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22-7114, Matthew Couch Appellant versus Verizon Communications, Inc.

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et al.

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Mr. Quainton for the appellant.

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Mr. Jassy, Appellee's Verizon Communications, Inc.

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Michael Isaacoff.

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Mr. Kelly, Appellee National Public Radio, Inc.

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Good morning.

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Mr. Quainton, you may approach and proceed when you're ready.

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What are your honors?

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May I please the court?

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We have the pronunciation of your name, right?

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Quainton.

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Quainton, perfect.

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Yes.

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Just one preliminary note.

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If I seem to wobble a bit, that's not nerves or not only nerves.

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I'm recovering from transverse myelitis.

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And the last oral argument I did, I asked for permission to remain seated, which was granted.

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So I'm trying it standing.

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So you will probably see me wobble a bit.

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Don't be concerned about that.

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you feel the need to sit down, do so at any time, and we're somewhat flexible with timing.

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So we'll let you make your argument in the way that is most feasible for you.

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Thank you, Your Honors.

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I appreciate that.

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The core issue in this case is what facts does a limited public figure plaintiff need to allege

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to raise a reasonable inference of actual malice.

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Now, the court below, as you know from our papers, applied an incorrect or misleading standard and said that the plaintiff needs to show at the pleading stage by clearing convincing evidence that there is actual malice.

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And there are other statements in the judge's opinion where he talks about allegations.

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But he repeats that statement, which he made in an earlier case as well.

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And I think that gets off on the wrong foot.

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The question is not what plaintiff needs to show, but what plaintiff needs to allege to raise a reasonable inference.

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And I would suggest that there are

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Three ways of analyzing this question.

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First is what I'll call denial plus.

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The second is editorial decision making.

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And the third is context.

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So denial plus, what I mean by that is if a public figure, a limited public figure plaintiff denies allegations that are made about his speech, that by itself may not be enough to raise an inference of actual malice.

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But when that public figure has a public record of statements, when that public figure is best known for his public statements, when he's best known for his tweets,

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when a reporter analyzing or making assertions about that public figure is not under some sort of a hot news deadline has plenty of time to look at the statements by the public figure when indeed

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The reporter puts in evidence the statements of the public figure when there has been prior litigation in which those statements, I'm referring to the Aaron Rich litigation, where the tweets of the public figure have been thoroughly analyzed.

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That's the plus that I think takes this case away from other cases that, sort of denial cases, for example, TAH, in which there's a self-serving denial on the part of individuals accused of bribery

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But they know what they did.

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And they said we didn't do it.

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That's different from this case, where the denial goes to things that are in the public record.

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Are they all in a permanent public record?

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I'm not that familiar with the technology, like Periscope.

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Or is that something that goes away?

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So Periscope, that's a good question.

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You can get access to Periscope.

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But I think now Periscope has been, if I'm not mistaken, it's been shut down.

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But I believe you can get access to that certainly.

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So you did say that he's best known for his tweets and other kind of memorialized versions of statements.

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Is it in the record that everything that he said publicly is somehow memorialized?

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No, there are frequent statements that it's the comments that he made on social media.

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So when, for example, Issachoff says, what was Matt Couch saying?

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the context makes clear, he's not talking about what Mount Couch may have been saying in a bar room, in a conversation.

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It's what specifically were the tweets?

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And there's no question about that because Isikoff himself puts those tweets at issue and says, look at these tweets.

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And if you look at the tweets, they don't support at all what he says they support.

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So what is the level of diligence when faced with a public figure

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of this character, what is the level of diligence that, in your view, the actual malice standard requires?

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So when there's a public record of actual statements, sort of like the Masson case, when there are actual statements that are made and the reporter has had ample time to review those statements, you can simply compare the statements of the record.

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But so my question is, does the journalist have to

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look at every existing statement.

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That was what I meant by maybe I wasn't clear by what's the level of diligence that's required.

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So I don't think the journalist necessarily has to look at every single one.

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But when the journalist makes an assertion about a statement and the journalist represents that he has reviewed tweets that don't support that statement, I think you can infer actual malice from that.

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It's not as though there's some

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statement of the abstract.

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There are very specific statements that are attributed to couch that is a cough.

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What's at issue with his own tweets?

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I'd like to move on to the second point, which is editorial decision making.

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Um, so the second main way in this case that there is, um, an inference of actual malice is through editorial juxtaposition in particular.

