[00:00:01] Speaker 00:
Case 16-7033 et al.

[00:00:06] Speaker 00:
Yorivon Call, the Bureau of National Affairs Inc.

[00:00:09] Speaker 00:
Appellant.

[00:00:10] Speaker 00:
Ms.

[00:00:10] Speaker 00:
Handman for the Appellant.

[00:00:12] Speaker 00:
Mr. Dabinski for the Appellee.

[00:00:33] Speaker 04:
Good morning.

[00:00:33] Speaker 04:
Good morning, Your Honors.

[00:00:35] Speaker 04:
Laura Handman, Davis-Wright-Tremaine, representing the appellant, Cross Appellee, Bureau of National Affairs, the publisher of The Criminal Law Reporter.

[00:00:45] Speaker 04:
We are here on an interlocutory appeal certified by the district court who recognized that there could be differing opinions on whether Mr. Call had presented sufficient affirmative evidence that would allow a reasonable jury to conclude by the heightened standard of clear and convincing evidence that BNA published its two paragraph summary

[00:01:09] Speaker 04:
of plaintiff's petition for mandamus with knowledge of falsity or that they in fact entertain serious doubts as to the truth and allow a jury to similarly find with respect to the clarification published two years later.

[00:01:23] Speaker 04:
We submit the requisite showing has not been made and summary judgment should be granted.

[00:01:28] Speaker 04:
After a full opportunity for discovery and allowing every inference in favor of Mr. Call, the record is devoid of clear and convincing evidence, indeed any evidence, that this was anything other than an honest misinterpretation of the excerpts contained in the appendix, which this court said in Jankovic does not amount to actual malice, even if the publisher was negligent in failing to read the document carefully.

[00:01:56] Speaker 04:
Conceding that good faith mistake cannot be a basis for actual malice, amicus in support of Collin insists that because actual malice turns on a subjective state of mind, it should be a jury question.

[00:02:10] Speaker 04:
But that would undercut the very purpose of this daunting actual malice standard.

[00:02:14] Speaker 03:
The Supreme Court, once upon a time, said something to that effect, though.

[00:02:18] Speaker 03:
Hutchison versus Proxmire.

[00:02:19] Speaker 04:
And dictum, I believe it was, in a footnote.

[00:02:22] Speaker 03:
Yes.

[00:02:22] Speaker 03:
I follow their dictum, yeah.

[00:02:24] Speaker 04:
But to some extent, one would say that the Anderson court, in insisting that the plaintiff has the burden, in order to defeat summary judgment, of coming forward with affirmative evidence, of clear and convincing evidence,

[00:02:39] Speaker 04:
That suggested that the summary judgment standard was very much alive and I believe in Jankovic the reference was made that even when there is a subjective state of mind and with that difficult burden, typically summary judgment is hard to overcome.

[00:03:00] Speaker 04:
I believe the Barlin case said very few public figures

[00:03:04] Speaker 04:
are ever successful in prevailing on this very difficult standard.

[00:03:08] Speaker 04:
And it's difficult by a design because of the chilling effect that going to trial would impose on

[00:03:15] Speaker 04:
news organizations.

[00:03:17] Speaker 04:
That was referenced as recently as in the Farah case by Your Honor Judge Rogers.

[00:03:24] Speaker 04:
And that may be why there, as far as we know, there have been no trials in this circuit against a media defendant on actual malice since the Tavola Reyes case in the 80s.

[00:03:36] Speaker 04:
The evidence of actual malice in this case is nothing more than the mistake itself, what the district court called and referred to as the discrepancies between the petition and the summary.

[00:03:48] Speaker 04:
But falsity does not equal actual malice.

[00:03:51] Speaker 04:
There is simply no affirmative evidence that contradicts the unimpeached testimony of the author and editor that the mistake was inadvertent, a result of the way the excerpts in the appendix were formatted with only the judge's name and no other speaker identified

[00:04:06] Speaker 04:
in a section of the appendix where the judge is clearly pronouncing sentence.

[00:04:12] Speaker 04:
And therefore, they believe that everything that was contained in that section after the caption was the judge's sentence.

[00:04:20] Speaker 04:
And that's different from language in an earlier section of the appendix, which amici, amicus refers to in his reply,

[00:04:28] Speaker 04:
where the language is, and the judge will so instruct, clearly a lawyer speaking, not the judge.

[00:04:36] Speaker 04:
So it was, they thought everything in that section, where the judge is pronouncing sentence, was the judge speaking.

[00:04:43] Speaker 05:
Now, B and A did- So, I understand Apple Lee's position, given that the plaintiff gets the benefit of all inferences, et cetera.

[00:04:56] Speaker 05:
the clarification compounded the error as opposed to mitigated the error.

[00:05:05] Speaker 05:
So that even if the original publication was a mistake, an honest mistake, having been alerted to the mistake, the clarification didn't do

[00:05:25] Speaker 05:
at least what the plaintiff thinks should have been done.

[00:05:28] Speaker 05:
But the argument is not that you had to do an exhaustive search, but that the clarification just failed to mitigate

[00:05:43] Speaker 05:
the error.

