­

John T. Reed' opposition to Russ Whitney' 2005 Fort Myers federal court motion for an emergency preliminary injunction to stop Reed from criticizing Whitney by name 1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION WHITNEY INFORMATION NETWORK, INC., a Florida Corporation, and RUSS WHITNEY, an individual, DEFENDANT'S OPPOSITION TO vs. PLAINTIFF'S MOTION FOR EMERGENCY PRELIMINARY INJUNCTION JOHN T. REED, an individual, Case No. 2:04-cv-00395-FTM-DNF (LAG) Defendant. Defendant, John T. Reed, pro se files this DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR EMERGENCY PRELIMINARY INJUNCTION. OVERVIEW 1. This motion is a request for unconstitutional prior restraint. 2. Defendant JOHN T. REED (REED) has a Web site, books, and a newsletter on real estate and other topics. Some REED publications discuss Plaintiffs, e.g., Exhibit A. 3. Upon information and belief, one or more of REED's Web pages about Russ Whitney (WHITNEY) often comes up on the first page of a Google search for the name "Russ Whitney." Exhibit B is a Google search that REED did on 2/3/05. 4. To end Internet criticism of him, WHITNEY has threatened and/or sued his most effective critics or potential critics (Exhibit C). This preliminary injunction would prevent Web users seeking independent information about WHITNEY from finding REED's Web pages. It also prevents REED from criticizing Plaintiffs by name anywhere. MEMORANDUM OF LAW 5. To get a preliminary injunction, Plaintiffs must prove: o substantial likelihood that they will prevail on the merits o they will suffer irreparable injury without the injunction o injury to Plaintiffs outweighs resulting harm to Defendant from injunction o injunction is not adverse to the public interest 6. "[A]ny prior restraint on expression comes to this Court with a heavy presumption against its constitutional validity. "¦the Constitution itself may compel the court to refuse injunctive relief even where the statement is false if a prior restraint is involved." Organization for a Better Austin v. Keefe, 402 US 415 (1971) In New York Times Co. v. United States case [403 U.S. 713 (1971)],the court refused to grant the U.S. government an injunction to stop publication of the top secret "Pentagon Papers" during a war. 7. ""¦constitutional guarantees of free speech"¦impose limitations on the tort cause of action for interference." California Torts 3 '¶40.106[3][a] "Prior restraint" violates the United States Constitution. Near v. State of Minnesota, 283 US 697 "A preliminary injunction is a prior restraint, and a party seeking to justify a prior restraint on speech carries a heavy burden of justifying the restraint. In order to obtain a temporary restraining order involving a prior restraint on pure speech, the publication must threaten an interest more fundamental than the First Amendment itself." 42 Am Jur 2d '§19 "All presumptions and ambiguities will be taken against the party who is seeking to obtain a temporary injunction." 42 Am Jur 2d '§8 8. The Florida Supreme Court has held that injunctions are not available to prevent threatened defamations since to allow them would be an unconstitutional prior restraint. [Reiter v. Mason, 563 So. 2d 749 (Fla. 3rd DCA 1990)] 9. Plaintiffs' Web site http://www.Whitney-facts-vs-johntreed.com denounced REED. Plaintiff Whitney Information Network, Inc. (WIN), a $100 million corporation, has its own multi-thousand page http://www.russwhitney.com Web site. They spend millions on nationwide TV infomercials, newspaper, and other advertising. They also employ telephone boiler room salespersons, a public relations firm, mass emails, and direct mail. In spite of these massive advantages, they come like the elephant that is scared of the mouse, whining to the Court to stop a sole-proprietor author from criticizing them. Such public figures are expected to use their great access to the media to tell their side. 10. ""¦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) Sack on Defamation notes at 1.2.2 11. The gravamen of all of the causes of action in this litigation is publication/media libel of public figures. The applicable law is determined by the facts and the statutory and case law. Plaintiffs cannot deny Defendant defenses permitted by statute and/or case law simply by choosing a cause-of-action name more favorable to Plaintiffs. 12. At trial, the Court will need to read all of REED's Web pages related to Plaintiffs (Exhibit D) in order to render a decision. Consequently, it must do the same now to decide whether Plaintiffs are likely to prevail. A trial court was overruled when it refused to let a jury see the alleged defamatory "sound bite" in the context of the public television documentary in which it was broadcast. Smith v. Cuban American National Foundation, 731 So. 2d 702 (Fla 3d DCA 1999) Plaintiffs' motion and complaint incorporates the entire WHITNEY portion of REED's Web site by numerous statements in their moving papers. 13. "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) "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 14. "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)] 15. Plaintiffs cannot prevail in this case because they neither complied with nor alleged compliance with the specific written notice requirements of FL Statute 770.01. 