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And the way that works in this case is what is a cough does is he presents, uh, one of his, one of his, uh, his witnesses, one of his interviewees

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And that person makes allegations about horrible things that happened to him, which we can specifically about Mark Muller.

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And then at the end of the litany of horribles that Mark Muller suffered, Mark Muller says, well, who did this?

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It was somebody like Matt Couch.

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And then on cue immediately without skipping a beat, Isikoff cuts to Matt Couch.

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It's like in the Keats line, the very word is like a bell to toll me back to Matt Couch.

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You're listening to this as a listener.

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You hear somebody like Matt Couch did all this horrible stuff.

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And then, boom, Isikoff sends you immediately to Matt Couch.

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And it's like the case that we cite, which is Stanton versus Metro Corp, which is the mating habits of suburban

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teenagers and that's a case in which there was an allegation that teenagers were promiscuous and the photograph on the cover of the story was of a young woman.

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And the inference was clear that this young woman was the type of woman who would engage in these promiscuous acts.

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In fact, that was false.

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She had nothing to do with that.

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And the inference of actual malice arose from that editorial juxtaposition.

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So as to the on this, the Mueller statements, I think part of the response from the other side is sort of take that as given that what was being said was that Matt couch for most of those things played a role.

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And what they say is, but Mueller is the one making those statements.

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And so the question should be, did Itzikoff have obvious subjective reasons to doubt the truth of what Mueller was saying?

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And so what's your argument on that?

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What was the obvious reasons to doubt Mueller as essentially the source of those statements?

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This goes back to the falsity question, that there's absolutely nothing in any tweet that Isikoff has mentioned.

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And he spent years looking at all these tweets.

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This is not a hot off the press kind of story.

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He's had years to look at this.

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Matt Couch has been- No, but I think the question is, assuming that the only information that Isikoff is relying on is the identified tweets,

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And then the question is, given what Mueller says in the recorded interview, what is wrong with Isikoff reasonably crediting Mueller's report that Couch was one of the people involved?

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Because Mueller is actually making a comment about the social media.

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He gets the information.

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Well, he's making comment partly through witnesses and partly through looking at them himself.

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But here, he's making a comment through a witness.

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I take that to be the gist of the question, not that he's relying on Mueller and what's wrong with that.

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And I know in your brief, I sort of had a similar question.

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You talk about an anonymous witness in reference to Mueller saying that his girlfriend

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had found and reported or showed to him some tweets.

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But the witness here is not an honest witness, is Mueller.

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Right.

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But he's reporting what is in the public record.

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He's not just saying, you know, there's stuff out there generically.

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He's saying there are tweets that exist.

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in which my head was superimposed on the body of Jeffrey Dahmer.

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There are tweets that exist that superimpose me on Dexter.

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Those tweets don't exist.

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So when we come back to the first one, how do you prove a negative?

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Sort of denial plus.

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Those tweets do not exist.

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Couch says they don't exist.

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We don't know whether those tweets exist or not.

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And they're not directly attributed to Couch.

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You're saying that Couch's Twitter account, they don't exist?

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How just sort of again, I'm coming back to the pleading stage.

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Right.

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I'm coming back to what we have juxtaposition.

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Right.

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So just raise an inference that is a cough knew this was new.

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These statements were not true.

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And I think that inference is raised not just by Matt couches now.

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That's why I come back to this denial plus.

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But by the fact that he has and says he has reviewed extensively the record, he looked at thousands of tweets.

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He's put dozens of tweets in the record.

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None of those support.

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And you also had a third and the third point.

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So the third point is context.

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And so I think if you look at the overall context in all of the cases, the defamation case, I think context is crucial in here.

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The context is that Isikoff has a hobby horse.

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And his hobby horse is that the Russian Secret Service planted a story that Hillary Clinton tried to assassinate Seth Rich.

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And what purpose of conspiracy land is, overarching purpose, is to put that theory on a face.

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And the face that's chosen is Matt Couch.

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Even though he never said anything about that, it doesn't follow from anything he's ever said.

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It's not reasonably derived from anything he ever said.

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But it's a convenient face for Isikoff to use to push his story.

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So when Isikoff says in his NPR interview, for example, that Matt Couch and the internet horde were saying, when he says were saying, he means their tweets say that

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Hillary Clinton and Joe Capone were conspiring to kill Seth Rich.

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There's no ambiguity there.

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It's clear from the context what Isikoff wants to do is present a person behind these tweets.

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And just one point on that, the only person named in the NPR interview is Matt Couch.

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And in the Conspiracyland podcast, there are anonymous voices that you hear at the very beginning, which people who know these voices know.

