[00:00:00] Speaker 01: Case number 20-7018, Ina Khodorkovskaya, a balance versus Jacqueline G. Gay and Kenneth K. Lin. [00:00:08] Speaker 01: Mr. Foster for the balance, Ms. [00:00:10] Speaker 01: Wall for the appellee. [00:00:13] Speaker 00: Good morning, counsel. [00:00:15] Speaker 00: Mr. Foster, when you're ready, please proceed. [00:00:18] Speaker 05: Thank you, Your Honor. [00:00:19] Speaker 05: Good morning and may it please the court. [00:00:22] Speaker 05: The court below erred in concluding that no reasonable person could believe that Ina Khodorkovsky [00:00:30] Speaker 05: had been really called a prostitute and a murderer. [00:00:33] Speaker 05: And even if that were not the case, that those were simply unverifiable facts. [00:00:40] Speaker 05: To the contrary, the entire play focuses on the poem that's set forth in the prologue and its theme, the downfall of a powerful man because of his captivation by a voluptuous prostitute who orchestrates a murder for which he is blamed. [00:00:59] Speaker 03: Mr. Foster, can I ask, how do we know that the whole play focuses on that poem? [00:01:07] Speaker 03: I've watched the play, and to be honest, I'm not sure what it focuses on. [00:01:13] Speaker 03: I think that's open to interpretation. [00:01:16] Speaker 05: I believe when you repeat something three or four times during a play, it's pretty focused. [00:01:23] Speaker 03: I mean, Mr. Foster, the tiger appears two or three or four times. [00:01:28] Speaker 03: It's not a play about a tiger. [00:01:30] Speaker 05: No, I agree. [00:01:31] Speaker 05: It's not. [00:01:32] Speaker 05: In fact, the tiger is nothing other than another literary method of showing the Putin character's strength and power. [00:01:42] Speaker 03: That's just kind of, I think, the point of your opposing counsel is, [00:01:49] Speaker 03: A lot of the play is, whether we call it literary method, literary license, artistic license, dramatic license, poetic license, historic license. [00:01:59] Speaker 03: This is a concept that's so familiar in art that we have half a dozen or a dozen words for it. [00:02:07] Speaker 03: How do we know that the portrayal of your client as a prostitute and a murderer is not historic license? [00:02:18] Speaker 05: because the play has a theme and there's no question about what the theme is. [00:02:25] Speaker 05: The theme is the downfall of a powerful man because of his fascination with the prostitute who orchestrates the murder which causes his downfall. [00:02:34] Speaker 03: Assume Mr. Foster that I think that we can't know with certainty what the theme of the play is. [00:02:43] Speaker 03: That that's a question of [00:02:44] Speaker 03: that 100 people might give 100 different answers to assume I think that I know you don't think that tell me how you can still win. [00:02:50] Speaker 03: Because that's the issue for the jury. [00:02:54] Speaker 05: Your the issue for the court is can it be interpreted this way, the issue for the jury is does a reasonable audience interpreted that way. [00:03:05] Speaker 03: And so, once we look to a reasonable audience. [00:03:10] Speaker 03: I worry that your argument would require us not to ask what a reasonable audience member would think, but rather what the most gullible possible audience member would think. [00:03:21] Speaker 03: Because I will admit, I think there is probably an audience member in the crowd that will watch that play and will think gullibly that everything he is watching is an assertion of historical fact, the same as if he were reading an affidavit. [00:03:39] Speaker 03: But I'm not sure how a reasonable audience member could possibly think that when, for one thing, there's not only a tiger, but there's a ghost. [00:03:50] Speaker 03: There's Vladimir Putin quoting poetry. [00:03:53] Speaker 03: And it just seems like there's a lot in this play that a reasonable audience member would say, as I say, when I'm watching a movie like Braveheart or a TV show like The Crown, [00:04:05] Speaker 03: I wonder what's true. [00:04:07] Speaker 03: I'm not sure. [00:04:08] Speaker 03: Maybe I'll look it up on the internet or maybe I won't. [00:04:10] Speaker 03: And it's more fun to just not know. [00:04:12] Speaker 03: This is not what a reasonable audience member would tell me why a reasonable audience member would not think that. [00:04:17] Speaker 05: That's the standard. [00:04:19] Speaker 05: I think what Moldea tells us about Milkovich is that when somebody does a play of this sort, an author and a playwright, that they have to be sure that they don't, as Bugliosi says, [00:04:34] Speaker 05: They have to be sure that they avoid the impression that they are asserting objective facts. [00:04:40] Speaker 03: And when you, Mr. Foster, tell me, and then I'll get out of the way here. [00:04:46] Speaker 03: Tell me how I can distinguish this play from