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John T. Reed' motion to dismiss in Whitney vs. Reed 2 64. 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)] 65. "Common-law tradition has combined with constitutional principles to clothe the use of epithets, insults, name-calling, and hyperbole with virtually impenetrable legal armor." National Association of Letter Carriers v. Austin, 418 U.S. 264 (1974) 66. 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) 67. "[W]e concluded [in Bose] that the result was not an assessment of events that speak for themselves, but "one of a number of possible rational interpretations of an event that bristled with ambiguities and descriptive challenges for the writer." We refused to permit recovery for choice of language which, though perhaps reflecting a misconception, represented "the sort of inaccuracy that is commonplace in the form of robust debate to which the New York Times rule applies"¦the protection for rational interpretation serves the First Amendment principles by allowing an author the interpretative license that is necessary when relying upon ambiguous sources. "" Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991) The author of the complained of email is entitled to interpret his observations of Whitney and the reasonable reader understands that is what he is doing, not making clinically accurate statements of Whitney' criminal convictions and sentencing. 68. "[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) 69. "Pure opinion

 occurs when the defendant makes a comment"¦based on facts which are set forth in the article or which are otherwise known or available to the reader"¦as a member of the public." Palm Beach Newspapers, Inc. v. Early, 439 US 910 (1978) 70. David Keith prefaces his allegedly libelous comments with the facts upon which he bases his opinion. He also knew that his opinion would be presented in the context of Reed' Web site, which publishes numerous other consistent statements about Whitney, and that it would be viewed as his interpretation of the many complaints about Whitney. ""¦ 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) Keith' phrase, ""¦all this will catch up to him"¦" makes clear to the reader that the opinions Keith is expressing are based on his other comments and those of others at Reed' Web site. 71. David Keith' email says, "The only thing that gives me some relief is that I know he will be arrested and do hardtime in the future"¦all this will catch up to him"¦" It is common knowledge that no law enforcement professionals, let alone laymen like David Keith, can predict future arrests or convictions. The reader of Keith' comments at Reed' Web site knows that a layman like Keith cannot have any such foreknowledge in a literal sense and that Keith is merely expressing his hope, not his factual knowledge, of what will happen. 72. Likewise, the comment about ""¦threats, coercion" is based on and in response to comments at Reed' Web page about Whitney making threats to Creative Real Estate Online and to Reed, as well as Keith' own obviously hyperbolic and uncomplained of comment that "Russ Whitney threatens everyone" and his reporting of another threat: ""”I spoke via email with another person who"¦said Russ had threatened to sue him as well." 73. In Greenbelt Cooperative Publishing Association, Inc. v. Bresler, 398 U.S. 6 (1970), the Court found as a matter of Constitutional law, that the word "blackmail" was not libelous under the circumstances. "[E]ven the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the plaintiff'] negotiating position extremely unreasonable." 74. The complete sentence in David Keith' email containing the alleged libel regarding "threats" is, "Mr. Whitney is at the bottom of the food chain for rea l estate teachers"”all of his business is through threats, coercion, and scams." The "bottom of the food chain" comment is obviously opinion and hyperbole and not provable as literally false. Likewise, the phrase "all of his business" [Emphasis added] signals that the "threats, coercion, and scams" phrase is hyperbole. 75. The word "scams" is Keith' non-actionable opinion interpretation of the experience he depicts elsewhere in his comments, as well as his opinion interpretation of the other comments about Whitney on the various pages of Reed' Web site. 76. "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 "John T. Reed' views of various real-estate-investment gurus" article as well as the linked "B.S. Checklist" article, and reader comments about Whitney, omitting only the two Keith comments"”"threats, coercion"¦" and "true crook in his heart""”and consider whether the effect on the average reader would be different than with the alleged libel included. 77. "Whether a false statement does incremental harm to the plaintiff should depend upon, among other things, the seriousness of the unchallenged allegations (the more serious they are, the more likely the doctrine may be invoked), the seriousness of the challenged statements (the less serious they are, the more likely the doctrine may be invoked), the closeness in subject matter between the challenged and unchallenged charges (the closer they are, the closer the defense resembles "substantial truth," and the more likely that it may be invoked), and perhaps the extent of previous public awareness of the unchallenged allegations." Sack Footnote 229 to Chapter 2 78. In this case, Reed' Web site contains approximately nine pages of discussion of Whitney, almost all of which consist of angry denunciations of him by his former customers. The authors use words and phrases like "I"¦was taken for $1,590"¦," "sham," "nightmare," "deception, bait and switch, false advertising and flat out lieng [sic]," "ethically questionable techniques like lying to a banker," ""¦we are angry to say the least," "shoddy," "fluff," etc. Removing Keith' two comments has no effect on the gist. As a matter of law, plaintiffs" libel claims should be dismissed Improper venue 79. In paragraph 3 of the complaint, plaintiffs claim jurisdiction in the Middle District of Florida under 28 USC 1391(b). However, the statement of jurisdiction is merely a conclusory regurgitation of the statute combined with a statement "upon information and belief" that is totally unwarranted by the facts alleged. 80. 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' 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) 81. 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) 82. 28 USC 1391 allows venue in, "(b) (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated"¦" 83. The complaint alleges no facts to support that. Paragraph 3 of the complaint merely repeats the wording of 28 USC 1391 (b)(2) adding the phrase "upon information and belief." In paragraph 8, they allege that "Defendant' Web site is available and has been visited by persons, in Florida, throughout the United States and the world." 84. Stating that defendant' Web site is "available" does not mean that anyone has ever visited it. Stating that defendant' Web site "has been visited by persons in Florida" could be true, but irrelevant. Unless the persons in question are consequential in number, adults, and possible customers of Whitney, the visiting of Reed' site by them states no claim. Furthermore, visiting Reed' "site" is not enough. They must have visited the four complained of Web pages, seen the complained of words, and reacted to them in a way that harmed plaintiffs in order to give rise to this lawsuit. No such facts are alleged. 85. Plaintiffs further assert, in paragraph 3, that "a substantial part of the property that is the subject of this action is situated, in the Middle District of Florida." No mention of property is made anywhere else in the complaint. The only physical property that is related to the complaint in defendant Reed' computer and modem, which are located in the Northern District of California. For the reasons stated above, this court should dismiss the complaint pursuant to F.R.C.P. Rules 12(b)(3) and 12(b)(6). August 22, 2002 ________________________________ Date John T. Reed, pro se Defendant John T. Reed Publishing 342 Bryan Drive, Alamo, CA 94507 925-820-6292, Fax: 925-820-1259 www.johntreed.com John T. Reed, a.k.a. John Reed, Jack Reed, 342 Bryan Drive, Alamo, CA 94507, Voice: 925-820-7262, Fax: 925-820-1259, www.johntreed.com

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