This is America, land of free speech and home of the brave. Get used to it.
I thought I should keep you updated on the ten-million-dollar lawfare lawsuit filed against me by the lawyer for Rifqa Bary's parents (who were advised by Hamas-linked CAIR all through the persecution of Rifqa). All of us know what the real objective of this litigation jihad is. But I will not be silenced; nor will my colleagues.
Here is the crux of my position against this frivolous, harassing lawsuit.
 Failure to State a Claim: Under Ohio Free Speech law (based on Ohio Constitution, Art. 1, Sec. 11), and Ohio Supreme Court case law, accusing someone of perjury in an opinionated context based on “reports of others” is protected opinion and not a fact statement.
 Failure to State a Claim: Under First Amendment (U.S. Const.) law, obviously “rhetorical hyperbole” and “vigorous epithet” is protected opinion and not a fact statement.
 Failure to State a Claim: When Plaintiff is a “limited purpose public figure” (meaning he has inserted himself into the “vortex” of the public debate), he must allege that Defendant knew her statements were false or acted recklessly (“actual malice”). Here, Tarazi does not allege any facts that would have put you on notice that the “reports” were false.
 Failure to State a Claim: Plaintiff wants you to be held responsible for any damages caused him by Defendant Stemberger based upon what he asserts was a “conspiracy.” But, he alleges no facts to even hint at a conspiracy. Under Supreme Court precedent, these kind of naked allegations without any underlying facts are not sufficient.
 Lack of Subject Matter Jurisdiction: Plaintiff alleges that the federal court has jurisdiction because of “diversity of citizenship” of the parties. But, that requires a minimum damage claim in excess of $75,000. Since Plaintiff’s damage claims are all insufficient on their face, the court lacks subject matter jurisdiction.
Index of exhibits: Download INDEX OF EXHIBITS Geller Decl FILED ECF
Click below for details:
I. PRELIMINARY STATEMENT
Plaintiff Omar Tarazi’s federal lawsuit for defamation seeking $10,000,000 in unspecified damages is so patently frivolous it invites this court’s review for sanctions.1 Perhaps this is Plaintiff’s way of seeking his own Google headlines and promoting a professional niche as a slayer of right-wing bloggers. What this lawsuit is not about is defamation by any definition recognized by federal or state law. Further, even if Plaintiff could somehow re-write federal First Amendment and Ohio Free Speech jurisprudence and convert opinion and rhetorical hyperbole into defamatory fact, he fails to make out a case for “actual malice” even with his patently absurd claim that he is but a “private figure” involved in little more than a “private juvenile dependency case,” which was “not a matter of public concern.” (See Am. Compl. at ¶ 24).
Accusations by legal adversaries charging their opponent with filing frivolous pleadings or motions are unfortunately not rare—often this is a tactical device more than a substantive one—and the courts typically and wisely ignore this in-close sparring among zealous advocates. This case, however, stands out like a red flag against a white background. It is so blatant a case of abuse it requires special attention and for several reasons.
To begin, Plaintiff is a licensed Ohio attorney; yet, his original Complaint (Doc. No. 2) looks and reads like a pro se complaint filed by a non-lawyer. The Complaint was so woefully inadequate that after reading the answers of both defendants, Plaintiff immediately filed an Amended Complaint—essentially a rewriting of the Complaint from scratch. While this second version is certainly longer, it is no less incoherent. Indeed, it includes, as a verified complaint,
1 Under Rule 11 of the Federal Rules of Civil Procedure, the court may, on its own initiative, impose sanctions after notice and a reasonable opportunity to respond. Fed. R. Civ. P. 11(c)(1) & (3).
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sworn statements by Plaintiff which demonstrate as a matter of law and beyond cavil that the alleged offending statements by Defendant Geller constitute constitutionally protected speech. In sum, it demonstrates a fundamental misunderstanding of First Amendment law, as well as the more protective speech law under the Ohio State Constitution.
Finally, Plaintiff’s effort to drag Defendant Geller into a dispute between adverse lawyers by concocting a conspiracy between Defendant Geller, who is a blogger from New York City, and Plaintiff’s legal adversary in Florida, Defendant Stemberger,2 without alleging anything more than the word “conspiracy” is manifestly frivolous and a violation of Rule 11.
For these reasons, and as set out more fully below, Defendant Geller respectfully asks this court to dismiss the Amended Complaint with prejudice and to consider sanctions under Rule 11(c)(3).
II. STATEMENT OF FACTS
A. Overview and Context.
This case arises out of a worldwide firestorm that was on full display in the U.S. and international media for almost a year.3 The story, as played out on the airwaves of Fox News,
2 According to the Amended Complaint, not only were these lawyers adversaries in the courtroom and in the media court of public opinion, Defendant Stemberger now faces disciplinary proceedings for ethical violations before the Florida Bar arising out of Plaintiff’s complaints against the Florida lawyer. (See Am. Compl. at ¶¶ 8-9; see also Defendant Stemberger’s Motion to Strike (Doc. No. 18)).
3 The facts alleged herein documented through exhibits attached to the Declaration of Pamela Geller are admissible as evidence of the “public issue” and “actual malice” elements relevant to the court’s disposition of this motion under Fed. R. Civ. P. 12(b)(1). See Nichols v. Muskingum Coll., 318 F.3d 674, 677 (6th Cir. 2003) (“In reviewing a 12(b)(1) motion, the court may consider evidence outside the pleadings.”); Cameron v. Children’s Hosp. Med. Ctr., 131 F.3d 1167, 1170 (6th Cir. 1997) (holding that the court may examine jurisdictional question by weighing the facts and by considering extrinsic evidence). Moreover, this court can take judicial notice of these facts under Fed. R. Evid. 201 for purposes of deciding Defendant’s motion under Fed. R. Civ. P. 12(b)(6), since they are publicly available documents and the fact of their existence is not in dispute. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499,
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CNN, USA Today, the Washington Post, NBC, Arab News, and many other national and international news outlets, was of Rifqa Bary, a young girl living with her parents and brother in Ohio, all immigrants from Sri Lanka.4 During adolescence, Rifqa converted to Christianity secretly out of fear for what she was certain would be the deadly consequences of being discovered an apostate by her Muslim family and community. Unfortunately, when Rifqa, an excellent honors student without any disciplinary issues, was 17-years old, her father discovered she was a Christian. In a rage, according to Rifqa, her father threatened her life with an “honor killing” since she was now in his eyes and in the eyes of his community of sharia-adherent Muslims an apostate. Soon thereafter, on or about July 9, 2009, Rifqa ran away from home only to find sanctuary with fellow Christian Evangelicals in Orlando, Florida. As Rifqa herself explained between sobs of fear in the news video played on airwaves around the world, the punishment for apostasy among sharia-faithful Muslims like her father was death. (See Declaration of Pamela Geller (“Geller Decl.”) at ¶¶ 3-4; see also Ex. V (“Intelligence Memorandum” cited by Plaintiff at ¶ 3 of the Amended Complaint with attached affidavit of Rifqa Bary that was incorporated in the “Intelligence Memorandum”)).
