certified by the district court to recognize that there could be differing opinions on whether mr call had presented sufficient affirmative evidence that would allow a reasonable jury to conclude by the heightened standard of clear and convincing evidence of being a published its two paragraph summary of plaintiff's petition for mandamus with knowledge of falsity or that they in fact entertain serious doubt as to the truth and allow a jury to similar find with respect to the clarification published two years later we submit the requisite showing has not been made and summary judgment should be granted after a full opportunity for discovery and allowing every inference in favor of mr carro the record is devoid of clear and convincing evidence indeed any evidence that this was anything other than an honest misinterpretation of the excerpts contained in the appendix which this court said intent of  does not amount to actual malice even if the publisher was negligent in failing to read the document carefully conceding that could face a mistake can be basis for actual math cannot be a basis for actual malice and  support of col insists that because actual malice turns on a subjective state of mind it should be a jury question but that would undercut the very purpose of this daunting actual malice standard supreme court once upon a time said something  defeat summary judgment of coming forward with affirmative evidence of clear and convincing evidence that is suggested that the summary judgment standard was very much alive and i believe i few public figures wherever successful in prevailing on this very difficult standard it's difficult by a design because of the chilling effect that going to trial would impose on news organizations  that was referenced as recently as in the farah case your honor judge rogers and that may be why there is it was far as we know there have been no trials in this circuit against a media defendant or an actual malice is case in the eighty's the evidence of actual malice in this case is nothing more than the mistake that sell what the district court called referred to as the discrepancies between the petition and the summary but falsity does not equal actual malice there is simply no affirmative evidence that contradicts the unimpeached testimony of the off their an editor but the mistake was inadvertent a result of the way the excerpts in the with only the judge's name and no other speaker identified in a section of the appendix where the the judge is clearly pronouncing sentence and therefore they believe that everything that was contained in that section after the instruct clearly a lawyer speaking not the judge so it was they thought everything in that section where the judges sentence was the judge speaking now i understand to mitigated the error so that even if the original publication was a mistake i'd almost mistake having been alerted to the mistake car for taishan didn't do at least with the plate of things you've done but the argument is not that you and i'm trying to read between the lines and understand why and what i said for most of my question is the best not to come up with well on the thing i think the lawyer has been clear on evidence the fact that the defendant's statements are undisputed is basically irrelevant of course that's what the defendants are going to say but here you look at the clarification and you can see because the clarification was prompted two years later by a letter by mr bond calls on lawyer the lawyer who put together the petition in his letter you made no reference to the page in the petition that indicated that it was the usa who was speaking that is probably because at that page it wasn't speaking in the essay wasn't speaking the language in soup but speaking about the verdict of murder he made no reference to the murder and based on philosophical and religious grounds and that error was indeed corrected by the clarification it really wouldn't have mattered if a car for patient had said a court reporter  clearly that's not the if that's the judge reading petitioner who is said to believe he's describing what happened at the sentencing hearing somebody spoke now it doesn't identify the usa specifically but it's clearly not the judge it's clearly not mr van car when that clarification is put in and in fact and as i said we weren't on notice because counsel didn't even say it and we surely should be relying on mr john paul's counsel the request for just fifteen years and imposed two concurrent life sentences plus fifteen years and in a portion of the transcript that neither mr van collars lawyer so the judged it's aggravating factors cause a lack of sympathy for the victims of the families and says he was seeking to protect his father from what from an arrest for a minor violation and for that annoying call was willing to kill so the judge's tone was markedly similar to the prosecutors we wouldn't be on notice that this was not at the judge speaking it was consistent with the sentence that the judge imposed and as it turns out it was consistent with contested cases of this john are likely to reach juries again i was a mistaken prediction i gather well as the law has evolved yes it is a very hard her recognition in the courts that to figure out the credibility of the reporter hard to do that without hearing the reporters ask for mation and making an assessment well i realized by the way the balance on the other side was summary judgment important i'm just poking at i think reporter who oversaw the front of the first of all i didn't read justice ginsburg then judge ginsburg concurrence in that and found that it was actually trying to say that the language of reckless disregard is someone of a misnomer and that jet juries can be led astray and courts should be sure to make clear what exactly is involved i also want to point out that this case unlike many of the others that might pose more difficult case where it's an investigative report and you have maybe as in tatler is say a reporter who's pushing a certain narrative or a newspaper who's trying to get more i catch ing headline this is the dr as you might say summary of what is filed in the supreme court there were eighteen other such summaries it was two paragraphs long in toto it's not meant to be investigative study of the case it's not mention the men to look at the full judicial record of the case and a mistake was made there's no doubt about it we tried and what's kind of ironic is if we were punished for the clarification which was an effort to