national she's a world champion swimmer last summer she won three gold medals in a silver in the summer olympics during which the district court dismissed her complaint for defamation and  false light and in dismissing the case the district court substituted its own narrow interpretation of the allegations of the complaint and i would say stingy construction as opposed to the light most favorable to ms which should be generous and from the perspective of the average reader or the reasonable reader and the district court or found only that casey barrett's article strongly suggested that could take a was cheating without actually saying so i think  that in that regard my understanding is that if there are two reasonable constructions it's a question of fact for the jury and that's how we would like this court  review the complaint in this instance because there are multiple statements that clearly give rise to the impression that casey barrett is accusing sue of cheating by taking former or by taking performance enhancing drugs i understand your argument on the false light in terms of creating the impression but generally defamation requires a false statement of fact the false statement of fact that's made in the article the false statement of fact is the implication that she is cheating and i understand your argument about the implication but are there any factual errors in false statement of fact that has it's defamatory meaning so i mean my back and that's why i'm giving the opportunity i mean we may be proceeding on on your argument that all the facts are true but it's the implication that's at issue but if that's were that's fine i just want to know if there's any false statement of fact that that's made in the article i would say false no incomplete unfair yes and let me let me direct the court's attention to something that we alleged in the complaint that nowhere was mentioned by the district court in its order in that is there are allegations in the complaint that there was a facebook chat prior to the publication of this article between shane to sit katinka who's who's husband and coach and jason  is an editor at slimming world and in that connection mr maher stell oic mid that swimming world consulted with an expert and there was no way that she was doping i read that yes and that there was no way that she was completely undercuts the implication throughout the article that katinka has sue is is is doping and it's nowhere disclosed  in the article and there is a principle in this is in the milk of the case that in order to gain first amendment protection the reporting or the or the recounting of the situation it must be full it must be fair and it must be complete and it's it cannot be complete once we're in the world magazine is in possession of facts that way in favor of ms houses to being a natural swimmer earning her accolades her medals by her determination her work ethic  training regimen none of these things are mentioned anywhere so in the in the casey barrett article no effort to talk about what her training regimen is what her schedule is what her weight training is what kind of mental coaching she may have no interviews nothing of that sort out so what do we do with the statements in the article such as quote secretly every cynic and i assume that includes berent hopes to be wrong i hope my suspicions are wrong now what do we do with those statements and i know we're supposed to look at the whole thing but those are kind of glaring statements that i think the other side relies on considerably to suggest that this is simply raising a question not implying a misdeeds they do they'd they do rely on that so how do you do with that idea what that because i don't buy it i don't believe that a jury could not believe that look at how he wrote for example about lance armstrong he said for years i would tell my buddies that lance armstrong was cheating because his performances were unbelievable and i was right when he finishes that by saying and i'm telling reffing to the other side and where there's smoke held you finish the cliche so he's planting in the reader's mind there's fire which is the implication that there's doping exactly and that's that's one of them the other side can think about that while sitting there i think there's even a mor e a couple more glaring statements in the article that are even more clear k c barrett quite clearly compares katinka to the east germans who were caught forty years ago he's making a movie on that subject and in that connection he states quote in retrospect and even in the present tense it was beyond obvious what was going on i submit to you that an average reader would understand this to mean that in retrospect referring to east germans in the present tense as referring to what he calls that can express about what's going on and i can't prove that i don't know it but it seems to me that when somebody acts in this manner it requires further investigation that's the kind of parents we need desperately the well the further investigation should have happened in this particular case and i'm not i don't want to i don't want to  dismiss the first amendment but my client also has a reputational interest she is deserving of dignity and respect in the same way and i think that's a little interest in the first amendment may be doing back there you suppose wrongdoing and if we shut off the press from doing that if we try to yank their life or we drive a subject and libel suit because they warn about the possibility of wrongdoing that leads to a very undemocratic i agree that the first amendment is important and i believe wholeheartedly in the in freedom of press i do not agree that you may imply a false assertion of fact which is the standard under you know in this court that you  decided in in the milk of vick case that just because you couch it in terms of an opinion doesn't mean it's an opinion and it's not actionable if it