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One is Alex Jones.

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One is Roger Stone.

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But they're not mentioned by name.

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Stone is mentioned separately, but Jones is never mentioned.

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Couch is the one who's really focused on.

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So I just like, I think my time is almost up.

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My time is almost up.

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Do I have?

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Your time has actually expired.

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Had you reserved any time for rebuttal?

[00:13:08] Speaker 02:
I reserved two minutes.

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We'll give you the two minutes.

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Thank you.

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Morning, Mr. Jassy.

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Good morning, Your Honor.

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May it please the court.

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I'd like to start with counsel's third point about the context of this case.

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The podcast in this case are about conspiracies advanced, discussed, and debunked involving the murder of Seth Rich, just a few blocks from this courthouse.

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Plaintiff and appellant Matthew Couch relentlessly attacked Seth Rich's brother, openly accusing Aaron Rich of participating in a cover-up of his own brother's murder.

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After undisputedly inserting himself into the controversy and admittedly falsely accusing others of hurtful conspiracies, we're here because Mr. Couch, without any sense of irony, hypocrisy, remorse, or humility,

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cannot handle that someone else challenges his conduct and his conspiracy theories.

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That's the conduct.

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That's the context of this case.

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Here's the problem with counsel's argument.

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It is coming at this appeal from the wrong direction.

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Mr. Couch invents implications from the podcast and then asserts that they are false.

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But even if all of those statements and implications exist, and even if they're false, which we do not concede, that does not mean that Mr. Couch sufficiently alleged actual malice.

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He did not.

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With the actual malice inquiry, we're not examining the sufficiency of the allegations of publication or falsity.

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The actual malice discussion by defendants and the rulings in the district court orders already assume arguendo

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that allegedly defamatory statements and implications were both published and that they were false.

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The issue is whether Mr. Couch alleged, as this court requires, that for each defamatory statement, there is a factual basis to conclude that defendants made each such statement with knowledge of falsity or reckless disregard for the truth.

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Mr. Couch tried twice to convince the district court that he made adequate findings, excuse me, adequate factual allegations of actual malice.

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But the district court correctly concluded that he failed both times.

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The district court systematically rejected each of Mr. Couch's actual malice arguments for multiple reasons and nothing, nothing that's been advanced to this court by counsel shows any error in the district court's reasoning on any of these points.

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That failure is conspicuous and it should be the end of the inquiry, the end of the case.

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does not defend his duty to disprove actual malice at any stage of a defamation case.

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His plaintiff's duty at the pleading stage to adequately allege actual malice.

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Mr. Couch relies heavily on his own tweets as if they were the full exclusive universe of available information.

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But the podcast is not myopically focused on Mr. Couch's tweets.

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And as counsel conceded at oral argument just a few minutes ago, it is not the full universe.

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of everything that Mr. Couch has said on the Seth Rich conspiracy or the issues at hand.

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Defendants were not required to exclusively rely on or even read all of Mr. Couch's tweets, and nothing in the podcast or even in the allegations of the proposed first amended complaint rests solely on the tweets.

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Defendants had first-person interviews

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including with Joe Capone, Mark Mueller, and prosecutor Deborah Sines, as reflected in the judicially noticeable podcast.

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The interviews themselves undermine the conclusory allegations of actual malice.

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In the briefing, Mr. Couch misclosed the podcast.

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Direct the court to volume one, pages 114 to 116 of the joint appendix.

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There, it's quite clear and can be heard on the audio version of the podcast.

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It's Joe Capone, not Mr. Isikoff, that says couch asserted that Mr. Capone engaged in, quote, secret meetings with, quote, Hillary.

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It's Mark Mueller, not Mr. Isikoff, that said that an unspecified day

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circulated, doctored photographs, and that someone like Matt Couch had caused him distress.

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Those are words that come from Mr. Compone and Mr. Mueller.

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Is it, in your view, I mean, you start from the premise that, you know, we assume that the statements are false and even assuming that the actual malice falls down.

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Do we not need to somewhat analyze the assertions

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and whether Mr. Couch's interpretations are, you know, exclude other reasonable interpretations before applying actual mouse, because when you're testing the relevant information that the journalist has, it's gonna be in relation to what statement or the plausibility of what the witness is telling the journalist.

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You kind of need to grapple with what the,

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journalist is saying and what the witness is saying to the journalist and they're quite divergent descriptions of that in the briefing.

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I agree, Your Honor.

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That's why we have these alternative arguments.

