a one time rapist who complained of being called a serial rapist the headlines acquitted rapists two plots for calling him a serial rapist is clearly defamatory the district court erred by focusing on the isolated were acquitted in two references one in the headline one in the body of the article but the owner supreme court into it said that you cannot focus that's not constantly protected opinion the case that the the fed didn't rely on harrison versus chicago times is not applicable in addition to being in the color of court opinion would happen and certain was that the headline was kidnapped girl must go home the headline was about the victim the little girl it was not calling the mother a kidnapper and on top of that the headline was correct because the mother had removed the child from italy to chicago and there was a court order to return the child to italy pursuant to the hague convention that's not analogise here or the headline is about one and it ca analyzed without regard to the underlying article because underlying article made it clear what the situation was you have a case where it's just a headline is is sufficient when one doesn't look at what with said meaning for a jury to to decide that i think perhaps maybe one of those kids there was a discussion but in this case but the body of the article intensifies the defamatory meaning of the headlines now explain why in the body of the article they intensified the meeting of the family tory headline and added credibility by inventing the fact that gawker knew why twenty got away with rape in fact if you look the district court's opinion on summarize information from other articles the reason why inventing the fact that they knew why one got away with rape is important is because they invented the fact that the complainant had been on fairly attacked because she had been drinking based on the bartender testimony there is nothing in the record of appeal that shows the bartender is testimony of the glock or defendant cite to the testimony of the state's attorney saying that that's probably the problem is this case be decided on the answer to that question is yes or no no this car is now you can explain was what i needed to know where we are i sought discovery and i couldn't get a twenty construction the courts who is spotty raised the argument for gawker and after the court dismissed in the plate i filed a motion for leave it in the opinion in footnote six the court makes the mention that this complaint may that the guards only employees are responsible for those governments indeed rick and if that's so section two thirty doesn't do any good for the defense i read the district court's opinion is saying well i just don't believe that allegation question i have is whether it is possible to do that in advance of discovery i think it is your honor there are a number of cases sense been decided that are considered similar allegations we cite them in the brief i understand that if they if the complaint said these comments were written by martians and transmitted by the who run this you know a shop between here and mars that's following the supreme court has said that obviously insane allegations don't require discovery i don't see what's insane about the allegation that comments on an article were actually created by the author of the article we have published examples of that kind of thing happening when we do your honor the question isn't whether it's possible that the pla ff could have plaid facts supporting the no in our case no no no no no you don't have to plead facts you plead claims right you use discovery to get facts this complaint pleads a claim and then you use discovery to get facts right has the supreme court ever said other than the example of insane fantasies that a district judge can say i just don't believe that allegation case dismissed your honor i believe the supreme court has said that the claims must be plausible on their face and in this perfectly plausible that people will have signed cited some articles about from two thousand and twelve which cocker was going to have a commenting system to highlight certain threads of commenters well the best thing to do normally used to test the allegations in discovery see what happens i heard you have my question to get has the supreme court ever set ever good a district judge may say i just don't believe that allegation if the allegation is the defendant engaged in age discrimination that's all just flat and there's no evidence yet because that's produced coverage we take i take it as given that a district judge couldn't say i just don't believe that this defendant ever does that case dismissed can't do that so why can the judge do this our position would be your honor that the comments appear to be what they appear to be statements signed by something other than gawker and in fact throughout the complaint mr weiner repeatedly referred to them as reader comments and there's one paragraph in play fair got one ten that he says they may be comments actually posted under pseudonyms by gawker and our position is that doesn't plausibly establish that those comments were pleaded those comments or anything other than they that it happened before with right that employees  names that's not in the record your honor there's the things that were put in the record out or were misrepresented we would urge the court to actually look at the underlying material and books people are saying this about mark you think the published stories saying this are all wrong but i don't get how we resolve litigation without us if they're all wrong then they're all wrong and the defense will prevail but we of the idea of the district judge can say i just don't believe this count we gave warry that makes a hash of the summary judgment procedure and discovery right of jury trial they're all up in smoke so i also think that was the point of torah i understand your honor i take it from your answer to my question that the supreme court has never in the history of this country allowed that i would not take the position supreme court has said that a district judge can disregard factual pleadings you kindly said you have found no case in which a district judge has been allowed to dismiss a complaint after saying i just don't believe the allegation allegation that we would argue doesn't push the claim across the line from from plausible but let me explain on the other thing that may be helpful your honor we actually make two arguments about the commons the first argument is the one that we've been discussing here that the allegations don't p and make opinions about and it sounds like a for real crazy person that's not actionable as a statement of fact and so even if one were to accept the proposition that that single paragraph one ten encounter  terry everything else in the complaint satisfactorily establishes that gawker some number of gawker employees identified the author certain of those comments those comments aren't actionable in any sense and the  and i just had a couple of comments about the innocent construction rule mr one reference to the judge's reference to shoddy journalists he was talking about the initial story that was the subject of the initial complaint by the other defendant in a case above the law  that's what this story by gawker said that it was shoddy journalism it was a commentary on the complaint filed against the first defendant the innocent construction rule than acquitted was sufficient to raise an alternate construction that the reputation may not be current and that there is a non defamatory reasonable construction of repeated mobster that's the salamone case and the here acquitted is a much stronger qualifier even taken alone the headline and then of course you don't take the headline alone you take the headline in the context of the entire report which makes amply clear that mr juan was in fact acquitted the jury believed his defense he was not convicted of any charge and finally on the discovery point mr one did seek discovery but it was jurisdictional discovery discovery about the identity of the corporate defendants the second amended complaint in this case was against the defendants on appeal and the gawker filed a motion to dismiss raising the two thirty issue at that point and the second amended complaint there was a third amended complaint there was a fourth amended complaint after the district acquitted rapist me and acquitted of rape is not the same thing as referring to the subject as the acquitted repatriate the their it's like calling someone an honest liar it's not the same thing as  man does not lie with regard to the pleadings it was decided a motion to dismiss that's the point can get discovery in if they think there's an innocent stack up one inference by the other the other inference it's not what did happen it's what could have happened if the plaintiff gives a plausible story which i believe that i pled that gets you to discovery ok so on these third party user comments posted online what's your best comment from your standpoint this is actionable it's actually defamation because when you look at the and there were very strong i could find it you know things like for sure he's a one time rapist all right i could just find it in and in the brief you know for example just because of a managed to quote him great does not mean he did not commit rape never mind serial rapist he sounds for real like a crazy person so he is actually upset about the serial rapist park actually he's just because i think they realize that the case will be taken under advisement