is a false assertion of a fact as we contend here that he is asserting that katinka has sue by the evidence demonstrates that she is taking performance enhancing  wrote who wrote the partington case you know just as right hard judge right while the authors readers implicitly were invited to draw their conclusions from the mixed information provided the readers implicitly were told that only one conclusion was possible here there's no mixed information at all and we know that that mixed information in fact was available so how do you distinguish this case from the run of the mill sports commentary we see all the time and hear all the time on sports talk radio where a lot of reckless statements are made a lot of opinions are thrown out every day and we've certainly heard commentary on on television and on radio about various doping allegations are your standard bellicose areas we have in american life well i think that actually i understand what you're saying with respect to t v but that also goes to the general context of the statements and where they're made and this is these statements were made in slimming world magazine the most authoritative sport or the most authoritative sources for sport it's not a docu drama as was the case in partington it's not somewhere   recounted facts that are not unlike the facts recounted in this article and then tried to do some implications well the there certainly was a full fair and complete accounting if you're referring to the barry bonds book  others but it's the only way you're going to be able to expose a lot of things that go on you know and you know what about public figures who are lying or who are doing improper law but that's my opinion i don't i can't prove it but i think he is i don't we need to be able to say those things without being subject to libel as long as the sta are true as long as the brick court is full fair and accurate it is what do you john normally when you when you try to expose the public figures wrongdoing corruption you don't normally put in the well i think on under those circumstances if you accuse somebody of corruption you are subject to a defamation suit if you don't mention any facts to snowden that you do mention that the things that lead you to think that he may be  in my opinion these are serious problems and i can't prove it i think that's a kind of abuse i just don't understand why that's not something that's that that's good for us it is in the context of this case important for her reputational interest and and some of these assertions by casey barrett are assertions of objective fact that where that the body change the body changes evidence that she was over the fact of the body well there's body change because of her workout regimen change but this is exactly the kind of statement mayweather told somebody that manny pacquiao was body change and body had changed over the years that was enough to imply to be an implied assertion that would support a cause of action for defamation and when you compare katinka has to to the east germans and and that's the present tense that's exhibit  you compare her to lance armstrong you admit that she's passed every single doping test and to some people fail the tests only stupid people feel that that's what he says that's what he says and that prove that and that is our point with respect to i have no proof he's really negative in the import of that on our questions of taking your overtime thank you council but will give you some time for a bottle thank you very much learning they please the court jeffrey becker on behalf of the applebee's casey barrett sports publications international just tried i will absolutely address the comment that you discussed a little while ago but the first thing i like to do is start with a very important principle when as here is author writing about a controversial occurrence fairly describes the general events involved and offers his personal perspective about some of the f a q what he said disputed facts his statements should generally be protected by the first amendment you say generally milka vigil says that a statement may still imply a false assertion of fact even though in an opinion even if the speaker states the facts upon which he bases an opinion if those facts are either incorrect or incomplete or if his assessment of them is a ruinous the statement may still imply a false assertion a fact is not what the other side is saying happened here i don't believe they are ip says he has an opinion in one of these such in one of these women rule the world article and that opinion pretty clearly comes out of out to me as she's doping i mean she's in a superhuman world of her own if she even eclipses katie ladette and michael phelps and her regimen and how many times she swims and what she does is in comprehensible the strip club comment the bullshit comment i mean and he says i have an opinion over and in the women rule the world he talks about shrug and in the end all the sisters and everything like that he says but that's too much and then he uses an interesting word he says condemn he's condemning hos who he says is something i don't believe he's condemning you said that yes i don't believe the implication there is that he's condemning  i said earlier that i telegraphed to where there's smoke he says you make the conclusion i mean that's forcing the reader to say there's fire isn't it well i believe that that's what he's trying to suggest that there needs to be an investigation to see if the these doping tests are ridiculous only idiots fail them and he suggests in this context that passing the doping tests is evidence that she is doping judge there's a case that i believe that right i don't believe that's what he's saying i  where should there not be permitted the ability to provide one's opinion on controversial subjects the rip us debate among people with different viewpoints which is a vital part of our democracy