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I don't think that these implications that Mr. Coucher drawing are reasonable.

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They're not reason.

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And so that's a reason that we can dispose of those particular statements and alleged implications as supporting a defamation claim at all.

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But

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When we're just looking at actual mouse, which is what the district court focused on, even if those implications existed, even if they were reasonably drawn, which we don't think is the case, we still have to determine whether or not there was a subjective basis and holding in the speaker's mind that they had actual mouse at the time of publication.

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And there's not support.

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I see that my time has expired.

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May I briefly conclude?

[00:19:58] Speaker 05:
Let me ask a question or two.

[00:20:01] Speaker 05:
Imagine a case like this one, according to you, where there's no direct knowledge or smoking gun evidence of what the speaker knew.

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Can there ever be facts from which we can reasonably infer malice?

[00:20:18] Speaker 05:
Yes.

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What would that look like?

[00:20:21] Speaker 06:
Well, there would there could be a collection of situations, for example, if there was a denial by the plaintiff, which we don't have here, there was it's it's clear from the podcast that Mr. Couch, there were attempts to interview him.

[00:20:37] Speaker 06:
He never disputes that.

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So that would be a starting point.

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If there's a deny, he talks, counsel talks about denial.

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Plus, there was never even a

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That's one thing that could lend itself toward a finding of actual malice.

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Taken into context, other evidence that would show that information was presented to the journalist or whoever the speaker might have been that shows these are what you're saying is false.

[00:21:05] Speaker 05:
So for example, that's the kind of smoking gun or direct evidence, but I'm imagining a scenario where there's not that direct evidence, but we're kind of inferring malice.

[00:21:14] Speaker 05:
Do you think that that's possible?

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I guess I maybe I was jumping ahead because when I was thinking of a smoking gun, I was thinking of someone who may have actually communicated.

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And this does happen from time to time.

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I know this is false.

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I'm going to say it anyway or something along those lines.

[00:21:30] Speaker 06:
What I'm thinking of is a situation like the Hart Hanks versus Connaughton case from the U.S.

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Supreme Court where evidence was presented or information was presented to the defendant and the defendant out of reckless disregard for the truth basically turned his or her back on that evidence and walked away from it.

[00:21:50] Speaker 06:
That is another, I see what you're saying though.

[00:21:54] Speaker 05:
That sounds like direct evidence, but I think it's fair enough and it's likely not.

[00:21:59] Speaker 05:
My question is not likely.

[00:22:04] Speaker 05:
I think it's more of a hypothetical than it is describing this case.

[00:22:07] Speaker 06:
I think it is a hypothetical.

[00:22:09] Speaker 06:
And I think that the way the district court broke down actual malice is really telling.

[00:22:15] Speaker 06:
And the fact that that's not directly addressed in the briefing is really telling.

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The district court went through and found multiple bases to discount any evidence or any, excuse me, any allegations

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efficient allegations.

[00:22:31] Speaker 05:
At this stage of litigation, do you think that the case would come out differently if the standard were not actual malice?

[00:22:38] Speaker 06:
No, I don't think so, because you've still got the situation.

[00:22:42] Speaker 06:
I mean, I think it is actual malice because he's a limited public figure, et cetera.

[00:22:46] Speaker 06:
But you've still got a situation where Mr. Isikoff is asking questions and getting information back.

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The information he's getting back from Mr. Capone is

[00:22:56] Speaker 06:
I that Mister couch said that there were secret meetings going on those are the words of Mister coupon that who are the secret meetings with Hillary again the word to Mister on so from the defendant's perspective even just looking at those particular statements or implications that are at issue, you know, there's others that they're talking about even there.

[00:23:18] Speaker 06:
Why would anybody in that situation, in a defendant situation, Mr. Isikoff's position, think that that was false when you've got a first-person, non-anonymous, credible source saying, this is what happened to me.

[00:23:32] Speaker 06:
This is what I experienced.

[00:23:35] Speaker 06:
There's no getting to another question, but are there any obvious reasons?

[00:23:39] Speaker 01:
Just on the witnesses, so your brief argues in some detail about the Capone

[00:23:47] Speaker 01:
statement that the cover-up statement was substantially true as to Capone.

[00:23:52] Speaker 01:
What about the cover-up statement as to Mark Miller?

[00:23:58] Speaker 01:
Do you argue or what is your argument that that is substantially true and that Scott had reason to so conclude?

[00:24:08] Speaker 06:
Well, I don't think we necessarily were pausing a substantial truth argument at this stage with respect to Mr.

