we'll hear argument now in the next technologies against beyond the office door public and isolated debate is not created when a rd party reviewer praises the quality of a merchant's products if that were so than any merchant who received positive rd party reviews then the current one before you get too and let me tell you what my problem with your presentation is you are starting with the constitution of the united states and i wonder whether that is ever a good place to start st question ought to be state law what is wisconsin state law say about problems like so with respect to a limited purpose public figure which is the you know  no no what is wisconsin state law say about the basic question whether a product review can be the subject of a defamation action i've tried to find any wisconsin case saying that the wisconsin tries to regulate product reviews using the defamation law i couldn't find one not one right your your approach left me wondering what would happen if somebody gave a bad review to a new movie and a lawsuit followed saying you know that review our movie a movie may not be really great may not be citizen kane but it's better than batman vs superman and the movie and the review depicted otherwise so we're entitled to damages would wisconsin give that case the time of day i don't think it would because it sounds like what the court described is an opinion that stated by someone rather than a false statement of fact if it's a false statement of fact yeah and there is an action in wisconsin for defamation and one on one that is onsen case will you rely on for the proposition that wisconsin makes actionable a false statement of fact in a product review of a commercial product as i said that's what i was looking for and i didn't find any such case  i think the difference in this case when you talk about not look police i'm not i'm asking you about wisconsin more you can't answer a question about wisconsin law by saying the difference in this case he is x is there some wisconsin case saying that an error of fact in a product review can be the subject of damages in a defamation action any such case ever i don't know that specific answer your honor but i think the difference in this case is if you think rests on you think there's no claim under state law you don't think about defenses under state law and you certainly don't begin by thinking about defenses under the u s constitution the fact that the defendant in this case has to under the pretense of a review he admitted in his deposition that he is a competitor and does this for profit motive he doesn't do it as a consumer or that's nonprofit or something of that h me i'll say that your position is i find it very hard to imagine any kind of commercial interchange about relative value products that wouldn't all of a sudden spill over into this new york times versus sullivan model and i was thinking about the for the privilege aspect of this you know there is a certain privilege for you know false statement has to be a fact as you say not of an opinion and competitors say bad things about each other's product all the time all the time we have a better on time flight record at suits i think that turns on on the other wisconsin law you're looking at you have to define the controversy st so you look at the controversy and then you're going to look at the status of the plaintiff whether it's a limited purpose i want figure which we think  may have your speakers a little too high can you turn on your volume on your end  different ways is whether wisconsin state law permits a defamation action in that kind of situation and where we're looking for help on whether it does i think it would because it still i considered a publication whether it's online or in korean so and so what case would you cite for the proposition that wisconsin law allows a commercial entity offended by what somebody else knows about it products to sue in defamation i don't have that case readily available but i don't think now is such a case i've looked if there is no such case in the history of wisconsin i think there's a basic prepared to address the issues that were raised in the order by the trial court but it is not i think the fact that wisconsin doesn't have perhaps doesn't have a published case about whether or not  be actionable for defamation wouldn't let it because it still constitutes a publication and if it's a publication whether it's in print media which is used less and less these days or online then personal force and actually at the bottom of all of this it seems to me what your problem is is a lack of success in making sure that when people google these things your positive things come up st and they're negative things you know are buried on page three or four which is what i mean there's a whole industry that does th death a company can still be defanged i mean it's the value of the company that's being harmed by this and the statements that the defendant made we took the deposition of the corporate representative who testified that he had done this review you know that he used this review website to drive traffic for his own product sales in so there is a motive kind of behind it and he was successful in that ensure and being able to yes promote the organic searches at the court pointed out to be above our client but it doesn't give him free reign and we do have regress under the law when there are false statements of fact in the courts and now is that proper to analyse is to say that we're limited purpose public figure was erroneous because there was no public controversy when you defined the controversy there was no public controversy about the quality were there or the performance of all my clients desk that you just it is you that you  think so but i'm not trying to establish that there was a public controversy i mean it's our our position that there was no controversy until the defendant created in that it's not a controversy i think when you when you look at the scope of the controversy so under wisconsin law you have to look at it must be something for which there's a real dispute and the u s supreme court