The video of the stark fear in the eyes of this young 17-year old on the verge of emancipated womanhood, who sought nothing but the opportunity to exercise her right to choose her own faith, went viral. With the story becoming national overnight and indeed international, the State of Florida took custody of Rifqa and began hearings to determine jurisdiction. (Geller
2509 (2007). Indeed, many of the documents are referenced in the Amended Complaint and are central to Plaintiff’s claims and are thus properly before this court for purposes of Defendant’s motion. See Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993) (“Documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central to her claim.”).
4 Much of the legal battle over custody of Rifqa involved the legal status of Rifqa and her family, who at the time of the public controversy were here illegally, having overstayed their visa.
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Decl. at ¶ 5; Ex. B (Orlando Sentinel news story dated August 11, 2010)). Pamela Geller, a New York City resident who writes for her own Internet web log called
Atlas Shrugs (located at URL http://atlasshrugs2000.typepad.com/atlas_shrugs/) (hereinafter referred to as “Atlas Shrugs” or “blog”) had, at the time the Rifqa Bary story broke in August 2009, written extensively on honor killings among Muslim communities in the U.S. and Canada. Writing as a hardened advocate of religious freedom and women’s rights, she has long- documented with pictures the young girls and women murdered and mutilated in the name of sharia’s “honor” by fathers, husbands, and brothers, all of whom occupy the role of guardians for their female family members under Islamic law. (Geller Decl. at ¶¶ 1-2, 6; Ex. C).
Defendant Geller’s involvement in this issue ultimately led her to found an organization called American Freedom Defense Initiative, which has raised funds to put advertisements on city buses and taxi cabs throughout the U.S., providing a hotline which in turn provides contacts for aid, shelter, and counseling for young girls trying desperately to escape this way of life, but with nowhere to turn. (Geller Decl. at ¶ 7). Under the auspices of the American Freedom Defense Initiative (AFDI), Defendant Geller also began a nationwide educational effort called “Stop the Islamisation of America” (SIOA), whose purposes are not anti-Muslim or anti-Islam, but rather anti-shariah and anti-Islamist (i.e., the stated primary goal of Islamists and Islamist political groups is to establish sharia as the law of the land in any country where Muslims reside). (Geller Decl. at ¶ 8; Ex. D).
As a result, Defendant Geller began to write on her blog extensively about the Rifqa Bary case and to do so with the impassioned, hardened, and strident advocacy for which Defendant
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Geller has become well known.5 (Geller Decl. at ¶ 9; Exs. F-O).
B. Plaintiff Inserts Himself into the Firestorm to Comment Publicly and to Lobby for Political Action.
At around the same time, Plaintiff apparently decided that he must act and act publicly on this raging controversy, and more importantly, that he must do so by injecting himself into the public domain to affect the outcome of this crucial public issue, which involves nothing less than “justice and the rule of law.” Thus, on September 6, 2009, the Columbus Dispatch published a viciously partisan op-ed authored by Plaintiff, appearing in both the print and online versions of the region’s largest newspaper. (Geller Decl. at ¶ 10; Ex. O). Without identifying himself as a lawyer, Plaintiff argued that a grave injustice was taking place in a Florida court because “[n]ot a single politician stood up for truth and justice in this case.” Id.
Plaintiff continued in the op-ed in this vein, effectively berating the Florida judge for not acting immediately to force this 17-year old back to a state where she feared for her life. Thus, Plaintiff declared (implying a cover up) the following: “In response, the Florida court sealed the findings of its own law-enforcement investigation into the alleged ‘Ohio threat,’ because obviously there isn’t one, and so far has refused to let her come back to Ohio.” Id.
But why would Plaintiff have used the formulation of “refused to let her come back” in this public dressing-down of politicians and judges when it was Rifqa who was fighting to stay in Florida? The answer appears in the next two paragraphs:
Why not let her come here? Because Global Revolution Church, the fanatical group that targeted this minor on the Internet and put her up in the home of a male “pastor” in Florida without alerting the authorities for two weeks, is out to make money off this story.
5 Indeed, as discussed below, this characterization of Defendant Geller’s openly adversarial, agenda-driven, and provocative Atlas Shrugs blog is raised to the level of a sworn statement (admission) by Plaintiff himself in the Amended Complaint, creating his own impenetrable First Amendment and Ohio Free Speech barrier to any claim for defamation. See Section II.C., infra.
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The church has succeeded in injecting bigotry and ignorance into the halls of justice in Florida. But I believe the hate that has infected Florida politics, a cancer that Americans soundly rejected in the last election, ultimately will be defeated in this case.
Id. In these two paragraphs, without any evidence and before any court had taken up this issue, Plaintiff publicly convicted a Christian group as Internet predators with sinister sexual connotations involving a “male” pastor taking in this young, attractive Ohio girl (“without alerting the authorities”) as if a cult had “targeted” its young female prey. Plaintiff made sure to place “pastor” in quotation marks to suggest that the man is not a pastor, but simply a sexual predator fraudulently posing as a man of the cloth. Plaintiff further impugned the motives of the Christians, claiming that they were simply “out to make money.”
And, as if that were not enough, Plaintiff declared that this predator Church apparently has Florida politicians and judges within its sinister power too, having “infected” them with a “cancer” of “hate.” So, what will come of this grave injustice? How will Ohio protect its children from the “cancer” that infects politics and courts in Florida?
It is about time for Gov. Ted Strickland to do the right thing and take a stand in defense of our state and in the defense of justice and the rule of law.
Id. Why, the governor of Ohio ought to take instruction from none other than Plaintiff Tarazi because, if not, “justice and the rule of law” will be imperiled.
Before this advocacy-laced op-ed appeared on the Internet, Defendant Geller had not heard of Plaintiff. But it was clear to her now that whoever Omar Tarazi was, he inserted himself immediately and forcefully into the public debate, opining on what he considered to be the crucial public issues involved in this case: (i) deciding jurisdiction over child custody as between two states; (ii) publicly lobbying for the political involvement of the governor of Ohio; and (iii) making charges of “bigotry,” “hate,” and a cult-like sexual predation conducted in the
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name of Christianity. (Geller Decl. at ¶ 11). Having written many op-eds herself for publication in mainstream newspapers, and given
the enormous public attention Rifqa’s case was drawing at the time, Defendant Geller understood that Plaintiff’s op-ed was likely one of many op-eds submitted for publication to the Columbus Dispatch on this case. However, the fact that Plaintiff’s relatively lengthy, accusatorial, and obviously biased op-ed was the one chosen by the paper led Defendant Geller to surmise that Plaintiff was considered by the Ohio media as a serious public figure and spokesman on this issue and not just some outlier with a marginal voice. (Geller Decl. at ¶ 12).
Moreover, Defendant Geller was convinced at this time that Plaintiff was a biased player in this highly publicized controversy given his obviously partisan, public indictment of politicians and judges in Florida, along with his unbridled attack against the Christian group that provided sanctuary for Rifqa. Although Plaintiff had written this very public and adversarial op- ed without disclosing who he was and why he decided to insert himself into this public controversy, Defendant Geller was determined to keep her eye out in the public fora to see where Plaintiff turned up next. (Geller Decl. at ¶ 13).