correct the mistake that calls lawyer brought to our attention it's it could have the effect of discouraging others from taking corrective action which i don't think is what would serve our readers well or for the court i mean we must remember the only not really a close question we think if you apply the wall factors there really was clearly a preexisting conference controversy that it was defined whether you define it narrowly is the shootout that resulted  s marshals dead or more broadly the motivations of your eban colonist father and the debate over the role of the federal government and the duty to pay taxes which is a subject that has been debated since the founding of the republic and debated was the first shooter or was convicted or not he was convicted of second degree murder and he chose to weigh into the controversy so you're not arguing that notoriety no in this case he had to do it over he would have done the same thing i did and that the incident stand from our political and religious ideology and he published a work first sale still available on amazon in two thousand and four the year before  publication ensued a writ of habeas corpus document in the cause of the federal assault on gordon paul at medina north dakota so this is someone who definitely is trying to influence the discussion both on motivations as exactly the language in suit and of course is part of the sentence that he was seeking relief in the petition so we don't believe that it's necessary to them and to the district court which had in front of it much of the publicity that your honors have in the record when the court decided that he was a limited purpose type of thing here and one last thing in the cross appeal mr paul has argued that the district court heard in rejecting his motion that the statement about his conviction was libel per se we don't think that's properly part of that this very into actual malice but if it is we think the district court did not urge in saying that well he had been sentenced appointed and if this jury presenting arguments in favor of mr call i'd like to start with judge rogers was a line of questioning with regard to the difference between the first article and the second article the clarification the first article said that the ruling below by th the passive voice does not correct the original definition as the short court below found because both articles which are due the statement that call showed no contrition and justified the murders to the conceded that the first article was defective and required a clarification at that moment being a was required under the precedent of this court and the supreme court  first article did not accurately describe the sense in hearing was the conduct investigation sufficient to prove that it had good faith but the second i mean that just shows that they may be screwed up the correction as well as the original article and it still seems to be a high hurdle to get to actual malice and the opinion district court's opinion seems to say that is the discrepancies between the the what really happened what the story said alone is enough to get you to a jury for actual malice and that seems to be a lead and we get a lot more cases to juries in contravention of what the supreme court's music has been so how do you how do you respond all that we beat we are giving our briefs that we really think that the thing that's most convincing with respect to you trying to reckless disregard is the second article that is once you never see the letter from calls rises where you're wrong on the document that's needed to you which identifies the mistake so you go to the source document and look at it so that's the investigation i read your brief to say they had to go back and get the transcript of the trial and read it for themselves and all that sort of our position would be that being they would have in your it's up to liability by a team the transcript which you know does not dispute would have been a low cost easily well that's your assessment i mean this is a publication that maybe that is a high cost for them oh yes they had to do that in every case for them why i think it is contain the the self interest of testimony that they do go back and review the petition again and again the petition contains no contrary attribution of the statements that issue and to the extent that it be in a agree that the first mistake so whether or not the transcript or some other means would have been the best way of showing good faith being it was required to do something to show that it had you could say what aspect y after the clarification saying explicitly that the attribution to the sentencing judge was inaccurate it is true that the initial letter chose the wrong attribution so to speak but to side with b in a would be  the fact that b n a might have offered a better correction is is not a null and this isn't a case where you offered any evidence for instance that they had it out for your client or they thought that anybody who challenges you know the duty to pay taxes is a traitor to the country and they were going to go after everybody i mean that's sort of the flavor of these actual malice situations and here you have a publication that let you counsel say dr is just sort of just reportorial summaries and they made a mistake and so they looked at the letter they got from the lawyer which didn't tell them who said what about simply said that his client didn't make these statements so a clarification says somebody senate and the notion that they would have to do a major investigation when they were lying on the document that identifies the error and they look at the document prepared by the point is attorney to with the supreme court has said that actual malice is a term of art does not connote necessarily common law malice in the sense of spite or well includes right let's look at the case that's right it includes reckless disregard  for the rest of your statement i mean take the case every day for those of us who still read newspapers where you know on page eight it says we mistakenly said yesterday that somebody  your standard it seems to me makes it virtually impossible to include that type of correction without also sort of hiring counsel investigative counsel to do a thorough investigation and i mean we've had situations where if you are too young to remember about a secretary of labor was prosecuted and then the jury acquitted him and his statement was how do i get my reputation back because the press had had this indictment all over the