miss a good morning your honor may i please the court my name is steve become an attorney in charlottesville virginia represent congressman devon newness in this case we're asking the court to reverse the district court's granting of a motion to dismiss under rule twelve b six for two reasons two principal reasons that i'm going to focus on a much presentation today the st is the defamatory implication of the article in question as alleged argument the article really has four components it's a it's a cleverly drafted carefully article it has four components it accuses congressman newness of conspiring with his family and with another congressman to conceal a politically explosive secret the court ought to focus on the exact words that mr lizzie used because they were intentional mr lizza intended to convey the meaning that congressman  newness conspired with his family and representative king to conceal a politically explosive secret and that secret was that congressman newness his family operated dairy farm using illegal or unauthorized labor that's the only way this article d could be interpreted because the article would have no d meaning otherwise the court in this court in london and tony really give us  the operative constructive guidance as to how we're supposed to look at this article we're supposed d to look at the article as a whole the district court failed to do that just record parts of the article and isolated the statements but didn't view the statement now the article when it is viewed as a whole it creates the the bombshell that was intended by mr lissa and hearst magazine this article was intended to convey the meaning that congressman  hypocrite congressman newness is hiding a a violations of federal law and when the court links together that this is the operative this is the operative language when it links together the arche the four parts of the article different where the the the way the court has to look at the article is it has to link the various passages together now this article starts with a lead and the lead in the article is the headline it starts with d the phrase devon newness his family farm is hiding a politically explosive d secret now the article is not about a secret because there was no secret and that's one of the factual inaccuracy is in the article the article is not about an explosive secret because it doesn't say that it says it's a politically explosive secret and that politically explosive secret could only be in this case could only be the use of be an authorised labor of immigration issues and of course we have the photographs of the ice agents carrying out raids in the article we have the the cartoon of mr of being afraid and being stalked and followed suggesting that somebody is trying to hide a crime we have various indications in the article from which a reasonable fact finder could conclude that they mention exactly what they were trying to convey and of course the allegations in paragraph twenty seven among others are that the readers of this article the few words of the article all came to the conclusion that it had a is actual malice in the district court ruled that all of the allegations in the complaint were conclusory they work the district court with great respect care and congressman dennis is complaint really evidence or or what allegations do you have to put forth to allege actual malice and an allegation that that a reporter or a journalist fabricated the story is is want to add one thing here about the about the the stage of the case that we're at we're at a motion to dismiss stage so congressman newness can only allege what he knows d now the whether or not mr li fabricated this story fabricated the sources that's not going to be known to congressman nunes or any other public figure private individual alleging a defamation case until we get into discovery and discovery in this case is most certainly going to support the allegations in this case but but i would suggest to the court in reviewing this this this case and defamation cases in general where the information is in the exclusive possession of the reporter there ought to be a a somewhat relaxed standard in terms of looking at the twelve p six argument refers to three sources now congressman newness wouldn't know until he got the audiotapes or what other or whatever other information mr lizza had to know whether there were any sources whether mr li and the court course overruled a twelve b six motion in that particular case in this case we have three multiple inaccuracy is alleged in the mended complaint no there was no secret there was no  the of the family farm to california there was no conspiracy and there was no use of undocumented labor at the far those are all multiple in accuracies and with all reasonable inferences ahead of the two thousand eight hundred russian election we allege that it was based on that there was no evidence to support it and that it was soley published for improper purpose which was to dirty up congressman new nerves ahead of the election now liz's intent hearst's intent was solely to influence the twenty eight thousand dollars election and cause congressman newt has problems during that election through the publication of a highly sensational story striking the grounds that have not been interest by mr best and by the appellant in this case the way this case is and litigated races questions about what it's really about there's been an abandon of the expert the challenge to eleven express statements nine were not even addressed in the previous the two now have not been addressed in argument at all and there is then a new one that has been raised  addressed so it's been quite a moving target and i would say that the court could easily affirm this case on the grounds that the district