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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 3

95. “These techniques include: (1) the well-established rule that only statements that are substantially false are actionable—‘some’ falsity will not suffice [See §3.5 Infra]; (2) the requirement that cause and effect between defamatory falsehood and injury be clearly established [See 8.5.3 Infra]; (3) the ‘libel-proof-plaintiff’ doctrine holding that a notorious person is without a ‘good name’ and therefore may not recover for injury to it [Guccione v. Hustler Magazine, 800 F 2d 298 (2nd Cir. 1986) cert denied 479 U.S. 1091 (1987)]; (4) the principle that where true statements accompany a false one and the ‘incremental harm’ done by the falsity is negligible, recovery is similarly forbidden [Herbert v. Lando, 781 F 2d 298 (2nd Cir. 1986) cert denied 476 U.S. 1182 (1986) and Bose Corp. v. Consumers Union of United States, 466 U.S. 485 (1984)]; and (5) the rule that a public plaintiffs must prove not only that a specific defamatory allegation was published with ‘actual malice,’ but that the ‘gist’ of the defamatory allegations about him or her was so published.”
96. “…trial judge initially determines whether words are reasonably capable of defamatory construction, and only after the court finds them potentially defamatory would the jury decide whether they were in fact understood as defamatory.” Hulley v. Hunt, 57 So. 6007 (Fla 1912) The court decides whether the statement is one of fact or non-actionable opinion. From v. Tallahassee Democrat, Inc., 412 So. 2d 465 (Fla 1982) “Deference to the jury is muted when free speech in implicated.” [Veilleux v. National Broadcasting Co., 206 F. 3d 92 (1st Cir. 2000)]
97. The proper standard for determining whether a writing is fact or opinion is the way in which the likely reader will understand it. “…falsity is determined by how a reader would reasonably construe the statement, rather than by legalistic or technical definitions of terms.” Dunn v. Air Line Pilots Association, 193 F 3d 1185 (11th Cir. 1999)
98. “Because of the richness and diversity of language as evidenced by the capacity of the same words to convey different meanings in different contexts, it is quite impossible to lay down a bright line or mechanical distinction [between fact and opinion].” Immuno A.G. v. Moor-Jankowski, 77 NY 2d 235 (1991)
99. It is now common for person to put up Web sites using the word “sucks” as a suffix to the name or trademark of the person or company being criticized. Bally Total Fitness Holding Corporation sued the operator of a “Bally Sucks” Web site (dedicated to airing complaints about Bally) for trademark infringement and related issues and lost. [Bally Total Fitness Holding Corporation v. Faber, 29 F. Supp. 2d 1161 (C.D. Cal. 1998)]
100. Florida Supreme Court Justice J. Ehrlich said that, “Libel per se is dead.” “Presumed damages for libel per se are no longer available, and that the ‘per se’ concept is relevant only as a useful shorthand for giving a media defendant notice that the plaintiff is relying upon the words sued upon as facially defamatory, and therefore actionable without resort to innuendo.” Mid-Florida Television Co. v. Boyles, 467 So. 2d 282 (Fla 5th DCA 1983)
101. “[W]here, as here, the component parts of a single speech are inextricably intertwined, we cannot parcel out the speech applying one test to one phrase and another test to another phrase. Therefore, we must apply our test for fully protected speech.” Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781 (1988) “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.” Justice Brandeis writing in Whitney v. California, 274 US 357 (1927)
102. Plaintiffs have established a Web site which denounces Defendant Reed and purports to refute allegations made about Whitney at Reed’s Web site (www.Whitney-facts-vs-johntreed.com) . Plaintiffs also have their own multi-thousand page www.russwhitney.com Web site which extols the alleged virtues of Russ Whitney and his companies endlessly. Plaintiffs also, as they frequently point out, spend millions on nationwide half-hour long TV infomercials. They also wield an army of telephone boiler room salespersons and send large quantities of emails and direct mail. The robust debate between Reed and Whitney is what the Constitution calls for in such cases, not injunctions. In spite of their massive advantages in terms of getting their side of Whitney’s story out, they come like the elephant who is scared of the mouse, whining to the Court for help in stopping a one-man shop, home-office based author from criticizing them. Plaintiffs may not use injunctions to avoid losing a debate in the marketplace of ideas.
103. “… a finding of pure opinion will usually occur when the facts upon which the speaker relies are presented along with the commentary.” Zorc v. Jordan, 765 So. 2d 768 (Fla 4th DCA 2000)
104. “The substantial truth defense is an affirmative defense under which the court reads the article after having eliminated from its consideration those statements alleged to be defamatory. If the article, with the defamatory material excised, would not have an effect on the mind of the reader different from that created by actual article taken as a whole or the truth as completely told, the article is not libelous.” Woodward v. Sunbeam TV Corp., 616 So 2d 501 (Fla DCA 1993) See also Jones v. American Broadcasting Companies, Inc., 893 F 2d 1342 (11th Cir. 1989) In this case, that would mean the court should read the entire discussion of Whitney and his companies at Reed’s Web site (Exhibit A to the Opposition) and consider whether the effect on the average reader would be different than with the alleged libel included. “Particular words must be read in the context of the communication as a whole,… A court will not pick out and isolate particular phrases and determine whether considered alone, they are defamatory.” Sack on Defamation §2.4.2.1
105. With regard to Plaintiffs’ arguing that unknown amounts of damages constitute “irreparable harm,” an analogy to case law regarding F.R.C.P. 12(b)(6) motions is pertinent. It is well settled that the court is to liberally construe the complaint when considering a FRCP 12(b)(6) motion to dismiss, “…although a liberal interpretation of such a complaint may not supply essential elements of the claim that were not initially pled [Pena v. Gardner, 976 F 2d 469 (CA 9 Wash 1992)] Furthermore, “…the plaintiff’s bare statements of opinions [Bryan v. Stillwater Board of Realtors®, 578 F 2d 1319 (CA 10 Okla 1977)], conclusory allegations [Western Mining Council v. Watt, 643 F 2d 618 CA9 Cal 1981 and Solis-Ramirez on behalf of Solis v. United States Department of Justice, 758 Fd 1426 (CA 11 Fla 1985)], and unwarranted inferences of fact are not accepted as true.” (Federal Procedure Lawyers Edition ¶62:509)