a TV show. [00:04:50] Speaker 03: I just mentioned that frankly, I've been watching all week is Netflix is the crowd and some of it's true and some of it's false. [00:04:58] Speaker 03: And the writer of it says, I made some of it up. [00:05:02] Speaker 03: And if you go on the internet and Google how much of the crown is true, you get 65 million results with article after article listing all the things that are true, all the things that aren't. [00:05:13] Speaker 03: And in fact, one of the most renowned historians of the monarchy has written an entire book about what in the crown is true and what in the crown is false. [00:05:21] Speaker 03: And he goes episode by episode. [00:05:24] Speaker 03: How is this play different than that TV show or is your argument [00:05:29] Speaker 03: that the Queen of England has a false light claim against the Netflix show, The Crown. [00:05:37] Speaker 05: The Crown had implied forcefully that the Queen of England was a prostitute and a murderer. [00:05:44] Speaker 05: She would have had a false light claim. [00:05:47] Speaker 05: What this boils down to is you can't, as it says in Moldova, you can't just poke a garden variety libel [00:05:57] Speaker 05: in their literary form and get away with it. [00:05:59] Speaker 00: So can I ask the following question? [00:06:01] Speaker 00: I think what you said earlier, at least in my mind, is one of the key questions in the case, which is what goes to the jury? [00:06:07] Speaker 00: and what is something that a court decides and doesn't let it go to the jury. [00:06:12] Speaker 00: And you don't take the position that there can never be a work of historical fiction that's a play such that there are certain things in the play that take license with respect to history and a court could decide as a matter of law that that's just not something is gonna go to a jury. [00:06:30] Speaker 00: I mean, there's gotta be some situations in which a court can decide that as a matter of law. [00:06:34] Speaker 05: Absolutely. [00:06:36] Speaker 05: The court can decide it. [00:06:38] Speaker 00: I'm sorry. [00:06:38] Speaker 00: Can you just make sure you're speaking into your microphone? [00:06:40] Speaker 00: I'm having a little trouble hearing you, sir. [00:06:41] Speaker 00: I'm sorry, sir. [00:06:42] Speaker 00: Yes, sir. [00:06:44] Speaker 05: I don't take that position. [00:06:45] Speaker 05: But the closer you get in your literary work to calling somebody a serious criminal, the less leeway you have. [00:06:56] Speaker 00: Why is that? [00:06:56] Speaker 00: Because that seems to me, you can take literary license or dramatic license with that kind of [00:07:03] Speaker 00: assertion no less than with any other kind of assertion. [00:07:06] Speaker 00: So is your position that it's the nature of the assertion that determines whether it's something that goes to the jury? [00:07:13] Speaker 05: It's not only my position. [00:07:15] Speaker 05: I think that's the position of this circuit in Moldova. [00:07:18] Speaker 05: That's what the court says in Moldova. [00:07:21] Speaker 05: In fact, in Moldova, it says, talking about Milkovich, it says, Milkovich did not disavow the importance of context [00:07:30] Speaker 05: but discounted it in the circumstances of that case. [00:07:34] Speaker 05: This would not be the case talking about Moldova if the review had said it was a badly written book because its author was a drug dealer. [00:07:44] Speaker 05: In that case, it would parallel Milkovich. [00:07:49] Speaker 05: The reviewer would have been employing the medium of a book review [00:07:54] Speaker 05: for what was a garden variety liable. [00:07:57] Speaker 00: So I think there's several different issues in a case like this. [00:08:02] Speaker 00: One of them is whether something's capably defamatory. [00:08:05] Speaker 00: And of course it's true that when you accuse somebody of being a criminal, there's more of a sense that it's defamatory than some other things you could say about them. [00:08:11] Speaker 00: I get that. [00:08:12] Speaker 00: But is it your view that you can never have a play that's a work of historical fiction that suggests that a character is a criminal and have that be something that's interpreted as a matter of drama? [00:08:27] Speaker 00: Or every time you make a suggestion in a play that someone is a criminal, that's necessarily something that goes to the jury? [00:08:34] Speaker 05: No, not at all. [00:08:35] Speaker 05: In fact, that's what I think Levin teaches us, that if you want to, if you're making that suggestion and you lay it out, [00:08:43] Speaker 05: with three or four possible scenarios or two possible scenarios with facts supporting each one and give the audience the choice between those scenarios, you can do that. [00:08:55] Speaker 00: Is that right then? [00:08:56] Speaker 00: So the playwright is