[00:05:43] Speaker 05:
What's your response on that aspect?

[00:05:46] Speaker 05:
Because I realize the district court certified this before Yankevich, but as you point out, there haven't been any trials in this circuit since our in-bank decision.

[00:06:01] Speaker 05:
The decisions before the District Court certification, like McFarland, like Lorenz, were pretty clear.

[00:06:11] Speaker 05:
And yet the District Court here thought that there was a serious question.

[00:06:18] Speaker 05:
And I'm trying to read between the lines and understand why.

[00:06:21] Speaker 05:
And what I said in the premise of my question is the best I've come up with.

[00:06:28] Speaker 04:
Well, I think the law has been clear on mistake even before the Jankovitch decision, taking the timing, the pape, which was a similar situation.

[00:06:40] Speaker 05:
No, but if that were so, then the district court would have granted you summary judgment.

[00:06:44] Speaker 05:
The district court didn't.

[00:06:45] Speaker 04:
Well, we believe the district court shouldn't.

[00:06:47] Speaker 04:
I understand.

[00:06:48] Speaker 05:
But I'm just trying to get you to respond to appellants' or appellees' argument, that given that

[00:06:56] Speaker 05:
He's entitled to all the inferences from the evidence.

[00:07:02] Speaker 05:
The fact that the defendant's statements are undisputed is basically irrelevant, he says.

[00:07:09] Speaker 05:
Of course, that's what the defendants are going to say.

[00:07:11] Speaker 05:
But here, you look at the clarification, and you can see why, arguably, a plaintiff might see that it made things no better.

[00:07:26] Speaker 05:
and in the plaintiff's view, worse.

[00:07:29] Speaker 04:
Well, I would like to address that, Your Honor, because the clarification was prompted two years later by a letter by Mr. Von Call's own lawyer, the lawyer who put together the petition.

[00:07:41] Speaker 04:
In his letter, he made no reference to

[00:07:44] Speaker 04:
the page in the petition that indicated that it was the AUSA who was speaking.

[00:07:49] Speaker 04:
That is probably because at that page it wasn't speaking, the AUSA wasn't speaking the language in suit, but speaking about the verdict of murder.

[00:07:59] Speaker 04:
He made no reference to the fact that the ruling

[00:08:04] Speaker 04:
was inaccurate because the AUSA was speaking that language and that that wasn't the judge.

[00:08:11] Speaker 04:
What he said was Mr. Von Call did not say that there was a justification for murder based on philosophical and religious grounds.

[00:08:20] Speaker 04:
And that error was indeed corrected by the clarification.

[00:08:25] Speaker 05:
So it really wouldn't have mattered if the clarification had said the court reporter said this.

[00:08:33] Speaker 05:
That would have been.

[00:08:34] Speaker 04:
Well, I mean, what it said, and what is accurate, is it said, petitioner who was said to have believed that the murders were justified.

[00:08:44] Speaker 04:
It was indeed said at the hearing, at the sentencing hearing, not by Mr. Von Call.

[00:08:50] Speaker 04:
And that, we believe, the clarification makes clear, it wasn't the judge saying that petitioner lacked contrition or believed the murders were justified.

[00:08:59] Speaker 04:
We think the clarification doesn't compound the error.

[00:09:02] Speaker 04:
It is true the judge did not make specific reference to that language that the AUSA had said, but in fact, the Van Kaal's counsel never said the judge never made reference to that language.

[00:09:19] Speaker 04:
That was not the focus of his... There's a big difference between the judge saying it and the prosecutor saying it.

[00:09:26] Speaker 04:
and we believe we make that clear because we say petitioner who was said to have believed so clearly that's not the if that's the judge writing petitioner who was said to have believed he's describing what happened at the sentencing hearing somebody spoke.

[00:09:40] Speaker 04:
Now it doesn't identify the AUSA specifically but it's clearly not the judge it's clearly not Mr. Von Call when that clarification is put in and in fact

[00:09:51] Speaker 04:
And as I said, we weren't on notice because counsel didn't even say it, and we surely should be relying on Mr. Von Call's counsel, the person who created the petition themselves and created this confusing appendix.

[00:10:07] Speaker 04:
The fact is the judge himself said much the same thing.

[00:10:12] Speaker 04:
He rejected von Kahl's lawyer's request for just 15 years and imposed two concurrent life sentences plus 15 years.

[00:10:22] Speaker 04:
And in a portion of the transcript that neither Mr. von Kahl or his lawyer saw fit to put in the appendix, he cites, the judge cites as aggravating factors

[00:10:32] Speaker 04:
calls lack of sympathy for the victims of the families and says he was seeking to protect his father from what from an arrest for a minor violation and for that your recall was willing to kill so the judges tone was markedly similar to the prosecutors we wouldn't be on notice that this was not at the judge speaking it was consistent with the sentence that the judge imposed and as it turns out it was consistent with what the judge himself said

[00:11:01] Speaker 03:
Isn't actual malice often going to require an assessment of the reporter's credibility?