106. Nor will the court accept as true facts which are legally impossible [Cohen v. United States, 129 F 2d 733 (CA8 Minn 1942), facts which the court can take judicial notice of as being other than as alleged by the plaintiffs [Interstate Natural Gas Co. v. Southern California Gas Co., 209 F 2d 380 (CA9 Cal 1953)], or facts which by the record or by a document attached to the complaint appear to be unfounded (Ibid). (Fed. Proc, L Ed, §62:509)
107. Much of Whitney’s moving papers accuse Reed of actions that are not against any law, including but not limited to:
• spending little money on advertising
• writing about famous people to attract attention to his Web site
• harshly criticizing Russ Whitney and his companies
• writing things that discourage some from doing business with Russ Whitney or his companies
• publishing overly extensive quantities of criticism of Russ Whitney or his companies
• causing the price of Whitney Information Network, Inc. stock to drop
108. Page 8 of the Motion for Emergency Preliminary Injunction says, “John T. Reed conspired with the registrant of www.russellwhitney.com.” That is a barefaced lie. (Defendant’s Declaration ¶60) Plaintiffs’ attorney has been told that is not true repeatedly by Defendant and neither has, nor offers, any evidence that it is.
109. Page 9 of the Motion for Emergency Preliminary Injunction says, “Plaintiffs have documented customers…who have refrained from purchase…notwithstanding a clear intent to do so prior to accessing [Defendant’s Web site]. Conspicuous by their absence are any affidavits supporting this assertion. In the absence of affidavits, these assertions are inadmissible hearsay. Furthermore, the assertions are irrelevant even if true. Pepsi has caused Coca Cola drinkers to switch brands. Successful competition is not illegal.
110. Page 10 of the Motion for Emergency Preliminary Injunction says Defendant has caused the stock value of Whitney Information Network, Inc. to drop. However, they provide no evidence including prices and dates that would show a decline. According to the annual report of Whitney Information Network, Inc. there has been no drop in the company’s stock price. Nor do they explain how they concluded that Reed and Reed alone was responsible for such drop if it had occurred. Stock prices move up and down continuously for an infinite number of reasons. Causing a stock price to move downward is not necessarily illegal. Financial investigative journalists discover adverse news about publicly-traded companies all the time. Typically, publication of such information causes the stock price to drop and no illegality on the part of the authors is necessary to cause such a drop in price.
111. Common law requires that a plaintiff who wishes to recover for defamation must identify specifically the word, phrase, sentence, paragraph, or longer passage that they allege is defamatory. Typically, this is done by identifying the page and work in question then quoting the allegedly offending passage verbatim. “Even in federal courts and jurisdictions in which in haec verba pleadings are not required, the defamation must be pleaded with enough specificity to permit the defendant to respond appropriately to the complaint, including the ability to allege that the communication in question was not defamatory. And the time and place of the publication, at least, should be stated.” Sack on Defamation §2.4.13
112. Plaintiffs never do this except for their allegations regarding the word “insolvent.” Rather they repeatedly make sweeping but vague allegations of numerous defamatory statements. In the absence of specific identification of the alleged false statements, Plaintiffs cannot prevail. They will not prevail on the cause of action based on the word “insolvent” because Whitney Information Network, Inc. was and is insolvent according to one definition of that word and Defendant explicitly told readers that he intended that definition.
113. In his moving papers, Whitney says that several state securities regulators relied on Reed’s Web site when they decided to stop him from selling securities in their state. The fact that public officials use Reed’s Whitney Web pages to make official decisions proves that Reed’s writings on Whitney are matters of public interest. The fact that government agencies relied on Reed’s Web discussion of Whitney shows that the speech that Whitney seeks to enjoin is a valuable public service. Indeed, public agencies taking adverse action against Whitney based upon analysis of Whitney at Reed’s Web site is an implicit endorsement of that Web site by those agencies.
114. Mainstream news media outlets like the Washington Post refer their readers to Reed’s guru-rating Web pages. Mainstream Web sites like MSN.com, Salon, and Motley Fool have referred their readers to Reed’s guru ratings. Web sites all over the Internet have links to Reed’s guru-rating Web pages of which the Whitney articles are a subset. Reed’s Web site is one of the main sources, if not the main source, of independent information about real estate investment get-rich-quick scams.
115. If this injunction is granted, no doubt the other gurus whom Reed has criticized will file suits and motions for preliminary injunctions as well. Government agencies whose strained budgets have been helped by Reed’s investigation reports will go back to relying only on consumer complaints and their own overworked investigators.
116. John T. Reed has been a nationally respected real estate investment writer since 1976—long before Russ Whitney got into the guru business. Reed has been listed in Who’s Who in America for many years. He was also listed in Who’s Who in Real Estate, a directory that was only published in 1983. Whitney has never been listed in either directory. Reed has been quoted somewhere in the national media approximately monthly since long before he put articles about Russ Whitney at his Web site. The notion that John T. Reed needs to use Russ Whitney’s name to achieve prominence is absurd.

