imply facts about the plaintiffs in this case the judge took that issue away from the jury why do you say that that's true in a defamation per se case and the idea of slander per se  per se the other i would characterize as a matter of law in the one since the cases say that certain statements about people are so inherently damaging to the reputation you don't have to prove specific harm to get damages i would call that sort of is over as far as that is concerned correct although that's the there's a fine line between saying something about a person is so bad that it automatically caused damage and interpreted the statement insulting absolutely insulting certainly offensive and i find it hard in context to find anything humorous about it so in i don't believe that that was your theory so i'm a little hard pressed to understand if the statement were made then why isn't it just plainly defamatory that is defam statement is only defamatory and therefore defamatory per se if it was interpreted as an actual statement of fact about a person i don't think anybody in this trial testified but that it was a statement that she actually is engaged in the act of prostitutes theory is that she is a whore was metaphor for she is promiscuous whether the statement actually meant whether it was intended to mean that whether it was interpreted to mean that is a question of fact the jury had in fact witnesses testified one witness testified very clearly i didn't think this really meant anything true about the person i don't think it meant anything other than in this is his words just insult my counter example is this d such that you can't call people certain names because those names are always as a matter of law interpreted to mean what they literally say and the answer is no the i mean k says well i don't  and it's clear that that's what this was intended to be you know the funny thing is i don't quite understand your defense is i understand you defended this case on the basis that he didn't say he wasn't even there now you're saying but i want to say he were there it was just an opinion and if it's not an opinion it's true isn't it those are all inconsistent defenses your honor there are alternative defenses i disagree that they're inconsistent the defense was well if you the statement is provable and you try to put on evidence that it was true then it's not it's not it's that the statement is not an opinion it is an opinion that is capable of proof one way or the other that's what you want to defend on and the alternative so i understand how you can defend in the alternative but as we take this one why in looking in the district judges mind why you're entitled to a jury instruction or not your defense was it didn't happen your defense was your honor i don't believe there's any law that supports the idea that you cannot defend the case alternatively as a we didn't say it but if the jury found that finds that it was said it was not the statement alleged was not  and of course that this i think incorrect as it doesn't matter why any why but the jury instruction you tendered said opinion is protected by the first amendment i don't see anywhere where you're precluded from arguing this wasn't a this was an fact when a reasonable person hearing the statement would believe the speaker was communicating factual and from brighton but i think your driver's question is mine too is the fact that the district court rejected those instructions doesn't necessarily mean you can't argue that the elements of the of the court weren't met and the first instruction to find the elements of the tour as including a false statement of fact what precluded you from arguing this was not a false statement of fact your honor that's not the instruction that was given in  had to be factual and i suppose you could say that the word false implies implicit in the word false is provable as false factual i don't think the jury got that inference and under arizona law let's go back to square one did you make the time since i've done an awful lot of defamation of it i don't understand the point of saying it's just an insult i mean all defamation is an insult yes but it's not all insult is a defamation correct well jury gets to decide whether that statement was made literally or in some other sense it's not meant to imply something factual and as you different question sure the under the instructions that were given it's obvious that the jury found no your honor because of the difference between as i said i started this argument trying to distinguish between the two stances in which we use the word defend the torpor say one meaning that the injury is such that we presume it your general damages without specific proof of form and to defamatory as a matter of law that that's really the second is the question that we're dealing with here today and that's not a question that the jury decides or decide and it's a question that the judge decided i can one interpretation what is the interpretation that it's recently susceptible of other than that she was getting paid for  days and nobody really meant that my mother was a prostitute it's simply an insult a nasty remark and that's what the testimony support to be the other interpretation might be that she was promiscuous yes i agree that there are actually in this case three interpretations we asked you for those interpretations counsel i'm sorry we're asking you for those interpretations yes one interpretation is she's actually a prostitute i don't think anybody testified that that's the case i second interpretation the one that plaintive argue the trial miscues what your third interpretation third interpretation is that it simply didn't mean anything truthful about her it's simply a nasty remark inappropriate offensive what you wanted to do was to prove that it was true your honor i mean i'm puzzled yes we are saying it's a mere insult but it's true and if it if it's might have been an opinion i mean i don't think you're trying to case basically that it didn't happen that was your defense right correct he wasn't there it didn't happen he didn't say correct i don't think the correct he said he wasn't there the argument was it wasn't said it was  d what it's not a statement it's reasonably susceptible of susan and i said that it's not a statement that was meant or interpreted as stating anything factual about the plaintiff and if in fact it did it's true that obviously found that could be true the jury was not instructed that it may only fine for the plaintiff if the statement was defended tory percent let me if i may say the rest of my time for rebuttal although i suspect i'm starting to beat a dead horse the court should put a little emphasis on the fact that in the pretrial order the parties stipulated that the question of whether the statement was that a nation per se was a question of a law and we submitted past and we did that there were three supervisors subs who provides if you will to mr rymer and the assistant court cheat at that station who were present when he made the statements they all testified at the trial they testified all of them that they heard the first part of