been really called a prostitute and a murderer and even if that were not the case that those were simply and verifiable facts to the contrary the entire place focuses on the point it set forth in is a lot of the play is whether we call it literary method literary license artistic license dramatic license poetic license historic license this is a concept that so familiar in art that we know we have half a dozen or a dozen words for it how do we know that the portrayal of your client as a prostitute and a murderer is not  because the play has a theme and there's no question about with the thing you miss the theme is the downfall of a powerful man because of his fascination with the prostitute who orchestrates the murder which causes these downfall if sume if assume mister foster that i think that we can't know with certainty what the theme of the play is but that's a question of one hundred people that give a one hundred different answers to assume i think that i know you don't think that tell me how you can still win because that's the issue for the jury the issue for the court is can it be interpreted this way the issue for the jury is does a reasonable audience interpret it that way and so when we look to a reasonable audience i worry that your argument would require us not to ask what a reasonable audience member would think but rather what the most gullible possible audience member with think because i will i will admit i think there is probably an audience member in the in in the crowd that will watch the play and will think gullibly that everything is watching isn't is an assertion of historical fact the same as if he were reading an affidavit but i'm not sure how a reasonable audience member could possibly think that when for one thing there's not only a tiger but there's a ghost there's not a mere puton quoting poetry it just seems like there's a lot in this in this play that a reasonable audience member would say as i say when i'm watching a movie like braveheart or a t v show like the crowd i wonder what's true i'm not sure maybe i'll look it up on the internet or maybe i won't and it's more fun to just not know just not what a reasonable audience member would tell me why a reason what it's been for would not think that this play from a t v show i just mentioned that frankly i've been watching all week if netflix is the crowd and some of it's true and some of it's false and the writer of it says i made some of it up and if you go on the internet and google how much of the crown is true you get sixty five million results with article after article listing all the things that are true all the things that are and in fact one of the most renowned historians of the monarchy has written the entire book about what in the crown is true and what in the crowd is false nikos episode i thought i was this play different than that t v show or is your argument that the queen of england has a false light claim against and that flicks show the crown brown had implied forcefully the queen of england was a prostitute she would have had a false light claim what this boils said earlier at least in my mind as one of the key questions in the case which is what goes to the jury and what is something that a court decides and doesn't let it go to the jury and you don't take the position that there can never be a work  historical fiction that's a play such that there are certain things in the play that take license with respect to history and a court could decide as a matter of law that that's just not something is going to go to a jury right i mean there's got to be some situations in which a court can decide that as a matter of law less leeway you have why is that because that seems to me you can take literary license or dramatic license with that kind of assertion no less than when and with any other kind of assertion so it's  position that it's the nature of the assertion that determines whether it's something that goes to the jury it's not only my as my position i think that's the position of the circuit in that's what the that's what  head said it was a bad lee written book because its author was a drug dealer in that it would parallel milk of the year reviewer would have been employing the medium of a book review for what was a garden variety law you know can you so i think there's there's several different issues in a case like this one of them is whether something's capably defamatory and of course it's true that when you accuse somebody of being a criminal there's more of a sense that it's family and some other things you can say about them i get that but it is a your view that you can never have a play that's a work of historical fiction that suggests that a character is a criminal and have that be something that's interpreted as a matter of drama or every time you make a suggestion in a play that someone is a criminal that's necessarily something that goes to the jury no not at all in fact that's what led i think leben teaches us that if you want to if you're making that suggestion and you lay it out with three or four possible scenarios or two possible scenarios with facts supporting each one and give the audience the choice between those scenarios you can do that but that's it is that right and so the playwright is limited to putting on a play events st was going to make a lot of plays four times as long as he is if you have to sell a set up or scenarios right and so one question is is that what a playwright has to do or can they give one scenario that itself is something that's a matter of conjecture no it's not that i suspect that it's not that you have to give alternative scenarios to the audience you can change and you can just choose one scenario and still describe it in such a way that it still understood by the audience or should be deemed to be understood by the audience as something that's a dramatic suggestion because it's entertaining as opposed to an assertion of fact and if you if you are full and tell the audience that is a prostitute and a murderer because it is the theme of the play that downfall is caused by his fascination with this woman and that she is this person if they wanted to say if they had wanted to say appeal the district court assumed that the play asserted that she was a prostitute and a murderer and that all i'm going to assume what you're saying which is that this is a theme of the play that's for purposes of the exchange we're having right now the question in my mind is even if we assume that that's the theme of the play is an audience member supposed to be deemed to assume that the play actually is accurately recounting what in fact happened as a matter of historical fact or is an audience member thinking well yeah this is loosely based on historical episode on a historical episode but it's just drama and so i don't actually know what particular part of this is true and not true it's just giving me something