morning your honour's and may it please the court my name is libby locke and i represent the appellant sarah palin in this action this case presents the simple straightforward question of whether a district court violates rule twelve by convening an evidentiary hearing to take testimony of a single defense witness on that individual's subjective state of mind and then credits that testimony over the well pleaded allegations in a plaintiff's complaint it absolutely does at the point of times editor who wrote the defamatory article and concluded that his self serving testimony was and i quote the district court here your honor more plausible ie consistent with an innocent mistake you  and judge rakoff at the end of the evidence here hearing the judge asked for a memo of law briefing after the hearing mr terkel said we have a sensitivity to this was an unusual hearing and but we're at the we however submitted materials outside the the district court so roughly requested at the end of the evidence your hearing a memo of law about what this hearing  articles that were cited that were not part of the complaint that were could be judicially noticed it was the fact of the articles publication not the subject not the content of them and in your post hearing submission additional materials outside the plane there were materials that were submitted that were outside the pleadings but again that was at the request of the district court of the context of decision you can read what the disquieted a defamation complaint by a public figure must allege sufficient particularized facts to support a claim of actual malice by clear and convincing evidence what the  this court said that we have long make clear that defamation actions are for procedural purposes to be treated no differently than from other actions and we cited a variety of other clear and convincing evidence cases for example lewis v trustmark from the fourth circuit where the court said it's it's absolutely improper to import a trial or we just looked at the complaint and ignore the hearing testimony  pretend that we don't know those facts and the judge dismissed that dismissed the complaint as futile which is review did novo for the same reasons and we absolutely believe that the proposed amended complaint more than sufficiently alleges actual malice the evidence of direct knowledge there are facts supporting direct knowledge of mr bennett and the times that the district court rejected or ignored and those i don't think you even need to get beyond the direct knowledge facts that we pled in the proposed amended complaint but there are also facts of circumstantial evidence because there was no discovery there was no  there were no depositions taken right so you didn't have a deposition of williamson and you didn't have a deposition of other staffers who may have talked to williamson or bennett you didn't have a deposition of any of the staff thirty forty minutes we're going to allow him and have no no he stated that discovery at the status conference we had served in iraq dettori and and production document production requests but they were not permitted to be answer the new york times elected to file a motion to dismiss within one week as opposed to two weeks in order to stay that discovery and the supreme court in harbor versus landau said you're never going to be able to get a defendant to admit on the stand that they acted with actual malice subjective state of mind can be proof of circumstantial evidence and that's precisely why what the district court did here violated rule twelve de yuri the jury gets to consider his testimony which is questions of credibility for a jury it was improper for the district court to credit mr bennett's testimony that he didn't remember me reading these atlantic articles or the york times articles that would have been for a jury to decide even and that should be the standard you have three minutes two step process the first of which is to factor out those allegations in a complaint that are not well pled hi there because their conclusion re their internally contradictory or they're just demonstrably untrue based on materials attached to with the hearing that changes the entire picture seems to be the extent to which the judge relied upon bennett's testimony at the hearing is critical to this to this appeal your honor to your point he wanted to make you know fact propose findings and conclusions on the hearing but in effect didn't really try the issue of actual malice your honor he most certainly did not i think it's important to emphasize a few things he only adopted those facts that the plaintiff itself herself expressly endorsed in her post hearing brief so she endorses the she endorses you're saying that the complaint endorses the fact that  bennett forgot everything or or didn't read things that were put that were in front of him and or that they'll do it is that the position that the other side is taking no the other side the other side what i'm saying is judge breakoff did not accept the contrary facts that were disputed he said look there are two ways you know what's what was in bennett's head and didn't he was off that question at the hearing no he did not oh wait a minute now didn't he say to put the matter simply bennett as the undisputed testimony shows wrote the offended passages over a period of a few hours and published it soon thereafter and then and truly after that he has mistakes it was a mistake the judge found in linking the the map to the shooting were called to his attention he testified the judge says he testified that he himself did not read the hyperlink article when rewriting the the position of the new york times is more plausible not is more plausible than the other side the other side less plausible use that that phraseology he could have used the word very easily his mindset was thinking about weighing evidence and he did weigh evidence here your honor i with all respect i don't believe that that's what dr dre called did certainly express  doing that but i'm i'm just wondering what happened at this hearing and it really happened at this hearing and what really happened at the hearing and again i think it's important to emphasize that mrs penguin has said two things today that are important one is they didn't object