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John T. Reed' motion to dismiss in Whitney vs. Reed 2 37. Regardless of what page ranks where in a Google search, Search engine results are to the Internet what card catalogs are to libraries. Whitney' trademark position is this litigation is analogous to a public figure asking a court to ban all cards for "unauthorized" biographies of him from all U.S. library card catalogs. 38. A similar argument by the music group New Kids on the Block failed in the Ninth Circuit. "But the trademark laws do not give the New Kids [on the Block] the right to channel their fans" enthusiasm (and dollars) only into items licensed or authorized by them." New Kids on the Block v. New America Pub. Inc., 971 F 2d 309 (9th Cir. 1992) "Actual malice" libel and trade libel 39. The libel and trade libel claims should be dismissed as a matter of law. Plaintiff is a public figure. Defendant is a media publisher as plaintiffs acknowledge by alleging that they have complied with the notice requirements of Florida Statute '§770.01 in '¶50 of the complaint. 40. Because the case involves a public figure plaintiffs and a media defendant, it is governed by the First Amendment and such U.S. Supreme Court decisions as New York Times v. Sullivan, 376 U.S. 270 (1964) and Bose Corp. v. Consumers Union of United States, 466 U.S. 485 (1984). Plaintiffs" libel per se legal theory is obsolete. 41. Opinion is not actionable as libel. The complained of phrases ('¶51 of the complaint) are opinion. 42. Plaintiffs may not complain of an alleged libel in court unless that alleged libel was specifically identified by article and statement in the required notice. A media libel complaint under Florida law must recite the exact statements cited in the '§770.01 notice in the complaint and the complaint can only seek recovery for those statements. Orlando Sports Stadium, Inc. v. Sentinel Star Co. App 4th dist. 316 So 2d 607 Until the court sees the '§770.01 notice, and checks whether the alleged libel in the complaint ('¶51) jibes with the complained of libel in the 770.01 notice, it cannot determine whether the complaint is proper. California' statute Civil Code '§48a also has that requirement. 43. ""¦libel action which specified the article and attached a copy thereof

without any specification as to the statements in the article alleged to be false and defamatory was insufficient under this section requiring notice to publisher of the article and the statements therein alleged to be false and defamatory." Gannett Florida Corp. v. Montesano, App 1 dist. 308 So 2d 599 (1975) cert denied 317 So 2d 78 "Failure to comply with the statutory provisions requiring notice before bringing libel suit based on media publication requires dismissal of complaint for failure to state cause of action." Mancini v. Personalized Air Conditioning & Heating , Inc., App 4 Dist 702 So 2d 1376 (1997) 44. Another document which was not attached to the complaint, but which the court can consider in a FRCP 12(b)(6) motion, is defendant' response to one of plaintiffs" notices (Exhibit E). Plaintiffs must rely on that response in filing its complaint because the nature and timeliness of the media defendant' response to the '§770.01 notice limits damages. 45. Robert D. Sack is the leading legal scholar on defamation. He is the author of the Practising Law Institute' Sack on Defamation, Libel, Slander, and Related Problems. 3rd Edition. At 2.4.18 he says, "The law has developed a wide variety of tools to seek to ensure that only when there is an established, concrete relationship among error, fault, and harm to the plaintiffs may the plaintiffs pursue a remedy in defamation. Inconsequential harm ought not to give rise to extended litigation let alone a plaintiffs" judgment, or else plausible defamation suits might arise out of virtually all derogatory works and proceed at least through discovery to summary judgment or trial. 46. "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." 47. ""¦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)] 48. "There is one significant exception to the general rule that the complaint will be construed liberally on a Rule 12(b)(6) motion. When the claim alleged is a traditionally disfavored "cause of action" such as malicious prosecution, libel, or slander, the courts tend to construe the complaint by a somewhat stricter standard and are more inclined to grant a Rule 12(b)(6) motion to dismiss." 5A C. Wright & A. Miller Federal Practice and Procedure '§1357 (1990) 49. ""¦because of the intimidating effect of libel suits, determination as to the viability of the complaint should be made "at the earliest possible stages."" Andrews v. Stallings, 119 NM 478 (Cn. App. 1994) 50. The court must read the entire article of which plaintiffs complain. By reading the entire article, the court will see what the reader sees. One thing that will be revealed by reading the entire article is that when Reed wishes to inform the reader that a guru has literally had trouble with the law, he is quite specific. The court can see that, for example, in Plaintiffs" Exhibit "C" to the complaint in the entry just below Whitney' (I.G. Williams). 