Defendant Geller did not have to wait long. On or about October 13, 2009, the Florida court relinquished jurisdiction and ultimately ordered Rifqa to be turned over to Ohio State juvenile authorities. The legal battle was now entirely within the purview of Ohio’s juvenile court. Almost immediately, stories began appearing online naming Omar Tarazi as Rifqa’s parents’ attorney. As the news stories of the Ohio juvenile court hearings heated up, Plaintiff was quoted time and time again in the news reports on the hearings, which were open to both the public and the news media. While Plaintiff coyly asserts the Ohio juvenile court issued a “gag order” preventing attorneys in the case from speaking directly to the media (see Am. Compl. at
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¶¶ 5, 6, 10), nothing seemed to get in the way of Plaintiff having his position portrayed with intimate details, notably by one reporter in particular at the Columbus Dispatch, (Geller Decl. at ¶ 14; Ex. P).
As any litigator experienced in high-profile cases knows, you don’t need to speak directly to reporters when you have reporters effectively speaking to the public for you. One classic example of this by-pass of the gag order appears in a Columbus Dispatch “news” article dated January 29, 2010, authored by Meredith Heagney. (Geller Decl. at Ex. P). In this article, Plaintiff is mentioned by name four times, and the article is little more than the talking points of motions filed by Plaintiff on behalf of his clients. Conspicuously missing from this article or in any follow-up article is any semblance of balance presenting the response to the motions by Plaintiff’s adversaries. Plaintiff effectively, as in so many articles written by Heagney and published by the Columbus Dispatch, had his own public podium and accompanying bullhorn to continue the ardent advocacy he began with his op-ed in that same newspaper months earlier. Id.
Moreover, Plaintiff did not merely insert himself into this public issue with force and adversarial fervor. As news reports and governmental officials have informed the public over the past year, national security and law enforcement agencies have been bedeviled by the phenomenon of mainstream, college-bound / college-educated, and socially well-adjusted young immigrant Somali men picking up and returning to Africa to join the Somali terrorist group al- Shabaab to engage in jihad against the infidels. In addition to the flow of these young men overseas, officials were also concerned about the flow of money in the form of sharia-obligated support for jihad to terrorist groups in Africa. Counterterrorism officials began clamping down on the conduits—the remittance companies that would set up accounts at banks and wire their clients’ funds overseas. (Geller Decl. at ¶ 15; Ex. Q).
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News reports surfaced in October of 2009, naming Plaintiff as the attorney, lobbyist, and public advocate for the remittance companies and the Somali American Chamber of Commerce. One such report quoting Plaintiff stated:
Tarazi said there should be a balance between national security and humanitarian issues. “How much of a threat is it that it will get into terrorist hands in Somalia?” he said. “If you cut this out, it will push people into a more desperate situation.” And that could lead to more destabilization in a country that has been in chaos for nearly two decades.
(Geller Decl. at ¶ 16; Ex. R). Defendant Geller read this at the time and understood that Plaintiff was not merely a public advocate for “justice and the rule of law” and not just a public advocate for Rifqa’s parents in their dispute with their daughter, but also a spokesman for commercial interests seeking to promote financial remittances from U.S. resident Somalis to Somalis back home—interests that had national security implications She also understood Plaintiff’s very public and controversial position on this important national security policy issue to be that the U.S. had a duty to allow some money to get through to Africa even if it lands in the hands of terrorists, because, if not, Somali would produce even more terrorists. Defendant Geller viewed Plaintiff’s public position of “poverty as the cause of terrorism” suspiciously and once again found herself on the polar opposite position on this important policy issue, which, similar to the Rifqa Bary case, involved the intersection of two cultures—the Christian West and the Islamic Near East, West Asia, and Africa. More importantly, Defendant Geller understood that she was at a grave disadvantage in this public debate because Plaintiff seemed to have easy access to major media outlets in Ohio. Defendant Geller’s access to opine in the main stream media was almost non-existent given her reputation as an “extreme right-wing activist blogger.” Id.
C. Plaintiff Swears under Oath that No Reasonable Reader Could Possibly Understand Defendant Geller’s Blog as Anything but Hyperbolic Rhetoric and Certainly Not as Fact Reporting.
No one can end up at Defendant Geller’s Atlas Shrugs blog and not know literally within 9
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seconds that they have landed in a war of harsh words, ideas, and “in-your-face” opinions. Defendant Geller has staked out an international reputation as a strident, opinionated, and New York City-hardened advocate of free speech, anti-Islamism, women’s rights, and limited government. Often using the course and provocative language of the City’s streets, and a tone very familiar to anyone who “surfs” partisan, political blogs—most of whom use a style of discourse that, for those of us aged over the mid-century mark, would be described as abrasive and uncivil. In today’s blogosphere, however, it is ubiquitous, expected, and routine. Defendant Geller never fails to meet, if not exceed, those expectations.
In a major cover story on Defendant Geller appearing in the New York Times, the Google headline is: “Blogger, Provocateur, Lighting Rod – NYTimes.com.” The actual headline given by the paper is: “Outraged and Outrageous.” The full-length feature article begins as follows:
PAMELA GELLER’S apartment, in the fashion of the blogosphere, doubles as her office. It is a modern full-floor unit in a high-rise on the East Side of Manhattan that could belong to a socialite or the editor of a lifestyle magazine. There is ample light and a tasteful lack of clutter. The kitchen appliances are made of brushed steel; the countertops are slate. In the earth-toned living room hangs a painting, in vibrant colors, of a woman in a swimsuit.
It is in this genteel setting that Ms. Geller, 52 and a single mother of four, wakes each morning shortly after 7, switches on her laptop and wages a form of holy war through Atlas Shrugs, a Web site that attacks Islam with a rhetoric venomous enough that PayPal at one point branded it a hate site. Working here — often in fuzzy slippers — she has called for the removal of the Dome of the Rock from atop the Temple Mount in Jerusalem; posted doctored pictures of Elena Kagan, the Supreme Court justice, in a Nazi helmet; suggested the State Department was run by “Islamic supremacists”; and referred to health care reform as an act of national rape.
Ms. Geller has been writing since 2005, but this summer she skyrocketed to national prominence as the firebrand in chief opposing Park51, the planned Muslim community center she denounces as “the ground zero mega-mosque.”
Operating largely outside traditional Washington power centers — and, for better or worse, without traditional academic, public-policy or journalism credentials — Ms. Geller, with a coterie of allies, has helped set the tone and shape the narrative
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for a divisive national debate over Park51 (she calls the developer a “thug” and a “lowlife”). In the process, she has helped bring into the mainstream a concept that after 9/11 percolated mainly on the fringes of American politics: that terrorism by Muslims springs not from perversions of Islam but from the religion itself. Her writings, rallies and television appearances have both offended and inspired, transforming Ms. Geller from an Internet obscurity, who once videotaped herself in a bikini as she denounced “Islamofascism,” into a media commodity who has been profiled on “60 Minutes” and whose phraseology has been adopted by Newt Gingrich and Sarah Palin.