and will be hampered of course but then milk of it says but if is an opinion tha implies doesn't necessarily directly and words accuse implies a false letters of fact that's enough to go to a jury the other side says we have enough to go to a jury why isn't this enough to go to a jury do we accord do we take a look at this in the light most favorable to miss ozu i think the plaintiff is hose who has larger problems than just that because as council staff here do we look at the facts in the light most favorable to her in this context or first amendment defamation issues and these are the court looks at twamley and whether or not a reasonable person in this case would believe there's a plausible statement of defamation i believe what judge snow did here is look at all of the facts the general context of what mr barrett is trying to out starting starting date on their false light claim you're asserting a public figure defense which is perfectly appropriate but why does it go forward at least to the summary judgment i believe the same standards that apply in defamation when it comes to the statement of an opinion or subsume within the false like claim whether or not the actual malice issue comes back up whether there's an implication or an inference i believe at the end of the day with the statements made by mr barrett he is still in the same position where he's stating an opinion which is first i believe it's important to raise issues when it's a one suspects that one may be taking performance intention drugs and sports and i believe based upon the materials i've reviewed that i have a strong suspicion she has he doesn't say that she did it he says he doesn't have any evidence she did he present alternatives to that as well one of the alternatives well here were to be present an alternative he seems to dismiss all alternatives well even the training regimen that doesn't work dismiss everything well you just identified an alternative which he doesn't agree with but he identified he asked the question expos or a document just seem to suggest that he's in the know and he can see things that other people can't because he's an expert well he's in the east german thing and all this kind of stuff he says those in the know know what's going on i believe he said is that he's been around the block for quite a long time  even the know he says he's suspicious he doesn't say he's in the know i don't believe those exact words were used he does say he's suspicious he's our dental fight issues prior with the german swimmers he's identified issue that is lance armstrong at the time he did this others didn't believe him but at the end of the day he should be permitted to make his statements of opinion he may have said that there are those in the know who are talking about it but i believe when he's talking about what he's seeing he identify specific information upon which he bases his opinion that's what judge snow found judge snow made clear he didn't say she took any drugs he didn't say he has evidence she did it he says he's suspicious that she did and he hopes she's he's wrong but that you know the the the faults that h a defamation case also live a slightly different because that's that's designed to say to address the situation or you're implying a false statement of fact and you know when he goes to say there smoke you fill in the blank about every for every case is different absolutely and in this case with a commentator who posted an article on a blog where he's pasting his opinion which i believe is at the heart of this there is a very important point of public policy in free speech should be permitted and if a commentator wants to raise hard and sometimes unpopular questions they are allowed to do that but hyperbole the rhetoric this is the same thing that came up in crow the county of san diego that both judge trot and judge thomas were on where you pointed out the comparison to charles manson didn't mean that a prosecutor being interviewed on the news was saying that suspected murderer actually committed the murder despite the fact he's being compared to one if mr barrett is comparing this hose you to the armstrong or german swimmer the fact is he's doing this in the bro context which under partington we have to consider and the broader context here is when commentators believe there is a hard and unpopular issue before us with doping an issue of public concern they should raise those suspicions and speak about them that's the broader context of the been whether it's protected by the first amendment only then do we look at the nature of the toward because otherwise you destroy the first amendment protects that you have in the defamation just putting  but we still are stuck at motion to dismiss stage looking at the first amendment issue and whether or not mr barrett has stated something that provides an actionable tort at the end of the day this hose who is self proclaimed public figure and when you look at the issues here just like another case that came shortly after partington where judge rinehart made clear public figures and officials statements that might not be that wonderful to hear that part of the job just because a state and they embarrass her may imply that he believes she's doing something wrong does not mean at the end of the day there's a plausible claim that he's saying she did it he's not inferring that she did it he's saying i have an issue with i'm a cubs fan less and less percent percent you're back in law school and you're a law student i'm a professor and i ask you mr student tell us what the paki case is what are the facts and one of the holding of the paki has case or your honor the pack you know case involves three competitors of manny pacquiao and these competitors are being interviewed before a match and they are being asked opinion now that was a statement and fact when the interview was asking it was either mayweather deal of oil whether or not what