51. Anyone reading the entire article can see that Reed does not convey actual legal difficulties in the informal language"”"scams," "crook in his heart""”used by David Keith. These are opinions and commentary not statements of fact. 52. Reading the whole article will also reveal its informal, often humorous, tone. One guru rating is of "My own mother" and quotes Reed' mother as responding to his writing on one occasion by asking, "What"re you"”the Don Rickles of real estate?" Much of the material is in the form of book reviews and commentary on various guru' promotional literature. There is some discussion of religion and philosophy. All of this informs the reader that the article is primarily opinion and that a different tone and style is adopted when it is not. 53. Plaintiffs would have the court adopt a sort of "Inverse Groucho Marx" standard of libel: "Say the magic word (e.g., "crook") and lose a hundred dollars." Libel law may have worked that way in the days of "fighting words" and dueling pistols, but current libel law takes are more comprehensive, modern view. 54. 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) 55. Lamentably, current discourse on matters of opinion has often become shrill and hyperbolic compared to 1919, when a Florida court said the word "crook" was libel per se. 56. Nowadays, it is routine to hear professional athletes threaten each other publicly with various acts of mayhem per se. Talk radio and TV including sports talk and political programs libel many routinely by nineteenth century standards. New words like "Spam" describe unwanted emails that often discuss previously shocking topics and" flame" refers to the shrill hyperbole used by Internet chat group and news group visitors to disagree. 57. Visitors to Reed' guru rating Web page will readily recognize that David Keith' Twenty First Century rhetorical hyperbole constitutes his opinion, not literal facts about Whitney' imminent remand to the custody of the attorney general ("hardtime") or cardiological condition ("true crook in his heart"). 58. "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) 59. A much-cited four-part test of whether a statement is fact or opinion was articulated in Ollman v. Evans, 750 F 2d 970 (DC Cir. 1984) 1. Analyze the common usage or meaning of the allegedly tortious words; 2. decide whether the challenged statement is verifiable"”"is the statement capable of proof or disproof?"; 3. examine the challenged statement in the context of the writing"¦as a whole [Moldea v. New York Times, 22 F. 3d 310 (DC Cir. 1994)]; 4. consider the broader social context in which the statement fits. 60. The Fourth Circuit, adopting the four Ollman factors, said that even a verifiable statement that fails the second Ollman factor, nevertheless qualifies as opinion if it is clear from any one of the three other factors that a reasonable reader would understand the statement to present the personal view of the writer. Potomac Valve Fitting, Inc. v. Crawford Fitting Co., 829 F 2d 1280 (4th Cir. 1987) 61. In this case, the author of the complained of words, David Keith, characterizes his own words as legally permissible opinion, thereby alerting readers to regard them as such. (Plaintiffs" Exhibit "C" to the complaint under the subhead "7/1/01") The title of the entire article is "John T. Reed' views of various real estate investment gurus" [Emphasis added], which also alerts the reader that what follows is generally opinion. Such self-characterizations are not dispositive of whether a statement is opinion or fact, but they require that the reader resolve all ambiguity in favor of concluding that the statements are, indeed, opinion. At the end of his comments, David Keith' name appeared in blue letters and underlined. This mean that if a reader clicks on it, he will get a blank email pre-addressed to Keith. Similar links to an email addressed to Reed are scattered around Reed' Web pages. These enable readers to obtain clarification easily in a way that has never been addressed in libel law. 62. Whitney complains of Keith' use of the word "scams" as "libel per se." The same word came up in NBC Subsidiary, Inc. v. Living Will Center, 879 P 2d 6 (Colo 1994): ""¦the statement, ""I think it' a scam" about plaintiffs" business amounts to nothing more than a subjective judgment regarding the value of the [plaintiffs" product], expressed in imaginative and hyperbolic terms, and as such, neither contains or implies a verifiable fact nor can it reasonably be understood as an assertion of an actual fact." 63. A Florida pastor called a community leader who advocated permitting sale of alcohol a "drug pusher." The court held this was non-actionable opinion hyperbole. Pulliam v. Johnson, 647 So 2d 254 (Fla 1st DCA 1990) 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)]

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