[00:11:07] Speaker 04:
To some extent, but all the cases, and there are legion where grand jury, summary judgment has been granted, all obviously involve a subjective state of mind.

[00:11:18] Speaker 04:
And as the Keough court said, yes, that's often the case, but not always, and particularly where recklessness is based on objective evidence.

[00:11:27] Speaker 04:
And it's the defendant, the plaintiff's burden to come forward under Anderson with at least circumstantial evidence that would suggest

[00:11:36] Speaker 04:
that this wasn't just a mistake.

[00:11:38] Speaker 03:
And here, we talk- Because in, you said there's been no trial since Tabularis.

[00:11:44] Speaker 04:
Against the media in actual mouse in this circuit.

[00:11:48] Speaker 03:
Right.

[00:11:49] Speaker 03:
And Judge Ruth Ginsburg wrote a concurrence in that case, laying out how juries should assess this thing, because she said, despite our decision today, therefore, hotly contested cases of this genre are likely to reach juries again.

[00:12:02] Speaker 03:
That was a mistaken prediction, I gather.

[00:12:06] Speaker 04:
Well, as the law has involved, yes, it is.

[00:12:08] Speaker 03:
But isn't that in part her recognition in the courts that to figure out the credibility of the reporter, it's hard to do that without hearing the reporter's explanation and making an assessment?

[00:12:22] Speaker 03:
I realize, by the way, the balance on the other side, why summary judgment's important, but I'm just poking at, I think it's hard to clear this hurdle if you're a plaintiff, because it's going to be near impossible to prove that the reporter's in essence lying about his or her motives.

[00:12:41] Speaker 03:
Well, I mean, this court has... Or it doesn't have to be a reporter, whoever's the defendant.

[00:12:45] Speaker 04:
First of all, I did read Justice Ginsburg's, then Judge Ginsburg's, concurrence in that and found that it was actually trying to say that the language of reckless disregard is somewhat of a misnomer and that juries can be led astray and courts should be sure to make clear what exactly is involved.

[00:13:06] Speaker 04:
I also want to point out that this case, unlike many of the others, that might pose more difficult case where it's an investigative report and you have maybe, as in Teploreas say, a reporter who's pushing a certain narrative or a newspaper who's trying to get a more eye-catching headline.

[00:13:27] Speaker 04:
This is the dry as dust, as you might say, summary of what is filed in the Supreme Court.

[00:13:33] Speaker 04:
There were 18 other such summaries.

[00:13:35] Speaker 04:
It was two paragraphs long in total.

[00:13:38] Speaker 04:
It's not meant to be an investigative study of the case.

[00:13:42] Speaker 04:
It's not meant to look at the full judicial record of the case.

[00:13:47] Speaker 04:
And a mistake was made.

[00:13:48] Speaker 04:
There's no doubt about it.

[00:13:50] Speaker 04:
We tried.

[00:13:51] Speaker 04:
I mean, what's kind of ironic is if we're punished for

[00:13:53] Speaker 04:
the clarification, which was an effort to correct the mistake that Mr. Von Call's lawyer brought to our attention, it could have the effect of discouraging others from taking corrective action, which I don't think is what would serve our readers well or the court.

[00:14:11] Speaker 05:
But remember, the only certified question that the district court expressly stated had to do with what I would describe as a sufficiency of evidence question.

[00:14:23] Speaker 05:
So we never get to whether, quote, your client is punished, unquote.

[00:14:32] Speaker 05:
It's just, was there enough here to get beyond summary judgment?

[00:14:36] Speaker 04:
Well, I think there's been a recognition that going to trial is itself a chilling effect.

[00:14:42] Speaker 04:
That's what the actual malice standard is designed to advert.

[00:14:47] Speaker 04:
Would Your Honors like me to address the public figure issue?

[00:14:51] Speaker 04:
That we believe is appropriately raised in this appeal.

[00:14:56] Speaker 04:
We think it's not really a close question.

[00:14:59] Speaker 04:
We think if you apply the wall-bound factors, there really was clearly a pre-existing controversy that was defined, whether you define it narrowly, as the shootout that resulted in two U.S.

[00:15:13] Speaker 04:
Marshals dead, or more broadly, the motivations of Yori Von Collin as father and the debate over the role of the federal government and the duty to pay taxes, which is the subject that has

[00:15:24] Speaker 04:
been debated since the founding of the republic and debated even today.

[00:15:28] Speaker 04:
And these motivations were front and center.

[00:15:32] Speaker 04:
They were put in the excerpt of the appendix to the Supreme Court and had gained a lot of news attention at the time.

[00:15:42] Speaker 04:
And here, the second factor

[00:15:45] Speaker 04:
Mr. Van Kaal's role in the controversy was far from passive or tangential.

[00:15:50] Speaker 04:
As the district court observed, the shootout was a newsworthy event in which he played a pivotal role.

[00:15:56] Speaker 04:
Now, whether he was the first shooter or was convicted or not, he was convicted of second degree murder, and he chose to weigh into the controversy.

