[00:00:02] Speaker 04: Case number 14, just 7171 at L. Milan Jankovic, also known as Philip Zepter, appellate. [00:00:09] Speaker 04: Phil Point BV and United Business Activities Holding, AG, versus International Crisis Group, a non-profit organization at L. Mr. Smola for the appellate, Mr. Sullivan for the appellate. [00:00:49] Speaker ?: Thank you. [00:00:59] Speaker 02: Good morning, Your Honors. [00:01:01] Speaker 02: May it please the Court. [00:01:02] Speaker 02: I'm Rodney Smoller for Philip Zepter. [00:01:05] Speaker 02: Your Honors, there are two important issues in this case, the private figure or public figure status of Mr. Zepter, and the question of whether there's sufficient evidence in this case to warrant submission to a jury on the issue of actual malice. [00:01:21] Speaker 02: In deciding the private figure, public figure status of Mr. Zepter, the Supreme Court's decision in Gertz versus Robert Welch and the other three decisions that followed Gertz, as well as this Court's own distillation of those Supreme Court decisions in Waldbaum versus Fairchild publications, [00:01:39] Speaker 02: provide us with the three-part test that had to be applied. [00:01:43] Speaker 02: Well, Obama's not only the long-established law of this circuit, but it is a test that has influenced and been adopted by federal courts and state courts across the United States. [00:01:55] Speaker 02: It requires three things. [00:01:56] Speaker 02: First, that the court isolate the specific public controversy. [00:02:01] Speaker 02: Second, that the court evaluate the prominence and centrality of the plaintiff's role in attempting to influence the outcome of that controversy. [00:02:09] Speaker 02: And finally, a prong that has not gotten a great deal of attention from this circuit of the courts, but that is especially important here, that the defamation be germane to the plaintiff's participation in that controversy. [00:02:21] Speaker 02: The public controversy in this case is most appropriately understood as the state of reform, political and economic, in Serbia after the tragic assassination of Zoran Cincic. [00:02:34] Speaker 02: That is what the report at issue here, ICG report 145, says it is talking about when it describes its purpose in writing the report. [00:02:44] Speaker 02: And that, indeed, is how this court in Jankovic II described the focus of that report. [00:02:50] Speaker 02: More significantly, thinking about how people read reports and digest information in our society and what the point of the wall bomb test is. [00:02:59] Speaker 02: When we see a television program on 60 Minutes, when we read an article in the Washington Post, when we read a report by a group such as ICG, and it says, we're here to talk about this subject. [00:03:11] Speaker 02: We want to focus your attention on what the state of reform will be now that Duginjic has been assassinated. [00:03:17] Speaker 02: And in the course of that discussion, someone is defamed, in this case, an extraordinarily serious defamation, a claim that he had been involved as a corrupt crony of a prior brutal dictator. [00:03:28] Speaker 02: Naturally, one assumes that there must be some connection between that defamatory statement and the overall focus of the report, which helps us understand what the controversy is that this person must somehow have entered. [00:03:41] Speaker 01: Why did we assume that the scope of the report defines the scope of the controversy? [00:03:47] Speaker 02: Your Honor, it's certainly not a lockstep notion, and we're not trying to make a mechanistic Four Corners argument, but what Waldbaum says is you've got to try to connect what the plaintiff's role is, what the defamation is about, and what the pre-existing public controversy was. [00:04:05] Speaker 02: And so the natural center of gravity is, why is Mr. Zepter mentioned? [00:04:11] Speaker 02: Why is this particular point made? [00:04:14] Speaker 02: It should have something to do with what the report is about. [00:04:17] Speaker 01: And that's something to think about. [00:04:19] Speaker 01: So I think your point's well taken in the following sense, that the fact that he's mentioned in the course of the report certainly suggests that he has some centrality to the subject matter of the report. [00:04:30] Speaker 02: And that's the point I'm making. [00:04:33] Speaker 01: But I guess that doesn't seem to me at all to be the exclusion of a public controversy that's much larger. [00:04:39] Speaker 02: I agree with that, Your Honor. [00:04:42] Speaker 02: I think that's where the interplay of the three wall bomb factors come into play. [00:04:46] Speaker 02: And I think it's not so much the scope of the public controversy that this first issue in this case turns on. [00:04:54] Speaker 02: It's how you then play out the other two factors in relation to it. [00:04:58] Speaker 01: So then, just to go a little further, so then on the scope of the public controversy, your brief takes the position that the scope of the public controversy should be focused temporally on the period post-stating assassination. [00:05:10] Speaker 01: That's the position we take. [00:05:12] Speaker 02: And the district court expanded it to at least when Milosevic was gone in the year 2000. [00:05:16] Speaker 02: So it takes into account the ginger years. [00:05:19] Speaker 01: And it's sounding to me like your argument, though, is, I know you don't want to abandon your argument, but the focus of your argument is not on [00:05:25] Speaker 01: Temporally restricting the scope of the public controversy, it goes more towards your madness. [00:05:30] Speaker 01: Exactly, Your Honor. [00:05:30] Speaker 02: That we win, no matter which controversy you pick, how broadly or narrowly you assign it, Mr. Zepter ought still to win. [00:05:38] Speaker 02: The court in Wallenbaum was extraordinarily prescient. [00:05:42] Speaker 02: It's a very rich opinion. [00:05:43] Speaker 02: And there are two footnotes that I think are enormously important as you think about how these factors interplay. [00:05:49] Speaker 02: In footnote 32, the court really [00:05:52] Speaker 02: thought about, anticipated this sort of case. [00:05:55] Speaker 02: The court talked about what we might think of as the near miss, in which you have a person that has achieved a substantial level of success, maybe a level of celebrity in an arena. [00:06:05] Speaker 02: But they're not so famous as to justify being called general purpose public figures. [00:06:11] Speaker 02: And the court said, you might think then, well, you'd automatically drop down to limited purpose public figure. [00:06:16] Speaker 02: But that's not the rule. [00:06:17] Speaker 02: You could go all the way from not qualifying as a general public figure to being a private figure. [00:06:24] Speaker 02: And I bring that to the court's attention because that tells us that Waldbaum, like Gertz itself, insisted on two different analytic methods here and that the limited purpose public figure test be interpreted with rigor. [00:06:37] Speaker 02: Footnote 27 is also enormously important in understanding wall bomb in our point here because the court there said [00:06:45] Speaker 02: Controversies might be defined in large ways and small ways. [00:06:49] Speaker 02: There might be expansive definitions of public controversies or narrow ones. [00:06:54] Speaker 02: And the court in Waldbaum seemed to say, we're not taking a position as to how it ought to be. [00:06:58] Speaker 02: We're not dictating policy, saying that bigger ones are better or smaller ones are better. [00:07:03] Speaker 02: But there are consequences to the choice. [00:07:05] Speaker 02: If you define the controversy expansively, [00:07:08] Speaker 02: Many more people will be caught in the net. [00:07:10] Speaker 02: There'll be a lot of fish in the net, but it's much harder to