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John T. Reed’s opposition to Russ Whitney’s 2005 Fort Myers federal court motion for an emergency preliminary injunction to stop Reed from criticizing Whitney by name 2

42. “Much useful social and commercial discourse would be all but impossible if speakers were under threat of an infringement lawsuit every time they made reference to a person, company, or product by using its trademark.” New Kids on the Block v. New America Pub. Inc. 971 F 2d 307 (9th Cir. 1992)
43. The Times v. Sullivan [376 US 254 (1964)] line of Supreme Court decisions place the burden on the public figure plaintiff to prove that the complained-of statements were false. Furthermore, they must prove to a clear-and-convincing standard that the complained-of statements were not only false, but also that REED published them knowing they were false or with reckless disregard as to whether they were false (“actual malice”). Plaintiffs cannot even prove the statements were false.
44. Plaintiffs' moving papers accuse REED of many actions that are not against the law, e.g., spending little money on advertising and publishing 86 pages criticism of Plaintiffs. [Emphasis in motion] The First Amendment does not have a page limit.
45. The only specific allegation of false and defamatory statements by REED are,
Defendant, REED,… stated…that Plaintiff, [WIN], is insolvent and on the verge of bankruptcy. Such statements are false and defamatory.(¶58 2nd Amended Complaint)

46. Plaintiffs' counsel Rothstein complained to REED about the word “insolvent” by telephone, not in writing. REED immediately removed it. The word “insolvent” was and is accurate. Plaintiffs cannot possibly prove them false. REED's actual words were,
Whitney Information Network, Inc. is insolvent. That is, their liabilities ($27,299,907) exceed their assets ($24,315,757) as of the last reported date: 9/30/02

47. The word “insolvent” has two common definitions: One is liabilities that exceed assets. This is the definition used in a number of state and federal laws, e.g.,
“(3) Insolvent.-For purposes of this section, the term 'insolvent' means the excess of liabilities over the fair market value of assets.” Internal Revenue Code §108(d)(3)

“'insolvent' means -- (A) with reference to an entity other than a partnership and a municipality, financial condition such that the sum of such entity's debts is greater than all of such entity's property, at a fair valuation…” Federal bankruptcy law 11 USC §101 (32)