[00:24:17] Speaker 06:
We are with respect to at least one of the statements regarding Mister on that he was engaged in a cover-up that can be found in the record that Mister Cal did express that but the substantial truth arguments as to Mister Mueller we are.

[00:24:31] Speaker 03:
I think the question is about the statement that Capone and Mueller were involved in a cover-up and the question is you have a tweet

[00:24:40] Speaker 03:
suggesting that that involves Capone, but through an actual malice lens, what is your argument that there was no actual malice in adding Mueller to that statement?

[00:24:52] Speaker 06:
Well, I don't think there is a statement that says that.

[00:24:54] Speaker 06:
First, I think that what we're talking about is whether or not there's a reasonable implication being made that Mr. that Mr. Mueller was involved in a couple.

[00:25:07] Speaker 06:
And

[00:25:08] Speaker 06:
If we're looking at that particular situation, first of all, I don't think there's a verifiable statement back there because we're talking about the issues concerning the entire debate and conspiracy theories surrounding this issue.

[00:25:24] Speaker 06:
So there's a lot of discussion about that.

[00:25:27] Speaker 06:
With respect to Mr. Mueller specifically though,

[00:25:34] Speaker 01:
whether or not they were involved, whether or not Mr. Mueller was involved in a cover-up, I don't think that that's necessarily directly implied by the... So just to focus in, the plaintiff's allegation is that he has been defamed by having been, by Isikoff saying that

[00:26:03] Speaker 01:
Couch falsely accused others of complicity in a cover-up.

[00:26:11] Speaker 01:
And in the Conspiracyland podcast, Isikoff says, he talks about Couch's apology to Mr. Rich, Aaron Rich.

[00:26:25] Speaker 01:
And then he says he made no reference to those like Mueller and Capone, who he had also claimed.

[00:26:31] Speaker 01:
were part of a supposed Sethridge cover-up.

[00:26:34] Speaker 01:
And so the question is, what is Isikoff's basis for having said that Couch claimed that Mueller was part of a cover-up?

[00:26:49] Speaker 06:
Maybe I'm thinking of something else, but I don't think that the apology had happened yet by the time the

[00:27:00] Speaker 06:
podcast.

[00:27:01] Speaker 06:
I think it came out later but it but in any event to answer your your question.

[00:27:07] Speaker 06:
The the entire discussion of Mister Miller revolves around the concept that he was part of or somehow complicit in Seth rich murder.

[00:27:21] Speaker 06:
There's there's no other reason to be talking about it.

[00:27:24] Speaker 06:
But it's all part of the same discussion about the years.

[00:27:30] Speaker 06:
I think my time has expired unless there's any further questions and urge the court to affirm district court's ruling.

[00:27:39] Speaker 06:
Thank you, Your Honor.

[00:27:51] Speaker 04:
Good morning, Your Honors.

[00:27:52] Speaker 04:
May it please the court?

[00:27:53] Speaker 01:
Morning, Mr. Kelly.

[00:27:57] Speaker 04:
The district court's ruling, as it applies to NPR, was correct for many reasons, as we explained in our brief.

[00:28:03] Speaker 04:
I want to focus on just the most important, and that's the fact that Mr. Couch has not pleaded any facts that would plausibly indicate actual malice on the part of National Public Radio.

[00:28:21] Speaker 04:
Now as your honors know, NPR's involvement in this whole situation was very attenuated.

[00:28:28] Speaker 04:
All NPR did was air an interview program where host Dave Davies interviewed Mr. Isikoff about Mr. Isikoff's podcast.

[00:28:39] Speaker 04:
And

[00:28:40] Speaker 04:
Mr. Couch only identifies one statement in that entire interview which went more than 30 minutes as potentially defamatory.

[00:28:52] Speaker 04:
And that is the only mention of Mr. Couch's name in the entire broadcast.

[00:28:57] Speaker 04:
The host Dave Davies never mentions Mr. Couch's name and never asks for follow-up or explains actually who that might be.

[00:29:14] Speaker 04:
Mr. Couch in his briefing posits three theories as to why NPR would have actual malice.

[00:29:22] Speaker 04:
None of them would plausibly establish actual malice even if they were supported by well-pleaded factual allegations.

[00:29:29] Speaker 04:
which they are not.

[00:29:31] Speaker 04:
The first and the only one that he actually pleaded below was the theory based on a Washington Post article that came out after the beginning of the rollout of the podcast that said the Russians actually were not the first to post this Hillary Clinton murder theory online.