page in television  so i think that while it may not be that there should never be trials the burden is very heavy on the point that the burden is very heavy but it is not a fatal in fact standard and i understand this is not even where you have an investigative reporter doing some looking at your client trying to figure out what's going on is looking at documents that are filed in the supreme court and in the second statement makes it clear that it wasn't the judge and so the question is is that enough and this is the way the district court certified the question to us is that enough this so call the second article compounded the original defamation because it contained the exact attribution of the exact same statements to the sensing judge rather than to the actual speaker the process want to be clear i mean the judge in her certification says in that of a transcript does not mean that every as before the judge's i mean that every statement that falls made by the judge the fact that being a acknowledge that a clarification was needed i think is is is the moment in trial given the history of the last fifty years since new york times for solving it seems a huge change so why if we rule for you in this case is it not a revolution and in changing the libel laws good faith  remain protected by the first amendment the reason that this case were not usher in a new era of libel suits is because being a acknowledge that clarification was needed at that point it had an obligation to conduct its only and i can see why you're and it's only because of the clarification you think that this case would not have the mistaken clarification in other words that this case would not revolutionize level that's right that's our that's our  sloppiness grudging i mean most always going outside the record a lot of corrections are grudging corrections that fairly correct me original mistake in the reporting and and do not see the big knowledge of the mistake in the original reporting but that kind of sloppiness scrouging behavior is still not malice it doesn't seem to me while the evidence is pointing toward an honest good faith mistake as as you indicated earlier so it is correct that we do have the defendant's testimony that it really made a good a faith mistake it was sloppy as you said but the record over does not compel that finding we would submit especially republication of also does tend to support an actual mouse and the reason for that is because it is more unlikely with the second publication that the good faith explanation for the first publication wife of the second and which is a case that involves facts that are somewhat similar to this case as both the majority opinion or the main opinion and chief justice warns opinion point out  the defendant was notified that the count was not correct before publication and i believe involve any single publication but it was similar insofar as the denial was proffered and ignored the other case that supports us on that particular ground the ground of ignoring easily obtainable source of evidence that would corroborate the initial publication is hard things in that case the court emphasized that it would have been easy to listen to certain tapes to verify or disprove the interpretation dance by the publisher and other cases of stress that where there is reason for doubt a court may look at the extent to which corroborating the interpretation would have been easy with first article was not sufficiently clear precise accurate it was then being a of obligation to do something to verify the the publication that the court doesn't have any further question obviously just to address the point that he had raised and importantly he did if he did have the transcript the way or he didn't seek to provided or attach it to his letter and as i said  made no reference to the petition he made no reference to the a usa speaking he made reference to the four corners of the judge's ruling so we don't think that we were on notice to go out and try and get the we corrected that there would be no reason to make the effort as your honor was saying in these kinds of mistakes are every day i mean that's what the thirty nine and meet the media miki were trying to say is yeah this comes up all the time perm it's a fact of life it's what the new york times the sullivan recognized erroneous statement is inevitable is exactly what the court said and and time inc the paper said we needed zone of protection for errors of fact even if negligent are errors of mis an interpretation is just a fact of life ever more so in the twenty four seventh's news environment that we live in so it would be a revolution  well this was a mistake i would not say this is a good example of where it's not fabrication which would be suggestive of actual malice here these statements were indeed made at the sentencing hearing this wasn't just totally made up it was based on the petition itself no reason to doubt the source of the document the friend could be attributing her statement to the wrong person as well you know that that could happen but this that is fake news suggest very deliberate effort here and there's been no but how do you know what there's been no evidence of that here and i think judge roberts pointed out i mean this is not a situation where you know there's any evidence they were out to get mr colvert this would increase circulation if they put in you know this language that was in the appendix they didn't make that up it was right in the appendix they're describing the appendix they got it wrong exactly who said it but in this case there's not an effort to fictionalize or fabricate and they're being the motive for it this is you know as clean a record as you could possibly find i think for an inadvertent mistake and i would say one more point that the second letter that mr von call himself pointed him brought sent was of course after the clarification was published more than two and a half years after the original summary macfarlane tells us we ha no obligation to write a correction a failure to run a correction is not evidence of actual malice we went the extra mile in doing the clarification but there is not is not evidence of actual malice if you feel too that is from the macfarlane and that passive voice that the b n a adopted for the clarification that sort of typical of these very dry is just summaries and they don't go through chapter  oh yes counsel for me scuse me my colleague were minds me and i apologize we want to thank you for the able assistance you provided to the co