[00:16:04] Speaker 05:
So you're not arguing that notoriety is sufficient?

[00:16:09] Speaker 04:
No.

[00:16:10] Speaker 04:
In this case, he specifically over these decades has weighed in in numerous publications to point out to a 1993 interview for a documentary, Death and Taxes, in which he said that the two marshals needed to be shot, that if he had to do it over, he would have done the same thing I did, and that the incident stemmed from our political and religious ideology.

[00:16:35] Speaker 04:
And he published a work for sale, still available on Amazon,

[00:16:38] Speaker 04:
In 2004, the year before the publication in suit, a writ of habeas corpus documenting the cause of the federal assault on Gordon Call at Medina, North Dakota.

[00:16:51] Speaker 04:
So this is someone who definitely is trying to influence the discussion both on the anti-government issues and on his own case.

[00:17:01] Speaker 04:
And the statement, thirdly, is totally germane.

[00:17:05] Speaker 04:
His participation in the controversy

[00:17:07] Speaker 04:
involving his ideological motivations is exactly the language in suit and of course is part of the sentence that he was seeking relief in the petition.

[00:17:19] Speaker 04:
So we don't believe that it's necessary to remand to the district court, which had in front of it much of the publicity that your honors have in the record when the court decided that he was a limited purpose public figure.

[00:17:34] Speaker 04:
And one last thing, in the cross appeal, Mr. Powell has argued

[00:17:38] Speaker 04:
that the district court erred in rejecting his motion that the statement about his conviction was liable per se.

[00:17:44] Speaker 04:
We don't think that's properly part of this inquiry into actual malice.

[00:17:50] Speaker 04:
But if it is, we think the district court did not err in saying that, well, he had been sentenced under the pertinent statutes for second-degree murder, and so there's no falsity.

[00:18:01] Speaker 05:
All right.

[00:18:02] Speaker 05:
I'll give you a few minutes under a bubble.

[00:18:04] Speaker 04:
Thank you.

[00:18:10] Speaker 05:
Good morning.

[00:18:11] Speaker 01:
Good morning.

[00:18:11] Speaker 01:
You may please the court.

[00:18:12] Speaker 01:
Greg Duvinsky, appointed amicus curie, presenting arguments in favor of Mr. Cull.

[00:18:17] Speaker 01:
I'd like to start with Judge Rogers' line of questioning with regard to the difference between the first article and the second article, the clarification.

[00:18:26] Speaker 01:
The first article said that the ruling below by the sentencing judge was that petitioner showed no hint of contrition and made statements to the press that he believed the murders were justified.

[00:18:35] Speaker 01:
The clarification says that the summary of the sentencing judge's ruling below should have said petitioner who is said to have shown no hint of contrition.

[00:18:44] Speaker 01:
The passive voice does not correct the original defamation as the district court below found because both articles attribute the statement that call showed no contrition and justified the murders to the sentencing judge rather than to the prosecutor who was the speaker of those statements.

[00:19:05] Speaker 01:
The court should really focus its attention, in our opinion, on the moment that it decided the clarification was appropriate, because at that moment, by BNA's own admission, it conceded that the first article was defective and required a clarification.

[00:19:18] Speaker 01:
At that moment, BNA was required, under the precedent of this court and the Supreme Court, to conduct... What was that concession?

[00:19:27] Speaker 01:
And Sasha, not in the legal sense of the term, but rather an acknowledgement that the first article required a clarification because, to quote Binet's letter to Mr. Call, the letter could be confusing to the reader.

[00:19:39] Speaker 01:
So what Binet was required to do at that point, once it agreed that the first article did not accurately describe the sentencing hearing, was to conduct investigation sufficient to prove that it had good faith.

[00:19:50] Speaker 03:
That just shows that they maybe screwed up the correction as well as the original article, but it still seems to be a high hurdle to get to actual malice.

[00:20:06] Speaker 03:
The opinion – district court's opinion seems to say that the discrepancies between the – what really happened and what the story said alone is enough to get you to a jury for actual mouths, and that seems to be a leap and would get a lot more cases to juries in contravention of what the Supreme Court's music has been.

[00:20:29] Speaker 03:
So how do you – how do you respond to all that?

[00:20:31] Speaker 01:
We make the argument in our briefs, but we really think that the thing that's most convincing with respect to showing reckless disregard is the second article.

[00:20:40] Speaker 01:
That is, once BNA received the letter from College Council saying the attribution, who said what, at the sentencing hearing was in question, it was incumbent on BNA to then conduct investigation and look at.

[00:20:51] Speaker 05:
Well, I was going to get to that.

[00:20:52] Speaker 05:
I mean, the question about when the obligation to conduct an investigation arises

[00:20:58] Speaker 05:
where you're relying on the document that's submitted to you which identifies the mistake so you go to the source document and look at it.

[00:21:09] Speaker 05:
So that's the investigation.

[00:21:11] Speaker 05:
I read your brief to say they had to go back and get the transcript of the trial and read it for themselves and all that sort of thing.