become a big fish. [00:07:14] Speaker 02: The plaintiff's prominence in that controversy will tend to be diluted. [00:07:18] Speaker 02: If it's narrower, it's more likely that the plaintiff may play a central role, but then you may have trouble on the germainness problem because you may not be able to connect the defamation to that plaintiff's role. [00:07:29] Speaker 03: So that's how I should read your brief, I gather, in terms of your emphasis on [00:07:37] Speaker 03: Really in so far as your client is concerned. [00:07:40] Speaker 03: It's only that post-inject assassination period where he has [00:07:47] Speaker 03: any what I'll call limited public figure status. [00:07:51] Speaker 02: Correct, Your Honor. [00:07:52] Speaker 02: That the sort of celebrity quality to the extent it comes seems to come almost after Gintchik and not have much to do with anything that's involved in these political affairs. [00:08:02] Speaker 01: I think the core of our submission... There's a lot of materials about his association with [00:08:08] Speaker 02: There's a lot about his association with Gingic, but the defamation is not about his association with Gingic. [00:08:16] Speaker 02: And there's nothing during that time period in which Gingic is being criticized. [00:08:21] Speaker 02: Of course he is. [00:08:22] Speaker 02: He's the head of state. [00:08:23] Speaker 02: Zepter has come on the radar screen of folks, and he's being talked about. [00:08:27] Speaker 02: But what's missing there is any suggestion in any of that discussion that Mr. Zepter had anything to do with Milosevic and was ever a crony of Milosevic or was in active alliance with him. [00:08:38] Speaker 02: And really, I want to strongly emphasize the Germaneness prompt. [00:08:43] Speaker 02: It's never really been stress tested by this court. [00:08:47] Speaker 02: And there's surprisingly little law on Germaneness nationally, because it's almost always obvious. [00:08:53] Speaker 02: In the prior cases that this court's had involving the public figure controversy, it was easy. [00:08:58] Speaker 02: It was plainly Germain and Tabula Reis. [00:09:00] Speaker 02: It was plainly Germain in the Clyburn case. [00:09:02] Speaker 02: It was plainly Germaneness in the Lawrence case involving the fighter pilot. [00:09:06] Speaker 02: But in this case, on both a common sense level and a theoretical level, if Waldbaum is going to be conscientiously applied and if Gertz is going to be conscientiously applied, you ought to hold that he's a private figure. [00:09:19] Speaker 02: And here's why. [00:09:20] Speaker 02: From a common sense point of view, for him to be a public figure, the court's got to accept this equation. [00:09:27] Speaker 02: It's got to say, [00:09:28] Speaker 02: a person who was doing business in Serbia in the Milosevic years. [00:09:33] Speaker 02: And not flamboyantly, not out there, not involved with the government. [00:09:37] Speaker 02: There's nothing in this record to suggest any connection with Milosevic during those years. [00:09:41] Speaker 02: There's nothing suggested that Zepter has a high profile in business, even those years in Serbia. [00:09:48] Speaker 02: He made his money elsewhere in Europe, and he's just beginning to enter Serbia at the time Milosevic comes in. [00:09:54] Speaker 02: So you're doing business and you're managing to hang in there and succeed and keep it going while Milosevic, this evil dictator, is in office. [00:10:04] Speaker 02: Then a reformer comes along. [00:10:07] Speaker 02: And now, for the first time, you step out of your role as a business person, and you decide to embrace the reformer. [00:10:12] Speaker 02: And you say, this is a breath of fresh air. [00:10:14] Speaker 02: This is the rule of law. [00:10:15] Speaker 02: This is democracy. [00:10:16] Speaker 02: This is what we need. [00:10:18] Speaker 03: So I need to understand a little bit here. [00:10:21] Speaker 03: We're on summary judgment. [00:10:23] Speaker 03: So this interpretation of the evidence is viewing it most favorably to your client. [00:10:32] Speaker 02: Yes, Your Honor. [00:10:33] Speaker 03: because I assume Council Appellee will point us to all of the discussion about these oligarchs. [00:10:44] Speaker 03: And of course, your client had a lot of money and potentially could have been such a person. [00:10:52] Speaker 03: And given some of the press statements about him, [00:10:59] Speaker 03: And I know you challenged that, but isn't that enough to bring him in? [00:11:07] Speaker 03: I mean, he may not have wanted to be, but he was the subject of general conversation. [00:11:15] Speaker 03: His bank didn't just hang on. [00:11:18] Speaker 03: It prospered during this period. [00:11:20] Speaker 02: Yes, Your Honor, but there's a lot of law really emanating from Gertz that says entering into society's [00:11:28] Speaker 02: business and culture and other aspects of life, law in the case of Elmer Gertz, and just doing your job is not enough to make you part of a specific controversy. [00:11:39] Speaker 02: And I think there's a strong parallel to Gertz. [00:11:42] Speaker 02: Elmer Gertz was a well-known famous civil rights lawyer in my hometown Chicago. [00:11:47] Speaker 02: He was an activist. [00:11:48] Speaker 02: He was dealing with accusations of police brutality by the Chicago police, sadly something we still deal with there and across the country. [00:11:56] Speaker 02: The Supreme Court said he is a private figure with regard to an accusation that he was a communist. [00:12:03] Speaker 02: Well, there's a lot of resonance there in terms of this case. [00:12:07] Speaker 02: Mr. Zepter was doing business. [00:12:10] Speaker 02: That doing business cannot by itself have made him a public figure for the purposes of this case. [00:12:15] Speaker 02: He then does embrace Stinchik. [00:12:18] Speaker 02: But Gertz tells us, and Waldbaum tells us, that's not a bad thing. [00:12:22] Speaker 02: We want to encourage people to enter public life. [00:12:25] Speaker 02: And we want to be careful about what penalties we saddle to them. [00:12:30] Speaker 02: And it does it in two ways. [00:12:31] Speaker 02: First of all, Gertz distinguishes between generalized participation in the polity and the specific entrance into a specific public controversy. [00:12:41] Speaker 02: And says, we want to be sure that there's a sense of what did you take on when you entered into this [00:12:45] Speaker 02: I'm afraid Mr. Zepter took on critiques about his relationship with Jim, critiques about his relationship with Ambassador Denton. [00:12:53] Speaker 02: But out of the blue comes the accusation that a person he apparently never met, never knew, never dealt with, was not corruptly engaged with, that he was a corrupt crony of that person. [00:13:03] Speaker 02: And if the thin read is, [00:13:05] Speaker 02: this noise that's out there, which Your Honor has just talked about, that some of these oligarchs might have been hangovers, our submission is that's not enough. [00:13:14] Speaker 02: And there's a second theoretical point. [00:13:16] Speaker 01: I mean, you say it's a thin read. [00:13:18] Speaker 01: Why is that a thin read? [00:13:19] Speaker 01: Because I accept your argument that the connection to Milosevic is something that pertains to actual malice. [00:13:28] Speaker 01: So we will get to the question of whether [00:13:31] Speaker 01: there's enough indication of a connection with Milosevic to make the assertions in the report actual malice or not. [00:13:41] Speaker 01: But if the report says there were people who had associations with Milosevic, we'll take that to be true for now. [00:13:48] Speaker 01: those people, everybody expected that there would be reforms and that that kind of nefarious contact would be dissipated because of the reforms. [00:13:56] Speaker 01: That never