the statements which are i think possibly even more offensive than the whore comment it's more offensive but there's a but doesn't doesn't say anything other than what i think i think as as as the comment of the whore if you could say someone is going to the doctor the circumstances as the court knows is that she submitted a slip to take two hours off to go see a physician and when one of the supervisors or direct sergeant hands the slip excesses in the sexual area none of it clearly is a matter of public concern with respect to any claim that it falls within the purview of the atman case which dealt with two politicians who were arguing about  issues and obviously the issues and facts and that case had to do with matters of public concern that statement to supervisors her direct supervisor clearly had nothing to do with that  once the parties agree what is and what is not issues of law in the case in the court rules on that then the other arguments that the defense makes here fall by the wayside but that only that when they get that statement is that or statement is actionable per say injuries prison then the planet does not have to produce proof special harm in order to recover compensatory damages if you find the defendant remain as committed to tort of defamation and so was it that if you submitted to the sure it was submitted to the jury and i think the point that i'm trying to make with respect to the pretrial order is that we stipulated what where and what we're not use of law in the case yes is that you basically get past that i think that the arguments with respect to the jury instructions as to alternate interpretations of what that statement might mean i think are no longer applicable because if it is  defamation per se there are no other interpretations it is if you find it as the jury did it is a comment on the reputation of the chastity of the plaintive in this case it is probably it is the most vile of comments that you can make about the chastity is like calling somebody a thief it's calling a woman a whore it doesn't get any clearer than that you don't have to interpret what that means everybody knows what it means and the jury just had to find that he actually said those things and they found that he said those things at that point then the defendant with respect to his request for instructions the request for the instruction on different interpretations i think was appropriately denying went once the court determined that it was a person a defamation suit secondly the defendant never introduced any evidence although it wasn't precluded from going so on a truth that that's what they suggested the court do was to take hearsay from one person that said that well over the years he had heard comments that she was a slut that she was easy  ephemeral comments was overly prejudicial would confuse the jury given the instructions that were going to be given and were pretty clearly prejudicial and  the i believe that the defendant's claim that truth should be the instruction on truth is of the fence since there was no evidence presented in that regard they they didn't attempt to present any and they were not precluded from presenting any and the defendant admitted on the record that given the fact that the opinion evidence if you will the reputation evidence that was precluded under rule for three was not admitted there was no other evidence to contradict th yes so you can see therefore that just simply because the statement was made does and it's considered a defamatory per se statement is not in the discussion as you still need to consider whether or not it's fact or false whether it did i don't think the jury decides that a state definition for say is an insult clearly it's an insult and if you cause someone a thief it's not only the fam atory percent say it's an insult as calling someone a whore is an insult i don't think the jury gets to decide whether it's an insult and therefore we won't hold that person liable for it but if the defendant here could have picked up an inspector and said well spector smith over here is going to testify that  is under the arizona case law under boswell vs phoenix arizona still holds to the categories of defamation per se defamation that comment on your business that hurts  your your business reputation comment that you committed a crime involving moral turpitude a comment that you impugn the integrity or rather the chastity of a woman all of those in arizona are per se violation  decision as a matter of law i think as a matter of law when the when you have case law as we do that says that if you you know impugn the chastity of a woman or you impugn the care the moral fiber of a person i think if you say somebody is a thief what you're saying is that he stole something he or she stole something there's a fact that that's the predicate for that statement when you call somebody a whore there's another there's a fact implied in that statement that is that they've been paid for sex that's why it's so onerous that's why the law has developed the way it is because you can't defend against that your reputation has been harm just by the utterance of the words that's why you don't have to prove damages that all presumes those damages now you can say somebody is and i'm i can imagine the context of what opinion somebody might have that would opinions are not the family approach a human example of one that would not be defamatory pro say a sexually related opinion about somebody else she's hot about promiscuity well that's the whole point it is if you undermine if you make a statement that calls into question the chastity of a woman you are libeling her per se it's a defamation per se it's not a question of opinion it's a question of fact you're saying that this person is a whore which means that she went out and got money for sex it's just that you call somebody a thief that means they stole you call somebody a murderer that means they killed if you say somebody is hot you've got an opinion and somebody might interpret that a couple different ways i know that my son might you know i mean there are different ways there are the things you do not say about people especially if you're the assistant port director i want to start off with a question that judge larson asked is every sexually related insult a family story and the point of view no one although it involved calling somebody a communist and not impugning their their promiscuity says no not you've got to look at language in context and more than that the jury gets to look at language in context and gets to decide whether that language has the meaning that the plaintiffs suggested and we've cited a bunch of cases in know and that was that was clearly one one in which we're talking about the condition of a room and not directed toward any particular individual was there was a funny thing group liable which is not c you use one of the none of those are in the category of defamation percent with the exception of perhaps one case and i would use that case as the example i think if you say that an area is a horse nest the point of that case of course the trial judge is the one that was