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Case 18-2868, Document 276, 08/09/2019, 2628224, Page29 of 77 identify two instances in which plaintiff's allegations or claims'* are incapable of being proved true or false. Such examples abound. It cannot be proven true or false whether Ms. Maxwell “appreciated the immunity granted”'? under the Epstein plea agreement or whether she “act[ed] as a ‘madame’ for Epstein.” That is because these are plaintiffs counsel’s arguments or opinions. The January 2015 statement asserts that these allegations/claims are “false” or “obvious lies.” That assertion cannot be proven true or false under Steinhilber. The full context of the communication in which the statement appears. This factor “is often the key consideration in categorizing a statement as fact or opinion.” Davis v. Boeheim, 22 N.E.3d 999, 1006 (N.Y. 2014) (internal quotations omitted). In deciding whether a statement is defamatory, “[t]he words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader.” Aronson v. Wiersma, 483 N.E.2d 1138, 1139 (1985); accord Elias v. Rolling Stone LLC, No. 15-CV-5953 (PKC), 2016 WL 3583080, at *6 (S.D.N.Y. June 28, 2016). “It is the duty of the court, in an action for libel, to understand the publication in the same manner that others would naturally do. The construction which it behooves a court of justice to put on a publication which is alleged to be libelous is to be derived as well from the expressions used as tn the context of the J anuary 2015 statement, an “allegation” is synonymous with a “claim.” See, e.g., Maule v. Philadelphia Media Holdings, LLC, No. CIV.A. 08-3357, 2010 WL 914926, at *10 (E.D. Pa. Mar. 15, 2010); see generally Black’s Law Dictionary 68 (5" ed. 1979) (defining “allegation” as “[t]he assertion, claim, declaration, or statement of a party to an action, made in a pleading, setting out what he expects to prove’’), quoted with approval in Martin v. City of Oceanside, 205 F. Supp. 2d 1142, 1147 (S.D. Cal. 2002), aff'd, 360 F.3d 1078 (9" Cir. 2004). BEXHIBIT D, at 4. 1d. 22