happened. [00:13:57] Speaker 01: Those people stayed connected. [00:13:59] Speaker 01: Look, here's an example of somebody who stayed connected. [00:14:01] Speaker 01: And then it's also true that he's a public figure for purposes of his connection to the next regime. [00:14:08] Speaker 02: But that just seems to stack up. [00:14:10] Speaker 02: And it's our position, Your Honor, and I think the right position, that [00:14:15] Speaker 02: What's missing is some pre-existing buzz, some pre-existing report, some pre-existing notion that Zepter himself was somehow connected to that Milosevic regime, and now he finds himself here with Zinjic. [00:14:30] Speaker 02: Not just that Zinjic may not be the reformer he claims to be, or there might be some people that were connected to Milosevic. [00:14:37] Speaker 02: Because in effect, it's saying everybody who was in business during the Milosevic years [00:14:43] Speaker 02: and didn't get shut down, and then later comes back and participates in the Zinzhi government, guess what? [00:14:49] Speaker 02: You're a public figure with regard to anything connected to what you did during the Milosevic years. [00:14:54] Speaker 01: No, it just seems like everything you're saying goes to actual malice. [00:14:57] Speaker 01: It's not that whether you're a public figure with respect to Milosevic. [00:15:01] Speaker 01: Suppose that you're just a public figure with respect to Zinzhi. [00:15:03] Speaker 02: I think it goes, Your Honor, to what risks did you assume? [00:15:08] Speaker 02: when he became involved with Jinchig. [00:15:10] Speaker 02: And did he assume the risk that he could be gratuitously out of the blue with no other prior discussion of this or hint of this or buzz of this be accused of being connected to this war criminal? [00:15:24] Speaker 02: In Gertz, and I'll move on to actual mouse because I know the court wants that, in Gertz, the court reminds us that we're not only trying to not penalize people for entering public life and entering the democracy, but that there is another value of constitutional dimension. [00:15:39] Speaker 02: The court quotes Justice Stewart from Rosenblatt v. Behr and says, you know, reputation is part of the essential dignity of any human being. [00:15:47] Speaker 02: We have war-torn areas of the world that are trying to emerge and become places where there's democracy and the rule of law. [00:15:53] Speaker 02: It is rough business to say if you have been doing business when your society was torn and then you enter into and try to be supportive when things are starting to go well, you open yourself up to claims that you were connected to a war criminal. [00:16:07] Speaker 02: That's a rough understanding of what the public figure dichotomy ought to be. [00:16:12] Speaker 02: And the better view, in my view, the one that's more preservative of human dignity and better calibrates what we mean by entering the arena, is to treat him as a private figure. [00:16:21] Speaker 02: As hard as that may seem to be, given someone with Mr. Zepter's success. [00:16:27] Speaker 02: Turning to the actual malice question, this is, as the court's already said, a motion for summary judgment. [00:16:33] Speaker 02: And so while Mr. Zepter has the burden at trial of proving with clear and convincing evidence that there is actual malice, ICG has the burden of negating that and saying there are no genuine issues of fact submissible to a jury in this case. [00:16:48] Speaker 02: And Mr. Zepter is not only entitled to all of the inferences in his favor, he's entitled to their aggregate impact here. [00:16:57] Speaker 02: Now, in this case there is an elephant missing in the room. [00:17:03] Speaker 02: In every Supreme Court decision in which actual malice has been at issue, and in every decision of this court in which actual malice has been at issue, there was a source or there were sources that were identified that supported the defamatory statement. [00:17:22] Speaker 02: You go back to Associated Press versus Walker, AP had a reporter on the scene. [00:17:27] Speaker 02: You go back to Curtis versus Butts, there was a source that claimed the football game had been fixed. [00:17:32] Speaker 02: In Curtis v. Buss, the Supreme Court said there was still actual malice even though they had a source. [00:17:37] Speaker 02: In Sadamon v. Thompson, there's a source alleging the corruption. [00:17:41] Speaker 02: In Hart Hanks v. Connaughton, which again the Supreme Court said there's enough evidence to go to a jury on actual malice, there were sources that supported the story. [00:17:50] Speaker 02: In this court, [00:17:51] Speaker 02: There was a source for the Washington Post in the Tabula Reyes case. [00:17:55] Speaker 02: One source, George Comas. [00:17:56] Speaker 02: In the Clyburn case, there were three sources. [00:17:58] Speaker 02: One a little shaky, two the court said were solid. [00:18:01] Speaker 02: It was enough. [00:18:02] Speaker 02: In the Lawrence v. Donnelly case, there was a naval aviator on the USS Abraham Lincoln providing the information to the defendant, leaking documents to the defendant. [00:18:13] Speaker 01: Are you drawing distinctions between confidential sources and non-confidential sources? [00:18:17] Speaker 02: The confidential sources are entitled to zero weight, Your Honor. [00:18:20] Speaker 02: They're entitled to zero weight. [00:18:21] Speaker 02: And period is a matter of law. [00:18:22] Speaker 02: No confidential source can ever be used by a defendant to negate actual malice at the summary judgment stage. [00:18:30] Speaker 02: There is an analytical difference between the right of a defendant to withhold the identity of a source, either under a shield law, like the DC shield law, or under a common law or First Amendment privilege that might be recognized. [00:18:43] Speaker 02: But that's analytically distinct. [00:18:45] Speaker 02: And the courts across the country, state and federal, have said you cannot [00:18:49] Speaker 02: have your cake and eat it too. [00:18:51] Speaker 02: You can't invoke the legal cards. [00:18:55] Speaker 02: You may have to keep the source identity secret and then say, I don't have actual malice because I've got this confidential source. [00:19:03] Speaker 02: And in all those prior cases that I cited to you, Your Honor, it wasn't the confidential source. [00:19:07] Speaker 02: There was an identified source or sources. [00:19:10] Speaker 02: And then the question was, could you still have actual malice, notwithstanding the existence of that? [00:19:15] Speaker 02: Here, the story begins with the preconceived notion [00:19:19] Speaker 02: An assumption, not a source, that if you were doing business in the Milosevic years, you must have been, what the defamation says, a corrupt crony in active personal alliance with Milosevic. [00:19:33] Speaker 02: In Jankovic 2, ICG argued that that defamatory statement was an opinion. [00:19:41] Speaker 02: So in Jankovic 2, it didn't even claim that the defamation here was a factual statement backed by a source. [00:19:47] Speaker 02: It said, we were just expressing our opinion that that must be what it was. [00:19:52] Speaker 02: The court properly said, no, the opinion defense does not protect you. [00:19:57] Speaker 02: Now there's a pivot, and they say, well, it's our assumption. [00:20:01] Speaker 02: But to say it's an assumption is actually itself enough to get to a jury on actual malice. [00:20:06] Speaker 02: Because when you say, we made this based on our theory, our assumption, you're confessing you don't know. [00:20:13] Speaker 02: You know you don't know. [00:20:15] Speaker 02: And so then the question is, well, if you knew you didn't know, [00:20:18] Speaker 02: What else is there in this case? [00:20:20] Speaker 02: And there's really two things. [00:20:21] Speaker 02: There's our affirmative evidence of indicia