48. The Court may consider matters that are… the subject of strict judicial notice such as matters of public record [Kramer v. Time Warner, Inc., 937 F 2d 767 (CA 2 NY 1991)]. REED obtained the figures in question from the then most recent filing by WIN with the Securities and Exchange Commission (Exhibit F from www.sec.gov/edgar).
49. In the Second Amended Complaint, Plaintiffs claim REED said WIN was “on the verge of bankruptcy.” REED did not say that. There are two categories of bankruptcy: voluntary and involuntary. REED plainly stated in his Web comments that involuntary bankruptcy of WIN “…seems unlikely…” and explained why. With regard to voluntary bankruptcy, REED accurately said that WIN was “eligible” to declare bankruptcy. REED said he was not aware of any voluntary bankruptcy filing by WIN. REED said noting about whether WIN would voluntarily declare bankruptcy in the future.
50. Plaintiffs greatly exaggerate the amount of competition between the parties in an attempt to void REED's First Amendment rights and to duck the legal standards relating to publication/media libel. In fact, the parties have vastly different offerings, marketing methods, backgrounds, and target markets. WHITNEY prospects are responding to WHITNEY's infomercial promises of quick and easy riches. REED has no products for those interested in get-rich-quick schemes. Exhibit H is a comparison.
51. The most recent WIN Annual Report contains a subheading “Competition” in which WIN lists its competitors. It does not list REED. Nor is he listed under the mandatory “litigation” subheading or anywhere else in the report, thus indicating that WIN does not regard any REED activity as a “material fact.” WHITNEY's Web site describes REED's Web site as a “nuisance,” not an emergency. (Exhibit I)
52. “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.
53. There is no emergency. WHITNEY's name has been at REED's Web site since 1997. “Under the principle that 'equity aids the vigilant,' equitable relief is available only to those who show reasonable diligence in asserting their rights and demanding equitable protection and will be denied to those who sleep upon their rights to the prejudice of the party against whom relief is asked. A significant delay in asserting one's claims can be inconsistent with the professed need for the extraordinary remedy of injunction.” 42 Am Jur 2d §§ 14, 41 “…[D]elay in asserting one's legal rights…may lead the court to refuse an injunction…” Diefenderfer v. Forest Park Springs, 599 So.2d 1309 (Fla. Dist. Ct.. App. 5th Dist. 1992)
54. Plaintiffs' counsel and Plaintiff WHITNEY have made more than three dozen false or misleading statements in their motion and the accompanying affidavit. (Exhibit J) “A judge may refuse to issue an injunction where there has been a failure to make a full and candid disclosure.” Western Maryland Dairy v. Chenowith, 180 Md. 236, 23 A. 2d 660 (1942)
56. If Plaintiffs believe Google search results for the name “Russ Whitney” are illegal, they should sue Google. Google can easily make REED's Web pages stop coming up in searches for Plaintiffs. If REED is doing something illegal, Google has the expertise and data to recognize it and the standing to cross claim against REED.
57. Plaintiffs' lengthy explanation of how search engines rank REED's Web site on the first page of search results for Russ Whitney is speculative nonsense. Search-engine formulas are top secret and ever changing. Plaintiffs say that every time someone types the words “Russ Whitney” into a search engine they are only trying to find WHITNEY-owned Web pages. That is false. Web searchers generally want both the Web site owned by the searchee as well as independent Web pages that are about the searchee.
58. Although S.E.C. filings, prison records, etc. can be accessed on the Internet, they are part of what's called the “invisible Web.” That is, one does not find S.E.C. filings or prison records through a Google search. Rather, one must do a search within, say, the S.E.C.'s EDGAR or the NY State Department of Corrections Web sites. REED copies public information regarding WIN to the searchable or “visible” Internet. He also usually provides a link back to the source site. Turning “invisible” public domain documents that are already on the Internet into “visible” ones cannot possibly violate any law.
59. “The fact that an important public interest would be prejudiced by an injunction may be a compelling reason for denying relief” City of Harrisonville, Mo. v. W.S. *beep* Clay Mfg. Co., 289 US 344 (1933) See also 42 Am Jur 2d §14 Because of intimidation tactics by WHITNEY, REED's Web site is one of the last sources of independent information about him and his companies. Elimination of that site's WHITNEY information will cause great harm to the public interest. Large numbers of prospective WHITNEY customers benefit from REED's Web site. So do prospective WIN employees, stock market regulators, and prospective and current investors in WIN stock.
60. According to a letter that Plaintiffs attached to another court filing in this litigation, NASDAQ responded to an application by WIN to move up to the NASDAQ SmallCap Market. The letter asked for answers to certain questions, including several that specifically cited REED's Web site by name. (Exhibit K)
61. According to another letter also attached to court papers in this litigation, the Arizona Corporation Commission sent a similar letter to WIN in response to WIN's application to offer its stock in that state. (Exhibit L) Although the Arizona Commission did not mention REED by name, the wording of several of the questions convinced Plaintiffs that REED's Web site inspired those questions. REED agrees. The Arizona letter also cites a cease-and-desist order directed at WIN by the State of New Jersey.
62. 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. 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. WHITNEY apparently now agrees, as evidenced by the fact that his subsequent court papers no longer point to such government letters as evidence of “tortious interference.”
63. Because Plaintiffs use almost exclusively marketing methods known to be highly susceptible to abuse, special Federal Trade Commission rules apply. One such rule-16 CFR 429.0-requires a three-day cooling-off period after certain sales, such as those closed in hotel or motel rooms… Hotel meeting rooms are WHITNEY/WIN's main venue for closing sales. The reason for the rule is to let consumers get away from the influence of the high-pressure salesmen before the sale becomes final. The Internet is an ideal way for consumers to reevaluate what they have agreed to during that period. REED's Web site is one of the primary sources of independent information about the values of the various hotel meeting room sales pitches.
64. Plaintiffs say REED diverts WHITNEY customers to REED. Not so. This dispute began in 2000. According to its S.E.C. filings, WIN gross income since then has been:
2000 $32,859,857
2001 $42,157,740
2002 $62,145,237
2003 $94,958,170

