number eighteen thirty one seventy and eighteen thirty two twenty four ship bowser versus james woods oral argument not to exceed fifteen minutes per side mr sandler for the  tweet by the defendant the well known not to james woods was not actionable non defined a tory because a question mark was put at the end of it that was a mistake in the law require the district court to look at the specific language of the tweet as it would be reasonably perceived or perceived by a reasonable reader reviewable follower in this case of mr wood's twitter account and had the district court perform that analysis correctly it would have concluded that a reasonable follower of mr wood's twitter feed would not have perceived that tweet as a mere inquiry an invitation to consider various possibilities but as an assertion of fact and this in that regard the context matters whether we look at context as one of the two of the four factors at the ohio supreme court has set forth for evaluation of whether a statement is an assertion of fact or whether you look at the reasonable  reader standard the context matters here the reasonable readers perception what happened here again just to to frame the specific language in the context in this case friday night in march two thousand and sixteen in activist and essentially a full time volunteer for the bernie sanders for president campaign at that point on saturday morning a user posted tweet a picture of the woman giving the nazi salute whether she was limited purpose public figure and that the defendant did not raise that and that statement just said the trim nazi is pushing baltar within a minute the defendant mr wood's posts on his twitter account with its three hundred fifty thousand followers the exact same picture ms of the woman giving the nazi salute at the trump rally picture of ms bolger same caption about her work for the bernie sanders campaign with the statement so called trump nazi is a bernie sanders agitator slash operative question mark now the dis itself stated were it not for the question mark at the end of the text this would be an easy case would phrased his tweet in an uncommon syntactical structure for a question in english but making what would otherwise i'll call a statement was a statement of fact versus a question because it it was a reasonable reader could not would not have could not have perceived that to be an invitation to compare various possibilities i and we don't know what the intent of the you know the publisher in this case mr woods was by putting the question mark there but the old the reasonable interpretation we think the only reason question that would be an interpreted peeing can can you believe this the woman who gave the nazi salute is actually a bernie sanders operative trying to make the campaign look bad but then i mean it could also be understood as an imitation to compare the two photos because they really don't look alike if well it's a question of whether they they look alike i think that  seems to us that the war is it's like the reasonable person standard it's the average reasonable person and the average reasonable follower of woods twitter feed which has and to look at the context news pages or opinion pages that were the the subject of the case law and to other points he kept arised his own tweet and subsequently the next day as an observation not as a question or if you look at the cases that talk about the totality of the circumstances analysis they suggest that we look at both the general context and a broader context you know now we're talking about you know we're in the world of social media and twitter as as a medium so if we're to look at context what's your what are the contours what's the standard let's say of the general context that we look at the  tweets that day that we do we look at them maybe the eleven day period from when he first post it and when he retract it what test do you suggest that we use in terms of  expect to find it look for news and factual statements much of which is posted by people they follow celebrities not necessarily media but you have to agree no don't when you can see the twitter also invites opinions and thoughts maybe more than many of us would like to read from time to time i mean you just see post after post where people are giving their thoughts about a tweet retreating things and yes you have some factual content but you also have better say every bit as much if not more in terms of commentary yes absolutely correct but this this was not it wasn't a potential interpretation of this as opinion the question is whether it was a factual assertion intended to be an observation of a factual search and versus an invitation to just articles or just factual assertions of rumors in this case that or that are factual in nature and are not matters of of opinion show everything and invites comment but they're not matters of opinion and are  may please the court counsel on patrick cass and i represent mr wood's judge why you turn the court's attention to the issue here ohio has a state constitution which contains a freedom of speech clause the ohio supreme court has consistently held that that freedom of speech clause provides greater protection in defamation cases than the federal so high oh has different pass and a defamation case and this is court is held for decades and  diversity case ohio law controls so the first principle is judge why point out is an innocent construction role and that rules very simple if it can be interpreted two different ways the court is to interpret it in the non the but when you say if it can be interpreted in two different ways i mean if i mean if one in a hundred people might interpret it that way but the clear meaning is different or what's the stand her certainly questions that are so clearly not a question that you wouldn't interpret and i'm the family torn away but if there's two reasonable interpretations as judge mess found here is he starts it with you