limited to putting on a play. [00:08:59] Speaker 00: First of all, it's going to make a lot of plays four times as long as if you have to set out four scenarios. [00:09:04] Speaker 00: And so one question is, is that what a playwright has to do, or can they give one scenario that itself is something that's a matter of conjecture? [00:09:14] Speaker 00: I suspect that it's not that you have to give alternative scenarios to the audience. [00:09:20] Speaker 00: You can just choose one scenario and still describe it in such a way that it's still understood by the audience or should be deemed to be understood by the audience as something that's a dramatic suggestion because it's entertaining as opposed to an assertion of fact. [00:09:33] Speaker 05: And if you are careful and tell the audience that, most important, if your play can have meaning without it [00:09:44] Speaker 05: saying that the person is a criminal. [00:09:48] Speaker 05: Here this play has no meaning in the absence of the fact that Anna is a prostitute and a murderer because that is the theme of the play. [00:09:59] Speaker 05: The downfall is caused by his fascination with this woman and that she is this person. [00:10:06] Speaker 05: If they wanted to say, if they had wanted to say that Kordakowsky had his downfall because he created the murder, [00:10:14] Speaker 05: That would have been a theme for the play, but that's not what they said. [00:10:18] Speaker 00: But I guess to me, it seems like we're conflating two things. [00:10:22] Speaker 00: For these purposes, for purposes of this appeal, the district court assumed that the play asserted that she was a prostitute and a murderer. [00:10:28] Speaker 00: And then I'm willing to assume what you're saying, which is that this is a theme of the play. [00:10:33] Speaker 00: That's for purposes of the exchange we're having right now. [00:10:36] Speaker 00: The question in my mind is, even if we assume that that's the theme of the play, is an audience member [00:10:41] Speaker 00: supposed to be deemed to assume that the play actually is accurately recounting what in fact happened as a matter of historical fact or is an audience member thinking well yeah this is loosely based on historical episode on a historical episode but it's just drama and so i don't actually know what particular part of this is true and not true it's just giving me something that's supposed to entertain the audience it in fact has [00:11:09] Speaker 00: segments of the play where the characters are directly speaking to the audience. [00:11:13] Speaker 00: Nobody thinks that actually happened as a matter of history. [00:11:16] Speaker 00: And so the whole thing is couched in this notion that, yeah, we're taking some dramatic license here. [00:11:20] Speaker 00: We're grounding it in historical fact. [00:11:22] Speaker 00: And none of this should be taken as the gospel truth about what in fact happened. [00:11:26] Speaker 00: It's a drama about things that may or may not have happened. [00:11:30] Speaker 04: I don't think that's what the play does. [00:11:33] Speaker 04: The play's devoid of meaning if that's what it's doing. [00:11:37] Speaker 05: The only way it has meaning is to assert that she is a constitutional murderer, and that that follows his downfall. [00:11:45] Speaker 05: Otherwise, the play has no meaning at all. [00:11:49] Speaker 00: OK, let me make sure my colleagues don't have additional questions. [00:11:53] Speaker 00: If they do, please. [00:11:55] Speaker 01: And for me. [00:11:57] Speaker 00: I think you're muted, Judge Walker. [00:12:00] Speaker 03: Thanks. [00:12:00] Speaker 03: Sorry about that. [00:12:01] Speaker 03: One question, Mr. Foster, can you give me the best case that you think I should go read that involves a play or a television show or a movie? [00:12:14] Speaker 03: And, you know, for your sake, this case would presumably [00:12:19] Speaker 03: a rule in favor of a plaintiff and a false light claim or a defamation claim or something like that. [00:12:26] Speaker 03: But it needs to not be a newspaper article or a book review or an op-ed or a book. [00:12:30] Speaker 03: It needs to be a work of art on stage or on the screen. [00:12:35] Speaker 03: Can you give me a case I should go read? [00:12:36] Speaker 05: The only one that I can come up with real quickly [00:12:47] Speaker 05: that was a work of art, as you put it, that you watch as opposed to one that you read. [00:12:54] Speaker 05: I don't think there is a distinction, but assuming that there is a distinction, that's de Havilland, which is the work of art. [00:13:02] Speaker 05: And de Havilland itself shows us that there, the court concluded that it was complimentary to de Havilland, but that is one where there's a work of art, as you described it. [00:13:17] Speaker 00: Was Partington not a, did Partington not involve a TV