charter communications there are at least three fundamental flaws in the district court's judgment st it allowed a defamation per se theory to go to the jury based on the one off use of a made up word even though a reasonable jury could have found that the plaintiff knowingly took the printers without authorization which is the technical definition of that and rd it precluded charter from invoking qualified privilege even though kentucky case law identifies circumstances of course the kentucky supreme court we do what we do with the cases that allowed rob con artist and steal go to the jury it looks to me like those were possibly ambiguous and the jury was kind of consider the contacts and and whether that was defamatory in that situation if you're just now banyan i think that involves a situation re you have words that on their face  page sixty one of their treatise that says the only time that intended meaning presents a jury question is whether there is a legitimate question concerning whether words were used in a colloquial sense that was is the con artist case it seemed to me that the language the court uses fairly broad if the if the word is capable of having a defendant or even the jury gets to decide when there wasn't really any i didn't see appropriately a question for a jury and so for example if you look at it again elder it page sixty one dollars says you know it's reversible error report to permit a jury to determine whether unambiguous words were meant or intended to plaintiff with criminal offense and then going to make the point that i made earlier that the only time that intended meaning presents a jury question is whether there's a legitimate concern over whether the words were used in a in a  defamation per se is that the words themselves necessarily damage what it this way everyone's on notice that if you use these words they're going to be damaging but yet sometimes there are uses of those consensus that such words necessarily stand for it maybe it would run in one direction because if you're talking about the pros the whole premise is that they no longer have to prove damages to reputation was the same time there are sometimes were you know if if were in line a line to you know to get subdued and i get the last hamburger and you say oh you rob me of that but that's not regret that that was not intended  that's what we're dealing with here and i think it's important to recognize the premise theory is not that this is some term that the audience knew already came with the meaning that it's not they're not suggesting it was like a term of art that was known in the community word has further questions on this but i'm happy to answer please see a few words about the other issues specifically just through the sentence and perhaps all five privilege time permitting so with respect to the truth defense  or question just whether there was some evidence for which a jury can find one or more of the plaintiffs had taken or exercise control over the property of another with the intent to deprive and they're up and to be clear there's no dispute this was chopped her property there's knowledge of the company policy to twelve just just doesn't make any and that is one of the things from which the jury could have inferred i think they're really for it could have inferred intent from the inconsistency of their conduct  inconsistency in their story but alter was there any dispute that they were told by show all sort of whatever that they could take printers i mean there wasn't any dispute that she said a we can't use the right  authorized to take these missile launcher was an administrative assistant secretary to some of the managers she didn't have authorization there's no dispute about that to give them and they knew or should have known reasonably that she didn't have authorization and part of the best evidence for which the jury for the deferred intent is the fact that you have you have a cover up you have lied and specifically mr pop represented to his domestic partner a fellow charter you can finish your set ups and then i think you just given c represented to his domestic partner that he had gotten his through some rewards program which he didn't and this partners and also denied receiving a printer when she was confronted about with very innocuous statements saying something like she moved to treat well in isolation this doesn't seem like it's alleging anything at all but if the reasonable listener understands that we're talking about difference between putting something into contacts like for example you're a liar but i'm just calling you a liar versus i'm accusing you of lying in a sworn statement so we need extremes of evidence to say which of those circumstances but it doesn't actually go to the question of what the war lightly but that's not we don't use it spends evidence or the jury doesn't get that those are two different understood it as a human factor or criminality because that would be really harmful you're not using extremes of evidence to figure out some secret meanings are you know what this word meant and years and years about you're trying to figure out what that reasonable language and that's because that language is really taken out of context indeed in spring or the statement was not clear and unequivocal right it could have gone to the jury in spring or if it had to be clear and out on a quick well what that statement is when you look a statement that was you know used particular terms of art or things like that are used in a company or just used in a particular community you'd be able to educate the jury how that reasonable listener in the audience would so it's not clear to me why you aren't bound by this kentucky statute that says that it has to be approved by clear and convincing evidence i mean  it when when you get a presumption that seems to be a presumption by the by a preponderance of the evidence why isn't that exactly right yes your honor under kentucky because when you because at common law i could get them with just gross negligence and the kentucky supreme court a greek they said you can't elevate the standard from how it was that the common law for it getting rid of damages well th judge gibbons go home what's the best case for us to look at to understand this doctor in your advocating for yes your honor on the best case that i would suggest is williams versus strategy was to over making it seem like it was choosing the plaintiffs of that defense counsel opening statement tells the jury i'll just quote you will not be asked to decide whether or not criminal but every single case could go to the jury on the question of whether or not the jury could find that that was actually some accusation that falls within the per se category and i think it's important to recognize the defamation per is not limited to accusations of or even criminality it's much much broader and under their theory there would be no gate keeping role for the judge because you can always say that somebody could infer from the circumstances th this this was intended to be a charge of one of the categories or per cent now they rely on the language says some people to meanings that that's an issue for the jury but respectfully i think that is in a situation where on themselves the latter is in you window and that is clearly consistently and in every single case exactly what the courts say must be stripped away for the judge to decide whether or not they can proceed on a per se theory there's a difference between saying this is what it refers to so the swar alive for example is the classic case of that it is a charge of criminality if it's the made about a statement in the  it is not if it's made about a statement on the playground and the same was true with moving the stuff if it was moving a boundary marker which was a criminal offense then then it would be if it wasn't it wasn't but that's different that this is an area where frankly the wall really does varies from jurisdiction to jurisdiction there are any number of cases that make the point that the what it means to be per se persist per watt can vary from from jurisdiction to jurisdiction i think the kentucky lawyer has been consistently clear that in deciding if you can proceed on a percy eery if you have to strip away the innuendo and that's exactly what