Wherefore the defendant moves this court to deny PLAINTIFF’S MOTION FOR AN EMERGENCY PRELIMINARY INJUNCTION.

Respectfully submitted,

___________ ___________________________
Date John T. Reed, Pro Se
Defendant
342 Bryan Drive
Alamo, CA 94507
Telephone: 925-820-6292
Fax: 925-820-1259
email: johnreed@johntreed.com
Copyright 2003 Last update 3/11/03
John T. Reed, a.k.a. John Reed, Jack Reed, 342 Bryan Drive, Alamo, CA 94507, Voice: 925-820-7262, Fax: 925-820-1259, Email: johnreed@johntreed.com

CONSUMER WARNING NOTICE: I recently saw Russ Whitney on a late night TV infomercial and then attended one of his "free" seminars. Unfortunately I believed all of their LIES and FRAUDULENT CLAIMS and I paid thousands of dollars to go to his "training camps". Needless to say I was clearly ripped off, cheated and lied to by Russ Whitney and his employees (band of thieves). My mistake was not searching the Internet to find out more about Russ Whitney and his company's HORRIBLE reputation for fraud, deception and illegal activities. Had I searched online I would have found out about THOUSANDS of customers being cheated, HUNDREDS of investigations by the Attorney General into the fraud of Russ Whitney and his company's, and that Russ Whitney himself is a CONVICTED VIOLENT FELON and spent years in PRISON. I saved the cached pages from the major search engines of the John Reed lawsuit with Russell Whitney and the TRUTH and FACTS that Reed discovered during his investigation of Whitney. I am posting this information on real estate discussion boards so other people do NOT get cheated and ripped off like I did.