Without pausing to consider that the very definition of protected opinion includes factual statements made in such a way and in a context that no reasonable reader would consider them anything but rhetorical hyperbole and a biased opinion on an emotional, hotly contested issue, Plaintiff agrees with the New York Times’ characterization of Defendant Geller’s public writings and does so emphatically and under oath. Specifically, after setting out what Plaintiff considers to be Defendant Geller’s manifestly outlandish and outrageous blog entries on the Rifqa Bary affair and his own involvement, Plaintiff characterizes Defendant Geller’s writings as follows [bracketed material added]:
22. All of this shows that Pamela Geller was never acting as an unbiased fair and impartial reporter with regard to the Rifqa Bary case. Instead she was continually creating and spreading hysteria and maliciously attacking people to further her personal agenda with such posts like her November 29, 2009 post [prior to the alleged defamation in this case] in which she says:
“Ohio Gov Strickland: House Arrest for Rifqa, Clemency for Murderers: This is the poisonous fruit of the morally ill. Strickland is demented. He knows the fatal record of his Child Services department. Why did he insist that Rifqa be returned? She was perfectly safe and happy in Florida. Why did this tool of jihad force the hand of Florida? Strickland says a killer is innocent, but Rifqa is guilty of not submitting to the religion of misogyny, gender apartheid and slavery.”
(Am. Compl. at ¶ 22) (emphasis added). Given that Plaintiff’s characterization of Defendant Geller’s allegedly offending blog entries is a sworn admission in his verified Amended Complaint, it is incongruous to say the least that he has filed a federal complaint for defamation for the very statements he swears demonstrate that no reasonable person could take Defendant
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Geller’s statements as factual or unbiased.
D. The Alleged Defamation by Defendant Geller.
We turn now to the allegedly defamatory statements. With all the meandering of the Amended Complaint’s allegations and vague statements about maliciousness and unfair characterizations about juvenile court proceedings, only three specific allegations actually set out the statements Plaintiff asserts are defamatory. This first allegation appears at ¶ 15 of the Amended Complaint and asserts that the statements over which Plaintiff sues occurred in a January 7, 2010, entry at Atlas Shrugs. Specifically, the allegedly offending statements of the blog entry are these (emphasis and font color in the original omitted):
Back on December 14th Atlas broke the EXCLUSIVE story that the CAIR appointed lawyer for Rifqa Bary’s parents, Omar Tarazi, was speaking at the extremist Noor mosque (here) - one big happy (Mansonish) family. He joined Salah Sultan, Major Hasan, Muslim Brotherhood, Hamas, and a veritable CAIR cabal.
The NOOR Mosque has come out publicly against Rifqa.
The reason why this is germane is because it is being reported that Omar Tarazi perjured himself in recent court motions, when he denied connections to CAIR and to the Ohio terror mosque responsible for spying on Rifqa and revealing her conversion to her parents with the ominous threat to “straighten her out”.
Further, during Rifqa’s last hearing, Jamal Jivanjee told me that CAIR-Columbus executive director Babak Darvish was there.
Darvish is the same CAIR rep who was coaching the Barys when they met with the press. Omar Tarazi was going out into the lobby and colluding with the CAIR representative SEVERAL times before and after the hearing.
(See the actual blog entry at Geller Decl. at Ex. E). We find out in ¶ 16 of the Amended Complaint why this entry is defamatory, at least in
part. Plaintiff asserts that he never committed perjury and dives into a lengthy discursive on how Defendant Geller did not understand the intricate legal issues involved in the motion papers and his attached affidavit. The problem with this discursive is that it is wholly irrelevant. Defendant
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Geller’s allegedly offending Statement is that she wrote, “The reason why this is germane is because it is being reported that Omar Tarazi perjured himself in recent court motions.” But this statement is true, and we know it is true because Plaintiff himself alleges as such under oath. Indeed, Plaintiff sets out the original source of the perjury claim in ¶ 13 of the Amended Complaint:
Then on or about January 7th, 2010 John Stemberger’s story about three secret witnesses was posted without attribution on the Jawa Blog at http://mypetjawa.mu.nu/archives/200313.php which started the internet claim that Plaintiff committed perjury for denying receiving money from the Noor Islamic Cultural Center.
In other words, Plaintiff informs us (under oath) that Defendant Geller’s statement that “it is being reported that Omar Tarazi perjured himself” is true because Plaintiff identifies the source of this statement as Defendant Stemberger, a Florida attorney, officer of the court, and a member of Rifqa’s legal team in the Florida litigation over jurisdiction. Moreover, Plaintiff alleges further that the Web site that actually started the “[I]nternet claim” was “the Jawa Blog.”6
In an apparent attempt, however, to establish “fault,” whether negligence or actual malice is not clear from the pleading, Plaintiff effectively implies in this ¶ 16 that Defendant Geller had the affirmative duty to fly from New York City to Columbus, Ohio in order to inspect the juvenile court documents before reporting on what an attorney who had been directly involved in the case (and who was still publicly identified as an advisor to Rifqa) was saying publicly through Web sites about the ongoing Rifqa Bary legal battle—a legal battle into which Plaintiff had inserted himself both as a non-lawyer public spokesman and as the Columbus Dispatch-
6 Defendant Geller points out in her declaration that among conservative bloggers focused on the terrorist threat, the PetJawaBlog (aka MyPetJawa aka The Jawa Report) is considered a very reliable investigative Web site. She notes that just recently a story of an indicted terrorist covered in the New York Daily News had in turn relied on the report first published at the PetJawaBlog to break the story. (Geller Decl. at ¶ 18; Ex. T).
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friendly “attorney Omar Tarazi.” What Plaintiff conveniently omits from this paragraph (or anywhere else in the Amended Complaint) is that this court record, as with many similar court records in juvenile court, was filed under seal and not available to Defendant Geller.7
Subsequently, in ¶ 18 of the Amended Complaint, we learn from Plaintiff that it is defamatory per se to report that an attorney is “CAIR appointed” because CAIR is described at Defendant Geller’s blog as a criminal terrorist organization.8 Plaintiff’s logic apparently is that if an attorney is reported to have been appointed to represent a party by a criminal organization, that attorney must also be a criminal. But, Plaintiff fails to explain how an attorney “appointed” or even “retained”9 by an organization the U.S. government has publicly connected to Hamas and terror financing makes the attorney a criminal. Attorneys are appointed and retained by alleged criminals and convicted criminals to represent themselves and their co-conspirators all of the time. Indeed, the public is fully aware that almost all privately-retained criminal defense lawyers are appointed or retained by criminals. In fact, in this day and age, belonging to the pro bono “GITMO Bar” of Harvard-and Yale-educated lawyers working at top-flight white-shoe law firms is a badge of honor and one that has earned them accolades from conservatives and liberals
7 For the confidentiality of juvenile records, see note 12 infra. While Plaintiff surmises (he does not allege) in ¶ 16 that Defendant Geller “was regularly able to get copies of documents filed in the Rifqa Bary court file and posted the contents occasionally on her blog,” this is patently false and evidently so from the Amended Complaint itself. Indeed, the link to Defendant’s blog to evidence this false assertion states clearly that Defendant Geller copied the court document (n.b. not the alleged affidavit) from some other website (referenced as “MPJ”). In fact, “MyPetJawa” web log had posted the court document well in advance of the posting at Atlas Shrugs. (See http://mypetjawa.mu.nu/archives/199960.php). (Geller Decl. at ¶ 17; Ex. S).
