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John T. Reed’s opposition to Russ Whitney’s Spring 2004 motion for an emergency preliminary injunction to shut down Reed’s Web site 1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION

WHITNEY INFORMATION NETWORK, INC.,
a Florida Corporation, and RUSS WHITNEY,
an individual,
DEFENDANT’S OPPOSITION TO vs. PLAINTIFF’S MOTION FOR EMERGENCY PRELIMINAjY INJUNCTION
JOHN T. REED, an individual, CASE NO.: 03-60195-CIV-MARRA

Defendant.

Defendant, John T. Reed, pro se files this DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR EMERGENCY PRELIMINARY INJUNCTION.
OVERVIEW
1. This is strictly a libel case.
2. Whitney’s use of tortious interference, trademark, and unfair competition causes of action are a smoke screen designed to prevent Court from recognizing the First Amendment nature of this case.
3. John T. Reed is a media defendant. Russ Whitney and Whitney Information Network, Inc. are public figure plaintiffs.
4. United States courts do not enjoin libel. It is unconstitutional prior restraint.
5. Whitney’s moving papers failed to prove that a single statement about him at Reed’s Web site was false.
6. Any loss of business that Whitney has suffered because of Reed’s Web site is because of accurate reports of Whitney’s own bad behavior, not illegal speech by Reed
7. John T. Reed generally does not compete with Russ Whitney or his companies.
8. There is no emergency. Whitney’s name has been at Reed’s Web site since 1997. The vast majority of the alleged defamatory articles were published months or more than a year ago.
9. During the seven years that Russ Whitney’s name has been mentioned at Reed’s Web site, there has not been a single instance of a person being confused into thinking that Reed’s Web site was Whitney’s Web site.
10. It is illegal to use another’s name to pretend to be that person. It is not illegal to use another’s name to comment about him.
11. As far as Reed knows, all statements about Whitney or his companies at Reed’s Web site are either accurate or opinion.
12. Plaintiffs will not prevail in this case because they cannot prove that any factual statements at Reed’s Web site are false, let alone meet the Times v. Sullivan standard of clear and convincing evidence that Defendant knew they were false or published them with reckless disregard for whether they were false.
13. This injunction would instantly wipe out 95% of Defendant’s income causing him the most serious financial harm.
14. Plaintiffs’ allegations of injury are vague hearsay or speculation.
15. Plaintiffs admit they lack evidence of damage amount.
16. Russ Whitney’s companies take approximately $100 million per year from consumers. Because of intimidation tactics by Whitney, Reed’s Web site is virtually the last source of independent information about Whitney and his companies. Elimination of that site’s Whitney information will cause great harm to the public interest.
MEMORANDUM OF LAW
17. This motion for an emergency preliminary injunction is a First Amendment prior-restraint case. Defendant Reed’s Web site and other publications are protected by the First Amendment’s freedoms of speech and press. Prior restraint of alleged libel is almost never granted in the United States. “One principle long adhered to in defamation cases is that courts will not enjoin libels.” Sack on Defamation §10.6.1 In the classic New York Times Co. v. United States case [403 U.S. 713 (1971)], the Supreme Court refused to grant the U.S. government an injunction to stop publication of the top secret “Pentagon Papers” during a time of war.
18. Russ Whitney and his publicly traded Whitney Information Network, Inc. (Stock symbol “RUSS”) are public figures as defined by the Times vs. Sullivan line of U.S. Supreme Court decisions. They have acknowledged that by alleging “actual malice,” in all their complaints.
19. John T. Reed is a journalist. He is a member of the National Association of Real Estate Editors and the Investigative Reporters and Editors Association. He is the author and publisher of Real Estate Investor’s Monthly, a nationwide newsletter.
20. The gravamen of all of the defamation and tortious interference causes of action in this litigation is media libel of a public figure. The nature of the cause of action is determined by the facts and the statutory and case law. Plaintiffs cannot deny Defendant defenses permitted by statute and/or case law by simply changing the name of the cause of action.