of actual malice, the kinds of things plaintiffs always rely on in these cases. [00:20:29] Speaker 02: And then there's the emptiness of their attempt to negate it. [00:20:32] Speaker 02: So we've said, look, what did you do after the assumption? [00:20:37] Speaker 02: Well, one of the first things they claimed they did was rely on the Serbian press reports, which, Your Honor, you've already talked about in relation to the earlier part of this case. [00:20:48] Speaker 02: Now, here is an entity that holds itself out as the gold standard in investigations on these serious policy issues. [00:20:56] Speaker 02: And they say we're better than the embassy reports. [00:20:59] Speaker 02: We're better than what you get from the government experts around the world. [00:21:03] Speaker 02: And then they say, but we don't have actual malice because we took these press reports that we have described in our own document here as bordering on libel, as sensationalist, as unreliable. [00:21:19] Speaker 02: And that's the basis for our defamation. [00:21:21] Speaker 02: And what's worse, [00:21:22] Speaker 02: Those reports themselves don't even say that Zepter was a Milosevic crony. [00:21:26] Speaker 02: So they're taking the kind of bad noise and atmosphere and name calling that's out there about Zepter and saying that was one of the things that buttressed our argument that he is a corrupt crony of Milosevic. [00:21:41] Speaker 02: There's evidence in the case that we think the district court very wrongly ignored. [00:21:47] Speaker 02: The evidence of the extortion. [00:21:49] Speaker 02: The district court said that evidence of an extortionist attempt by lying may be reprehensible journalism, but it's at most ill will. [00:21:59] Speaker 02: It's at most common law malice, and that's not constitutional actual malice, so I don't credit that. [00:22:05] Speaker 02: in terms of the ability to go to a jury. [00:22:08] Speaker 02: And that alone is reversible error because it's plainly the case that evidence of ill will, and particularly this kind of extraordinary evidence of an extortionate effort to shake down someone, [00:22:20] Speaker 02: and to say, I'll stop writing about you if you pay me off. [00:22:27] Speaker 02: That may not be evidence of knowledge of falsity or reckless disregard for truth or falsity, but it's highly probative of it. [00:22:34] Speaker 02: And just as in the first panel in Tabula Reis, the court pointed out, motive and intent are different. [00:22:40] Speaker 02: A motive to commit murder is different from an intent to commit murder. [00:22:43] Speaker 02: The motive is highly probative of the intent. [00:22:47] Speaker 02: And then there's the inherent improbability. [00:22:49] Speaker 02: that Zepter would become a close friend of Jinjik if Zepter had been a personal crony of Milosevic. [00:22:58] Speaker 02: There's evidence in the record that, as you would expect, Jinjik had Zepter checked out to make sure that he was clean. [00:23:06] Speaker 02: And he checked out fine. [00:23:07] Speaker 02: It would have been extraordinarily reckless of Jinjik to associate himself with a personal crony of Milosevic. [00:23:14] Speaker 00: You need to wind it up, Mr. Smola. [00:23:16] Speaker 02: Yes, Your Honor. [00:23:17] Speaker 02: If I could just get to a couple very quick points on the negation case. [00:23:23] Speaker 02: The ICG brief heavily depends on a number of things that they say help us establish that there was no actual malice. [00:23:32] Speaker 02: One is the OFAC report. [00:23:35] Speaker 02: In this court's prior decision in Jankovic 2, the court said not a word in the OFAC report, not a word, that's this court's phrase, buttresses the suggestion that Zepter benefited from Milosevic, let alone supported Milosevic. [00:23:54] Speaker 02: And the word supported is in italics in Jankovic 2. [00:23:58] Speaker 02: And so to say, [00:24:00] Speaker 02: We assume that he was a bad guy, and then we rely on the OFAC report, which not a word supports it, is not enough to take us away from a jury. [00:24:10] Speaker 02: And then my last point, Your Honors. [00:24:12] Speaker 02: In this court, ICG resurrects the OHR report. [00:24:18] Speaker 02: The district court appropriately held they could not invoke the OHR report because of judicial estoppel. [00:24:24] Speaker 02: There's evidence in the record that it's a fraud. [00:24:26] Speaker 02: At best, it's a big jury question of everything surrounding that report. [00:24:31] Speaker 02: It certainly is not enough to negate actual malice. [00:24:33] Speaker 02: Thank you, Your Honors. [00:24:34] Speaker 03: Thank you. [00:24:35] Speaker 03: Mr. Sullivan. [00:24:49] Speaker 05: May it please the Court. [00:24:51] Speaker 05: Good morning, Your Honors. [00:24:53] Speaker 05: Michael Sullivan on behalf of the Appellee International Crisis Group. [00:24:58] Speaker 05: This morning I'll address a number of the points raised by Mr. Smala and questions that were posed by the Court. [00:25:05] Speaker 05: But first I want to begin briefly by just taking a step back. [00:25:09] Speaker 05: This case has been before this court twice previously on preliminary motions that were directed to the complaint. [00:25:16] Speaker 05: Following those two appeals, a single passage remains that the court found could be defamatory, could convey a defamatory implication. [00:25:26] Speaker 05: That's what we're here on. [00:25:28] Speaker 05: And much has happened since we were before this court last six years ago. [00:25:33] Speaker 05: Discovery in this case has encompassed two continents. [00:25:37] Speaker 05: Discovery has taken three years, depositions there have been many, and there have been tens of thousands of documents produced. [00:25:45] Speaker 05: Following that extensive discovery, both sides moved for summary judgment and submitted an extensive record to the district court. [00:25:54] Speaker 05: The district court faithfully followed this court's teachings in Waldbaum and Tavlaras and first determined Mr. Zepter to be a public figure. [00:26:04] Speaker 05: The record was replete with evidence that Mr. Zepter did indeed voluntarily insert himself into the public controversy concerning Serbian economic and political reform. [00:26:17] Speaker 03: So defining it that way almost makes everybody some type of [00:26:25] Speaker 03: Not a public figure. [00:26:28] Speaker 03: I mean, if you raise your hand almost, that can't be the test. [00:26:32] Speaker 03: And so everybody has tried to narrow, and indeed Report 145, whereas you say this single phrase, exists, didn't do that. [00:26:45] Speaker 05: Your Honor, the thing here is, let's talk about that first part of your wall-bound test, which was also teachings in Tavleres. [00:26:55] Speaker 05: The first step, what the court has to do is roll up its sleeves and determine the nature and scope of the pre-existing public controversy. [00:27:04] Speaker 05: The district court found that public controversy regarding Serbian reforms began with the ouster of Milosevic. [00:27:11] Speaker 03: All right, but there's language in the Supreme Court's opinion in Gertz that can be read to suggest that you look at the defamation, the alleged defamation, [00:27:30] Speaker 03: in terms of how it's defining the nature of the controversy. [00:27:38] Speaker 03: So to say that the controversy is what happens in Serbia in the 21st century, what happens in the world in the 21st century, that can't be the test. [00:27:53] Speaker 03: Here we're talking about a specific point in time [00:27:58] Speaker 03: And the question is, at least in my mind, being faithful to Gertz and counsel saved me the trouble of recounting some of the factual statements in Gertz. [00:28:13] Speaker 03: I mean, you had an extraordinary situation there of a very prominent figure, and yet the court didn't go as