indeed in michel this court said in two thousand and sixteen that these kinds of conclusory allegations and it's really what you just heard at the beginning from plaintiff's counsel first of all there's not a shred of evidence that is alleged each time we hear the story the story gets embellished i think i heard just now commissioner goodell gave an order about what this report was supposed to say there's absolutely no evidence of that it's irresponsible to say it moreover the law is clear  only in michelle but in santa monica all the supreme court cases that simply saying someone has a bias does not establish actual malice that was an opinion written by two members of this panel earlier this y apologize we didn't cite it i think it's tobin it if i'm pronouncing the name correctly and that was a situation where there was a motion to strike a libel claim on the basis of a slap statute and the court evaluated actual malice and said again just saying somebody has a bias makes no sense does not satisfy that and knowing and reckless they allege it in the sense that they say the words knowing and reckless but true but to establish actual malice you have to establish that the defendant actually knew the statement was false or in the words of saying i'm odd in the other supreme court cases at a high degree of subjective awareness of probable falsity when it really means is that you're reckless in that you know if you ask the next question you know the answer you will get will show that the statement you're about to make is false but you don't ask the question you reckless there is absolutely no allegation of any kind in this case that goes to any of those issues and indeed everything about the report i respectfully submit negates actual malice it negates it because one hundred forty page report after a three month investigation the plaintiff was interviewed twice and i and i would say it is stunning we have never we've read a lot of libel cases in connection with this case and others we've never seen a libel case where number one the plaintive concedes the truth of every essential statement made in the report and on this blow up doll incident that was just the subject of a few questions judge gayle's was extremely careful he set out in his opinion ten facts stated in the report that he said supported and were the basis of the opinion that mr turner had participated in the taunting he said correctly in his opinion that plaintive conceded the truth of those facts and plaintiff has not assigned any error to those findings so number one all the essential facts are conceded to be true and number two as we said in our papers and as plaintive concedes in almost every one of the essential issues here plaintiffs and i'm going to be direct plaintiffs lie to the defendants during the interviews and during the investigation and that lie is very those lies excuse me are very significant first on the issue of actual malice the lie was as many lies the truth cup came out and the report says the report is extremely careful and extremely deferential actually to mr turner but the report reports what mr turner says so we didn't believe when he said i don't remember anything about giving the mail blow up doll to the player who was mercilessly teased for being gay many of the people reported it that was a lie he's now conceded it's lie the fact that he lied is additional reason that the conclusions in the report were correct if the blow up doll incident was so harmless and meaningless why did he feel the need to lie and now when you see the explanation that he gives the explanation in the that he gives in the complaint and in the papers here is well he was teaching people what will happen if you don't properly relate to your spouse or significant others well every member of the offensive line got a female blow up all in one got a male blow up doll and the one who got the male blow up doll is the person who was mercilessly teased for being gay how do you possibly argue that that is not a protected opinion these are important matters of public it's what we're arguing about blow up dolls but of course these are significant issues of public concern when jonathan martin left the team as the plaintiff concedes that set off a firestorm of national comment these issues of what happens in a workplace are important issues that we're debating every day in this country and i want to go back that was false so my question to you is certainly if your alleged you don't have to use the magic word malice throughout the complaint it says they may allegations are statements with yes that is however what i would add to that is that that is a specific requirement in public in where a libel case concerns matters of public concern there are lots of cases come before this court where you don't have to allege specific facts you can allege intent generally in a securities case for example you cannot do that under the supreme court press precedent in other words what you have to say under the supreme court preced nt is yes indeed to turn his complaint says again and again and again and the briefs here say again and again again the formulaic statement you acted with malice you acted with recklessness you acted with intent but the supreme court precedents because we're dealing with these first amendment issues and this court's precedents say that you have to back that up with facts and what that means is that you cannot simply say the defendant made an  but it goes beyond that because a going back to new york times and sullivan in one nine hundred sixty four it is it the supreme court and the appellate courts have made it crystal clear that you have to come forward with facts to show that the defendant knew the statement was false also or had a high degree of awareness of of probable falsity and in fact there are authorities that even say that when you argue that there was expressed so called express malice meaning that you actually had a visceral dislike for the plaintiff that is not evidence of actual malice indeed some cases say it negates actual malice because when you have hostility toward the plaintiff it's more likely believe it or not that you believe the statement