know he says but the question mark implies that since first grade we're taught that a question mark right now let's be accurate on what it says i apologize it says bernie sanders deserves i'm sorry it's a so called trump nazi is a bernie sanders agitator slash operator question mark it has is there which is a yes but then what wasn't mentioned was within hours within hours him posting his two photos and so forth he then tweets again on the same day that night my followers have indicated that patricia bolger is not only puts not in capital letters unfair i'm paraphrasing that so before it gets contacted by a lawyer before you hear so many but he puts this question mark out it elicits a response to the question and he tweets within kind of twelve hours he tweets in the morning the question later that night he tweets it's not her all right no one it's clearly could reasonably be inferred seen as a question and and whether you think you meant it or not or whether whether you can argue one of the other the simple fact is you could reasonably look at that sentence with a question mark at the end of it and feel it's a question under ohio law that's the end of the that's the end of the inquiry it's the end of newsweek article and say hey look at this can you believe this or what not and my liable of newsweek is wrong well but that's not what he did he he posted two pictures he didn't refer anybody to an and stating what he stated is he implying he has firsthand knowledge of this and the answer is clearly no first of all using the innocent construction world he's asking a question he's an actor the complaint says he's an actor he's not  news journalist there's nothing about it that says he was at the convention there's nothing about it that says he's done anything of that it is unify all right but the question on according to the house of print court is whether mr woods has done anything to suggest that he has firsthand knowledge of it and if he hasn't done that then the verifiable prong of the supreme court's test isn't met then the next part of the text is the individual context before there were any lawyers involved before anything happened he that night indicated my question's been answered she's not it so that lends itself against this when did when did whe said it's not her my followers have responded it's not her that night there were no lawyers involved nobody complained to him he did it on his own then because the whole string of tweets were still up lawyers got involved and once she got involved then he treated three three different ones later and said look as i reported earlier it's not her i'm told she's being harassed don't harass her all right so that happened afterwards but it 's got to be clear the night of the kurds he said it wasn't her on a zone because his followers responded to the question and so looking at it in terms of the context to determine whether it's a question the it got answered own so i mean it mitigates against any attempt to defame anybody any attempt to do anything other than broadly comment on this and ask a question we look at context we also look at the sort of the broader context it seems to be on test that we look at just twitter as a medium how do we not how do we how do you what do you propose we look at on my next point is a broader context sean and that is the fourth element according to the highest supreme court twitter by its definition we've cited some is a personal medium people are on there putting all kinds of things on there it's social media which is new areas for the courts but it's not in the news media certainly c b s has a twitter account right this was a personal twitter account we certainly can have a rule that says that if you post it on twitter twitter you're not liable because everybody knows it's just your personal opinion i mean if you start putting things up there like so and so who is a drug addict and so and so is a crook and you know so and so just robbed a bank and you are you implying that none of that can be libelous because that is that is the difference between ohio's position on freedom of speech certain you know if you if you say this is a subjective universe and every statement of fact is really opinion i suppose you could make it opinion but i'm talking about statements of fact like type of medium is twitter itself and twitter julian really is personal personal thoughts and so one of the factors to consider so obviously if the other three factors mitigated against it and showed it was defamatory then the fourth factor would control i'm suggesting to the court is one of the first factor which is what the statement says using the innocent construction rule it clearly is a question that the second factor using verifiability mr woods is not a newscaster there is nothing about that tweet that suggests he has first hand knowledge which is the second house report factor the third factor is a smaller context the general context where mr woods clearly answered the question the question was answered later in the day under that context it appears not to be a statement of fact and the last is the broader context under twitter and i'm suggesting to the court is if you look at the broader context  that factor mitigates as well because it was a personal site so i mean i think judge smith got it right i mean if you i don't think you need to go past the innocent construction rule and whether hiles laws right or not you know how law you know is controlling here and the innocent constructional unless you can say as a matter of law that question was actually just a statement unless you can say that as a matter  and i think it ends it here and because it had a question mark because it was answered because of the actions that occurred that day before the lawyers got involved judge smith got it right he clearly can interpret it as a question if it's a question it's not a declaration of fa  and i understand the services nobody likes someone who's unwilling