show? [00:13:22] Speaker 05: Partington was the, that's Bugliosi. [00:13:25] Speaker 05: Yeah. [00:13:27] Speaker 05: Yes, it did involve a TV show. [00:13:29] Speaker 05: And I'm glad you said that judge because that, that Partington is the case, which specifically warns producers and authors of docudramas. [00:13:42] Speaker 05: It uses the word and that's what the judge below seemed to like to call this. [00:13:46] Speaker 05: to avoid creating the impression that they are stating accurate facts, historical facts. [00:13:54] Speaker 00: Well, I just wanted to make sure I was, I'm just trying to recollect what the facts involved. [00:13:57] Speaker 00: Did it in fact involve a show or did it involve an article or both? [00:13:59] Speaker 00: I can't remember. [00:14:01] Speaker 05: I believe it involved a show. [00:14:03] Speaker 00: A book and a show maybe, okay. [00:14:04] Speaker 05: Yes, I believe it was a show based upon a book. [00:14:07] Speaker 03: Who won in Partington? [00:14:11] Speaker 03: The plaintiff or the defendant? [00:14:12] Speaker 05: The defendant won in Partington. [00:14:16] Speaker 03: Your best cases on your side are cases where the plaintiffs lost. [00:14:23] Speaker 05: Well, I think if the case is set forth, the circumstances in which the plaintiffs wins, then yes. [00:14:29] Speaker 05: But I think our best case is Bugliosi in this circuit. [00:14:34] Speaker 05: And I think it sets out the law absolutely. [00:14:38] Speaker 05: Thank you, sir. [00:14:39] Speaker 05: Thank you. [00:14:40] Speaker 01: I do have a question. [00:14:43] Speaker 01: Mr. Foster, number one. [00:14:48] Speaker 01: Let's see. [00:14:51] Speaker 01: You seem to say that this play has to have meaning. [00:14:54] Speaker 01: Do you have any authority for that proposition? [00:14:58] Speaker 01: Frankly, although I didn't watch it, I did get a scene-by-scene description of it. [00:15:05] Speaker 01: And it had very little meaning to me, if any. [00:15:09] Speaker 01: And the other question is, can we not use the playbill, which gives at least constructive notice that this is a fictional play? [00:15:21] Speaker 05: To answer your last question first, I don't think you can, but even if you do, the nomenclature that you place upon it is not going to save it. [00:15:37] Speaker 05: If a work that purports to be a work of fiction, just saying that it is a work of fiction doesn't save it. [00:15:46] Speaker 05: Just saying it's a docudrama doesn't save it. [00:15:51] Speaker 05: infers that the person is a prostitute and a murderer. [00:15:56] Speaker 05: And the entire thrust of the play cannot have any meaning to whatever extent it does have meaning. [00:16:05] Speaker 05: If it will have zero meaning at the end, if it has no artistic value whatsoever, then it becomes pornography as it were. [00:16:13] Speaker 05: And the question is, does the nonsense that introduces pornography save it? [00:16:20] Speaker 05: Well, [00:16:21] Speaker 05: Does the non-suit sense save this thing in which Ms. [00:16:26] Speaker 05: Kortakowsky is called a prostitute and a murderer? [00:16:30] Speaker 05: And I don't think you can just put a title on it and save something. [00:16:35] Speaker 01: OK, thank you. [00:16:36] Speaker 05: Yes, ma'am. [00:16:37] Speaker 00: Thank you, Ms. [00:16:37] Speaker 00: Trosher. [00:16:38] Speaker 00: We'll give you some time for rebuttal. [00:16:40] Speaker 00: Ms. [00:16:40] Speaker 00: Wall. [00:16:40] Speaker 00: Thank you, sir. [00:16:41] Speaker 02: Thank you, Your Honor. [00:16:43] Speaker 02: Barbara Wall on behalf of the appellees. [00:16:46] Speaker 02: May it please the court. [00:16:47] Speaker 02: The district court correctly ruled that the First Amendment protects the artistic expression that is the play at issue and requires dismissal of both the false light and the intentional infliction of emotional distress claims. [00:17:03] Speaker 02: It is abundantly clear that this is not a factual endeavor. [00:17:08] Speaker 02: This is a play. [00:17:09] Speaker 02: It is pure fiction in the words of Partington. [00:17:13] Speaker 00: Why would you say it's pure fiction? [00:17:16] Speaker 00: It seems to me that that seems to be taking a bit far. [00:17:18] Speaker 00: I mean, it's at least historical fiction, right? [00:17:20] Speaker 00: It's grounded in actual historical events. [00:17:22] Speaker 00: There's no doubt that the mayor in fact was murdered. [00:17:26] Speaker 02: The mayor was murdered. [00:17:27] Speaker 02: And there are characters who have names similar to those in real life. [00:17:34] Speaker 00: Well, are they similar? [00:17:35] Speaker 00: I thought they were the actual names. [00:17:37] Speaker 02: Some are real names. [00:17:38] Speaker 00: Well, how about the plaintiff? [00:17:40] Speaker 02: That is, the Ina character has that similarity. [00:17:45] Speaker 00: How