8 Interestingly, Plaintiff does not deny that CAIR has been directly linked to terror financing by the U.S. government in several criminal terror financing trials. See, e.g., United States v. Holy Land Found. for Relief & Dev., No. 3:04-cr-00240-P, (N.D. Tex. Filed July 26, 2004). Rather, he notes only that Plaintiff has no knowledge of any actual indictment against CAIR. But even assuming CAIR is a criminal organization, this fact, true or false, does not demand or even strongly suggest that the attorney is similarly a criminal.
9 For the record, however, Defendant Geller never stated that Plaintiff received monies from either CAIR or the Noor Islamic Center.
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alike. (Geller Decl. at ¶ 19; Ex. U). Finally, in ¶ 23 of the Amended Complaint, Plaintiff informs us that the blog’s
characterization that Plaintiff has connections to the Noor Islamic Cultural Center (“NICC”) is also defamatory because the same blog entry points out that the NICC has its own pedigree with support of Hamas and associations with known terrorists. But yet again, Plaintiff does not explain here or elsewhere why this statement is defamatory. First, he does not explain how this statement, even if false, is defamatory since there are any number of innocent explanations why a person would have connections with a house of worship or community cultural center which has various other connections with criminals. Second, Plaintiff quite conspicuously does not deny the statements about NICC or Plaintiff’s connection to NICC. Specifically, Plaintiff does not allege that the statements about NICC are false. Indeed, those were well documented by Rifqa Bary’s legal team in the Florida litigation. (See Geller Decl. at ¶ 20; Ex. V). More, Plaintiff admits that he has connections to NICC in that he has been an invited speaker there on at least two occasions. (Am. Compl. at ¶ 23). What Plaintiff apparently objects to is that now that the public knows that NICC has a suspect reputation, that this in turn will implicate him since the public now also knows that he was an invited speaker at the same mosque. But, we’re still left wondering how this is defamatory as a matter of law if both parts of this statement are true? Of what exactly is Plaintiff complaining: an uncomfortable and inconvenient truth?
In the final analysis, once Plaintiff’s Amended Complaint is stripped of its hyperbolic claims and unfounded legal conclusions, it fails as a matter of law. Indeed, it fails so badly that it is frivolous. Consequently, one is left with the impression that Plaintiff has engaged in vexatious litigation as his own form of hyperbolic, rhetorical “federal court blogging” to harass and intimidate Ms. Geller because he dislikes her opinions.
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III. LEGAL ARGUMENT
A. Defendant Geller’s Statements Are Constitutionally Protected Opinion under the First Amendment to the U.S. Constitution and under the More Protective Free Speech Clause of the Ohio State Constitution.
1. The Applicable Law.
Plaintiff alleges subject-matter jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) based upon diversity of citizenship. As such, Ohio state law governs the elements of a claim for defamation. See Bailey v. V & O Press Co., Inc., 770 F.2d 601, 604 (6th Cir. 1985) (holding in diversity action based on state law claim, federal courts apply state law). To make out a case of defamation under Ohio law, Plaintiff must allege: “(1) that a false statement of fact was made, (2) that the statement was defamatory, (3) that the statement was published, (4) that the plaintiff suffered injury as a result of the publication, and (5) that the defendant acted with the required degree of fault in publishing the statement.” Great Lakes Capital Partners, Ltd. v. Plain Dealer Publ’g. Co., 2008 Ohio 6495, ¶ 17 (Ohio Ct. App., Dec. 11, 2008) (quoting Bisbee v. Cuyahoga County Bd. of Elections, 2001 Ohio App. LEXIS 759 (Ohio Ct. App., Mar. 1, 2001), quoting Pollock v. Rashid, 117 Ohio App. 3d 361, 368 (1996)).
A statement is defamatory under the second element if it “reflect[s] injuriously on a person’s reputation, or expos[es] a person to public hatred, contempt, ridicule, shame or disgrace, or affect[s] a person adversely in his or her trade, business or profession.” A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Const. Trades Council, 73 Ohio St. 3d 1, 7 (1995).
As Ohio courts have consistently held, “Under the fifth element of defamation, the defendant’s required degree of fault depends upon the status of the plaintiff. When the plaintiff is a private figure, the required degree of fault is ordinary negligence. On the other hand, if the plaintiff is a public figure, then the plaintiff must show that the defendant acted with actual malice.” Great Lakes Capital Partners, Ltd., 2008 Ohio 6495, at ¶ 18 (citations omitted).
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As to the first element of defamation, a plaintiff must establish that the statement is a factual statement subject to verification as either true or false. See generally Vail v. The Plain Dealer Publ’g Co., 72 Ohio St. 3d 279, 281 (1995) (holding that defamation must be a verifiable factual statement, but that this is only the beginning of the analysis under state law, which provides broader protections than the First Amendment).
Even under First Amendment jurisprudence, the U.S. Supreme Court has explicitly held that some “factual” statements are so obviously “rhetorical hyperbole” or meant as “a vigorous epithet” that no reasonable reader would consider the statement a declaration of fact, but rather the biased opinion of the writer dressed up as fact. Greenbelt Coop. Publ’g Assn., Inc. v. Bresler, 398 U.S. 6, 14 (1970) (holding that a newspaper that repeats an allegation of “blackmail,” while technically a fact statement of a crime subject to verification, was so obviously hyperbole and vigorous epithet that it was constitutionally protected opinion under the First Amendment); see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 15-16 (1990) (citing Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 50 (1988) (holding that the First Amendment precluded recovery under a state emotional distress action for a parody which “could not reasonably have been interpreted as stating actual facts about the public figure involved”)); Letter Carriers v. Austin, 418 U. S. 264, 284-86 (1974) (holding that the use of the word “traitor” in the literary definition of a union “scab” was not a basis for a defamation action under federal labor law since it was used “in a loose, figurative sense” and was “merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members”).
Milkovich is important to this analysis because it laid the ground work for the Ohio Supreme Court to explicitly extend Ohio Free Speech protections beyond the First Amendment. Milkovich is also important because its facts are similar to the ones at bar. The facts in
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Milkovich, which are also relevant to two other Ohio Supreme Court cases on this subject, are as follows. A fight broke out at an Ohio high school wrestling match. The governing Ohio High School Athletic Association (“OHSAA”) held hearings at which the school’s wrestling coach, Milkovich, testified along with a school official named Scott. After the hearing, the OHSAA issued its ruling punishing the school with, inter alia, a one-year suspension. Some parents of the school’s students sued in court to overturn the decision. At the court hearings, Milkovich and Scott testified under oath. The court overturned the OHSAA punishments on due process grounds. The next day a column appeared under a sportswriter’s by-line in the sports pages of the local paper accusing Milkovich and Scott of lying under oath and getting away with it. Both men sued and the cases were set to establish, respectively, new boundary-limiting First Amendment law and more expansive Ohio Free Speech law.
When the Ohio Supreme Court first heard Milkovich, it reversed the lower courts’ rulings that Milkovich was a public figure and remanded back to the trial court, holding that the wrestling coach was not a public figure because he had never inserted himself into any public issue or controversy and was therefore not bound by any First Amendment actual malice requirement. While well-liked and well-known in the community, he was nothing more than a wrestling coach. Milkovich v. News-Herald, 15 Ohio St. 3d 292, 294-99 (1984). The State’s high court also held that the statement of perjury was, as a matter of law, a statement of fact and not protected opinion. Id. at 298-99.