far as your brief goes. [00:28:24] Speaker 05: Your Honor, I guess I would tell you that I think you don't look at Gertz. [00:28:32] Speaker 05: You look at the teachings of this very court. [00:28:35] Speaker 03: Well, this court purported to be following Gertz. [00:28:37] Speaker 03: It did. [00:28:38] Speaker 03: It quoted it time and time again. [00:28:40] Speaker 03: It was very careful. [00:28:41] Speaker 03: And indeed, it had to. [00:28:43] Speaker 03: be consistent with Gertz? [00:28:45] Speaker 05: It did. [00:28:46] Speaker 05: And Gertz laid out general principles, and this Court has been faithful to those principles. [00:28:51] Speaker 03: So I'm talking about applying those principles, all right? [00:28:55] Speaker 03: And whether or not here, and I think Judge Sreenivasan's questioning suggested that, except your broad definition of the controversy, but I don't think it's quite as broad as you just stated it here today, even in your own brief, [00:29:11] Speaker 05: Well, here's the thing. [00:29:12] Speaker 03: Then look at the second two steps. [00:29:15] Speaker 05: All right. [00:29:16] Speaker 05: Would you like to, should we talk about the second two steps? [00:29:20] Speaker 03: Your time. [00:29:21] Speaker 05: All right. [00:29:23] Speaker 05: Here's the one thing I would say to you, Your Honor. [00:29:27] Speaker 05: And that is, when you talk about defining the public controversy, before we move to the second step, one of the things the court does is it looks at what the public discussion and debate have been. [00:29:40] Speaker 05: That's one of the things the court has to get a handle on. [00:29:43] Speaker 05: And you cannot, as the plaintiffs would have you do, look at the challenged article. [00:29:48] Speaker 05: And that is clear if you look at what the court did. [00:29:51] Speaker 03: And what I'm trying to understand is, [00:29:53] Speaker 03: In Gertz, the country was very concerned about the infiltration of communists within our country. [00:30:04] Speaker 03: That's what Gertz was accused of. [00:30:08] Speaker 03: Here, this man who made his fortune outside of Serbia, and as I read the record, was an established [00:30:20] Speaker 03: billionaire before this period. [00:30:26] Speaker 03: What the record shows is there was discussion about him. [00:30:31] Speaker 03: But the question is, is he a public figure? [00:30:40] Speaker 03: Has he asserted himself into this controversy at the time [00:30:47] Speaker 03: that this defamation is referring to. [00:30:50] Speaker 03: In other words, just take a hypothetical. [00:30:55] Speaker 03: Suppose he's a sleepy shop owner living quietly on a farm, and then Milosevic is not re-elected, reform movements come, and he becomes very active in that. [00:31:12] Speaker 03: But that's not what the defamation is about. [00:31:14] Speaker 05: Well, Your Honor, I think it would be helpful to take these to go through the process. [00:31:20] Speaker 00: OK. [00:31:20] Speaker 05: Let's look at the voluntary participation, which is one of the things that the plaintiff contests. [00:31:26] Speaker 05: He said, well, I didn't have sufficient voluntary participation in this controversy. [00:31:31] Speaker 05: And then lastly, Your Honor, we're going to circle back and talk about your mainness, which speaks to your concern about, well, how does this defamation relate to this person's role in the controversy? [00:31:42] Speaker 01: So what you do when you're defining the comfort for purpose of this subsequent discussion, you're defining the controversy as. [00:31:50] Speaker 05: Yes, I'm I'm dividing the controversy as the district court did in this case. [00:31:54] Speaker 01: So post Milosevic, the status of economic and political reform post Milosevic. [00:31:59] Speaker 01: Yes, sir. [00:32:00] Speaker 01: OK, that is correct. [00:32:02] Speaker 05: So what you need to do to define whether he was a voluntary participant in the controversy. [00:32:08] Speaker 05: And let me say one thing before I jump into that in detail. [00:32:12] Speaker 05: And that is, Judge Rogers, this speaks to your concern about Gertz. [00:32:17] Speaker 05: What this court did back in Waltham and then reiterated in Tavlaras, it said you have to look at the two touchstones of Gertz to be faithful to Gertz. [00:32:28] Speaker 05: And that is precisely what this court did. [00:32:30] Speaker 05: And to do that, you look to whether the person pursued a course of conduct that invited attention and comment. [00:32:39] Speaker 05: You look to whether the public figure enjoys access to the means and the channels of effective communication. [00:32:46] Speaker 05: That's what you do. [00:32:48] Speaker 05: You try to see whether this person has the ability to mitigate harm. [00:32:52] Speaker 05: So that's what we do. [00:32:54] Speaker 05: These are fundamental, basic, old concepts, ancient concepts, not just constitutionally based, as the court set forth in Gertz, but fundamental toward principles of foreseeability, assumption of the risk, and mitigation of damage. [00:33:09] Speaker 03: Now, look at how a law bomb defines this. [00:33:11] Speaker 03: I mean, that's what you want to look at. [00:33:14] Speaker 03: It says, quote, the language of Gertz is clear, that plaintiffs must have, quote, [00:33:20] Speaker 03: thrust themselves to the forefront, close quote, of the controversies so as to become factors in their ultimate resolution. [00:33:29] Speaker 03: They must have achieved, quote, a special prominence in the debate. [00:33:34] Speaker 03: So that's the language of Gertz that we have adopted in Wollbaum. [00:33:39] Speaker 05: Exactly. [00:33:40] Speaker 05: Exactly. [00:33:41] Speaker 03: And so what the court does... You say the voluntary participation that's consistent with that standard. [00:33:48] Speaker 05: Exactly. [00:33:48] Speaker 03: And what does that show here? [00:33:50] Speaker 05: Here's what that shows. [00:33:51] Speaker 05: What that shows here is that this plaintiff, Mr. Zepter, did indeed have access to the media. [00:33:59] Speaker 05: Press interviews and profiles, frequent mentions in newspaper articles, an open letter to the Serbian people all show his ability to respond to charges. [00:34:10] Speaker 05: He clearly was able to get his side of the story out. [00:34:14] Speaker 03: So isn't it clear, though, that a person who speaks out [00:34:22] Speaker 03: to defend himself, you can't use that defense against him as a basis for saying he's a public figure, can you? [00:34:32] Speaker 05: That is not correct, Your Honor. [00:34:34] Speaker 05: What you cannot do is this. [00:34:36] Speaker 05: The Washington Post cannot go out tomorrow morning [00:34:40] Speaker 05: and say, Michael Sullivan is a bad lawyer and charged me with all kind of heinous conduct. [00:34:45] Speaker 05: And then to make its defense, every day for the next two weeks, they run an article on the front page of the Post about me. [00:34:52] Speaker 05: That is bootstrapping. [00:34:54] Speaker 05: That's what the court has said, no, we're not going to permit that for good and valid reasons. [00:34:59] Speaker 05: That is not Mr. Zepter. [00:35:01] Speaker 05: The ICG comes along late in the game. [00:35:06] Speaker 05: All manner of things have been said about this man prior. [00:35:09] Speaker 05: It's got nothing to do with us. [00:35:11] Speaker 05: That the courts have looked to and said, we can consider that, and we can consider it. [00:35:17] Speaker 03: Are we looking for some evidence of voluntary participation other than his support for Mr. Dymczyk? [00:35:26] Speaker 05: Indeed, his voluntary participation, let's talk about that a little bit. [00:35:31] Speaker 05: Here, he was an active participant in Serbian politics as early as 2000. [00:35:37] Speaker 05: He was outspoken in his support of the Serbian Reform