that's supposed to entertain the audience and in fact has segments of the play where the characters are directly speaking to the audience nobody thinks that actually happened as a matter of history and so the whole thing is couched in this notion that yeah we're taking some dramatic license here we're grounding in historical fact and none of one question mister foster can you give me the best case that you think i should go read that involves a play or a television show or a movie and you know for your sake this this art on stage or on the screen and you give me a case i should go  bugliosi yeah yes it did involve the t v so show and i'm glad you said that judge because that book that partington is the case which specifically warns producers and authors docu dramas it uses the word and that's what the judge below seem to like the all the best to avoid creating the impression that they are stating accurate facts historical facts why do you want to make  defendant the defendant one in parting your best case is on your side are cases where the plaintiff lost well i think if the case is set forth the circumstances in which the plaintiff wins then yes i would be i think our best case is bugliosi in this circuit and i think it sets out the law app act absolutely thank you authority for that proposition frankly although i didn't watch it i got did get a scene by scene description of it and it had very little meaning to me if any and the other question is can we not use the playbill which gives at least constructive notice that this is a fictional play there they answer your last question  to be a work of fiction just saying that it was a work of fiction doesn't save it just like just saying it's a doc you drown it doesn't save it if you have to infer that the person is a prostitute and murderer and and the entire thrust of the play cannot be cannot have any meaning to whatever extent it does have meeting if it will have zero mania at the end if it has no artistic value me please the court the district court correctly ruled that the st amendment protects the artistic expression that uses the player to issue and requires dismissal goes the whole flight and the intentional infliction of emotional it seems to me that it's that that seems to be talking about farming it's at least historical fiction right it's grounded in actual historical events there's no doubt that the mayor in fact was murdered and there was murdered rand there are characters who ha puddin he shares the same name how about her husband he shares the same name right so the relevant people it seems like and the mayor the mayor as well and no cattle characters to  colleagues and there is a yukos oil that's correct and i understand i get that you're saying shares the same name i don't know exactly what the labor move is between is that same name or shares the same name because it seems to me they are the play is describing the actual people in the world that doesn't necessarily mean that you lose but it seems to me to say that it's purely fiction ilads what can make these kind of this kind of case difficult which is that at least in some situations i would assume that such a production that recounts historical fact and purports to accurately recount historical fact can be the subject of a defamation or tort action of the kind that's at issue here on the basis that even though it's purporting to recount to every jot and tittle historical fact it's actually grievously wrong injuriously wrong some part of it or do you think that can never happen well i don't want to say never but as the tagline of the play says it's a fictional play inspired by historic events so there are some similarities but there are also vast vast dissimilarities if you look at the general are of the story there is a he has a wife in real life whose name is you know cortical sky i would submit that while there are similarities to that in the play he aspects of the play that the plaintiffs find grievous are constructs that then the question in my mind is which in which situations does a question like that go to the jury and in which situations does the court decide it is a matter of law even on a motion to dismiss and let me ask you about how some of the falwell because you cite in your briefs and in history falwell the same issue that to me lies at the center of this case which is whether the portrayal of the end of visual in this case as a prostitute number i don't reject you think it doesn't refer portray her as a prostitute or murder but just what's assume that it does because the best recorded and that's the posture in which we face the case now that the question is whether that portrayal is describing something that's an actual fact or is it something that should be deemed by the viewer to be within the kind of dramatic license and falwell that question went to the jury and what what you're saying is here that question should be decided as a matter of law and i'm not suggesting that you're necessarily right or wrong i'm just wondering why it is that in a case like falwell that question went to the jury and a case like this it would not go to the jury the court has the gate keeping function if the cause of action fails to stand as a matter of law as this one does not the court has the obligation to dismiss it and i think a closer case then falwell is the fair a case out of this circuit in which the court said and that was the case just because i know there are a lot of these that was the court case where there was a satirical statement posted in which he and opponent of a book writer about obama birth there are allegations put up a statement on a blog post saying that the publisher was going to  stop publishing and hope all of these books related to claims about president obama on the court and real people were confused there were people who responded by saying do i get my money back about this book what's happening here and the court explained at great length about how satire works and real people's names don't make the st amendment protections go away so i don't disagree with you on that i think you could have certainly you can have a work of art that uses real people's names and it's grounded in historical events but takes dramatic license and ought to be understood by the audience as being a work of dramatic license such that that can take literally everything that said i think that's it just seems like that has to be were true my question is how do we draw the distinction between those situations in which that issue whether the work is asserting the disputed the disputed fact as an assertion of historical fact or whether it's something as to which the audience ought to understand that it's a matter of dramatic license how do we determine those cases in which the court decides that as a matter of law and those cases in which it's sent to the jury  matters of that like the farrah case where is this real or is