Two years later Scott’s defamation suit finally landed in the Ohio Supreme Court. Scott v. News-Herald, 25 Ohio St. 3d 243 (1986). There, the court held that the school official was a public figure for purposes of the First Amendment’s actual malice requirement, but reversed its earlier decision in Milkovich v. News-Herald, holding that factual statements like accusations of
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perjury might very well be constitutionally protected opinion. The court overturned its earlier opinion in Milkovich as “ex cathedra” and lacking any real analysis, and adopted a four-part analysis which it applied with precision to the facts before it, concluding that the otherwise factual assertion of perjury in a sportswriter’s by-line had sufficient signals of hyperbole and opinion to overcome its grammatical and technical characterization as a fact statement.10 The Ohio Supreme Court articulated the ground rules for the new, expansive protection of technically factual statements under the rubric of opinion:
Expressions of opinion are generally accorded absolute immunity from liability under the First Amendment. The determination of whether an averred defamatory statement constitutes opinion or fact is a question of law, properly within our purview today.
*** After careful consideration of the various standards used to distinguish opinion from fact, it is our holding that a totality of circumstances test be adopted. This test, however, can only be used as a compass to show general direction and
not a map to set rigid boundaries.
Consideration of the totality of circumstances to ascertain whether a statement is opinion or fact involves at least four factors. First is the specific language used, second is whether the statement is verifiable, third is the general context of the statement and fourth is the broader context in which the statement appeared.
Scott v. News-Herald, 25 Ohio St. 3d 243, 250 (1986) (emphasis added). Four years later, Milkovich v. News Herald had worked its way back up from remand in
the Ohio state courts into the U.S. Supreme Court as Milkovich v. Lorain Journal Co, 497 U.S. 1 (1990). In Milkovich, the Court had mistakenly understood that the Ohio Supreme Court’s decision in Scott was based on the Court’s First Amendment line of cases and reversed, see id. at 8-10, on the grounds that the First Amendment does not require “a wholesale defamation
10 In Scott, the Ohio Supreme Court did not state clearly whether the constitutional protection arose out of the First Amendment to the U.S. Constitution or out of the Free Speech clause in the Ohio Constitution (§ 11, Art. 1), which led to some confusion at the U.S. Supreme Court, as will be explained later in this memorandum.
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exemption for anything that might be labeled ‘opinion,’” id. at 18. In fact, when the Court looked at the assertions of perjury in Milkovich and Scott, it concluded as a matter of law under the First Amendment that the statements were factual and actionable.
Interestingly, as noted above, the Court in Milkovich continued to cite approvingly to the Bresler / Letter Carrier / Falwell line of cases, which held that fact statements were protected opinion where the context was clear that the statements were intended as rhetorical hyperbole or vigorous epithet. Milkovich, 497 U.S. at 16-17. But, that still left the U.S. Supreme Court’s analysis of the accusation of perjury in Milkovich and Scott at variance with the Ohio Supreme Court’s holding in Scott (where the state court held as a matter of law that the assertion of perjury in that case was constitutionally protected opinion).
The Ohio Supreme Court jumped in relatively quickly in Vail v. The Plain Dealer Publ’g Co., 72 Ohio St. 3d 279 (1995), to clarify that, notwithstanding the U.S. Supreme Court’s decision in Milkovich, Scott remained the law of Ohio because the Ohio Constitution’s Free Speech clause, found at § 11, Art. 1, was more protective than even the First Amendment. As the court explained, “Regardless of the outcome in Milkovich, the law in this state is that embodied in Scott. The Ohio Constitution provides a separate and independent guarantee of protection for opinion . . . .” Vail, 72 Ohio St. 3d at 281. This explained the variance between the two courts’ respective fact-opinion analyses of the assertion of perjury in Milkovich and Scott.
We proceed now to analyze the allegedly defamatory statements in this case separately under Ohio Free Speech law and then under First Amendment precedent.
2. Defendant Geller’s Statements Fall Four-Square within the Holdings and Analyses of Scott and Vail and Are Protected Opinion under Ohio Free Speech Law.
Even without Plaintiff’s own characterization of Defendant Geller as self-evidently 20
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adversarial, agenda-driven, and “never acting as an unbiased fair and impartial reporter,” there can be no conclusion but that the four-part analysis announced and carefully applied in Scott and Vail renders Defendant Geller’s statements at her blog fully protected opinion under the Ohio Constitution. See Wampler v. Higgins, 93 Ohio St. 3d 111 (2001) (holding that the Scott-Vail Free Speech protection extends to non-media defendants).
In fact, Scott is fully dispositive on a fortiori grounds.11
Turning to the comparative analysis, the first prong is to determine the common meaning of the specific language used. In Scott, the court found that the statement of perjury was understood to be a crime. Scott, 25 Ohio St. 3d at 250-51. This case would similarly satisfy this prong.
The second prong of the analysis is whether the statement is of “an articulation of an objectively verifiable event.” Id. at 251-52. The Scott court found a statement that the plaintiff
11 In the following analysis, we focus only on the statement where Defendant Geller wrote, “it is being reported that Omar Tarazi perjured himself in recent court motions,” because if the analysis of context under the third and fourth prongs of Scott renders this statement protected opinion, then the other two alleged defamatory statements characterizing Plaintiff as a “CAIR appointed” lawyer and as having connections to NICC would fall within Scott’s protected opinion as well. Indeed, the CAIR/NICC statements cannot make it past the first and second prongs of the Scott analysis in the first instance. We also note, based upon our careful analysis of the CAIR/NICC statements in the recitation of facts above, that there are additional defenses that apply here. As we pointed out in the factual recitation relative to the CAIR reference, the statement is not defamatory at all. Thus, under Ohio law this renders this statement not actionable. Further, the NICC statement is true, and Ohio law requires a false statement for a prima facie case of defamation. Finally, under Ohio’s “innocent construction rule,” both statements most definitely have a reasonable, innocent construction—not that Plaintiff is tainted by the bad deeds of CAIR or NICC, but that CAIR and NICC are surreptitiously seeking to manipulate the juvenile case for their own political purposes and Plaintiff is caught in the middle as an attorney representing his clients. Attorneys get “used” by clients and third-party payers, such as insurance companies, for ulterior reasons all of the time, and that does not speak ill of the attorney, but of the process. Yeager v. Local Union 20, 6 Ohio St. 3d 369, 371-72 (1983) (holding that Ohio has adopted the defense of “innocent construction rule” such that if there is more than one construction of a statement, and one of those constructions is not defamatory, the court shall, as a matter of law, rule the statement not actionable).