[00:29:51] Speaker 01:
You argued in your brief that, remember we're at the pleading stage, that because Mr. Couch can't actually plead that Dave Davies read this Washington Post article, it's not a reasonable inference that that's knowledge that is fair to impute to Mr. Davies.

[00:30:10] Speaker 01:
That seems, at the pleading stage, pretty challenging.

[00:30:14] Speaker 01:
I mean, if a major newspaper in the exact market where

[00:30:19] Speaker 01:
a leading journalist is working, says something, and that's putting aside the bite of what's said or the alleged bite.

[00:30:30] Speaker 01:
But just the position that in analyzing actual malice, it's not at the pleading stage reasonable to think that information published in the newspaper would, in that market,

[00:30:42] Speaker 01:
would not be known by a journalist seems to me a new step and perhaps unfair.

[00:30:51] Speaker 04:
Perhaps, but I don't think that's the standard.

[00:30:55] Speaker 04:
I think the standard is you have to have facts that would plausibly suggest

[00:31:02] Speaker 04:
uh, actual malice.

[00:31:03] Speaker 04:
And if you're relying on an article, even an article in a publication like the post that is very well read and in this market, particularly among journalists, uh, I would say there would have to be something more than just the post published this article.

[00:31:20] Speaker 01:
I don't know.

[00:31:20] Speaker 01:
I mean, to me, the bigger issue with the post article and that the way the plaintiff relies on it is, um, it just says, as you pointed out in

[00:31:32] Speaker 01:
your opening remarks that Russians weren't the first, but that they were, it confirms that they were involved and kind of doesn't have the truth undermining impact that the plaintiff might ascribe to it.

[00:31:50] Speaker 01:
And that seems to me a more central issue, but the notion that if it were a major

[00:31:57] Speaker 01:
piece of information that undercut what is a cough was saying about couch.

[00:32:06] Speaker 01:
Actual malice relevant leading stage one might think so.

[00:32:10] Speaker 04:
Yeah, potentially, but

[00:32:13] Speaker 04:
You know, but that's not this case.

[00:32:14] Speaker 04:
And you're on your finger on one of the big problems with the post article as evidence of actual malice in that it doesn't mention Mr. Couch at all.

[00:32:24] Speaker 04:
It doesn't say that Russians did not spread the Hillary Clinton murder theory.

[00:32:29] Speaker 04:
It just says that they weren't necessarily the first.

[00:32:32] Speaker 04:
And it's not relevant to whether or not Mr. Couch accused Joe Capone of meeting with Hillary Clinton or her aides at the White House.

[00:32:46] Speaker 04:
It's not probative of actual malice about the allegedly defamatory state.

[00:32:53] Speaker 01:
It seems like the plaintiff is using it to generally

[00:32:58] Speaker 01:
say that Mr. Davies should have had questions about Mr. Isikoff's journalistic integrity and motives in this situation, and he can respond to that on rebuttal.

[00:33:09] Speaker 01:
But you said that Mr. Couch doesn't seek reinstatement of the tort claims, the false lie, potential infliction of emotional distress, tortious interference with business relations.

[00:33:21] Speaker 01:
Those were pled against NPR in the amended complaint, and I take your position to be that's the only one we should be reviewing.

[00:33:28] Speaker 01:
So I'm not sure that I follow that argument in your briefing.

[00:33:33] Speaker 01:
It's in a footnote.

[00:33:36] Speaker 01:
Basis for that.

[00:33:37] Speaker 04:
The basis for that is that in his opening brief, Mr. Couch did not mention those claims as against NPR.

[00:33:47] Speaker 01:
Because he doesn't seek reinstatement, but they're in them.

[00:33:51] Speaker 04:
They are indeed in the proposed First Amendment.

[00:33:54] Speaker 04:
First amended complaint, that's correct.

[00:33:57] Speaker 04:
But our position is that, of course, because he cannot make out actual malice and because his defamation claims fail for a number of reasons as against NPR, he can't make out any of his other claims as well because they are all premised on defamation.

[00:34:16] Speaker 04:
And as this court has said several times, you can't end run the requirements of a defamation claim by leading it as a negligence claim or something else.

[00:34:27] Speaker 04:
Thank you.

[00:34:32] Speaker 04:
The other two theories of actual mouse that, oh, I'm sorry.

[00:34:35] Speaker 04:
My time has expired.

[00:34:38] Speaker 04:
I apologize.

[00:34:38] Speaker 04:
Thank you.