to the evidentiary hearing about about my point is that you don't have to do that address that question to decide this case because this is a case in the next i mean does this well but this is a case in which the plaintiff endorsed it embrace that at the end of the that they not only didn't do that they cheered him on they said this was great this is something that was good and the other thing that mrs locke said that i think is very important which i agree with is that this court should make the plausibility assessment based on the honor there are there are cases in this court the grey area case the reliance insurance case and others that say when both parties venture outside the complaint and put in information on a twelve b six motion that the court then considers with both parties knowledge and consent then there is no violation of rule twelve b six and no need to convert to rule twelve day but the more important point i think is that both sides agree that the court should focus its attention on the proposed amended complaint put the evidentiary hearing to the side look at the pros proposed amended complaint and determine whether it plausibly states a claim for actual malice and we some respectfully submit the judge breakoff was absolutely correct that it did not state a plausible claim because under it bolland when there is an obvious alternative explanation for what happened the court is bound to credit that explanation and two explanations here it seems to me one may be more on this you may certainly a trial prevail i'm not questioning that but there's another theory that there was a desire to opposite assertion and the jury the public could just as easily say oh that hyperlink supports obviously supports we don't need to read it but it obviously supports what he just said i mean there are lots of other theories here he had he was  exposed to all these articles both as as the editor of the of the times and also as the editor of of it love of the atlantic and he says oh i never read it he's a highly functioning person in our society he's the editor of the editorial page of the new york times but each he's testifying that he has no memory of these things and this is not an issue that was sort of off the radar screen for him he was a very it was conscious of the problems of guns in our society and the problems of the political rhetoric in our society and it's hard to believe that the incident with loftier and you have a giffords was not at the forefront of his mind and everything that occurred about it the jury at least could consider that couldn't they they never get to a jury your honor because if you break down all of the things you just said as  they are not plausible and they raise a number of questions to which there are no plausible answers for example if there was such a consensus out there this widely held consensus about the fact that the crosshairs map was a relevant to the loc r shooting why would bennett propagate deliberately a false lead that he knew could be so easily debunked and it's not to buy it until the next day within hours your honor i took a vote and why would he corrected so promptly if he had this pre determined plan that he was going to defame mrs palin because he had had this long simmering personal animosity for her argue one could argue a nazi saying this is true and of course you know who's going to correct it up put it out there and then if i'm correct  know it could've been premeditated you don't know because the jury wasn't able to cross examine what was unable to do and here for us examination and there is no the you know judge raycroft was the fact finder your honor i don't believe judge rakoff found any facts he just assessed the plausibility of the complaint the allegations of the company determined that the complaint that it was the mistake was the more plausible alternative no he  didn't say that your honor he used the word more plausible one time when he was talking about the relevance of the fact that the times published a prompt correction and such behavior is more plausibly consistent with making an unintended mistake than correcting it and then correcting it then with acting with actual amount iran or that was specifically directed to the issue of the correction ice reasonably i submit that reasonably construed in context which i break off was saying is that it uses the term implausible in the context of assessing her allegations one says a prayer is in reference to the purpose of the hearing and the second occurs when he refers to the times argument in its in its motion to dismiss at the supreme court's decisions in both the above and complicate says you will find language in both cases where the court says that in the white of an obvious alternative explanation that is more likely than the one proffered in the complaint the complaints allegations are not plausible that you can have two plausible theories two plausible approaches one more plausible and the other less plausible and the less plausible one is efficient and your honor i don't you say it doesn't plausibly allege actual malice because on the one hand you have this obvious alternative explanation that under time pressure to get out an editorial to timely comment on this breaking news event of national importance a mistake was made and it was promptly corrected within hours on the other hand you have this tell about a long simmering personal animosity against mrs pailin that supposedly arises from the fact that he she endorsed his brother's political opponents for office and that she has different views than he does on the second amendment and if your argument your an argument but but it goes to plausibility your honor especially in light of the obvious alternative explanation he then sits on this simmering animosity for seven years and does nothing and during the same period he's publishing all these articles in the atlantic in the new york times that exonerates her from any responsibility for the the lochner shooting and then suddenly he decides that he's going to slip into the middle of this editorial a reference to political incitement and the map and the lochner shooting and get his long awaited revenge and then when it's inevitabl people are columns about shootings and gun violence and political incitement so