about Vladimir Putin? [00:17:48] Speaker 02: He shares the same name. [00:17:50] Speaker 00: How about her husband? [00:17:51] Speaker 02: He shares the same name. [00:17:53] Speaker 00: Right. [00:17:53] Speaker 00: So the relevant people, it seems like, and the mayor. [00:17:57] Speaker 02: The mayor, as well as the Mikhail characters, two business colleagues. [00:18:04] Speaker 02: And there is a Yuko Soil. [00:18:05] Speaker 02: That's all correct. [00:18:07] Speaker 00: I understand. [00:18:08] Speaker 00: I get that you're saying shares the same name. [00:18:11] Speaker 00: I don't know exactly what the layer remove is between is that same name or shares the same name because it seems to me they are the play is describing the actual people in the world. [00:18:23] Speaker 00: That doesn't necessarily mean that you lose, but it seems to me to say that it's purely fiction. [00:18:28] Speaker 00: elides what can make this kind of case difficult, which is that, at least in some situations, I would assume that a production that recounts historical fact and purports to accurately recount historical fact can be the subject of a defamation or [00:18:51] Speaker 00: Tort action of the kind that's at issue here on the basis that even though it's purporting to recount by to every jot and title historical fact. [00:19:01] Speaker 00: It's actually getting grievously wrong injuriously wrong some part of it. [00:19:07] Speaker 00: Or do you think that can never happen. [00:19:09] Speaker 02: Well, I don't wanna say never, but as the tagline of the play says, it's a fictional play inspired by historic events. [00:19:19] Speaker 02: So there are some similarities, but there are also vast, vast dissimilarities. [00:19:26] Speaker 02: If you looked at the general arc of the story, there is a man named Mikhail Khodorkovsky, and he got into a big dispute with Putin, [00:19:38] Speaker 02: He was a political prisoner for years, and then he was released. [00:19:44] Speaker 02: That's what the complaint says. [00:19:46] Speaker 02: And he has a wife in real life whose name is Ina Kordakovskaya. [00:19:52] Speaker 02: I would submit that while there are similarities to that in the play, the aspects of the play that the plaintiff finds grievous are constructs. [00:20:06] Speaker 00: So then the question in my mind is, [00:20:10] Speaker 00: In which situations does a question like that go to the jury? [00:20:15] Speaker 00: And in which situations does a court decide it as a matter of law, even on a motion to dismiss? [00:20:20] Speaker 00: And let me ask you about Husser v. Falwell because you cited in your briefs. [00:20:26] Speaker 00: In Hustler We Fall Well, the same issue that to me lies at the center of this case, which is whether the portrayal of the individual in this case as a prostitute and a murderer, I know you reject, you think it doesn't portray her as a prostitute and a murderer, but just let's assume that it does because the district court did and that's the posture in which we face the case now. [00:20:47] Speaker 00: The question is whether that portrayal [00:20:51] Speaker 00: is describing something that's an actual fact, or is it something that should be deemed by the viewer to be within the can of dramatic license? [00:21:03] Speaker 00: And in Falwell, that question went to the jury. [00:21:10] Speaker 00: And what you're saying is, [00:21:12] Speaker 00: here, that question should be decided as a matter of law. [00:21:16] Speaker 00: And I'm not suggesting that you're necessarily right or wrong. [00:21:18] Speaker 00: I'm just wondering why it is that in a case like Falwell, that question went to the jury. [00:21:24] Speaker 00: And in a case like this, it would not go to the jury. [00:21:30] Speaker 02: The court has the gatekeeping function. [00:21:32] Speaker 02: If the cause of action fails to stand as a matter of law, as this one does not, the court has the obligation to dismiss it. [00:21:41] Speaker 02: And I think a closer case than Falwell is the Farah case out of this circuit in which the court said, and that was the case just to, because I know there are a lot of these, that was the court, the case where there was a, [00:22:00] Speaker 02: a satirical statement posted in which an opponent of a book writer about Obama birther allegations put up a statement on a blog post saying that the publisher was going to stop publishing and pulp all of these books related to claims about then President Obama. [00:22:27] Speaker 02: The Court and real people were confused. [00:22:31] Speaker 02: There were people who responded by saying, Do I get my money back about this book? [00:22:36] Speaker 02: What's happening here? [00:22:37] Speaker 02: And the Court explained at great length about how satire works and real people's names don't make the [00:22:46] Speaker 02: First Amendment protections go away. [00:22:48] Speaker 