Movement. [00:35:42] Speaker 05: He was a close confidant and political patron of Mr. Ginger. [00:35:46] Speaker 05: He advised the prime minister. [00:35:48] Speaker 05: He says I was his close friend. [00:35:50] Speaker 05: And he spoke out for Ginger early and often. [00:35:54] Speaker 05: And here is the key, Your Honors. [00:35:56] Speaker 03: So the answer to my question is yes, that his voluntary participation is [00:36:03] Speaker 03: his support for Prime Minister Dicik? [00:36:06] Speaker 05: Among many things. [00:36:07] Speaker 03: Well, I want to get the among other things, and I can't get that. [00:36:11] Speaker 03: The defamation is that he was a crony of Milosevic. [00:36:15] Speaker 05: Right, and we will come to that when we talk about it. [00:36:17] Speaker 03: Can we come to it now? [00:36:20] Speaker 05: Your Honor, it's the germainness prong is where this Court has seen fit to address that. [00:36:25] Speaker 03: But we're talking about his voluntary participation such that he was [00:36:32] Speaker 03: allegedly, this crony of Milosevic. [00:36:39] Speaker 05: Can I give you the rest of the evidence of voluntary participation? [00:36:44] Speaker 05: Because I think it will give you some comfort. [00:36:49] Speaker 05: The key piece of evidence here, and I don't see how [00:36:53] Speaker 05: one can get around it. [00:36:55] Speaker 05: In terms of voluntary participation, Mr. Zepter writes an open letter to the Serbian people, which is published on the front page of two Serbian papers. [00:37:07] Speaker 05: And in that letter, he takes on his critics. [00:37:11] Speaker 05: He tells the folks that he entertained political aspirations himself. [00:37:18] Speaker 05: You can't go out there and publish an open letter to your countrymen and say, I'm like, Judge Rogers, you're an example of some little small businessman quietly going about his affairs. [00:37:31] Speaker 03: So people who write op-ed letters to the press? [00:37:36] Speaker 05: That would be a significant fact that this court has in its past taken into direct account. [00:37:44] Speaker 05: You're not just sitting there being quietly going about your affairs. [00:37:47] Speaker 05: You're trying to have an effect on public [00:37:52] Speaker 03: But you yourself described it as he was taking on his critics. [00:37:58] Speaker 03: He was defending himself against these charges. [00:38:01] Speaker 05: Absolutely. [00:38:01] Speaker 05: But he did more than that. [00:38:03] Speaker 05: He also, when you talk about voluntary activity, he put his money where his mouth was. [00:38:09] Speaker 05: All right? [00:38:10] Speaker 05: He goes out and he lends early financial support to the reform movement. [00:38:15] Speaker 05: He bankrolls the Serbian government's entourage to the United States. [00:38:20] Speaker 05: to the tune of over $100,000. [00:38:22] Speaker 03: This is the lobbyist? [00:38:24] Speaker 05: Yes, ma'am. [00:38:25] Speaker 03: All right, this is the lobbyist when Dynczyk is prime minister, right? [00:38:29] Speaker 05: It is. [00:38:30] Speaker 03: Okay, I understand that evidence, all right? [00:38:33] Speaker 03: What I want to see is, what is there about him during Milosevic? [00:38:42] Speaker 05: What is there about him during Milosevic? [00:38:45] Speaker 05: As Judge Srinivasan said, it goes more particularly the way it's been organized here in terms of the evidence of actual malice. [00:38:53] Speaker 01: Just to understand the analytical framework, so the way you conceive of the case is that [00:38:59] Speaker 01: There doesn't need to be a showing that Scepter was a public figure with respect to Milosevic, because that's not the way the public figure part of the inquiry is constructed. [00:39:13] Speaker 01: You're saying that the controversy could be, the controversy is post-Milosevic, the way you conceive of it. [00:39:19] Speaker 01: So by definition, it doesn't matter if he was a public figure with respect to Milosevic, because we've already defined the controversy to be something that post-dates Milosevic. [00:39:26] Speaker 01: And as long as, on the Germaneness prong, [00:39:29] Speaker 01: the Germaneness prong sweeps in scepter, notwithstanding that the report deals with Milosevic. [00:39:38] Speaker 01: So if the report only dealt with Milosevic, Kwa Milosevic, then you'd have a tough case. [00:39:42] Speaker 01: But the report deals with Milosevic and his after effects. [00:39:46] Speaker 01: And so then that brings you back into the picture, even though the public figure part of it only deals with post-Milosevic. [00:39:51] Speaker 01: So your point is that all of the Milosevic stuff goes to actual malice, not to public figure, because the report, although it's pegged to Milosevic, deals with the status of reforms post-Milosevic as well. [00:40:03] Speaker 01: That's what it's focused on. [00:40:04] Speaker 05: What this court has done, you're exactly right, Your Honor. [00:40:08] Speaker 05: This court has said, look, we got to see whether it is fair, whether it is proper, whether it is just to hold somebody to this high standard. [00:40:17] Speaker 05: And did they insert themselves into some kind of a public controversy? [00:40:22] Speaker 05: If you find that they did, then you turn to the defamatory statement and you say, was that sufficiently germane, all right? [00:40:29] Speaker 01: Now, I will tell you, having labored in these vineyards for 35 years... Now, suppose the allegedly defamatory statement said nothing about post-Molosevich, that all it was about was cronyism during the Molosevich regime. [00:40:45] Speaker 01: Well, then you'd have a hard sell on Germanus. [00:40:48] Speaker 05: And that's a fair point, because what it was talking about is that the same folks that were there under Milosevic – you know, Judge, it's like that old – it's like the old Hoosong, won't get fooled again, meet the new boss same as the old boss. [00:41:03] Speaker 05: It's like nothing has changed. [00:41:05] Speaker 05: These same people that are pulling these shenanigans are still there under the new regime. [00:41:10] Speaker 05: And how can the Serbian people possibly hope [00:41:13] Speaker 01: But I think you need the nothing has changed part in order for Germainness to work in your favor. [00:41:19] Speaker 01: Because if the piece didn't have anything to do with nothing has changed, and it only dealt with Milosevic, then you, then Zepter might have been a public figure, the ultimate public figure with respect to stuff that happened under the next regime, but it wouldn't have anything to do with the report. [00:41:34] Speaker 05: That is fair, Your Honor. [00:41:36] Speaker 05: OK. [00:41:36] Speaker 05: And what I would say to you, one last brief thing on Germainness, this court, [00:41:43] Speaker 05: If you go back and you look at the public figure decisions of this court, starting with Waldbaum and moving up through to the president, what you will see is this court has labored long and hard [00:41:57] Speaker 05: on the first two elements of that test. [00:42:00] Speaker 05: And typically, you get to Germaneness and you have one paragraph. [00:42:05] Speaker 05: In Waldbaum, it was six lines long. [00:42:09] Speaker 05: And you say to yourself, well, why is that? [00:42:12] Speaker 05: Why is that? [00:42:13] Speaker 05: Because in truth, look at what the court said. [00:42:17] Speaker 05: The court goes through all this. [00:42:18] Speaker 05: They say, was this person in a public figure? [00:42:20] Speaker 05: By God, he was. [00:42:23] Speaker 05: Was it through voluntary participation by God he was? [00:42:26] Speaker 05: Okay, now let's look at the defamatory statement. [00:42:29] Speaker 05: In what the D.C. [00:42:30] Speaker 05: Circuit has said, they've looked to see whether the defamation was, quote, wholly unrelated, and Walbaum itself, the last line [00:42:40] Speaker 05: of the sixth line paragraph on Germaneness, the court said, quote, misstatements wholly unrelated to the controversy do not receive the New York Times protection. [00:42:53] Speaker 03: So you see the first sentence of that paragraph? [00:42:58] Speaker 05: I have that, Your Honor. [00:42:59] Speaker 03: Yes. [00:42:59] Speaker 03: The alleged defamation must have been germane to the plaintiff's participation in the controversy. [00:43:04] Speaker 03: So I think that's why my colleague says it's critical to you, to your argument, that you're talking about this post-Milosevic period and that you get to define this public controversy very broadly. [00:43:25] Speaker 05: Yes, in your teachings, I mean, this court has, on numbers of occasions, set out a broad public controversy. [00:43:32] Speaker 05: Look at Havlareas. [00:43:34] Speaker 05: It was the oil industry, what was going on in the energy crisis in the oil industry. [00:43:40] Speaker 05: And then it set out a very narrow public controversy about nepotism that was engaged in, that the Washington Post wrote about there. [00:43:47] Speaker 05: You don't want to cite that case. [00:43:49] Speaker 03: What's that? [00:43:49] Speaker 03: You don't want to cite that case, because that's a very narrow public controversy, nepotism. [00:43:54] Speaker 03: He put his son in charge. [00:43:55] Speaker 05: The nepotism piece was, but the broad public controversy was huge. [00:44:00] Speaker 03: OK. [00:44:01] Speaker 01: The other thing is, can we go to actual malice for a second? [00:44:05] Speaker 01: Unless there's, I don't want to take us prematurely to actual malice. [00:44:09] Speaker 01: But if we're at the point where we're talking about actual malice, then the question is, the assertions in the report tying Scepter to Milosevic. [00:44:23] Speaker 01: As to that, what's your view of the extortion part of the case? [00:44:29] Speaker 01: Because it seems to me that extortion would tell you that if extortion was the motive for writing something, then the way you would frame what you're writing is not having necessarily anything to do with the truth of it. [00:44:41] Speaker 01: You'd be framing it in order to get the biggest extortion demand you could get. [00:44:46] Speaker 01: So why isn't it probative? [00:44:48] Speaker 01: Why isn't the extortion probative of whether the report was done with the proper amount of inquiry as to its truth? [00:44:59] Speaker 05: Your Honor, I think we have to look long and hard at that whole extortion business. [00:45:08] Speaker 05: And in fairness, I think it is an 11th hour [00:45:13] Speaker 05: measure to try to like pull this case out. [00:45:16] Speaker 01: So you could definitely make that argument to the jury and persuade them that it never happened. [00:45:19] Speaker 01: But let's just assume that it's don't we have to assume that it did? [00:45:23] Speaker 05: No, Judge, let's talk first about the is it pertinent as a legal matter? [00:45:28] Speaker 05: That's first question. [00:45:29] Speaker 05: I assume that is a concern to you. [00:45:32] Speaker 05: So let's look at that. [00:45:33] Speaker 05: Here, it's irrelevant as a matter of actual malice. [00:45:37] Speaker 05: And the reason that is, is because even if you were to credit Mr. Zepter's claim that he met with Dr. Lyon at the Geneva airport after the publication of Report 145, it would not serve as evidence of actual malice as a matter of law. [00:45:54] Speaker 05: As this court explained in the McFarland case, the actual malice inquiry is concerned with the defendant's state of mind at the time he published. [00:46:04] Speaker 05: Here, by Zepter's own claim, this happens months after the piece is published. [00:46:10] Speaker 01: No, the meeting happened months after, but why doesn't that say that the extortionate motivation could have been in existence for a long time? [00:46:18] Speaker 01: But he doesn't say that. [00:46:19] Speaker 01: You wouldn't expect him to. [00:46:21] Speaker 01: You wouldn't necessarily expect it to have come to light. [00:46:24] Speaker 05: But that's not what Scepter testifies. [00:46:29] Speaker 05: Even if the meeting took place then, at most, it's evidence of ill will and common law malice, which this circuit said in the Tavleres case, those bad motives do not constitute evidence. [00:46:42] Speaker 01: That's what I'm not understanding, because it seems to me that whatever ill will means, of course it's evidence of ill will in some sense, because extortion is a thing that we don't like. [00:46:51] Speaker 01: Is it probative of whether the piece is truthful? [00:46:56] Speaker 01: And it just seems like if we credit the testimony that extortion was in play, and let's assume that the extortion was in play at the time that the piece was being developed. [00:47:09] Speaker 01: OK, because I think somebody could make an argument and say, hey, I met with somebody. [00:47:13] Speaker 01: They tried to extort me. [00:47:14] Speaker 01: I'm just going to tell you that that must have been in place before. [00:47:17] Speaker 01: Let's just assume that for present purposes. [00:47:19] Speaker 01: If that's true, then it just seems like if the motive of the piece writer is to, the writer of the piece is to get money, [00:47:27] Speaker 01: then that's what's going to fuel them, not the truth or falsity of what they're saying. [00:47:30] Speaker 01: They're going to try to figure out, how can I get the most money? [00:47:33] Speaker 01: One way to get the most money is, I'm going to say the stuff that's going to scar the most. [00:47:37] Speaker 01: And if I say the stuff that's going to scar the most, I'm going to be able to get some money out of this. [00:47:42] Speaker 01: What's wrong with that? [00:47:43] Speaker 05: What's wrong with that, Your Honor, is what this court has taught is evidence of ill will [00:47:49] Speaker 05: only matters if you're going to try to harm the person through falsehoods. [00:47:53] Speaker 05: Here we have evidence that this is out of Zepter's own mouth, that he was not trying to harm him through falsehoods. [00:48:01] Speaker 05: If you look at the testimony, Zepter says, and I'll give it to you so you have it directly, Zepter is asked, he says, [00:48:14] Speaker 05: He testifies that Lyon believed that what he published was accurate and based on reliable sources. [00:48:22] Speaker 05: Here it is. [00:48:23] Speaker 05: I asked him, now can you tell me why you're writing lies about me and why you don't stop, I suppose, in this sense. [00:48:30] Speaker 05: He said, but I have reliable sources. [00:48:33] Speaker 05: I said, you don't have reliable sources because it's not true. [00:48:37] Speaker 05: It's lying. [00:48:38] Speaker 05: "'Everything you've written about me, it's lie, except my name.' [00:48:42] Speaker 05: He said, "'Okay, that's that, and I believe that's true,' he said to me." [00:48:47] Speaker 05: And ICG counsel says, I believe what's true. [00:48:51] Speaker 05: He believes what he is writing is true. [00:48:53] Speaker 05: Zepter testifies, yes. [00:48:55] Speaker 01: Right, but I get that. [00:48:57] Speaker 01: And if that meant that Zepter believed him when he said it was true, that would be one thing. [00:49:05] Speaker 01: So it may well be the case that their exchange was to the effect that Zepter asks him, why did you do this? [00:49:10] Speaker 01: And he said, well, I think it's true. [00:49:12] Speaker 01: That all we know is that he told him that he thinks it's true. [00:49:14] Speaker 01: We don't actually know that he thought it was true, right? [00:49:18] Speaker 05: But that's all you have, Your Honor. [00:49:19] Speaker 05: And whether Zepter believed he believed it's true, that's beyond actual malice. [00:49:25] Speaker 01: But then all we have is that he said it was true. [00:49:28] Speaker 