has said that that defamation plaintiff i was just responding to things does not make it eighty two thousand and fifty show that there's a public controversy here well in the articles they said everything was good about the product they didn't say anything was back in so if they don't say anything bad then there's not anything negative it didn't specifically address the quality isn't a control panel part of the quality it isn't well it's part of it it's part of it but nowhere in either every business just spewed over a product is something that jumping you know put defamation law to one side makes the disputers and the others  limited purpose public figures such that all business just use have to be resolved under his actual malice standard i don't see it any step stopping point in your theory i don't think so i think i understand the question but at the at some point you know giving you the benefit of the doubt at some point you contend that  a debate arose in the public sphere about the relative quality of all of these standing desks and in the course of that debate defamatory things were said about your client's product by the guy who runs the other company but the guy runs beyond the office door and i'm saying suppose all of that's true you know i wouldn't have time to give you the number of examples we've talked about a few of business debates where the gist of the of the public debate is we're better than you know we're better than you we're better than everybody and i'm shocked to think that that's all constitutional law and i haven't seen a stopping point in your rationale i haven't seen will this set of cases spills over into the actual malice standard it's just another set of cases does it i don't see that kind of line in you there was a if there was a controversy well throughout it all you'd still have to show that it's a false statement of fact the not opinion so i want to make sure that's clear as well because it's a statement of opinion that's not actually well under defamation law never case behavior packing company you know they're looking at the quality of water and water that's used in a food product that was a public controversy in so you then had to show actual malice because it was a public october's it was a concern about as good as what and in fact they run those ads and this being wisconsin a producer of butter susan said look it's just a fact that butter is better than margery it's better for you  better and it's better for wisconsin that's just a question of and it's also a well known fact that wisconsin borders better than any other states and we're going to litigate this under the law of defamation in wisconsin that really what was consonant courts would do i don't think so i don't think you take the case because butter is not oh you know that's the difference so saying that one is better than the other is necessarily an opinion and not a statement every way the supreme court will let them get away with based on a finding by the state legislature that it's a fact that butter is better and if there are competing products i might add and actually take this same sort of example on the fact opinion line when you look at those photographs of the grease at one of the you know desks it was evaluated and you also say there's too much wobble that sounds like opinion to me you know that was supposedly at issue and it didn't stop you know well it's actually more a bigger weight so another way of thinking it was it's just not good enough and that might be a matter of opinion maybe a lot of people don't want to put four hundred pounds on their standing desk i would if i see them out of time but when you put one of my asking questions you can keep on giving your answer i think you i appreciate it when the when the statement in the article is no anti lock anti collision protection it's not that it didn't work well no it's that it doesn't exist and when he holds himself out and to the public as an expert in  her purpose i want to start with the questions that were posed by judge easterbrook and judge wood this is an unprecedented case in wisconsin there is no chase wisconsin case that i'm aware of one company can sue another company and defamation for essential as as judge would stated a business dispute for one company saying their product is better than another the closest thing we have in wisconsin it's the wisconsin and that case stands for the proposition that you know order for you for one company to have a commercial defamation claim against another they're asked to be some charge of dishonorable unethical unprofessional that limitation so not only is there no chase on points on this back scenario but wisconsin has a long history of limiting for martial then we raise that issue it's addressed in judge connally's decision at footnote five he doesn't get to that issue because he found on the limited purpose public figure issue and no actual malice because of that i can address that a the main question on public controversy do you do you agree with the district court that it's proper to resolve a constitutional issue after the state law claim no i don't and and it's been a small event i don't know how many times we or the supreme court said you always start with whether there's a claim and constitutional comes later correct and that's why we raise the  bers case in our briefs original briefs but i'm left with what the district court decided but one of the the issues that was addressed was this wire cutter dispute and before we even get to that i think we have to define what a public controversy is with regard to these cases and there is not appearing many review cases nationwide that some cases that judge connelly talked about were the stakes unlimited case in the quantum electrics case and in those cases the i'm going to the question was so long as there was an ongoing public debate consumer or up before the defamatory statements were made consumer reporting discussions over the quality of products constituted a public controversy and so in this case applying it was a conspiracy even if all of the articles are saying it's a public controversy