court without even addressing these arguments and just on the basis of the arguments that he has abandoned her way let me speak directly to what he has argued today in particular the implication clay and that a couple of remarkable concessions here today and statements one of which is that his reading of the article to draw the implication that representative noone as had claims that this is based on false facts in particular the use of undocumented labor at the farm and i'd like to point i would like to address that st because in the amended complaint  things the significant is that the plaintiff in this case representative noone is conceived in paragraph fifteen of the amended complaint that he has no interest in the farm no financial interest no operational interest and that he does not know anything about the hiring practices at the farm so any allegation in the complaint that they were not hiring undocumented workers to begin w is inconsistent with his verum and if he knows nothing about their hiring practices so the argument that has been made for out of the briefs that the implication is could not be an opinion for  one thing because it's based on false facts is contradicted by the environment in the complaint and one of the not so what about the alleged implication though the congressman was trying to  keep secret the farm because those of the use of on documented labor is that an implication of the cause of the article says the one reason they might be so secretive is the farms to underwrite on documented labor at that point in the article your honor it has shifted entirely to a discussion of representative nunez a result you think when it refers to the newness family the reader would exclude the congressman i do year on a given the fact that there are express statements in there that he it does it does all it does say that but you have to go back to mr davis's point that you have to read the article was a whole that's another remarkable statement in defamation where you have to read an article as a whole in terms of trying to determine whether or not the alleged implication which has to be grounded and express statements makes that exception and that headline in and of itself doesn't doesn't get you there meanwhile it says in that headline just to go back to the headline your honor it says so why did his parents and his brothers cover their tracks aren't they hiding something politically explosive that's what the headline says so even if you were just to focus on the headline in the sub headline it clarifies that that is focus on the family and there's nothing to connect forward from the beginning of the article which is talking entirely about seven eunice's origin story if you will in terms of how he pre trained themselves as as being from by a california farming family and then as the article moves along and focuses on the practices in iowa and what his is family's practices are anuradha i'd say that even a very even if you could say that a reasonable reader could draw that and that still takes you to the question of whether or not you would say that that implication is endorsed or intended and that a word about these the implication playing there i think that  a very good case on this recent case is the dallas morning news versus tatum out of the texas supreme court which gives a very lengthy discussion of implication claims how they should be  addressed how the reasonable reader's standard works and also the a requirement st and the need for the st amendment work i read of an intention or or indorsement requirement and that's precisely because in a case like this where you're talking about  it's not premised on any false statement of fact this is the most dangerous type of defamation claim one where it is not grounded in a specific falsity which is usually the necessary that you engage in a reasonable reader inquiry and also that you find that the authors of this story intended or endorsed that based on a reading of the text not based on what's in their mind but based on affirmative evidence in the text and this goes back to this court's dismissing that janklow which has been interpreted by the d c circuit and white and has been interpreted by many other courts and every circuit court which has looked at this and said that that is what the st amendment were choir's because that is a reasonable safeguard in the court and tatum points out the dangers to free speech of an implication claim that a juxtaposition claim where there is no statement a false fact that has been alleged here in fact i have in this case has abandoned each of his claims of all statements of fact he's not even arguing them on appeal so it's very important to focus on that then your honor it turns even if you could pass those two hurdles that a reasonable reader would draw the implication and a reasonable reader would also say that it was intended or and doors by the publisher even an actionable statement of fact or whether or not in context it would be considered opinion his brief but he does not cite to the box decision which reversed the earlier decision of the court which says that it was actionable the amante court found it was actually a matter of opinion and one of the things that have pointed to in particular is the need for st amendment protection for editorial judgment making and choosing what to include and what not to include and it says your honor that that where you  used when you have a statement which is imprecise and there is spirited writing is expected and it's in that kind of a forum and it involves criticisms of the motives and intentions of public officials that's particularly where the  st amendment or choir is used to take into account the context of find that it's a matter of opinion and here what we have we have the allegations