[00:34:44] Speaker 01:
Mr. Quinton, we're giving you two minutes of time for rebuttal.

[00:34:48] Speaker 01:
And just before I forget that.

[00:34:50] Speaker 01:
I take both sides to be really looking at the amended complaint.

[00:34:55] Speaker 01:
And I think you were pretty clear, but I just want to confirm in your brief that that's where the best case is made.

[00:35:03] Speaker 01:
If we're looking at this through the lens of the district court's denial for the filing of that complaint as futile, you'd rather have us review that and assume that if that stands, the case goes forward.

[00:35:17] Speaker 01:
If it doesn't, we don't have to look separately

[00:35:20] Speaker 02:
That's correct.

[00:35:21] Speaker 02:
And I think the district court clearly incorporates his prior reasoning into his analysis of the first amended complaint.

[00:35:28] Speaker 02:
So since it's de novo review, I think the best approach is look at the first amended complaint.

[00:35:33] Speaker 02:
look at the allegations, see if they state a claim on which relief can be granted.

[00:35:37] Speaker 02:
If so, we proceed.

[00:35:38] Speaker 02:
If not, we don't.

[00:35:41] Speaker 03:
So I don't want to derail your rebuttal, but I did want to just get your position on one of the last things Mr. Kelly said, which was essentially that if the defamation claims fail, all the other claims also fail.

[00:35:53] Speaker 03:
Do you disagree with that?

[00:35:54] Speaker 02:
I do disagree with that.

[00:35:57] Speaker 02:
I disagree with that with respect to intentional interference with economic advantage.

[00:36:03] Speaker 02:
I don't think that's a defamation claim.

[00:36:05] Speaker 02:
We do conclude at the end of our reply with a reference to Judge Calabresi's decision in the other Fox case in which she suggests that negligent supervision is available even if defamation fails.

[00:36:18] Speaker 02:
But I think the central issues are.

[00:36:21] Speaker 02:
the actual malice ones.

[00:36:22] Speaker 02:
And I just wanted to point, Your Honors, to the record site.

[00:36:25] Speaker 02:
It's JA 641, where there's a reference to the Mark Mueller cover-up statement.

[00:36:31] Speaker 02:
And that was in episode 6.

[00:36:32] Speaker 02:
So it's after the alleged retraction.

[00:36:35] Speaker 02:
I think that Mueller issue highlights a problem with Isikoff.

[00:36:41] Speaker 02:
Because in Your Honor's questioning of me, the thrust was, well, he's just relying on what witnesses are saying.

[00:36:47] Speaker 02:
But then he comes up with something that the witness himself never said.

[00:36:50] Speaker 02:
There's no allegation that Mueller ever said that there was any allegation that he was being accused of being in a cover up.

[00:36:55] Speaker 02:
He just sort of made that about a full box.

[00:36:57] Speaker 05:
What's the specific pleading in the complaint that is cough knew that Mueller was not involved?

[00:37:05] Speaker 02:
The pleading in the complaint is the same one as with all of them, that there's a reasonable inference of actual malice.

[00:37:12] Speaker 02:
And the reasonable inference here comes from the fact that elsewhere, the argument is, well, he's just relying on what a witness said.

[00:37:20] Speaker 02:
Here, the witness didn't say this.

[00:37:22] Speaker 02:
So you can't have that argument.

[00:37:23] Speaker 02:
There's no textual basis for it.

[00:37:25] Speaker 02:
There's no witness statement basis for it.

[00:37:26] Speaker 02:
It just comes out of thin air.

[00:37:28] Speaker 02:
And I think we're entitled to discovery on that.

[00:37:30] Speaker 05:
If we imagine we're writing an opinion in your favor,

[00:37:33] Speaker 05:
And we're going to begin a sentence like this.

[00:37:36] Speaker 05:
The strongest pleaded fact that offers an objective nonconclusory basis for the defendant's state of mind is.

[00:37:47] Speaker 02:
So.

[00:37:52] Speaker 02:
I would point to three.

[00:37:53] Speaker 02:
I think the Mueller cover-up is one.

[00:37:55] Speaker 02:
I think the juxtaposition argument is another one, because if you look at the juxtaposition argument, there's a tenuous assertion by Mueller.

[00:38:05] Speaker 02:
Mueller says, well, somebody like Matt Couch.

[00:38:08] Speaker 01:
And then- I don't want to interrupt.

[00:38:10] Speaker 01:
I was going to follow up, please.

[00:38:11] Speaker 01:
Answer to your question.