this not real and the court put itself in the position of the reasonable blog viewer and in this instance it would be the reasonable theater goer that's at one hand all the way at the other extreme is you have this case which is based on the context it has to be fiction it  says right in the tagline it's fiction you don't go to were arena staged to get a documentary you go there to be entertained with a theatrical production if you look at the abundant number of elements that clearly are stage craft that are inspired art it's not just the tiger and the dead ghost mayor it's the lawyer in the cell who's talking to  character and then he suddenly is speaking to a crowd in there are voices chanting the protagonists name and i say protagonist because now that this is a play about as the a complaint says about  mikhail character and his fight with putin and would you would you not say that so i think a lot of that is as well taken would you not say about about the parity ad in house or versus falwell it seems like a lot of the context i mean the magazine it was then the type of stuff that would typically attend that placement seems to me to be something that you would take on your take account of as a matter of context and a court could just say as a matter of law we're not going to let the jury decide whether is the court says at page fifty seven dollars of his opinion whether the hustler ad parody could be reasonably understood this as describing actual facts about falwell or actual events in which he participated but that issue still went to the jury in that case and maybe was wrong to go to the jury the supreme court didn't necessarily say it was right or wrong but that's in fact what happened in that case correct and it should not here in the words of this court in farah having a matter go that should be dismissed is not only useful or a misuse of resources but it subjects the parties and the court to needless litigation that's the purpose of a motion to dismiss and that is what should be done here you can't in the words of paul and probably you can't cure deficient complaint that fails to state a cause of action as a matter of law by giving the party  some dition discovery and as a district court asked mister foster repeatedly well what kind of discovery would you have here that would make any difference and there isn't any series of any kind i ask you just the same question the judge henderson asked which is that you and you refer to it a couple times the tag line so as i understand it the district court decided not to take that into account but granted dismissal anyway and it may be that you know you can say that look when you look when you watch the play you don't need the tagline you understand that from watching the play but the tagline is helpful to you that's why you relied on your briefs and that's why you invoke an oral argument what's your view on whether we can take account of that at the dismissal stage you can because it is  viewing the alleged defamatory work in context and context is not just cherry you can't just cherry pick certain lines out of a play which you experience the play as the play just and i had actually asking a serious question i think which is that i understand that the play and the video are should be treated by us as an evidence because both parties seem to agree on that but i don't know that that means that every single thing that is associated with the play and again i'm not saying to get us certainly need it but it is something that you rely on quite a bit to some effect and i'm wondering whether there's a law that says that a separate document you know that's in a web site description is something that we take account of at the disposal stage i believe there is case law on that and on thinking of the several cases that  example dearie pascoe which was affirmed by this court where there were there was recognition of historical articles related to the defamation  and to the claims of the plaintiff but as the district court said you don't have to go there i mean if it's helpful it sets the stage no pun intended when you walk in and  you have in your hand as well as you have purchased tickets that you through the website which is used a lot i'm not going to go beyond the four quarters of this but it is there are purchases done on the website and the place title is  yes which is why we cited the we showed the web site of course if you are a fair go or and you walk you know there's no scram there was no stage you come and you sit down and whether the people who actually viewed it you couldn't view it on a website could you don't you have to go to the theater you do all right and aren't they handed play bills they are so they have constructive notice that it is a fictional play they do your honor we would agree with that position is the subtitle on the program it is it's also again you know on a website but at the district court you know i found that the tiger's the ghost all of these other elements injected that without having to be told this is a work disconnect from you know i mean i'm not i'm not asking you to confirm or deny what i'm just trying to get clarification on what you're what you are asserting here to say so when the tickets were purchased and our brief joint appendix page  i think it's either it's twenty four cited the place where you could buy tickets and the play was then referred to as kleptocracy a work of historic play inspired by historic events i can't say whether that has changed since you can no longer buy tickets it was available only through january tw what you might be seeing on the website now your honor is may not be what a theatregoer saw when he or she purchased tickets but you're saying that it really theater attendee got a program that included the words on the cover facts and that they're presenting hard math those are the ones that go to the jury the ones that say well we don't know this may be the case this may not be the case but remember i'm going to tell you in contestable facts that for the cops he says for those of us in the audience who like our incontestable facts and then he says and so far as the murder is concerned we think it is hard man but those of us in the audience who like are a hard man the play is telling the audience for you we are presenting incontrovertibly facts and hard man those are the ones that got to the jury now also in farah which was mansion where i didn't accuse anyone of criminal conduct that's the distinction that m modell says it didn't didn't have to go there because it was a garden variety lab accusing of criminal kind track and that's what sets this case apart and that's what makes it go to  i just wanted to make one clarification especially to be fair to the ms law there on page one of the program it only says apocryphally but on page eleven there is something called title page and it does say kleptocracy a fictional play as this wa