65. In court papers, Plaintiffs claim they are losing both customers and business deals because of illegal actions at REED's Web site. But their annual S.E.C. reports, under penalty of violating 18 USC 1001, brag that they have greatly expanded sales through both increased numbers of customers and deals in which they acquired other companies. With regard to the claims of losing customers, employees, and business deals, conspicuous by their absence are: affidavits from the persons in question, names and contact information for the persons in question, or identification of the specific REED statements that allegedly changed their minds. “…[T]he plaintiff's…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) “…[A] local real estate firm was not entitled to an injunction against any statements by a rival firm's personnel which allegedly constituted unfair competition and malicious interference with business relations under state law, absent evidence as to which customers or sales agents were lost as a result of the allegedly unlawful conduct…” [emphasis added] 42 Am Jur 2d §98 RE/Max Intern, Inc. v. Realty One, Inc., 173 F 3d 995 1999 FED App. 129P (6th Cir. 1999) petition for cert. filed 68 USLW 3138 (US Aug 17, 1999)
66. 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. Freedom of speech and press apply not only to political debate. They also make America's free enterprise system function better by creating more informed consumers and investors.
67. At their anti-REED Web site, www.Whitney-facts-vs-johntreed.com, Plaintiffs said there would be no litigation against REED if all he published were public documents. Logically, then, there can be no injunction against such documents either.
68. If REED were enjoined from the use of Plaintiffs' names, he would have to substitute a name like “Russ W.” or “Russ W.'s company” for every present mention of WHITNEY or WIN. This would make for tedious, if not comical, reading. Furthermore, it would make it hard, if not impossible, for Web surfers seeking independent comment about WHITNEY or his companies to find the information. “…Injunctions were too broad, and a burden on First Amendment free speech rights, where an order enjoined a buyer of office equipment from publicly criticizing the seller.” J.Q. Office Equipment of Omaha, Inc. v. Sullivan, 230 Neb. 397 (1988)
69. As a compromise solution, trademark disputes are sometimes resolved by the alleged infringer posting a disclaimer near his use of the trademark in question. In this case, that would result in such nonsensical juxtapositions as,
“Russ Whitney was convicted of felony second-degree robbery in New York and served a prison term for that crime. This Web page is not operated by Russ Whitney.”

Such statements of non-association would at least have the virtue of allowing Web search engine users to continue to find information about WHITNEY at REED's Web site.
70. ¶8c of the Proposed order prohibits REED from diverting Internet traffic from Plaintiffs' Web site. There is no way to set up a Web site so it will distinguish between persons seeking Plaintiffs' Web site in order to visit it and buy Plaintiffs' products or services and persons who wish to locate independent information about Plaintiffs.

71. ¶8d of the proposed order would ban “false and defamatory information about Plaintiffs,” but fails to identify what statements REED has made that fit that description. No doubt Plaintiffs wish to avoid such specification so REED will be afraid to say anything about them. Since there are no false and defamatory statements about Plaintiffs at REED's site, this part of the proposed order would have no effect.
72. ¶8e bans REED from tortiously interfering with Plaintiffs' business relationships but does not specifies which relationships or what constitutes tortious interference. The apparent hope is that REED will be afraid to talk to anyone associated with Plaintiffs thereby closing REED off from needed information to defend himself in this litigation and from information needed to report the story of WHITNEY and WIN to the public.
73. ¶9 of the proposed injunction order contains a bad-faith provision. It would order REED to turn over every document, etc. that contains the name RUSS WHITNEY, WHITNEY, etc. The motion contains no discussion of this part of the order. There is no legal or logical basis for combining such an order with a preliminary injunction. Such discovery is covered by F.R.C.P. 34, not inserted into a proposed injunction order like some pork-barrel provision hidden in the back of a Congressional bill.
74. The documents that Plaintiffs ask the Court to order REED to turn over to them would enable them to identify confidential sources who provided information to REED in his role as a professional journalist gathering news. REED is a professional journalist who is regularly engaged in collecting, recording, writing, editing, reporting, or publishing news, that is, information of public concern relating to local, statewide, national, or worldwide issues or events, for gain or livelihood, who obtained the information sought while working as an independent contractor for a news journal or news magazine. (REED Declaration ¶¶ 3, 15, 18, 20) As a professional journalist, REED has a qualified privilege…not to disclose the information, including the identity of any source, that the professional journalist has obtained while actively gathering news. (Florida Statute 90.5015)
75. Plaintiffs seeking to overcome this privilege must make a clear and specific showing that: (a) The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought; (b) The information cannot be obtained from alternative sources; and (c) A compelling interest exists for requiring disclosure of the information. They have made no such showing.
76. WHITNEY has sued REED four times in five different courts. He has also tried to involve REED as a non-party in two suits and has sued the company that hosted REED's Web site. If WHITNEY were truly suing for the reasons he claimed, these various causes would have been added to the original Fort Myers suit and would long ago have gone to trial. Filing suits all over Florida shows this litigation is intended for maximum harassment of REED, not to obtain justice or prevent “irreparable harm.”
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

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

WHITNEY INFORMATION NETWORK, INC.
and RUSS WHITNEY, an individual,

Plaintiffs, Case No. 2:04-cv-00395-FTM-DNF (LAG)

v.