[00:21:21] Speaker 01:
Our position would be that B&A would have endured itself to liability by obtaining the transcript, which B&A does not dispute would have been a low cost and easily.

[00:21:30] Speaker 05:
Well, that's your assessment.

[00:21:31] Speaker 05:
I mean, this is a publication that maybe that is a high cost for them.

[00:21:36] Speaker 05:
I mean, if they had to do that in every case, for example.

[00:21:41] Speaker 01:
Well, I think it is incumbent upon publications to get their stories accurate, and in doing so, to conduct the requisite level of investigation to show good faith in assessing the veracity of their publications.

[00:21:55] Speaker 01:
It is correct that Benet's affidavits contain the self-interested testimony that they did go back and review the petition again.

[00:22:03] Speaker 01:
Again, the petition contains no contrary attribution of the statements at issue, and to the extent that BNA agreed that the first sentencing summary was not accurate, BNA could have easily obtained... You're saying easily obtained.

[00:22:21] Speaker 02:
BNA's publication was over 20 years after the trial, right?

[00:22:28] Speaker 01:
Right.

[00:22:30] Speaker 02:
And so you're saying that as a factual matter, it's easy to get a 20-year-old transfer?

[00:22:38] Speaker 02:
Have you ever tried to do that?

[00:22:40] Speaker 02:
I have.

[00:22:43] Speaker 01:
We would submit that with respect to obtaining the transcript, an alternative possibly would have been to ask Cal's counsel for that transcript.

[00:22:53] Speaker 01:
Presumably, he had access to it, having prepared the mandamus petition and appendix.

[00:22:58] Speaker 01:
The point here, I think, is not that B&A would know or didn't know how difficult it would be or how objectively difficult it is, in fact, but rather that B&A made no effort to obtain the transcript and made no effort to conduct any further investigation once it was put on notice.

[00:23:12] Speaker 01:
that his attribution was mistaken.

[00:23:15] Speaker 01:
So whether or not the transcript of some other means would have been the best way of showing good faith, B&A was required to do something to show that it had good faith.

[00:23:25] Speaker 02:
What aspect of the attribution was pointed out to B&A as having been a mistake?

[00:23:34] Speaker 01:
uh... calls council said to be made that the attribution of the statements in the the first article to call was that's correct but we submit that's not dispositive because

[00:23:58] Speaker 01:
BNA was put on notice, and as Justice Scalia, when he was a judge on this court, wrote, a denial that provides specific and verifiable facts sufficient to cause any reasonable publisher to conduct further investigation would in fact trigger, or at least could support, a finding of actual malice.

[00:24:15] Speaker 01:
Here, although it's correct that calls counsel did not say that the attribution to the sentencing judge was inaccurate, B&A was put on notice.

[00:24:23] Speaker 01:
The question of who said what at the sentencing hearing was challenged by the author of the petition who put together the appendix.

[00:24:29] Speaker 02:
But you don't need to investigate to correct the error that was pointed out.

[00:24:35] Speaker 02:
All you have to do is say, well,

[00:24:39] Speaker 02:
It said that it could be inferred that call.

[00:24:45] Speaker 02:
Said those things.

[00:24:47] Speaker 02:
And we're just going to fix it to say it was it was said about him.

[00:24:53] Speaker 02:
The problem you don't need to investigate to fix it.

[00:24:56] Speaker 01:
The problem with that interpretation is that the clarification was also inaccurate and inaccurate in a way that Binet could have... But you're not suing on the clarification.

[00:25:12] Speaker 01:
Yes, Mr. Kyle's complaint does contain a count that's based on the clarification.

[00:25:20] Speaker 02:
This point about the

[00:25:24] Speaker 02:
Well, I guess that's a different malice argument, but the malice argument about whether it's being attributed to the judge or the prosecutor, that's not at issue with that clarification, right?

[00:25:38] Speaker 01:
I believe it is, Your Honor.

[00:25:39] Speaker 01:
I think the argument is that by, and in fact, Mr. Call submitted a letter after the clarification saying explicitly that the attribution to the sentencing judge was inaccurate.

[00:25:50] Speaker 01:
It is true that the initial letter shows the wrong attribution, so to speak, but to side with B&A would be to say that a plaintiff would have to contest all defamatory implications of a potential attribution or other defamatory statement in order to put the publisher on subjective notice of the challenged falsity or veracity of the statements.

[00:26:15] Speaker 05:
No, but what I think we're trying to focus on is it's a clear and convincing evidence standard.

[00:26:20] Speaker 05:
And even without that, the actual malice standard is fairly high given Supreme Court decisions.

[00:26:27] Speaker 05:
And the fact that BNA might have offered a better correction is not enough.

[00:26:41] Speaker 05:
And this isn't a case where you offered any evidence, for instance, that they had it out for your client or they thought that anybody who challenges the duty to pay taxes is a traitor to the country and they were going to go after everybody.

[00:26:55] Speaker 05:
I mean, that's sort of the flavor of these actual malice situations.

[00:27:01] Speaker 05:
And here you have a publication, what did counsel say?