16. The only written notice allegedly complying with Florida Statute 770.01 sent to REED was a January 14, 2002 letter (Exhibit E) It only covered a couple of statements by David Keith in an email to REED. Plaintiffs later sued citing that statement. However, that complaint was dismissed. The current complaint makes no mention of the noticed statements. (REED Declaration '¶4) ["Failure to comply with Section 770.01 mandates dismissal of the action"¦" Tobkin v. Jarboe, 695 So. 2d 1257 (Fla. 4th DCA 1997)] 17. This Court should grant summary judgment as a matter of law with regard to the Keith statements recited in the 1/14/02 notice because: a. reincarnation of those dismissed claims is barred by the two-year Florida statute of limitations on libel [Florida Statute 95.11(4)(g)], b. alternatively, the two phrases are non-actionable opinion, c. alternatively, Plaintiffs cannot prove that the two phrases are false, d. alternatively, Plaintiffs cannot prove that the complained-of phrases were published with knowledge that they were false or reckless disregard as to whether they were false ("actual malice"). 18. The Keith phrase " true crook at heart" is opinion because of the phrase "at heart." Plaintiffs cannot prove what WHITNEY is or is not "at heart." Even if it's not opinion, it's true. WHITNEY was convicted of second degree robbery in New York. 19. The Keith phrase will "be arrested and do hard time in the future" is opinion because of the phrase "in the future." Plaintiffs cannot prove that WHITNEY will not "be arrested and do hard time in the future," because the future is not yet complete. 20. 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. "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." Sack on Defamation '§2.4.13 Although Plaintiffs' complain generally of false and defamatory statements, they never identify any but the word "insolvent" in the Second Amended Complaint. 21. In the Second Amended Complaint Plaintiffs alleged "actual malice." This means they admit Plaintiffs are public figures and Defendant REED is a media defendant. All of the wrongful acts alleged involve publication of false and defamatory statements. The phrase "defamation per se" also acknowledges that REED published the statements in the media because that phrase, in current law, only serves to give notice to media defendants. 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) 22. Plaintiffs only alleged "actual malice" with regard to REED's publication of statements that WIN was "insolvent" and WIN's eligibility to declare bankruptcy. Failure to allege "actual malice" requires dismissal in public-figure libel cases. 23. Plaintiffs are trying to turn a single allegedly wrongful act into two separate causes of action in violation of Florida's single-publication, single-action rule. The single allegedly wrongful act was REED's publication of an email from David Keith. Plaintiffs sued REED for publishing the statements in Keith's email in 2002 alleging they were libel and trade libel. They sued REED again in 2003 in Broward County alleging that publication of the exact same statements were now tortious interference. 24. "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] 25. Florida Statute 770.07, not 770.01, provides that a cause of action for "damages founded upon a single publication or utterance" accrues at the time of first publication in Florida. See Calloway Land & Cattle Co., Inc. v. Banyon Lakes C. Corp., 831 So. 2d 204 (Fla.4th DCA 2002 (affirming trial court's use of the single publication rule to bar counts for tortious interference, [etc.] where they all arose from a publication that had been the basis for a failed defamation suit.) "A single wrongful act gives rise to a single cause of action, and various injuries resulting from it are merely items of damage arising from the same wrong." Orlando Sports Stadium, Inc. v. Sentinel Star Company, 316 So. 2d 607 See also Easton v. Weir, Fla. App., 167 So. 2d 245 26. Plaintiffs' original complaint for libel and trade libel is a "failed defamation suit" in that the Plaintiffs voluntarily withdrew it, this Court dismissed it and declared REED the "prevailing party," and the statute of limitations on reincarnating it has run out [Florida Statute 95.11(4)(g)]. 27. At 2.4.18 of Sack on Defamation, Libel, Slander, and Related Problems, 3rd Edition, Sack discusses, "(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), Bose Corp. v. Consumers Union of United States, 466 U.S. 485 (1984)]; and (5)"¦a public plaintiff must prove not only that a specific defamatory allegation was published with 'actual malice,' but that the 'gist' of the defamatory allegations about him"¦was so published." 28. WHITNEY sets new standards of libel-proofness. The classic cases involving libel-proofness were Guccione v. Hustler Magazine, 800 F.2d 298, (2d Cir. 1986) cert. denied 479 U.S. 1091 (1987) and Cardillo v. Doubleday & Co., 518 F.2d638 (2d Cir. 1975) In terms of variety of bad behaviors, WHITNEY makes Guccione and Cardillo look like pikers. Guccione published Penthouse and produced the movie Caligula. Cardillo was a career criminal who unsuccessfully sued the publisher of the book My Life in the Mafia because it allegedly accused him of one crime he had not committed. See Exhibit O for a partial list of WHITNEY bad behaviors. 29. In one case [Cerasani v. Sony Corp., 991 F. Supp. 343 (S.D.N.Y.)], libel-proofness was derived from the combination of the plaintiff's behavior and whom he associated with. Exhibit P is a partial list of disreputable WHITNEY associates: 30. Plaintiffs will not prevail on their trademark and other likelihood-of-confusion claims because all use by REED of Plaintiffs' names is non-actionable "fair use" as defined in 15 USC 1125 (c)(4) and/or permissible "descriptive" or "nominative" use as defined by the well-settled common law. REED only refers to plaintiffs in order to comment about them. No reasonable person could be confused as to the origin of REED's Web pages that comment about WHITNEY. 