completely erroneous bases there are thirty three states that recognize the false light invasion of privacy in nebraska as one south dakota does not missouri we believe does because a court of appeals reputation and they flip claim there is no claim for loss of reputation instead the damages are personal and internal not reputational well let me just jump right in so yes the missouri court of appeals held and i think you rely on this case that mark or that the that there is a a for false light claim they recognize it but they also said you need actual malice and the problem i'm having just to be real frank with your claim is even assuming i know i watched the video several times to try to figure out what was going on it's completely truthful there is that banner there is that banner that may be suggestive but if you are listening to that video with the audio on i don't know how you could make the point that they have shown actual mouse it is a truthful responsible piece of journalism for the most part with the exception of that banner right right mark court says actual malice the supreme court has not resolved that question  nebraska illinois require the malice to be satisfied by by recklessness and when and when we in fact we pled all three we pled malice and reckless reckless this disregard now it's not in the it is easy after the thirty six dollars deposition because there were directors a director there was a person who had quote quality control responsibility over the reporters video they all had an obligation to do to do timing that there was a automated system and which the the the story banner would appear or disappear and somebody had the duty to check to make sure that that that button had been pushed but why is it not so it's reckless so certainly we have evidence of recklessness but why isn't that to me would suggest negligence but why isn't that overcome by the voiceover and a voiceover as recall it says your client was part of a fast of a videographer excuse me wedding photo business where she never received the services received and it's very clear from that that that her participation in that video whether or not they can be imputed to each other is it is a question of the fact for a jury to decide whether or not under these circumstances there was recklessness in putting this together with with the the danger that the implication that leads to a false light a false impression but there's no voiceover telling the truth is there a single case you can cite where there are anywhere in the country where there's a false like claim that recognized where you have a voiceover that's truthful but a banner that may mislead i don't believe so but it's not material because the unless the voiceover says this is not one of those women it does not erase the implication and that's a fact question for a jury that would be a defense instead it clearly says here's this woman here's her here's her image and that says woman try to direct and deception that should be sufficient to go to a jury to decide whether or not there there was a sufficient degree of recklessness which we pled to meet the the malice standard and whether or not the the the statement was a was a false light that damaged her that's a actually a damage   actually quite honestly maybe one of your strongest arguments because you replace the name diff or the jane doe and john doe defendants with name people who destroy diversity and i dig it's a problem that the district court just basically you know bypassed that and decided to claim a st impression under missouri law itself what we did because in a case that immaterial a month ago justice thomas in the california franchise tax case said that these kinds of questions of state law are essential attributes of sovereignty and that they should be decided by by the state court and the quote and that's the question is does recklessness meet malice that's a state court question with no believe you should recognize st that it was error to say that this was defamation because it's clearly not and secondly it was error for him to say that missouri does not recognize flip cases because missouri does under the right circumstances and then you should remain to back to him and if i were you or john not i would say that the court should give serious consideration to whether or not it should exercise its clear discretion to grant the amendments and let the state courts resolve these issues because these  time after time after time to get either the missouri supreme court to agree that there is a claim for a false fight where there is a false statement of fact that injures their reputation or the last two are the plaintiffs who came before this this all that legibly happened as and font was on probation for prior legal troubles as a wedding photographer in two thousand and twelve the missouri attorney general charge and one for ripping off a half dozen brides including charlene a eric judge stross as you said it couldn't have been more plain what the photo was of shailene in court he because andrea's gutierrez said on the air in those words this is why you are about to see this woman's picture just like i said may it please the court my name is bernard rhodes and i represent the t v station because you then and knew that everything i said after that was the t v stations position and any reasonable viewer knew after hearing mr gutierrez voiced those but that was it was not great to leave that banner up you know one hundred percent and right down or you put a different banner oh and this guy was also convicted of fact in the you know something like that you couldn't be more correct your honor and in fact what's fascinating is the plaintiffs counsel took the deposition as he said of the rule thirty six witness before he filed his motion for leave to amend and he learned his it's not in the record but he and i were both there we both agree the testimony was it was a mistake that the banner that said man convicted was supposed to come down when you saw charlene a hair on and a new banner was supposed to go up that said wedding photographer victim but we all make mistakes and the mistake was the person who wrote the script simply forgot to type in to the computer the time at which that new banner was supposed to go up so if you've ever been a t v control room it's organized chaos so there's a bunch of people in the control room one of whose job the only job this person has is to change banners that's the only job they have the testimony of thirty six was because the person who exposed change the banner wasn't told what time she didn't know what ing victim comes up when and by the time she realized it the wedding victim was already off the screen so when the mistake was made i mean i understand the mistake doesn't rise level actual mouse i get that yeah but then she calls and says please take this down a take it down from the cast h b website but it stays on the you tube and facebook page that would be reckless disregard of  if you knew it was false or you acted with reckless disregard at a time and that's a critical language at any time so something that happens later doesn't prove that at the time it was negligent so yes it was a mistake when i was st hired the st thing i did as is i called plaintiff's lawyers up and i apologized and i said please pass the apology on to the parents because it was a mistake and it was clearly negligence or whoever typed in those bad banter to not type in the instructions as to when to post the banner but the fascinating thing is mr benson knew every one of those facts when he pled his amended complaint and he chose not to put them that's the basis that the judge denied the motion to amend not because of some federalism or some comedy issue but because it was futile because even after having taken a thirty six dollars deposition and knowing the factual basis for how the banner did not get changed out there were mistakes they're made by the district court it may not it may not change the result but i mean the district court said well there's there's no all slight cause of action and our case law suggests that when the supreme court statements at issue and sullivan and desirea are similar to the statements at issue here in that they could lead people to believe that their respective plaintiffs had serious professional and personal faults that's exactly what the allegation here the allegation verbatim out of the complaint page thirteen of the appendix paragraph forty three i'm not paraphrasing the broadcast could lead people to believe those are my words from judge simply engaged in sex with antwon for money that is exactly what judge grindr said is not all slight where the statements at issue could lead people to believe that the respective plaintiffs had serious professional and personal faults when you're married and yes we put somebody for money that's a serious personal fault i think it's pretty it's more than serious if you're saying that they're sleeping with somebody for money and they're doing it for pay and becoming a porn star that's that's pretty serious stuff i think that here there was no statement in my or court that was this truly bizarre only in american can you make up these facts that mr minor chord was listed as the registrar of a website and then he left the company a statement at issue here there was no state but zip attorney didn't say anything nothing there was no statement so i with all due respect i don't think i'm overreaching i think where you make a false statement rhodes with respect to the six names or cases mr rhodes said that there's no cause of action where the injury is to the reputation and he's right this is not a claim to reputation he says he will rely on smith we will will rely on smith let me just actually read very briefly from smith quoting sullivan it may be possible that in the future missouri courts presented with the appropriate case well will recognize them and  certainly sounds like a statement in our modern era now where you have her picture a man charged with with tricking women into sex that sounds like a statement to me but at a motion to dismiss we're entitled to the   whether or not the this recklessness is sufficient that we can prove we've we've player that it didn't just happen accidentally whether we can prove it is a fact question that we ought to get benson thanks to both counsel we appreciate your appearance today in cases summited and we will