to accept service not so if we were to address the service issue in and say that he didn't waive it then this judgement in your favor  doesn't want to accept service i get that i get that either you know from mr woods perspective then sue anybody else why would you file an answer before you've been served now as a just assumed they would serve if you look at what we did here the test of your challenge for whether i waived is whether we did anything to suggest the plaintiffs that we were going to waive service so that they found on june want to motion that said they had spoken to me and i said i defense we need to serve on then we had the world twenty six up conference and i said again you haven't served them and we put in the world twenty six report mr woods is contesting service i don't think you answered my question or else i didn't understand it why would you file an answer if you if you weren't served we do it routinely because military what we do routinely to get things moving so if i just waited until later showing the other side we're getting the case expressly telling and they still need to serve and it serves no purpose to follow service motion and they've got to lose that service motion of they get them served a year down the road and then you file your motion for a judge when the planes i just assume they would serve  think we told them they needed to serve on the put in the world twenty six report they put in a motion to court to the court and got additional time to serve on and i just assumed they would serve and i wanted to get the case on it makes no sense in my view to you know fall wait wait to see if they serve and then file something on that and it's in the court takes a while to decide it and then if i lose that then i got to file a motion for judgment a policeman's which we all agree in this case should be decided here before news coverage takes place and so it's just that's the way it's routinely done but isn't that an well i don't think so but you know i would defer to i guess but isn't that another way of saying look we just you haven't served us and you probably will but we're going to opt to let the court you know we want the court to handle the case on the merits and in this quarter they had a case where  world twenty six conference the parties didn't mention it and i agree with you if i had been clear multiple times in conversations in pleadings and the rule twenty six report that they still needed to serve him i would agree with you but the test this court has is whether or not we've done anything to lead them to believe they don't need to serve and if you look at the motions if you look at the world twenty six report the conversations of long counsel that never occurred they represented to the court in a motion knowing the motion for judgment pleadings was coming but they needed additional time to serve them thank you one last question that goes back to the issue of whether this is a question or statement just a clear look for the record  it seems that you agree that we all agree that just placing a question mark at the end of some words at the end of a statement does not make that a question i mean you have to look beyond just the fact that there is a question mark you do but the question marks significant as judge smith noted he couldn't find any cases where a question with a question mark had been found to be defamatory but you go fairly have statements factual employ the modern ohio test but i mean it had course it had statements with question marks and i mean it seemed to be pretty i mean maybe not on all fours because i don't think so in the sense that constitution and and jaeger in the kim came up with us in construction role that case was for five decades prior to the modern ohio standards it didn't use the modern ohio standards it didn't in any way determining factor just because it's a question mark does not make that statement a question i guess i'm just trying to get at a basic sort of basic answer from you on that very simple point i agree there are situations where the question mark itself could be thrown in there for the heck of it the hard really declarative statement of course i just don't think this is that case and i truly think the question mark when you determine the heils innocent construction rule whether it could be seen the question very significant because every grammar book i could cite here says if you want to make a question you are in the same with a question mark  with respect to the cross appeal issue later than sufficient service to france with respect to opposing counsel there is a benefit to what he did the benefit is that you get a decision on the merits and then you keep the service presentation of would twelve defenses show the day quite in this case the judge could have ruled on that motion for judgment on the pleadings he might have let's say he would an air favor and then comes the defendant well i still have this defense i preserved in the answer that's not permitted under twelve h it defeats the whole purpose the issue is a reasonable expectation that the defendant would would come in  at what point they came after that right at at what and that and it was raised there but at what point did you assumed that they were litigating the merits without regard to record on what what was said the issue of whether there was an effective retraction of course is not before the court not part of this record but it for the record the tweet that mr woods put out that night did not say that he retracted  his statement he said various followers have stated that the nazi salute individual and the bernie campaign woman are not the same person i'm not endorsing trump nor anyone else in this thread about the organized chicago dog antics i'm simply making days ten days later what's your view of this verifiability test to look at whether it can be verified that the person given the salute or was not appreciate them the case will be submitted and you ma