[00:38:12] Speaker 01:
But the question was, what's the strongest pleaded fact

[00:38:18] Speaker 01:
in a nonconclusory way, and you said the cover-up, you have to be much more concrete, bring it way down.

[00:38:26] Speaker 01:
What is the strongest pleaded fact that supports defendants' knowledge, actual awareness, and therefore reckless disregard of contrary information with regard to something that was said?

[00:38:44] Speaker 02:
I think the strongest well-pleaded fact is in the NPR interview, when Isikoff takes a statement that Joe Capone made, where Joe Capone said in his statement, it must have been a thing about Hillary Clinton.

[00:39:00] Speaker 02:
And Isikoff twists that, uses the same word, must have.

[00:39:04] Speaker 02:
But now, all of a sudden, the must have is attributed to couch.

[00:39:08] Speaker 02:
Couch must have.

[00:39:12] Speaker 02:
couch and the Internet horde say, why is Joe Capone going to the White House?

[00:39:16] Speaker 02:
He must have been consulting with somebody else.

[00:39:18] Speaker 02:
Aids to Hillary Clinton.

[00:39:19] Speaker 02:
So now that's an assertion by couch.

[00:39:23] Speaker 02:
that Isikoff himself had previously elicited from Capone.

[00:39:32] Speaker 02:
He's twisting what Capone says, putting it in the mouth of Couch when that's not what the underlying witness himself had said.

[00:39:39] Speaker 02:
There was no statement by Isikoff that Couch had said what he's alleged to have said in the internet, in the NPR interview.

[00:39:49] Speaker 01:
And just if I could just- And anything else, is that that's your best?

[00:39:53] Speaker 02:
me that that is that that's that's the best one because he clearly twisted the juxtaposition I think is also as I said I think that to me that's very strong because I asked whether juxtaposition has there been a case where actual malice was the standard and the court said juxtaposition is enough to sustain actual malice

[00:40:13] Speaker 05:
Uh, yes, the standard case in the first circuit.

[00:40:17] Speaker 05:
I thought that that was not I could easily be misremembering, but I thought that that was not a public figure.

[00:40:23] Speaker 05:
And so maybe actual malice wasn't the standard there.

[00:40:27] Speaker 05:
It was a stock photo of a kind of random teenager.

[00:40:32] Speaker 02:
My recollection is it was actual mouse.

[00:40:33] Speaker 02:
I could be I could be mistaken.

[00:40:35] Speaker 02:
I think in the

[00:40:37] Speaker 02:
a white versus fraternal order of police.

[00:40:41] Speaker 02:
There's a reference to a Southern Air case that's cited in there, and it says, well, here's what would be actual malice.

[00:40:51] Speaker 02:
If the reporter had actually put a picture of a South African connection superimposed on a picture of Southern Air, that juxtaposition would create the inference that

[00:41:04] Speaker 02:
that the Southern air had a connection to South Africa.

[00:41:08] Speaker 02:
And that would rise to the level of actual malice.

[00:41:10] Speaker 02:
So, and I think in that opinion, there's other discussion of juxtaposition, editorial juxtaposition.

[00:41:16] Speaker 02:
If you think about juxtaposition.

[00:41:18] Speaker 01:
So wait, the juxtaposition though, goes to the nature of the statement, not to whether it's true or false.

[00:41:29] Speaker 01:
I mean, if you had tons of information that Southern air was in fact,

[00:41:33] Speaker 01:
in cahoots with South Africa and you had that juxtaposition, no problem.

[00:41:38] Speaker 01:
So the message itself is not evidence of actual mouse or not.

[00:41:48] Speaker 02:
Well, I guess the thing about juxtaposition and editorial decisions generally is by definition, they're conscious decisions.

[00:41:56] Speaker 02:
That's what the reporter is doing.

[00:41:57] Speaker 02:
He's making a choice.

[00:41:58] Speaker 02:
He's thinking about it.

[00:41:59] Speaker 02:
This is what I want to convey.

[00:42:01] Speaker 02:
I'm putting these words here.

[00:42:02] Speaker 02:
I'm putting this image here.

[00:42:04] Speaker 02:
I think from that conscious choice, you get to an actual inference that he knows what he's doing and that if it's false, it's deliberately false.

[00:42:14] Speaker 02:
So there are no further questions.

[00:42:19] Speaker 02:
The court should reverse the judgment of the court below.

[00:42:22] Speaker 01:
Thank you.

[00:42:22] Speaker 01:
The case is submitted.