the difference in the body conditions were one of them said well he's taking drugs and the interviewer said that  that's an inference from the body no no the question about the body was what's the difference between your bodies why is there a difference and well the competitor said many packages taking drugs that's the statement it wasn't an inference it was a but at the end of the day they they found that defamation had been stated at least for a statement of a claim but again they found competitors had affirmative made statements it was not defamation by implication as counsel's confirmed it is here there's an implication in this case it's  statement to you that judge no correctly found that the implication was that mr barrett believed there's no way that ms hose was able to perform the way she did the superhuman performances without having taken something but the confirmed he had not any evidence she did he pointed out she's never failed a test he prevented other alternatives and they updated the swimming article magazine to provide other people's opinions on the statement as well the president's home sweet home swimming association would never question whether or not someone else was doing this even the hungary and the president the hungaroring swimming association recognized this was a question as to whether she was not a statement that she did it we believe that's an important point in this case when you look at  partington and the three factors one must consider the general context specific context and statements there is no statement she did it he says he hopes he's wrong in his suspicions he makes very clear in a blog post to his readers that he wants to elicit discussion and debate judge  no correctly found there was no statement of fact in the implication was a commentator questions how it's possible i went but going back to being a cubs fan and watching sammy sosa and mark mcguire both chasing a homerun record i'm allowed to sit here and say wow if someone had one hundred fifty home runs next to last year and there next it's bigotry i don't see how they can do that naturally that's what he was saying that was the implication right didn't have evidence she did it but the difference here is he's patrolling himself as an expert you're  yourself as a fan and part you know yes but but graduations by the way i think thank you very much i am glad you have been good today apologized to those in washington but at the end of the day experts commentators and people that are speaking on controversial issues of public opinion and public concern are allowed to express their opinions that creates the robust debate that partington stands for that we found in the thomas case you were on in dogs in the crow case all of these cases decided by the circuit find the first amendment is important especially these days at the end of the day just no correctly found that our clients did not state the ms hose who had taken any p d s they were suspicious and they asked for discussion  against floyd mayweather and my point with respect to manny pacquiao is there were there were statements about the philippines having the best drugs there was a statement by at least one of yes he is evasions drugs and and the reason that pacquiao is even closer to this case is that mr barret is a direct analogy to floyd mayweather in the sense that floyd mayweather may have particular expertise and experience in getting hit by penny pack you know mr barrett is a former a lympics swimmer he makes his living off a swim and he runs a swim school he and and a swim program in new york city emmys for his broadcasting he's got emmys first broadcasting he holds himself out as an expert he's making movies he's making a movie about the east germans doping and he said in that context what was happening was obvious in the past tense and what is happening in the present tense is also obvious those who know have some knowledge should have the least protected but if somebody without any knowledge about the subject makes  if you have some experience i think it is and here's the reason why it would not cover the average reporter or television commentator i think the average person the reasonable reader is going to give that person more credibility and the implication of your mandatory conduct that were subjected to if you mr hannity or you or you wrong and i think that and i think that's right if you're wrong you're going to have to be very careful when you're exposing corruption because you know something about it and the more you know the more likely you are to be shut off by lawsuits and therefore the less likely it will be the corruption will be exposed well i've got to go back to what i said earlier it has to be a full you know the people who have made the allegations and reported on them are they subject to defamation because they don't include everything in the story but they just shortly after the article was published when was that within a number of years ago now it was in two thousand and fifteen  she's lost she thinks that she has lost sponsorship deals that were in the works at the time and this is all outside the right or even i know it is he's speaking behind the curtain so there are there while we did demand a retraction very you know immediately after after the after the part article was published and swingman world magazine i think that saying this he's not saying she's cheating i submit to you under the appropriate standards giving katinka has to every reasonable benefit of the doubt that the complaint or the article can be fairly read as you say meet her and falsely accusing her repeatedly of taking performance enhancing drugs thank you can i thank you both for your arguments today they are very helpful to the pan and the case just are you will be submitted for decision will proceed to the last case on the oral argument calendar for this morning which is c p u c vs federal energy regulatory commission