21. “…we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” (Times v. Sullivan, 376 US 254. at 270) Sack on Defamation notes at 1.2.2, “Merely protecting the ‘truth’ as determined by a judge and jury insufficiently protects such expression.” The Times vs. Sullivan decision continues, “[E]rroneous statement is inevitable in free debate, and…must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive. ” Ibid at 271)
22. The salient finding of Times vs. Sullivan was that in public-figure plaintiff-media defendant defamation cases:
• the plaintiff, not the defendant, bears the burden of proof
• the standard of proof is “convincing clarity” which is a higher standard than the usual “preponderance of the evidence”
• the plaintiff must prove “actual malice”
23. As used in Times vs. Sullivan and related cases, “actual malice” is a term of art. It means, “with knowledge that [the complained-of statement] was false or with reckless disregard of whether it was false or not.” (Ibid. at 279) Sack on Defamation comments at 1.2.2, “The choice of the common law term ‘actual malice’ to describe the new standard was unfortunate. It had been used previously to refer to ‘ill will’ or ‘bad motive’ not knowing or reckless falsity.” Whitney’s counsel Rothstein repeatedly uses words like “malicious” in an apparent attempt to mislead the Court as to the proper standard.
24. Reed does not operate Google or any other search engine and therefore is not responsible for what that or any other search engine does.
25. The way search engines rank search results are generally secret, proprietary, and ever-changing. Neither Whitney nor Reed knows how search engines rank results.
26. Whitney’s lengthy explanation to the Court about how search engines rank results is pure speculation.
27. It is possible that Google and other search engines have deliberately programmed their search rankings to insure that searchers get not only information from the Web domain of the person being searched, but also information about that person from other independent domain names. In other words, they will not permit Russ Whitney to have the monopoly on Russ Whitney information he seeks as long as there are any other search results that do not have www.russwhitney.com in their Web page address. The supervisor of the programmers may have said, “Make sure that the first page of the search results includes both the Web site of the person or company being searched as well as stuff from other domains. We don’t want a search for Enron to have nothing but Enron.com pages on the first page of the results.”
28. Plaintiffs would have the Court believe that every time someone types the words Russ Whitney into a search engine they are only trying to find Russ Whitney-owned Web pages. Web searchers generally want both the Web site owned by the person or company being searched as well as independent Web pages that are about the person or company being searched. In many cases, the searcher has already heard a lot about Whitney from a Whitney infomercial or Whitney-authored books and is specifically doing an Internet search to get the other side of the story, if any.
29. Plaintiffs claim Reed is diverting Whitney customers to Reed. That does not appear to be happening. This litigation was first threatened on December 1, 2000. Reed’s Web site said little about Whitney at that time. According to its S.E.C. filings, Whitney Information Network, Inc.’s gross income has been:
2000 $32,859,857
2001 $42,157,740
2002 $62,145,237
2003 $94,958,170
30. Plaintiffs claim they are losing both customers and business deals because of what was at Reed’s Web site during these years. But their annual reports filed with the S.E.C. say they have greatly expanded sales through both increased numbers of customers and various deals in which they acquired other companies.
31. No diversion is evident in the gross sales of Whitney Information Network, Inc.
32. With regard to the claims of losing customers and business deals, conspicuous by their absence are:
• affidavits from the persons in question
• names of the persons in question
• identification of the specific statements on Reed’s Web site that allegedly caused the change of heart
In fact, there could be many innocent explanations for the lack of the above evidence as well as for customers or businesspersons changing their minds.
To be sure, there is much in Reed’s Web discussion of Whitney and his companies that would inspire many to take their business elsewhere and appropriately so. That is precisely what the First Amendment was intended to do—provide members of the public with “news they can use” to make better decisions.
33. Whitney has done many very bad things in his life. He pled guilty to second degree robbery and served a prison sentence for that crime. Whitney emphasizes that was 30 years ago and claims to have “turned his life” around since. No doubt some people will accept that, but others will prefer to do business only with non-felons who never needed to “turn their lives around.”