05: But that's all you have. [00:49:29] Speaker 05: You don't have any evidence to the contrary. [00:49:32] Speaker 05: There's no evidence in this record to the contrary. [00:49:35] Speaker 05: Extortion. [00:49:38] Speaker 01: He was trying to extort, it wouldn't be terribly surprising, I think, that somebody who was trying to extort a subject wouldn't fess up and say, by the way, I know, wink, wink, everything I'm writing about you is false. [00:49:49] Speaker 01: He would probably say, you know, I think it's true, but I'm trying to extort you, and whether it's true or not, I'm writing the worst stuff I possibly can so that I can get the most money from you. [00:49:59] Speaker 01: I think it's true. [00:50:00] Speaker 05: And then do we just credit that and we have to take him at his word that he believes is true? [00:50:13] Speaker 05: all these folks who were Serbian oligarchs, all right? [00:50:17] Speaker 05: I mean, there were other things out there. [00:50:18] Speaker 05: If you look at the record, there's an allegation that was investigated by parliament in Serbia that the guy was part of some political murder of a defense official. [00:50:29] Speaker 05: You put that out there. [00:50:30] Speaker 05: I mean, you wouldn't have this vague thing that, like, look, the same folks that were under the old regime are still in power under the new regime, and we can't give political change. [00:50:40] Speaker 03: So it's a matter of law. [00:50:43] Speaker 03: You're saying no reasonable juror could find, taking all of the evidence, including the evidence of extortion, a finding of actual malice. [00:50:56] Speaker 01: That is correct, Your Honor. [00:50:58] Speaker 01: Would you say that even if the standard wasn't clear and convincing? [00:51:01] Speaker 03: Right. [00:51:02] Speaker 01: No, but I mean, standard is clear. [00:51:04] Speaker 05: Well, I don't know. [00:51:05] Speaker 05: I haven't thought about that, to be honest with you. [00:51:08] Speaker 05: But the standard is clear in convincing. [00:51:11] Speaker 05: And given that the standard is clear in convincing, this doesn't pass the bar. [00:51:16] Speaker 05: And in light of the court's prior teachings, it just doesn't. [00:51:18] Speaker 01: Because a lot of what you're saying about why we should discount the extortion part of the case seems to me to be a perfectly good argument that you could make to the finder of fact to say, [00:51:28] Speaker 01: You know, don't credit that. [00:51:30] Speaker 01: That can't have been really what was going on. [00:51:32] Speaker 01: It didn't come up till the 11th hour. [00:51:34] Speaker 01: You know, all sorts of things that would say, A, this didn't happen, and B, even if it did, it's not even close to being a big deal. [00:51:40] Speaker 01: But that's different from saying that as a matter of law, no reasonable juror could find that there's evidence of actual malice here. [00:51:48] Speaker 05: Right. [00:51:49] Speaker 05: The thing is, Your Honor, what I would say to this Court, [00:51:53] Speaker 05: is, I think, when you look at the record of how this came up, when it came up, late in the case, you look at what was going on there. [00:52:05] Speaker 05: He says this took place in September of 2012. [00:52:08] Speaker 05: He gives a press interview in which he goes after ICG, Hammer and Tong, and Dr. Lyon, making all these claims. [00:52:18] Speaker 05: At that point, he says that ICG [00:52:20] Speaker 05: was in league with Gugljub Taric, an admitted member of the Milosevic reunion. [00:52:30] Speaker 05: And he says that's what was going on. [00:52:32] Speaker 05: This is a matter of days after this purportedly happened. [00:52:38] Speaker 05: I say to you that you need to think long and hard before you permit an 11th hour claim like this to defeat summary judgment in a case. [00:52:50] Speaker 05: I think the risk there is substantial for great mischief. [00:52:55] Speaker 05: in an area where what this law is intended to do is protect robust, vigorous debate on important public issues. [00:53:04] Speaker 01: So is your view then that no reasonable juror could conclude that the extortion in fact happened because of the way that it was raised? [00:53:11] Speaker 01: Is that the point you're making, or are you making a different point? [00:53:15] Speaker 05: No reasonable juror. [00:53:17] Speaker 05: I think if you look at the entire record, but I can't say that [00:53:22] Speaker 05: No reasonable juror could include that. [00:53:24] Speaker 05: I think it unlikely. [00:53:26] Speaker 05: But I think your sounder ground on which to stand is that this just doesn't measure up to evidence of actual amounts. [00:53:33] Speaker 05: But I just say to you, it is highly suspect. [00:53:37] Speaker 05: And I think you run the risk of unleashing a very dangerous dog if you go down that road. [00:53:48] Speaker 00: If Your Honors... Let me ask you, do you have any more questions? [00:53:55] Speaker 03: Time is up. [00:53:55] Speaker 05: Okay. [00:53:56] Speaker 05: Thank you, Your Honor. [00:53:58] Speaker 03: All right. [00:53:59] Speaker 03: Mr. Smola, how about two minutes? [00:54:02] Speaker 02: Thank you, Your Honor. [00:54:04] Speaker 02: First of all, to your line of questioning, Judge Rogers, we contest the view that the self-defense principle is limited to things, defending yourself against ICG. [00:54:13] Speaker 02: It's clearly much broader. [00:54:14] Speaker 02: The Court said that in Clyburn. [00:54:16] Speaker 02: When you defend yourself generally against these attacks, you do not become a public figure. [00:54:20] Speaker 02: Judge, I think you perfectly articulated ICG's case on the private figure issue. [00:54:26] Speaker 02: And when you came down to the end, I think the fulcrum of the case turns on whether or not the nothing has changed claim is good enough to saddle Mr. Zeppert with public figure status. [00:54:40] Speaker 02: And Mr. Sullivan's right, there were six lines in your prior discussion of this. [00:54:47] Speaker 02: I hope you take six paragraphs or six pages this time. [00:54:50] Speaker 02: And this is the opportunity to explain what that really ought to mean. [00:54:54] Speaker 02: And if you explain that germane-ness prong, [00:54:57] Speaker 02: In light of Gertz and the values of Gertz and the other Supreme Court opinions, it ought not be enough. [00:55:04] Speaker 02: It ought to be nothing has changed plus. [00:55:07] Speaker 02: And the nothing has changed plus should be some prior connection with Zepter, not just generally there's these oligarchs and is it that way, because that makes this much too broad. [00:55:17] Speaker 02: And just my final point going to the actual malice point. [00:55:21] Speaker 02: I think you're absolutely right that these are jury questions. [00:55:24] Speaker 02: And it's not just the extortion motive. [00:55:26] Speaker 02: A reasonable jury could find, looking at this whole picture, they started with an assumption, they deviated from their own practices, they relied on a report that doesn't have a word to support it. [00:55:37] Speaker 02: They use this 11th hour OHR report, flip back and forth on what it means, and it could have been an obvious fraud. [00:55:44] Speaker 02: They rely on biased reports from the Serbs that don't even make the point that they're relying on, and then they invoke confidential sources. [00:55:54] Speaker 02: We're entitled to the aggregate of all of those. [00:55:57] Speaker 02: And this Court, if it has any doubt, shouldn't throw it out. [00:56:00] Speaker 02: If it has any doubt, having come this far, should let the finder of fact hear this. [00:56:05] Speaker 02: And then you have a record to review to decide, now that it's all been brought through that crucible, is there enough to sustain a verdict of actual malice? [00:56:12] Speaker 00: Thank you, Your Honors.