[00:27:06] Speaker 05:
dry as dust sort of just repertorial summaries.

[00:27:11] Speaker 05:
And they made a mistake.

[00:27:13] Speaker 05:
And so they looked at the letter they got from the lawyer, which didn't tell them who said what, but simply said his client didn't make these statements.

[00:27:26] Speaker 05:
So the clarification says somebody said it.

[00:27:32] Speaker 05:
and the notion that they would have to do a major investigation when they're relying on the document that identifies the error, and they look at the document prepared by the plaintiff's attorney to correct the error, sort of a due diligence effort, and doesn't the plaintiff have a burden to come forth with something more on a clear and convincing, reckless,

[00:27:59] Speaker 01:
The Supreme Court has said that actual malice is a term of art.

[00:28:03] Speaker 01:
It does not connote necessarily common law malice in the sense of spider.

[00:28:07] Speaker 01:
It includes reckless... But look at the cases.

[00:28:11] Speaker 01:
That's right.

[00:28:11] Speaker 01:
It includes reckless disregard for the veracity of a statement.

[00:28:16] Speaker 05:
I mean, take the case every day for those of us who still read newspapers where on page A8 it says, we mistakenly said yesterday that somebody

[00:28:30] Speaker 05:
no longer worked for this, unceremoniously discharged.

[00:28:37] Speaker 05:
And the argument is, who reads page A8?

[00:28:40] Speaker 05:
The damage is done on page one.

[00:28:44] Speaker 05:
Your standard, it seems to me, makes it virtually impossible to include that type of correction.

[00:28:54] Speaker 05:
without also sort of hiring counsel and investigative counsel to do a thorough investigation.

[00:29:02] Speaker 05:
And I mean we've had situations where, too young to remember, but a secretary of labor was prosecuted and then the jury acquitted him and his statement was, how do I get my reputation back?

[00:29:21] Speaker 05:
Because the press had had this indictment all over the

[00:29:25] Speaker 05:
paged in television, et cetera.

[00:29:28] Speaker 05:
So I think that while it may not be that there should never be trials, the burden is very heavy on the plaintiff.

[00:29:38] Speaker 01:
The burden is very heavy, but it is not a fatal and fact standard.

[00:29:42] Speaker 05:
I understand that, but I mean here, as I understand your argument, the best argument is, well, piggybacking on Judge Kavanaugh's question,

[00:29:54] Speaker 05:
You have to look at the credibility of the defendant.

[00:29:59] Speaker 05:
This is not even where you have an investigative reporter doing something, looking at your client, trying to figure out what's going on.

[00:30:06] Speaker 05:
Just looking at documents that are filed in the Supreme Court.

[00:30:12] Speaker 05:
And in the second statement makes it clear that it wasn't the judge.

[00:30:18] Speaker 05:
And so the question is, is that enough?

[00:30:21] Speaker 05:
At least the way the district court certified the question to us, is that enough, this so-called discrepancy, enough to get you past summary judgment?

[00:30:34] Speaker 01:
Again, we advance the argument about the discrepancy standing alone in our brief.

[00:30:38] Speaker 01:
We really think the court is best focused on the moment that BNA acknowledged a clarification was needed.

[00:30:45] Speaker 01:
The reason for that, the reason why the effort, normally a retraction does in fact counteract a finding of good of actual malice because it tends to counteract the initial defamatory statement.

[00:30:57] Speaker 01:
Here, as the Disha Court found, the second article compounded the original defamation because it contained the exact attribution of the exact same statements to the sentencing judge rather than to the actual speaker of the process.

[00:31:09] Speaker 05:
I just want to be clear.

[00:31:10] Speaker 05:
I mean, the judge in her certification says in that parenthetical, and to compare those statements with the mandamus petition.

[00:31:20] Speaker 05:
So as I understand it, that's part of the sufficiency question she's certified to us.

[00:31:27] Speaker 01:
I agree, Your Honor, and we advance the argument in our briefs that there are textual indications that it was reckless for Binet to rely on, especially in light of a fairly imputed background knowledge.

[00:31:40] Speaker 01:
For example, the rote identification of a judge in the caption of a transcript does not mean that every, as before the judge, does not mean that every statement that follows is made by the judge.

[00:31:53] Speaker 01:
The fact that BNA acknowledged that a clarification was needed, I think, is the moment in time that BNA's obligation to conduct further investigation, be it requesting the transcript from either the courthouse, which may have been difficult, but could also have been easily achieved through the means of House counsel who had access to it.

[00:32:13] Speaker 03:
If we ruled for you in this case,

[00:32:17] Speaker 03:
It seems like that would be ushering in a revolution in libel law, because this case is sloppiness, arguably, mistakes, doubling down on the sloppiness with the correction that didn't do what it should have done.

[00:32:36] Speaker 03:
That happens all the time every day in reporting.

[00:32:39] Speaker 03:
And if all of that is now actionable by jury trial,

[00:32:45] Speaker 03:
given the history of the last 50 years since New York Times versus Sullivan, that seems a huge change.