34. Whitney also behaved badly in a hit-and-run accident, a paternity suit, and was the target of a number of attorney general and other government agency actions. These are all matters of public record, not inventions of Reed. If Reed were to remove everything about Whitney at his Web site except public domain privileged government and other public documents, the effect on Whitney’s prospective customers and business partners would be the same. The public facts are quite enough to cause Whitney to lose some sales or business deals. Reed’s original comments about Whitney do not change the impression left by Whitney’s own disgraceful long-term behavior.
35. Much of what Reed has drawn attention to regarding Whitney is not illegal, but merely unflattering and hard-to-read or understand or in hard-to-find places. For example, Reed points out that Whitney Information Network, Inc. has more liabilities than assets and has a cumulative net loss for its entire existence. These figures are buried in S.E.C. filings normally. Although S.E.C. filings can be accessed on the Internet, they are part of what’s called the “invisible Web.” That is, one does not find the contents of S.E.C. filings through a Google search. Rather, one must do a search within the S.E.C.’s EDGAR Web site. Reed copied that information regarding Whitney Information Network, Inc. to the searchable or “visible” Internet. It should not surprise anyone that some people who were considering doing business with such a company would change their minds upon learning that the company has never gotten out of the red.
36 Another valid service to the public Reed has provided is to relate bits of information about Whitney that are far flung from each other but when brought together give an adverse impression of Whitney. For example, Whitney avoided paying most of the hit-and-run judgment at age 33 by threatening to declare bankruptcy and persuaded a Florida judge to let him pay only $800 a month in child support when he was 42. These two facts take on added significance when related to Whitney’s many claims that he “was a self-made millionaire at age 27” or “made his first fortune in Upstate New York,” which he left at age 27. The fact that Whitney is either misleading the public as to his wealth or misleading court or a judgment creditor about his wealth is valuable information for the public. It would not be surprising if persons considering doing business with Whitney were turned off by those factual revelations. Nor would such changes of heart mean that Reed had libelled Whitney or his companies.
37. Reed also saw Whitney’s claim that his company was a “certified Texas Proprietary School” in his S.E.C. filings, then got a copy of the Texas Proprietary School Act and interviewed the head Texas regulator of that Act. Among other things, the requirements of that Act do not jibe with refund policies that Whitney describes in his S.E.C. filings.
38. Plaintiffs are trying to trick the Court. Their motion for an emergency preliminary injunction complains only of Defendant’s use of the names Russ Whitney and Whitney and allegedly illegal comments about Russ Whitney or his company.
But they make no mention of the coaching or succeeding portions of Reed’s Web site in the Emergency Motion—apparently trying to sneak it past the Court by implying that the entire Web site is devoted to comments about Russ Whitney.
39. Since all of their trademark and defamation complaints stem only from the three dozen Web “pages” containing material about Russ Whitney or his companies, only those pages should be considered in any injunction. 36 pages represent only 36 ÷ 521 = 7% of the Web site “www.johntreed.com.”
40. There is no legal basis for Whitney to complain about publication of privileged government documents. At an anti-Reed web site named www.Whitney-facts-vs-johntreed.com, Whitney says there would be no litigation against Reed if all Reed published were public documents. Accordingly, there should be no injunction against such documents being at Reed’s Web site either.
41. Plaintiffs make much of an article by Defendant about Whitney’s Costa Rica activities that Defendant posted on his Web site on May 13, 2004. Obviously, the lengthy Emergency Preliminary Injunction Motion, Motion for Leave to File Second Amended Complaint, Second Amended Complaint, and Motion for Seven Page Extension were drawn up prior to the publication of the Costa Rica article. Virtually all of the facts alleged in the Motion for an Emergency Preliminary Injunction have been known by Plaintiffs for months if not years.