because the question relates to consumers as a whole and not just the two people who are in the lawsuit in not the issue relates to safety or safety quality of it so so could could i just take you know a monthly issue of how are they come out these days of consumer reports and just go down make a list of all the products that reviewed and say well now there's a public controversy over all of them well it's funny you say that because one of them won a state some limited case deals with with consumer reports and that's exactly that was exactly the point in in order it is a public in that the term the court termed it a public controversy because they said the controversy was not just important to the two people who were the parties in the case it was important to the public as a whole and the consumer who are purchasing the products does it become public controversy just because you speak highly about one product as consumer reports might or do you have to speak only about one product and poorly about another in order to make it public controversy well i think it i think it is it becomes a public controversy whenever you speak of the nature and quality of the product itself because the consumer isn't is interested in the nature and quality of the product itself so whether it's good or bad it is part of the quote unquote public controversy so just one product talking about one product would be enough that your view you don't have to compare it to others i believe so yes yes so the question becomes then in this case applying those cases and setting aside that we scots and does not recognize this cause of action a difference just to make a difference whether next was part of this debate as far as i can tell from the record there is no evidence that they joined whatever i have a little trouble calling the controversy discussion or word i think the wire that's where the wire cutter issue really comes into play because why i try to was not just it was not just that wire cutter gave them a positive review in two thousand because of price but there was also because the ability issues in the in the wire cutter article in response to that in response to that next technology it's publishes a criticism of wire cutters and says the rankings of wire cutter were the results of kickbacks this is in two thousand and fifteen and that their products and they also say in that response that their products next technology products are the superior fifteen how does it relate in time with it was two thousand and fifteen or was it was four year three years almost three years before he did this and it that's referenced judge on and i believe proposed findings of fact fifty seven to sixty one it's referenced in page thirteen of judge connally's decision entitled the public dispute regarding quality of placing the aza to bring views on their website but also publicly challenging anyone and everyone who gave them a battery if that's not injecting yourself into a public debate or did not state at the district court level when next technology posted these positive reviews on their website and that p t o d did not state at the district court level  when next technologies began doing the same thing b t o divas and that it's reviewing other competitors products those are new arguments that we think are waived but setting all of  dispute where they challenge wire cutter in jacks them into this quote unquote public controversy the next step once you do that is once we once we move on to that is are the defamatory statements germane to the controversy and i don't think there's any dispute here that b t o d statements spoke about the quality of standing that so i and nobody really disputing that so then we all three factors are met and we move on to actual malice and that's as we say in the brief it's important to keep in mind  that a couple things one it's a clear and convincing standard even on summary judgment they need to show by clear and convincing evidence that bt oh dear mr knight and night and night and knew that these statements were false and that he entertained tracking these citations down might not have been until two thousand and eighteen i still think that they're part of the public controversy before our statements but i believe it was in response to a two thousand fifteen review that i know yes certainly was next nonsense and that that is sorry that was proposed findings of fact fifty seven that's a new argument that's being made on appeal here though had they made that argument we certainly would have  we certainly would have pursued when bees articles were posted on their website it's we certainly would have purse and it appears certainly because many of the two thousand and seventeen so the response to this wire cutter article presumably has to be after april th two thousand and seven well our st publication was november  two thousand and seventeen so you can if it was april two thousand and seventeen that would still be before are correct it's sometime after april nd two thousand and seventeen it it's hard to tell from the record exactly when but it couldn't have been on the heels of the two to get back to we get back to actual mallets and while i'm not going to tick off every everything i do want to talk about the stability  issue because i think it's a good example here of what we're talking about here mr nuytten in his blog post herb blog post showed exactly how he determined that stability issues in that there were stability issues and care and again that's an issue that was identified by wire cutter back in two thousand and thirteen it's not a new mission so the next position is essentially that there was an actual malice because mr nuytten holds himself out as an make that false and it does maybe it maybe it makes the conduct negligent but we're talking about actual malice we're talking about known also we have a situation here where not only on the stability issue knight and showed his work here so they disagree with it and even if they rise to the level of negligence it still doesn't rise to the level of actual malice we think judge connelly got this right even though