31. The best evidence of likelihood of confusion is actual confusion. There has never been a single instance of confusion in the more than 7 years that WHITNEY's name has been on REED's Web site. (REED's Declaration '¶5) Conspicuous by its absence in WHITNEY court filings is identification of even a single consumer who was confused into thinking REED's Web pages were WHITNEY's Web pages in the past 7 years. 32. "If the anti-dilution statute were construed as permitting a trademark owner to enjoin the use of his mark in a noncommercial context found to be negative or offensive, then a corporation could shield itself from criticism by forbidding the use of its name in commentaries critical of its conduct." L.L.Bean v. Drake Publishers, Inc., 483 U.S. 1013 (1987) "The Restatement takes the position that an anti-dilution statute is not available against non-trademark uses which "comment on, criticize, ridicule, parody or disparage" the goods or business of the trademark owner. Restatement (Third) of Unfair Competition '§25 (1995) McCarthy on Trademark and Unfair Competition '§27.09[1] 33. Bally Total Fitness sued the "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)] 34. It is instructive for the Court to contrast REED's use of WHITNEY's name with true infringers. Calvin Designer Label put the word "Playboy" in meta tags at its Web site on pages that had nothing to do with Playboy magazine. Meta tags are invisible in normal viewing mode. However, they can be seen by search engines. Apparently, Calvin hoped to pick up sales from Web surfers seeking Playboy's Web pages. [Playboy Ent. Inc. v. Calvin Designer Label et al. (USDC ND Cal., Civil Action #. 97-3204 )]. (See also Oppedahl & Larson v. Advanced Concepts, USDC Color., Civil Action # 97-CV-1592) REED has never put Plaintiffs' name in any meta tags 35. REED's "Real Estate B.S. Artist Detection Checklist" (Exhibit D) says, 19. White-on-white words at beginning of their Web pages. In the Internet era, one of the things dishonest people do is put white-on-white or color-on-same-color words at the top of their web pages to mislead search engines. REED has never put any "color on same color background" words at his Web site. 36. Plaintiffs say that they need not prove actual confusion, only a likelihood of confusion. That applies to cases where the alleged infringement has just begun. When the alleged infringement has been going on for seven years, as here, and there has been no actual confusion at all, the notion that confusion is still likely is ridiculous. 37. ""¦[T]here are 3 ways for Plaintiffs to prove likelihood of confusion: survey, evidence of actual confusion, and clear inference based on comparison of the conflicting marks and the context of their use." McCarthy on Trademark and Unfair Competition '§23.01[2] Neither party in this case has done a survey of whether any consumer confusion has been caused by REED's Web site. No reasonable person could confuse REED's Web pages about WHITNEY as being created and operated by WHITNEY. "Likelihood is synonymous with probability, not possibility." Ibid. '¶23.01[3] Shatel Corp. v. Mao Ta Lumber & Yacht Corp., 697 F 2d 1352 n.2 (11th Cir. 1983) 38. John T. Reed has been a nationally known real estate writer and speaker since 1976-years before Russ Whitney got into the guru business. (REED Declaration '¶6) Mainstream news media outlets like the Washington Post refer their readers to REED's guru-rating Web pages. Mainstream Web sites like MSN.com, Bankrate.com, Salon, and Motley Fool have referred their readers to REED's guru ratings (Exhibit M). The notion that REED needs to use WHITNEY's name to achieve prominence is absurd. 39. The federal trademark statute, 15 USC '§1125(c)(4), says, "(4) The following shall not be actionable under this section: "(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark. "(B) Noncommercial use of a mark. "(C) All forms of news reporting and commentary. 40. Because of the domain name http://www.johntreed.com at the top of each Web page and the criticizing-WHITNEY nature of the pages, no reasonable person could be confused as to the origin of REED's Web pages that comment about WHITNEY. For a consumer to confuse REED's Web pages about WHITNEY with WHITNEY's Web pages about himself is virtually impossible given Plaintiffs' own allegations of the allegedly libelous content of REED's Web pages. To prevail, Plaintiffs must convince a jury that consumers will believe that WHITNEY is libeling himself. Plaintiffs cannot have it both ways. Their libel and confusion allegations cancel each other out. 41. '¶23.01[6] of McCarthy on Trademarks and Unfair Competition says, "A use of another's trademark to identify, not the defendant's goods or services, but plaintiffs' goods and services, is not an infringement so long as there is no likelihood of confusion. This can be dubbed a non-confusing 'nominative use' in that it names the real owner of the mark. The most common example of this is comparative advertising, where the senior user's mark is used to identify the senior user's product and the advertiser's object is contrast, not confusion."

Log in to comment
­