00: So I don't disagree with you on that I think you could have certainly you can have a work of art that uses real people's names and it's grounded in historical events, but takes dramatic license and ought to be understood by the audience as being a work of dramatic license such that they can't take literally everything that said I think that's [00:23:03] Speaker 00: that just seems like that has to be true. [00:23:05] Speaker 00: My question is, how do we draw the distinction between those situations in which that issue, whether the work is asserting the disputed fact as an assertion of historical fact, or whether it's something as to which the audience ought to understand that it's a matter of dramatic license, how do we determine those cases in which the court decides that as a matter of law and those cases in which it's sent to the jury? [00:23:31] Speaker 02: I guess two responses to that, Your Honor. [00:23:34] Speaker 02: First is context. [00:23:36] Speaker 02: And that's baseline black letter defamation jurisprudence. [00:23:43] Speaker 02: And on the one hand, you have matters that, like the Farah case, where is this real or is this not real? [00:23:53] Speaker 02: And the court put itself in the position of the reasonable blog viewer. [00:23:59] Speaker 02: And in this instance, it would be the reasonable theater goer. [00:24:03] Speaker 02: That's at one end. [00:24:04] Speaker 02: All the way at the other extreme is you have this case, which is based on the context, it has to be fiction. [00:24:15] Speaker 02: It says right in the tagline, it's fiction. [00:24:19] Speaker 02: You don't go to arena stage to get a documentary. [00:24:22] Speaker 02: You go there to be entertained with the theatrical production. [00:24:26] Speaker 02: If you look at the abundant number of elements that clearly [00:24:31] Speaker 02: are stagecraft that are inspired art. [00:24:37] Speaker 02: It's not just the tiger and the dead ghost mayor. [00:24:40] Speaker 02: It's the lawyer in the cell who's talking to the Mikkel character, [00:24:46] Speaker 02: And then he's suddenly speaking to a crowd, and there are voices chanting the protagonist's name. [00:24:53] Speaker 02: And I say protagonist because this is a play about, as the complaint says, about the Mikhail character and his fight with Putin. [00:25:04] Speaker 00: Would you not say that? [00:25:05] Speaker 00: So I think a lot of that is well taken. [00:25:08] Speaker 00: Would you not say that about the parody ad in Hustler versus Falwell? [00:25:13] Speaker 00: It seems like a lot of the context [00:25:15] Speaker 00: I mean, the magazine that was in, the type of stuff that would typically attend that placement seems to me to be something that you would take account of as a matter of context. [00:25:27] Speaker 00: And a court could just say as a matter of law, we're not going to let the jury decide whether, as the court says at page 57 of his opinion, whether the hustler ad parody could be reasonably understood as describing actual facts about Falwell or actual events in which he participated. [00:25:43] Speaker 00: And that issue still went to the jury in that case. [00:25:46] Speaker 00: And maybe it was wrong to go to the jury. [00:25:47] Speaker 00: The Supreme Court didn't necessarily say it was right or wrong, but that's in fact what happened in that case. [00:25:51] Speaker 02: Correct. [00:25:52] Speaker 02: And it should not here in the words of the this court in Farah. [00:26:00] Speaker 02: Having a matter go that should be dismissed is not only useful or a misuse of resources, but it subjects the parties in the court to needless litigation. [00:26:14] Speaker 02: that's the purpose of a motion to dismiss. [00:26:17] Speaker 02: And that is what should be done here. [00:26:20] Speaker 02: You can't, in the words of Iqbal and Twombly, you can't cure a deficient complaint that fails to state a cause of action as a matter of law by giving the party some additional discovery. [00:26:32] Speaker 02: And as the district court asked Mr. Foster repeatedly, well, what kind of discovery would you have here that would make any difference? [00:26:38] Speaker 02: And there isn't any, there isn't any. [00:26:41] Speaker 00: Can I ask you just the same question that Judge Henderson asked, which is that you, and you referred to it a couple of times, the tagline. [00:26:47] Speaker 00: So as I understood it, the district court decided not to take that into account, but granted dismissal anyway. [00:26:54] Speaker 00: And it may be that, you know, you could say that, look, when you, when you watch the play, you don't need the tagline. [00:26:59] Speaker 00: You understand that from watching the play, but the tagline is helpful to you. [00:27:02] Speaker 00: That's why you relied on your briefs and that's why you invoke an oral argument. [00:27:05] Speaker 