42. Plaintiffs will not prevail on any defamation cause of action including the libel claims disguised as tortious interference with a business relationship claims because they failed to comply with Florida Statute 770.01 and the Court must dismiss the claims as a result. [“Failure to comply with Section 770.01 mandates dismissal of the action…” Tobkin v. Jarboe, 695 So. 2d 1257 (Fla. 4th DCA 1997)]
43. Simply stated, trademark and unfair competition law allows speakers to use a trademark or name:
• to speak about the company or person in question
• but not to pretend to be the company or person in question
44. Russ Whitney did not acquire a national reputation until much later than Reed and he has a very bad reputation in the industry. All of Reed’s use of Whitney names is for the permitted purposes of fair comment or comparative advertising.
45. If Reed were enjoined from the use of Plaintiffs’ names, but the Court did not grant Plaintiffs’ prior restraint motion, Defendant would have to substitute some words or phrases like “a Cape Coral, Florida real estate guru” for every present mention of Russ Whitney or Whitney Information Network, Inc. This would make for tedious, if not comical, reading. Furthermore, it would make it hard, if not impossible, for persons seeking independent comment about Russ Whitney or his companies to find the information.
46. Injunctions are generally not granted in tort cases because torts can be fully compensated by money damages at the completion of trial. Plaintiffs have therefore asserted a nonsensical argument that constitutes the second “Catch 22” of this motion.
47. Plaintiffs say that there damages are irreparable because they are unknown and may never be known. That is just another way of saying they have no evidence. If there is no evidence, they are entitled to no damages and certainly to no injunction. The fact that it is difficult or impossible for Plaintiffs to find the evidence, does not constitute irreparable damages. It constitutes lack of a case for an injunction.
48. If inability to calculate damages is grounds for irreparable damages, how does a Defendant defend himself? Would the Defendant argue that, yes, the damages are unknowable, but the amount of the unknowable damages is slight so no injunction should be granted. Such an argument would be reminiscent of medieval monks arguing about the number of angels that can stand on the head of a pin.
50. “…constitutional guarantees of free speech…impose limitations on the tort cause of action for interference with prospective economic advantage. Constitutional provisions bar a cause of action for either intentional or negligent interference with prospective economic advantage based on allegedly injurious falsehoods uttered in the form of statements of true facts or opinions. California Torts 3 ¶40.106 [3][a]
51. “It does not matter whether defendant’s speech was motivated by economic self-interest because motives are irrelevant when it comes to public debate.” Hustler Magazine v. Falwell, (1988) 485 US 46 to bar action for intentional interference with prospective economic advantage.
52. “Where plaintiffs’ complaint was based on newspaper articles alleged to be false, defamatory and calculated to damage the plaintiff’s business and reputation as to their ownership and operation of a sports stadium, count one charging malicious interference with business and count two charging libel were not two separate causes of action since the actions were nothing more than separate elements of damage flowing from the alleged wrongful publication. [Orlando Sports Stadium, Inc. v. Sentinel Star Company 316 So. 2d 607 (4th District DCA Fla. 1975)] [Easton v. Wier, Fla. App., 167 So. 2d 245]
53. “As stated by the court in Morrison v. National Broadcasting Co., 19 NY 2d 453, ‘We look for the reality and the essence of the action and not its mere name.’ A contrary result might very well enable plaintiffs in libel to circumvent the notice requirements of Florida Statute 770.01 by the simple expedient of redescribing the libel action to fit a different category of intentional wrong.” [Orlando Sports Stadium, Inc. v. Sentinel Star Company 316 So. 2d 607 (4th District DCA Fla. 1975)]
54. “Deciding an injunction motion requires a delicate balancing of several factors, including:
• the character of the interest to be protected
• any irreparable harm that plaintiff would suffer absent an injunction
• the reasonable likelihood of the plaintiff’s success on the merits
• the adequacy of the injunction in comparison to other remedies
• any unreasonable delay in bringing suit
• any related misconduct by plaintiff
• a comparison of the hardship to the plaintiff if relief is denied and hardship to the defendant if relief is granted
• the interest of the public or others
• the practicality of framing the order or judgment” 42 Am Jur 2d §14