it wasn't like he needed to wait the seven years to do this and then he promptly corrects it our argument which judge rake off except that if you look at the last paragraph of his opinion alleged here with which is that he published something that he knew with the time was false or that it had the very least had a high degree of awareness was probably false doesn't certainly is implausible if you if you accept mr bennett's testimony which was outside of the pleadings you're on you're saying he accepted mr bennett's testimony i'm saying that what he did was look at the allegations of the complaint that were contrary to that testimony and said that's just not plausible nothing at the evidentiary hearing supported it that's true but it is just not plausible to say that this man read these articles had them in his mind knew what he was writing was false and went ahead and did it anyway but that's the very protection that the actual malice standard in new york times versus sullivan is designed to provide  testimony or that he was you know after you heard testimony you know exactly what the outcome of this case your honor i understand that you are quite troubled by the evidentiary hearing and i i acknowledge we didn't ask for it and i acknowledge it was quite unusual but the point is that they embraced it so it shouldn't be held against us and second as mislike said and i totally agree with this look at the allegations of the proposed amended complaint and assess plausibility under the as set forth by the supreme court nic and if you do that you cannot reasonably say that the tale which told in that amended complaint is plausible but if it was discovery here and it turned out that mr  that there were staffers who remember talking to mr bennett and telling him about the articles that were out there or were that there were people at the at the atlantic who talked to him when he edited those articles and he was aware of that and then the jury might be able to reach  have to read your question face the question of whether used telling the truth when he said he could remember any of this stuff your honor as the supreme court made very clear in the twamley case you don't get to discovery you don't get to look for that needle in the haystack unless you have first made a plausible allegation but you cannot make a plausible allegation based upon someone's testimony outside of the record outside of the pleadings without f discovery which might challenge that soften your honor if that's the case in a public figure defamation case to be litigated under the actual malice standard than that standard is effectively and already because any if you have to have a hearing on actual malice and make a determination on that in order to in order to determine whether the complaint is plausible that is that what you're saying no i'm saying that you have to have plausible allegations in the complaint that there was actual malice if you allow a public figure plaintiff like mrs pailin to bring a complaint say i think this was false about me and they should have known it was true and therefore i can spin all these theories about refusal to retract when there was no traction demand and a correction was promptly issued to say they didn't check their own finals they they didn't follow their internal procedures a confession on the part of whoever writes these articles that they were they were acting with malice no your honor there are plenty of cases in which allegations of actual malice properly survive a motion to dismiss the meek in this case cite the court to the  versus al jazeera case in the district court in d c where the complaint alleged that the sole source for the article recanted in writing before the article was published and the defendant was aware of that written  want to address the point that we embraced the procedure that was adopted here let me be clear we were not we were not and we do not object to the hearing itself what we objected to and the only point that we were put on notice of error was when the known that that there would be testimony coming and that there would be some reliance on the miss pailin had requested some discovery including the identity of the author judge rakoff was giving us through this hearing the identity of the author but what we said at the at that think he was giving you a deposition of sorts no no he said expressly at the hearing that this is not substitute for the rules of discovery and depositions including of mr bennett would go forward if you deny the motion to dismiss and in our post brief your honor we said that whatever testimony was going to be considered by the court it had to be construed in our favor because we're on a twelve b six and judge rake off repeatedly in his order for the for the evidence you're hearing after the colloquy between m hell and and himself a judge or a cough he said let me read to you what he said but again i want to stress i'm not making any determinations and i don't want you to make any determinations about the credibility of mr bennett or not that's not the purpose of this hearing the purpose of this hearing is to ascertain what is plausible and what is not plausibly possible insofar as a motion to dismiss is concerned so we were not put on notice that there was going to be error until the district court issued its decision and said well it's it's more plausibly consistent with an innocent mistake it was a mini trial an actual malice that tonight miss pale in the opportunity to get discovery to pressure test the claim that mr bennett just didn't remember or didn't know and that's exactly what discovery would have done in this case and if going to the going to the proposed amended complaint if the allegations in the factual support of how mr bennett and the new york times knew it was saying was false is not enough to survive a motion to dismiss no defamation plaintiff will ever be able to plausibly allege actual malice in the case going forward there was a plethora of facts about how and what articles the new york times and mr bennett had in its possession at the time it wrote this article and it all comes down to the idea that  don't remember that is a credibility determination for a jury it should not have been decided on a twelve b six pleading stage thank your honor decision