00: What's your view on whether we can take account of that at the dismissal stage? [00:27:09] Speaker 02: You can, because it is, the court should be viewing the alleged defamatory work in context. [00:27:19] Speaker 02: And context is not just cherry, you can't just cherry pick certain lines out of the play, but you experience the play as the play. [00:27:30] Speaker 00: But the tagline isn't in the play. [00:27:33] Speaker 02: It is in the playbill, which if you looked at the video, you see audience goers leafing through the playbill. [00:27:40] Speaker 02: It is awesome. [00:27:41] Speaker 00: I didn't have binoculars to see what the audience members were leafing their way through, so I'm actually asking a serious question, I think, which is that I understand that the play and the video should be treated by us as an evidence, because both parties seem to agree on that. [00:27:56] Speaker 00: But I don't know that that means that every single thing that is associated with the play [00:28:02] Speaker 00: And again, I'm not saying that you necessarily need it, but it is something that you rely on quite a bit to some effect. [00:28:09] Speaker 00: And I'm wondering whether there's law that says that a separate document that's in a website description is something that we take account of at the dismissal stage. [00:28:22] Speaker 02: I believe there is case law on that. [00:28:25] Speaker 02: And I'm thinking of the several cases that, for example, Dairy Pasca. [00:28:32] Speaker 02: which was affirmed by this court where there was recognition of historical articles related to the defamation and to the claims of the plaintiff. [00:28:46] Speaker 02: But as the district court said, you don't have to go there. [00:28:52] Speaker 02: I mean, if it's helpful, it sets the stage, no pun intended, when you walk in and [00:28:59] Speaker 02: you have in your hand, as well as you have purchased tickets through the website, which is used a lot. [00:29:07] Speaker 02: I'm not going to go beyond the four corners of this, but there are purchases done on the website. [00:29:13] Speaker 02: And the play's title is Kleptocracy, a fictional play inspired by historical events. [00:29:21] Speaker 02: Well, is that in the title? [00:29:26] Speaker 00: What you just said? [00:29:27] Speaker 02: That is the tagline to the title, yes. [00:29:31] Speaker 02: Yes. [00:29:31] Speaker 02: Which is why we cited the, we showed the website. [00:29:35] Speaker 02: Of course, if you are a theater goer and you walk, you know, there's no scrim, there was no stage, you come and you sit down and there's a bare stage. [00:29:46] Speaker 02: There's nothing that shoots the name of the play and the tagline on the screen as you're standing there. [00:29:54] Speaker 03: But with the tagline, [00:29:56] Speaker 03: So you keep saying tagline. [00:29:57] Speaker 03: What do you mean by tagline? [00:29:59] Speaker 03: Is that the same as subtitle? [00:30:02] Speaker 02: That's a good way to phrase it, yes. [00:30:04] Speaker 02: The name of the play is Kleptocracy, and then there's this sentence that goes underneath it, subtitle, tagline. [00:30:12] Speaker 01: Do we know whether the people who actually viewed it, you couldn't view it on a website, could you? [00:30:20] Speaker 01: Don't you have to go to the theater? [00:30:22] Speaker 02: You do. [00:30:23] Speaker 01: All right. [00:30:23] Speaker 01: And aren't they handed playbills? [00:30:27] Speaker 01: They are. [00:30:29] Speaker 01: So they have constructive notice that it is a fictional play. [00:30:37] Speaker 01: They do, Your Honor. [00:30:38] Speaker 01: We would agree with that position. [00:30:40] Speaker 00: Is the subtitle on the program? [00:30:42] Speaker 02: It is. [00:30:44] Speaker 02: It's also, again, you know, on the website. [00:30:47] Speaker 02: But the district court, you know, found that the tigers, the ghost, all of these other elements injected that without having to be told this is a work of fiction. [00:31:01] Speaker 02: But either way, we believe that the district court got it right and dismissal was appropriate of both claims. [00:31:09] Speaker 00: Make sure my colleagues don't have additional questions for you as well. [00:31:14] Speaker 03: I'm just not, I'm looking at the Arena Stage website and the title of the play. [00:31:20] Speaker 03: It looks like the full title, including any subtitle, is Kleptocracy, period, full stop. [00:31:29] Speaker 03: But you're telling me that this play, the full title of this play, including its subtitle, is Kleptocracy, a work of fiction, et cetera, et cetera? [00:31:42] Speaker 02: I can't get on the website right now, Your Honor, because I'll disconnect from. [00:31:46] Speaker 03: No, I mean, I'm not asking you to confirm or deny the website. [00:31:49] Speaker 03: I'm just trying to get clarification on what you are asserting