in the complaint that the author of the article and i'm taking the allegations with that characterization of if it was a those are the allegations that the complaint and in that context which we have to accept as true it would also go to how this is a matter of opinion because no reasonable reader against that background would take this as articulating suggesting intend a some verifiable statement of fact with respect to representative n yes another example is the tatum cases self where the court goes through again a lengthy discussion of the requirements for an implication with respect to one of the implications alleged finds that it is reasonable to find it that is intended or in the worst but then goes on to say that it is a matter of protect the defendant when you look at and then context because no reasonable reader would find that to be suggesting a statement verifiable fact with regard to the plaintiff and there is no cure to make sure i understand your point your are you saying that if there were an implication here in the article that the congressman was attempting to hide the existence of the iowa farm because of the use of on documented labor that would just be the author's opinion that he was opinion i would be in the situation the fact well the the the challenge the implication is one that there was a conspiracy and it was a conspiracy to hide it and in context what does that mean you can say conspiracy what does it mean to hide the entire implication and that itself is within the context is not suggesting elevations one in the janklow case that there was prosecutorial misconduct and it was not as attenuated as in this case and it was not based simply on statements that were spread across the entire article which were entirely true tatum case again the the implication was that the parents in that case who were addressed in the column had acted deceptively and it was found that in the context of an opinion column that that was a matter of opinion because as you know your honor opinion doesn't necessarily it's not about what you think it's about whether or not it's a the language and that implication is objective leave verifiable as a matter of fact in the time i have left i'd really like to address the actual malice argument if i may mr best is made a remarkable concession here today and saying that  his clients don't know anything about the sources here and about their reliability and that in fact goes to show why he or door smith that is a question of fact to the jury we have alleged in the in the amended complaint paragraph twenty seven we alleged in our resistance our opposition to the motion to dismiss on page sixteen that  acted with the intent to convey this defamatory meaning the keogh case someone others that we cite in our brief establishes that this is a question of fact and of course the article itself demonstrates that they intended or meaning and there are essentially three parts of an article that the court can look at to demonstrate that they intended defamatory meeting number one the title in the headline and i would i would look at this is an alpha  situation the alpha is the title in the headline devon newness is family farm is hiding a politically explosive secret the omega is the end of the article which is a video of devon newness and it's a picture of  devon newness this article is all about devon newness and it's all about eight a family touring meaning the cartoon or suggests the seriousness of the scheme and the efforts to which the newness family would go to cover it  up the photographs of the ice raids there are multiple photographs of the ice raids again suggesting that the implication of this article is that there were crimes occurring at this dairy farm which their work and  i've briefed that i'm not going to address that to the court but even if the court were to to not address the the the what i might refer to as the elephant in the room the sullivan case we still alleged enough to show actual malice one point mr belin raised at the very end there was about the about the sources we've alleged the sources are unreliable and the evidence will show that these sources never said what they said and we can prove that with evidence that's not an opinion that's that's a matter that can be abused by evidence deposition of a source we can prove the source never told that mr lizza what mr lewis wrote the article and we have alleged that the sources were unreliable and that he never should have provided on us to get stronger and i think that one point made at the end there was that the opinion argument is that hihi being are covering up something is not a verifiable fact what do you say to that one and what exactly is the verifiable fact that underlies your claim about no effort for high yes or judge conspiracy claims collusion claims are tried and proven in courts everywhere in the country every single day we have alleged that congressman dennis had no involvement in any hiring decisions or anything to do with labor at the farm and we can prove that he never  agreed with his family or with steve king or with anybody else to hide the use of undocumented labor those are facts that can be proven by evidence and here we have an article that is capable of two defamatory  capable of two meanings going back to what was good in l and set number one is it's capable mr dylan wants to say the only meaning is we wrote about a move to cali move from california a political origin story that's it well the other way to interpret this article is we wrote an article that linked congressman newness to the un the use of unauthorized labor at his family's dairy farm that's what makes it politically explosive that's what makes it makes congressman n a hypocrite and the concealment makes congressman do this appear to be