here and by the way your honor i i don't want anyone to take away from this argument our concession in any way that there was indeed any malice here on the part of defendants towards mr turner and this is another fact that i that the cases say go to the issue of actual malice because you will see that as your honor pointed out when when mr ginsburg was arguing about the blow up doll and so your honor pointed out quite properly the report says that incognito said you know player a was a good guy he didn't care about this he slough that off the report is very very very careful to put all the evidence pro and con on about mr turner and indeed far from there being some adam is towards mr turner when the report found that mr turner had acted properly and should be commended the report did that the report has a long passages about a situation where in the summer before mr martin left the team mr martin didn't show up at at some practice and coach turner when now talk to him drew him out try to get tried to talk to him about his psychological problems reported those psychological problems to coach philbin it was the fifth head coach of the dolphins and the right far from ignoring those facts the report lays them out and then says specifically we come in mr turner when the report found that that mr turner was doing things that were that were inappropriate in the in the opinion of the defendants the facts were laid out in the opinion was stated in the opinion was clearly identified when mr turner did something that he should have done or went above and beyond the report did exactly the same thing which is again as i say negates any any possible argument of of actual  so you're not relying on opinion versus fact really for your main argument well here's just saying i have much statements of proof fact are false or certainly they haven't shown th what the way i would put it absolutely they have not shown the malice for but i would also say that when you look at the four statements that are being focused on but there are many statements or several statements about mr turner in the report there are four of those statements that mr turner focuses on and assigns to be defamatory libelous statements of those four statements we believe each one is a a statement of opinion based on disclosed facts mean one of them for example the the statement that it was poor judgment to send the texts to mr martin is a obviously a quintessential statement of opinion in the texts are all laid out there so what we say is for each of the art of the points that he says are actionable that is an opinion in addition actual malice has not properly been been played i see that my time is up i would i would simply close unless the panel has has further  questions i would simply close by saying this is an extraordinary case of this this is a matter of public interest where full constitutional protections apply and the positions that we believe that the pla and that's basically what we're talking about reckless and not including that's correct second of all it's important to just to really think about whether this is a first amendment constitutional case or whether this is a private commercial case which happens to have a public viewing well you know if he is a public figure and a limited public figure at this is all about to the extent this is focused on coach turner in part it's it's with regard to his what he's doing as a football coach so the limited public figure thing doesn't really change anything in this respect for you i don't think that's quite right pollie loose track something else besides his coaching mr turner has a public persona  particularly nowadays isn't about making everybody get along encouraging people is not part of coaching i never heard that that wasn't part of coaching that's the private part of coaching that's not the public part of coaching the public part of coaching is whether the offensive lineman or property of wind in order to help the running back get through the line what happens any more than you know what you're talking about look a coach is responsible for the performance of the team or the in this case the offensive line right and that involves both how the players feel and how they relate to each other and what the play is it's all part of coaching is that all part of coaching think yes and no it's not the part of coaching for which mr turner is known in any respect any more then all of us in our private work life try t judges privacy is appropriate or would create a first amendment right would happened here nobody went to mr turner's house they were interviewing mr turner and players that he  coaches i understand that but that doesn't make this a constitutional case especially when it is a wedge and we should have had the right to prove that this had nothing to do with the n f l caring a whit about anything other than its peculiar interest in how it's being perceived by the public for purposes of its business commissioner goodell doesn't care of one player is abusing another unless it becomes public and unless he's going to hurt his ratings and so we hired a lawyer for me i think you're wasting your argument about talking about anything else besides what happened what was in the wells report and whether it's they weren't the defendant's opinion it was the commissioner's opinion those are untrue opinion and second of all maybe there were certain opinions that were discernibly could be the true facts have been set forth in that location in the report in the context of what mr turner was accomplishing and why he thought not that a reason adverse or might be harmful to mr martin but just the opposite objective facts then that opinion would have been the effect of that opinion would have been the gated if mr mr wells had set forth the history of mr martin the history mr martin and mr turner mr turner is understanding of what made mr martin tick the fact that mr martin reach out to incognito that would shed light on respect for sumit on who was really driving this train in terms of what were the defendants were up to those are it's the unprofessional opinion is discernibly misc reading and we should have the right to prove that