[00:32:51] Speaker 03:
So why, if we rule for you, in this case, is it not a revolution in changing the libel laws?

[00:32:59] Speaker 01:
Good faith mistakes remain protected by the First Amendment.

[00:33:02] Speaker 01:
The reason that this case would not usher in a new era of libel suits is because BNA acknowledged that a clarification was needed.

[00:33:09] Speaker 03:
At that point, it had an obligation to conduct... So it's only, and I can see why you're doing this, cabinet it, it's only because of the clarification

[00:33:19] Speaker 03:
you think that this case would not, the mistaken clarification, in other words, that this case would not revolutionize level.

[00:33:27] Speaker 01:
That's right.

[00:33:27] Speaker 01:
That's our position.

[00:33:29] Speaker 01:
And the reason why that's important is because this court has a precedence in which it said... There are a lot of screwed up corrections, too, though, as you're probably aware, at least.

[00:33:39] Speaker 01:
Right, and absolutely there should not be a disincentive to publish corrections.

[00:33:44] Speaker 01:
And many courts have said that.

[00:33:45] Speaker 01:
The reason why this particular clarification does not fall within the zone of protection of that rule is because it compounded the original defamation and reflected no additional scrutiny of the petition or of any other documents.

[00:34:00] Speaker 01:
They merely put the original defamation to the passive voice.

[00:34:02] Speaker 01:
which doesn't show necessarily the kind of good faith effort and commitment to... But it also doesn't show malice necessarily on the flip side of that.

[00:34:12] Speaker 03:
I mean it does, it shows sloppiness, grudging.

[00:34:16] Speaker 03:
I mean most, at least going outside the record, a lot of corrections are grudging corrections that barely correct.

[00:34:23] Speaker 03:
the original mistake in the reporting and do not seem to even acknowledge the mistake in the original reporting.

[00:34:31] Speaker 03:
But that kind of sloppiness, grudging behavior is still not malice, it doesn't seem to me.

[00:34:37] Speaker 01:
Well, the evidence pointing toward an honest, good-faith mistake, as you indicated earlier in your questioning, is the testimony submitted by BNA's employees, the affidavits.

[00:34:50] Speaker 01:
Now, this court and other courts have said that on summary judgment, a court may disbelieve the self-interested testimony of the employees of a defendant liable publisher because a jury may do so.

[00:35:05] Speaker 01:
And the question of credibility is a quintessential task for the fact finder as the Supreme Court recognized in Proxmire.

[00:35:12] Speaker 01:
and as it recognizes while in Anderson.

[00:35:14] Speaker 01:
So it is correct that we do have the defendant's testimony that it merely made a good faith mistake.

[00:35:22] Speaker 01:
It was sloppy, as you've said, but the record evidence does not compel that finding.

[00:35:27] Speaker 01:
We would submit, especially in light of the acknowledgement that a clarification was needed.

[00:35:32] Speaker 02:
What's your best case for kind of two sloppy mistakes equals recklessness?

[00:35:41] Speaker 01:
It's hard to think of a case that involves the exact same fact pattern as this case, but there are authorities that we've seen in our briefs, including second defamation, that say that a retraction demand that is ignored or that republication of a falsehood does tend to support actual amounts.

[00:36:02] Speaker 01:
And the reason for that is because it is

[00:36:06] Speaker 01:
more unlikely with the second publication that the good faith explanation for the first publication applies to the second publication.

[00:36:15] Speaker 01:
But with respect to your question about the particular case, I would direct the court to Curtis Publishing B. Butts, which is a case that involves facts that are somewhat similar to this case.

[00:36:35] Speaker 01:
As both the majority opinion or the main opinion and Chief Justice Warren's opinion point out, the defendant was notified that the account was not correct before publication.

[00:36:48] Speaker 01:
I believe it involved only a single publication, but it was similar insofar as the denial was proffered and then ignored.

[00:36:55] Speaker 01:
The other case that supports us on that particular ground, the ground of

[00:37:00] Speaker 01:
uh, ignoring an easily obtainable source of evidence that would corroborate the initial publication is heart hanks.

[00:37:08] Speaker 01:
In that case, the court emphasized that it would have been easy to listen to certain tapes to verify or disprove the interpretation advanced by the publisher.

[00:37:17] Speaker 01:
And other cases have stressed that where there is reason for doubt,

[00:37:22] Speaker 01:
court may look at the extent to which corroborating the interpretation would have been easy with respect to documentary evidence.

[00:37:31] Speaker 01:
So under that precedent we think it's strongest for summary judgment to

[00:37:38] Speaker 01:
allow this case to proceed, that once being acknowledged that the first article was not sufficiently clear, precise, accurate, it was then BNA's obligation to do something to verify the publication if the court doesn't have any further questions.

[00:37:58] Speaker 05:
All right.

[00:37:58] Speaker 05:
Thank you.

[00:38:06] Speaker 04:
I'll just address a few points.

[00:38:08] Speaker 04:
I agree with much of what was said.