here today. [00:31:55] Speaker 02: So when the tickets were purchased, and our brief at Joint Appendix page, I think it's either, it's 24, cited the place where you could buy tickets. [00:32:06] Speaker 02: And the play was then referred to as Kleptocracy, a work of [00:32:12] Speaker 02: a historic play inspired by historic events. [00:32:17] Speaker 02: I can't say whether that has changed since you can no longer buy tickets. [00:32:22] Speaker 02: It was available only through January, 2020. [00:32:28] Speaker 02: So what you might be seeing on the website now, your honor, is may not be what a theater goer saw when he or she purchased tickets. [00:32:36] Speaker 00: But you're saying that every theater [00:32:38] Speaker 00: Attendee got a program that included the words on the cover after kleptocracy fictional play inspired by historical events. [00:32:47] Speaker 02: That's correct. [00:32:48] Speaker 00: It's on the cover of the program. [00:32:50] Speaker 02: Yes, it is. [00:32:52] Speaker 02: I would try to get you some binoculars, your honor, but perhaps we should have done that before. [00:32:58] Speaker 03: Okay. [00:32:59] Speaker 03: I'm not sure that that's they have a PDF of the program and it doesn't say what you're saying it says [00:33:08] Speaker 03: I don't think it matters. [00:33:11] Speaker 00: Yeah, I'm not necessarily saying that it matters, but I'm curious about it as a matter of historical facts, so to speak. [00:33:17] Speaker 00: All right. [00:33:21] Speaker 00: Thank you, Ms. [00:33:22] Speaker 00: Wall, unless my colleagues have anything further. [00:33:24] Speaker 00: Mr. Foster, we'll give you two minutes for rebuttal. [00:33:28] Speaker 05: Thank you, Your Honor. [00:33:29] Speaker 05: You asked which are the ones that go to the jury and which are the ones that don't go to the jury. [00:33:34] Speaker 05: the ones that tell you that they are presenting facts and that they're presenting hard math, those are the ones that go to the jury. [00:33:51] Speaker 05: The ones that say, well, we don't know, this may be the case, this may not be the case, but remember, immediately after the murder scene, Putin comes back and he says, I'm gonna tell you, [00:34:04] Speaker 05: I forget his exact words, but you can't, you can't, incontestable, that's what he says. [00:34:13] Speaker 05: I'm gonna tell you incontestable facts about Portakovsky. [00:34:17] Speaker 05: He says, for those of us in the audience who like our incontestable facts. [00:34:23] Speaker 05: And then he says, and so far as the murder is concerned, we think it is hard math. [00:34:29] Speaker 05: For those of us in the audience who like our hard math. [00:34:35] Speaker 05: The play is telling the audience, for you, we are presenting incontrovertible facts and hard math. [00:34:45] Speaker 05: Those are the ones that go to the jury. [00:34:47] Speaker 05: Now, also in Farah, which was mentioned, Farah didn't accuse anyone of criminal conduct. [00:34:54] Speaker 05: That's the distinction that Moldea makes. [00:34:58] Speaker 05: When you accuse someone of criminal conduct, it becomes a garden variety libel. [00:35:04] Speaker 05: in which context, as Moldea says about the case involving the sports opinion, Moldea says it didn't have to go there because it was a garden variety liable accusing of criminal conduct. [00:35:22] Speaker 05: That's what sets this case apart and that's what makes it go to the jury. [00:35:28] Speaker 05: I might, just as an aside arena stage, [00:35:31] Speaker 05: is not a place where gullible people go. [00:35:35] Speaker 05: It is a place where sophisticated people go. [00:35:38] Speaker 05: And they go because they want to see the connection of true figures to what the playwright is asserting to be the facts, the irretrievable, immutable facts and hard math about those players. [00:35:52] Speaker 05: Thank you, sir. [00:35:54] Speaker 00: Okay, counsel, thank you. [00:35:56] Speaker 00: Unless my colleagues have questions for you. [00:35:58] Speaker 03: I just wanted to make one clarification, especially to be fair to Ms. [00:36:01] Speaker 03: Wall. [00:36:03] Speaker 03: On page one of the program, it only says kleptocracy, but on page 11, there's something called title page, and it does say kleptocracy, a fictional play, as Ms. [00:36:13] Speaker 03: Wall described. [00:36:13] Speaker 03: So I don't even know if this is something we can take judicial notice of. [00:36:18] Speaker 03: I don't think it matters to the reasoning, but I did want to be fair to both Mr. Foster and Ms. [00:36:22] Speaker 03: Wall. [00:36:22] Speaker 02: Thank you very much, Your Honor. [00:36:25] Speaker 02: It made me nervous, but thank you for correcting that. [00:36:30] Speaker 00: Thank you, counsel. [00:36:31] Speaker 00: Thank you to both counsel. [00:36:32] Speaker 00: We'll take this case under submission.