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lied under oath to be just that. While this case appears at first blush to satisfy this prong, it is relevant to point out that the Scott court noted that “where the statement lacks a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content.” Id. (internal quotation marks and citation omitted) (emphasis added). In this case, the statement is expressly based upon public and widely published reports of others and this is attested to by Plaintiff himself in his verified Amended Complaint. Moreover, the reasonable reader would recognize that the court records were neither posted nor linked by hypertext at Defendant Geller’s blog, a common practice by almost everyone who blogs and certainly at Atlas Shrugs, thus suggesting that the juvenile records were not and are not available to provide a “plausible method of verification.” Finally, the reasonable reader is likely to know that the juvenile court records at issue were not and are not available to Defendant Geller or to anyone else from the public because they are confidential and only made available to attorneys and interested parties. (See Rule 1, Franklin County Rules of Practice of the Court of Common Pleas, Domestic Relations Division, Juvenile Branch, available at http://www.fccourts.org/DRJ/lrjuv/lrjuv01.html.)12 Given these additional facts not present in Scott, the second prong of the analysis in this case militates more in Defendant Geller’s favor than was the case in Scott.
The third and fourth prongs were dispositive in Scott to overcome the characterization of the allegation of perjury as “fact” under the first two prongs. Specifically, the third prong of this analysis examines the larger context of the alleged defamatory statements to determine if there are cues to the reasonable reader that the writer was proffering an opinion as opposed to stating
12 The Franklin County Clerk of Courts public Web site also states: “Because juvenile records are not public record, we may only provide copies of juvenile records to parties and attorneys on the case. A given file may be viewed, however, upon approval of the Court.” (http://www.franklincountyohio.gov/clerk/Juvenile.htm.)
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an objective fact. In Scott, the court noted some quite subtle cues, but also “language of apparency,” like “I think” or “in my opinion.” The court also found important the language around the specific statement in order to evidence whether the reader would understand that the writer was providing some factual accounting of perjury or just setting the stage for what the writer thinks to be perjury. Scott, 25 Ohio St. 3d at 252. The “apparency” and surrounding language in Scott was hardly as determinative of opinion as what appears in this case.
Defendant Geller’s blog entry statement makes clear that she is only reporting what others have said and that her real point is not the perjury, but that it is clear to her that NICC and CAIR are very much involved behind the scenes. Thus, the allegation of perjury only serves to underscore the main point, which is that this is not just a private juvenile matter, but one with Islamist, politically-motivated groups vying for influence over the parents and even their counsel. That kind of surmising political rhetoric clearly signals opinion. More, in Scott, the writer claimed the perjury was self-evident to everyone and was thus the main issue of the reporting. But here, Defendant Geller has to actually draw out why the allegation of perjury is even relevant (“The reason why this is germane . . .”), and it is clearly secondary to the main point of a broader, politically nefarious influence. Finally, as the court pointed out in Scott, it is clear from the direct context of the article that he was writing emotionally and with a bias. Id. at 253. If the bias in Scott helped tip the scales toward protected opinion, Defendant Geller’s bias and open hostility and adversarial tone renders her statements exponentially more so.
Finally, we come to the fourth and last prong, which is the broader context of where the allegedly defamatory statements appeared. This requires little analysis. If the sports pages in Scott lead to the conclusion of protected opinion, Atlas Shrugs qualifies many times over. There just cannot be any doubt—and, in fact, there is none based on Plaintiff’s admission in ¶ 22 of the
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Amended Complaint—that Defendant Geller is an opinionated blogger who writes everything based on her “agenda.” Consequently, ¶ 22 of the Amended Complaint is dispositive under the Scott-Vail analysis.
In conclusion, given the holding and rationale in Scott, and in light of ¶ 22 of the Amended Complaint, Defendant Geller respectfully requests this court to rule that her alleged defamatory statements are protected speech under the Ohio Constitution’s Free Speech clause and to dismiss the Amended Complaint with prejudice.
3. Defendant Geller’s Statements are Protected Opinion under the First Amendment Jurisprudence as Rhetorical Hyperbole and Vigorous Epithet.
In light of the analysis under the Ohio Constitution, we won’t pause here long, but to say that Plaintiff’s admission under ¶ 22 should be sufficient to satisfy the U.S. Supreme Court’s tests in the Bresler / Letter Carriers / Falwell line of cases, which hold that fact statements are protected opinion where the context is clear that the statements are rhetorical hyperbole or vigorous epithet. Defendant Geller’s entire blog is the definition of rhetorical hyperbole and vigorous epithet, but this court also has Plaintiff’s admission to conclusively establish that fact. This admission essentially terminates this case in its tracks.
For all the foregoing reasons, Defendant Geller asks this court to find that the alleged defamatory statements are protected opinion under both the U.S. and Ohio Constitutions and that, in any event, Plaintiff’s binding admission as set forth in ¶ 22 of his Amended Complaint is an absolute bar to his claims.
B. As A Limited Purpose Public Figure, Plaintiff’s Failure to Properly Allege “Actual Malice” Violates the First Amendment.
1. The Applicable Law.
As a matter of federal constitutional law, the First Amendment requires limited purpose public figure plaintiffs to adequately plead “actual malice.” Milkovich v. Lorain Journal Co.,
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497 U.S. 1, 14-15 (1990) (repeating the long-standing rule that “nonpublic persons ‘who are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large’” fall within the “actual malice” requirement of public figures) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 336-37 (1974), quoting Curtis Publ’g Co. v. Butts, 388 U.S. 130, 164 (1967)). This conversion from private to limited public figure is triggered “by [the plaintiff’s] purposeful activity amounting to a thrusting of his personality into the ‘vortex’ of an important public controversy.” Curtis, 388 U.S. at 146, 155. Subsequently, the Court explained that this purposeful thrusting of oneself into the “‘vortex’ of an important public controversy” is especially evident when the individual is making an effort to affect the outcome of the controversy through his public speech. Thus, in Gertz, the court found that a lawyer who merely had a limited role in a legal proceeding was not a limited purpose public figure because “[h]e plainly did not thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome.” Gertz, 418 U.S. at 352 (emphasis added). Ohio law follows the federal law on limited purpose public figure and, in fact, expands its reach. See, e.g., East Canton Educ. Ass’n v. Mcintosh, 85 Ohio St. 3d 465, 474-75 (1999) (asking whether the plaintiff “thrust himself to the forefront of the public controversy” without necessarily attempting to influence its outcome).
Once the status of a plaintiff is determined to be a limited purpose public figure, the question becomes whether the complaint sets forth allegations of “actual malice” (i.e., that defendant knew the alleged offending statements were false or acted with a reckless disregard of the truth). But as the Supreme Court has made clear, it is not enough to simply assert through a rote, formulaic, and conclusory legal allegation that a “defendant acted with actual malice” or that “defendant knew or acted recklessly.” Federal pleadings rules require “plausibility,” which
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is something more than “sheer possibility.” See Ashcroft v. Iqbal, 129 U.S. 1937, 1944 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). As the Court carefully explained in Twombly and Iqbal, it is not enough to merely allege a legal standard (e.g., “acted with actual malice”) or even assert a charge of conspiracy—or for that matter “knowledge” or “recklessness”—without some facts that are more than simply “consistent” with the rote allegations. Rather, the complaint must provide some factual support that moves the claim from merely “possible” to “plausible.” Iqbal, 129 U.S. at 1950.
With this analysis before us, we turn to the Amended Complaint and to the self-serving legal assertion that Plaintiff is a “private person” involved in a “private juvenile delinquency case.” (Am. Compl. at ¶ 24). We will also examine the rote, formulaic allegations of “actual malice.”