[00:38:11] Speaker 04:
B&A did not concede that they had made a mistake.

[00:38:16] Speaker 04:
What they said was, and this is at the appendix at 255, that they disagreed with the characterization of plaintiffs' counsel.

[00:38:27] Speaker 04:
and yes it could be confusing and therefore they were going to run a clarification and obviously just to address the point that he had raised and importantly if he did have the transcript of the lawyer he didn't seek to provide it or attach it to his letter

[00:38:48] Speaker 04:
And as I said, he made no reference to the petition.

[00:38:51] Speaker 04:
He made no reference to the AUSA speaking.

[00:38:54] Speaker 04:
He made no reference to the Four Corners of the Judge's ruling.

[00:38:59] Speaker 04:
So we don't think that we were unnoticed to go out and try and get the transcript, as Your Honor says, not necessarily that easy in the days before PACER, et cetera.

[00:39:12] Speaker 04:
And the clarification... But no one tried.

[00:39:15] Speaker 03:
No one tried.

[00:39:16] Speaker 04:
But it was, we were told, he didn't say it, we corrected that, there would be no reason to make the effort, as your honor was saying, these kinds of mistakes are every day, I mean that's what

[00:39:29] Speaker 04:
The 39 media amici we're trying to say is, yeah, this comes up all the time.

[00:39:35] Speaker 03:
Is that a good thing or a bad thing?

[00:39:37] Speaker 04:
It's a fact of life.

[00:39:38] Speaker 04:
It's what the New York Times v. Sullivan recognized.

[00:39:41] Speaker 04:
Erroneous statement is inevitable, is exactly what the court said.

[00:39:46] Speaker 04:
And Timing v. Pape said, we need a zone of protection for errors of fact, even if negligent, or errors of misinterpretation.

[00:39:54] Speaker 04:
It's just a fact of life, ever more so in the 24-7 news environment.

[00:39:58] Speaker 04:
that we live in.

[00:40:00] Speaker 04:
So it would be a revolution.

[00:40:02] Speaker 02:
In this era of fake news, maybe we should revisit our thinking on this.

[00:40:09] Speaker 04:
Well, this was a mistake.

[00:40:11] Speaker 04:
This is a good example of where it's not fabrication.

[00:40:14] Speaker 04:
which would be suggestive of actual malice here.

[00:40:19] Speaker 04:
These statements were indeed made at the sentencing hearing.

[00:40:23] Speaker 04:
This wasn't just totally made up.

[00:40:25] Speaker 04:
It was based on the petition itself.

[00:40:28] Speaker 04:
No reason to doubt the source of the document.

[00:40:32] Speaker 03:
But fake news could be attributing a statement to the wrong person as well.

[00:40:37] Speaker 04:
You know, that could happen, but this, that's a, and fake news suggests very deliberate effort here, and there's been no- But you don't, but how do you know?

[00:40:45] Speaker 04:
Well, there's been no evidence of that here, and I think Judge Roberts pointed out, I mean, this is not a situation where, you know, and there's any evidence they were out to get Mr. Call that this would increase circulation if they put in, you know, this language that was in the appendix.

[00:41:03] Speaker 04:
They didn't make that up.

[00:41:04] Speaker 04:
It was right in the appendix.

[00:41:05] Speaker 04:
They're describing the appendix.

[00:41:07] Speaker 04:
They got wrong exactly who said it.

[00:41:10] Speaker 04:
But in this case, there's not an effort to fictionalize or fabricate, and there would be no motive for it.

[00:41:16] Speaker 04:
This is as clean a record as you could possibly find, I think, for an inadvertent mistake.

[00:41:23] Speaker 04:
And I would say one more point, that the second letter that Mr. Von Call himself pointed and sent was, of course, after the clarification was published, more than two and a half years after the original summary

[00:41:37] Speaker 04:
And McFarland tells us we have no obligation to run a correction.

[00:41:42] Speaker 04:
Failure to run a correction is not evidence of actual malice.

[00:41:46] Speaker 04:
We went the extra mile in doing the clarification, but there is not evidence of actual malice if you fail to.

[00:41:54] Speaker 04:
That is from the McFarland case.

[00:41:57] Speaker 04:
And that passive voice that the BNA adopted for the clarification, that's sort of typical of these very dry as dust summaries.

[00:42:06] Speaker 04:
They don't go through chapter and verse on who said what at the hearing.

[00:42:10] Speaker 04:
And that's not in this very brief squibs that these are.

[00:42:16] Speaker 04:
If the court has any further questions, if not, I'll rest.

[00:42:20] Speaker 04:
All right.

[00:42:21] Speaker 05:
Thank you.

[00:42:22] Speaker 05:
We'll take the case under advisement.

[00:42:33] Speaker 05:
Oh, yes.

[00:42:36] Speaker 05:
Council for Amicus?

[00:42:38] Speaker 05:
Excuse me.

[00:42:40] Speaker 05:
My colleague reminds me, and I apologize.

[00:42:42] Speaker 05:
We want to thank you for the able assistance you have provided to the court.