JOHN T. REED, an individual,

Defendant.
_________________________________________/

ORDER
On motion of PLAINTIFFS for an Emergency Preliminary Injunction, and good cause not having been shown, therefore,
IT IS ORDERED that the Plaintiffs' motion for an injunction be denied in all respects..
_______________ ______________________________________
Date

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

WHITNEY INFORMATION NETWORK, INC.
and RUSS WHITNEY, an individual,

Plaintiffs, Case No. 2:04-cv-00395-FTM-DNF (LAG)

v.

JOHN T. REED, an individual,

Defendant.
_________________________________________/
DECLARATION OF SERVICE
JOHN T. REED, under penalty of perjury hereby declares:

On February 14, 2005, I served DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR EMERGENCY PRELIMINARY INJUNCTION
by Federal Express on Christina Kitterman, 300 Las Olas Place, Suite 860, 300 S.E. Second Street, Fort Lauderdale, FL 33301.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on February 14, 2005.

John T. Reed, pro se
342 Bryan Drive
Alamo, CA 94507 925-820-6292, fax 925-820-1259
johnreed@johntreed.com

Exhibit H
Category REED WHITNEY
Books Main source of income Tiny percentage of income-apparently mainly sold as lead generators
Sample book titles How to Get Started in Real Estate, Fixers, Deals that Make Sense Building Wealth from Rags to Riches, Millionaire Real Estate Mentor
Paid seminars None Main source of income
Free “come-on” seminars None Main way of closing sales to customers
“Mentoring” services None Significant percentage of income
Telemarketing None Plaintiffs own a telemarketing company
TV infomercials None Primary marketing method
Newspaper display ads None Significant marketing method
Newsletter $125 /year, Significant source of income Reportedly free
Approach to real estate investment Investing can be lucrative in the long run but is also dangerous, risky, and difficult. Only those suited to it should go into it. Message primarily delivered by TV testimonials by average-looking persons is that real estate investing is easy, fast way to wealth for virtually everyone. Little or no mention of risk.
Experience of target customers Mostly experienced, some novices Mostly novices, some experienced
Better Business Bureau Non-member, 1 complaint that was satisfactorily resolved Non-member, unsatisfactory rating
Educational background (tend to attract customers with similar backgrounds) B.S., U.S. Military Academy, West Point
M.B.A., Harvard Claims to be high school dropout, actually has G.E.D. obtained as a condition of parole
Criminal record (turns off the more law-abiding end of the customer spectrum) None Pled guilty to second-degree robbery and served prison term

Exhibit J
MISLEADING PLAINTIFF STATEMENTS in injunction motion & affidavit REED COMMENT
¶5 to date, Plaintiffs have not received any redress… Plaintiffs filed a suit then withdrew it 11 months later. They also filed suits in two other distant courts and initially opposed consolidation efforts for more than a year. The original suit, left alone, would have been long over by now.
¶8 Defendant communicated with Plaintiffs' ex-paralegal… The ex-paralegal initiated contact with REED by a series of emails. The series and REED's responses are part of Exhibit D.
¶8 [Defendant] unlawfully solicited Plaintiffs' confidential and privileged material… A reading of the emails in question by the Court will reveal this is false.
¶9 As a result of those communications, Plaintiff WHITNEY INFORMATION NETWORK, was forced to file a separate action in the 20th Judicial Circuit in Lee County No one forced WIN to do anything. There was no wrongdoing, so they should not have filed any suit at all. If they had to sue, they could have and should have sued REED by amending the present complaint in this suit. They sued in the 20th Circuit because two suits in two different courts cause more harassment than amending an existing suit.
¶10 REED… attached an incomplete series of emails This is a barefaced lie. REED's sworn affidavit that the emails he attached were all the emails he and Yates had exchanged was truthful.
¶11 REED misstates the Worker Adjustment and Retraining Notification Act (WARN Act) The article, which is a part of Exhibit D, links to the actual text of the WARN Act.
¶11 [REED] implies that Plaintiffs are violating federal laws. REED did not imply that Plaintiffs violated the WARN Act. Rather, he provided a summary and link to that Act so that persons knowledgeable about Plaintiffs' layoff could compare the layoff to the law and notify REED if there appeared to be a violation. One person thought there might be a violation before REED posted the article. After he posted the article, no one said there was a violation.
¶13 Defendant…claiming Plaintiffs, in conducting their business, are violating several federal laws. Specifically, Defendant writes… The passage that follows in the motion alleges no violation of federal law.
p.6 middle ¶…the Internet user when searching for Plaintiffs' web site would enter Plaintiffs' marks True, but counsel leaves out the fact that many also enter Plaintiffs' marks, not to find Plaintiffs' Web site, but to find independent information about Plaintiffs.
p. 6 bottom ¶¶ Plaintiffs' counsel implies she knows how all search engines operate She does not know how any search engine works. Their formulas are secret.