2. Plaintiff is a Limited Purpose Public Figure.
As set forth above in § II.B., Plaintiff most certainly became a limited purpose public figure for the Rifqa Bary affair at least by September 2009, “by his purposeful activity amounting to a thrusting of his personality into the ‘vortex’ of an important public controversy.” First, he penned a rather vicious, adversarial, and accusatorial op-ed in the largest regional newspaper in Columbus, Ohio, the geographical vortex for the entire affair. This op-ed appeared online and thus became a verbal thrust and attack against all who sided with Rifqa. Even more to the point, Plaintiff was not just commenting as a disinterested legal professional, but rather as an advocate for what he considered to be crucial public issues involving “justice and the rule of law” (as well as remedying “bigotry,” “ignorance,” and “hate”). Plaintiff thrust himself into this issue in September of 2009, well before he was identified as an attorney for the parents. It is simply beyond the pale for Plaintiff to now assert that this international firestorm was nothing but a “private juvenile delinquency case” when he called for the governor of Ohio to intervene
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and to stop the “cancer” of “hate” which “infected” the Florida courts. Plaintiff cannot now deny what he announced to the world: the Rifqa Bary affair was an important public issue. In sum, Plaintiff cannot now deny that he thrust himself into the “vortex” of an important public controversy to affect its outcome with his public speech.13
Finally, even after the Ohio juvenile court’s gag order, Plaintiff continued to speak to the public on the Rifqa Bary case through carefully orchestrated news articles published by the Columbus Dispatch, which effectively narrated his courtroom positions verbatim without providing Rifqa’s legal team with the same public platform.
Given these facts, it is clear that Plaintiff is, as a matter of law, a limited purpose public figure and must adequately allege actual malice, which he failed to do.
3. The Amended Complaint Fails to Properly Allege Actual Malice.
In the Amended Complaint, Plaintiff recites the legal formulation for “actual malice,”’ that is, that Defendant Geller “either knew that the perjury accusation was false or she recklessly disregarded the truth.” (Am. Compl. at ¶¶ 15, 29). But Plaintiff proffers not a single factual allegation to support this pre-packaged legal formulation.
In ¶ 16, where Plaintiff suggests that Defendant Geller might have had access to Plaintiff’s allegedly perjurious affidavit, all Plaintiff can muster is a verifiably false surmise. Plaintiff’s logic runs something like this:
I have found at least one juvenile court document at Atlas Shrugs, ergo Defendant Geller must have had access to all juvenile court documents, notably the allegedly perjurious one. Since she had access to it, she either knew that the reports of perjury were false or she was reckless in not verifying the contents of the affidavit since she had access to it.
13 Couple these facts with the fact that Plaintiff has also engaged in political and public advocacy on at least one other issue affecting his Muslim community in Ohio—the Somali remittances from the U.S. to Africa—and it is evident that Plaintiff is, at a minimum, a limited purpose public figure.
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The problem with the logic of this particular assertion is that it is based upon a self-evidently false fact. The one juvenile court document Plaintiff referenced at ¶ 16 with a specific URL citation to the Atlas Shrugs blog to support his unfounded supposition demonstrates the opposite point: Defendant Geller did not have access to these confidential court documents and the only Ohio juvenile court document Defendant Geller ever posted was a document previously posted at the My Pet Jawa blog (aka “MPJ”) and explicitly copied to Atlas Shrugs from MPJ. (See Geller Decl. at ¶ 17; Ex. S). But the allegedly perjurious affidavit has still not surfaced—neither at Atlas Shrugs nor any other blog.
Plaintiff’s rote formulations of a legal standard (“maliciously” or “knew” or “acted recklessly”) simply do not satisfy Twombly-Iqbal’s plausibility standard. Indeed, Plaintiff’s supposition that Defendant Geller had access to this document doesn’t even cross the “possibility” line, much less make it to “plausibility.” Specifically, the document was legally under seal. Defendant Geller never claimed to have seen the document, but only to repeat the “reports” of others. And at no other time had Defendant Geller posted—or suggested that she had access to—this court document or any other court document that was not already floating around the public domain.
Thus, when the Amended Complaint is reviewed with any care at all, it is evident that Plaintiff has not alleged a single fact to suggest that Defendant Geller had access to the allegedly perjurious affidavit. Without access, she could not have known the reports of perjury were false,14 and her reliance on the reputable sources making the reports was wholly reasonable (i.e., not even negligent, and certainly not reckless). Moreover, without access to the document, the
14 Defendant assumes this allegation (i.e., that the reports of perjury were false) to be true for purposes of this motion only.
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only way for her to have checked the document against the widely published reports of perjury would have been to fly to Ohio to view the court records. But even that would have been to no avail, since the juvenile court records were not and are not public, and Defendant Geller had no basis under the rules of the court to see any of them. It simply cannot be the law that Defendant Geller acted “recklessly” by not verifying that which she could not have verified in fact, but which she reported based on information received from reputable sources.15 For these reasons, Defendant Geller respectfully asks this court to grant her motion to dismiss the Amended Complaint with prejudice.
C. Insofar as the Amended Complaint Does Not State a Valid Claim against Defendant Geller, She Cannot Be “Jointly and Severally” Liable for the Tortious Acts of Defendant Stemberger because the Complaint Fails to Properly Allege a Conspiracy.
The argument here is simple and straightforward. Assuming that any one of the aforementioned bases for dismissal of the Amended Complaint against Defendant Geller are upheld by this court, the only predicate for “joint and several” liability for defamation in this case is a conspiracy. See, e.g., Ohio Rev. Code Ann. §§ 2307.22(A) (stating that “joint and several” liability is limited to a circumstance where “two or more persons proximately caused the same injury or loss to person or property”) & 2307.25(A) (stating that a claim for contribution in tort is limited to “joint and several liability under § 2307.22(A)”). In other words, if Defendant Geller is not liable for her own statements because they are protected opinion or because she did
15 Indeed, even if Plaintiff were not a limited purpose public figure such that the “fault” requirement was negligence, Plaintiff’s Amended Complaint would remain deficient since under these facts Defendant Geller’s statements could not possibly amount to a breach of some duty of care unless the law of “negligence” would require bloggers to refrain from reporting on public accusations of wrongdoing until they could personally inspect government documents filed under seal or even get access to classified documents not available to the public. Freedom of speech and its corollary—freedom to receive information and ideas—would suffer under such a legal requirement.
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not act with actual malice as a matter of law, the only other way she can remain a defendant in this suit is if there was some contractual privity (i.e., claim for indemnification) or other relationship between the defendants, such as co-conspirators to carry out Defendant Stemberger’s alleged tortious behavior.
This claim is once again foreclosed to Plaintiff by the pleading requirements of Twombly- Iqbal. The only allegation remotely relating to any kind of relationship between the Defendants is the final allegation at ¶ 31, which reads: “Defendants conspired together to share information and promote each other’s Defamatory Per Se statements and accusations against Plaintiff.” (Am. Compl. at ¶ 31). Period.
Twombly was a case involving a claim of conspiracy. Twombly, 550 U.S. at 549. The allegations in that case went far beyond the single naked assertion in this case. The Court there had no problem dismissing that case on the pleadings. This court should do the same and dismiss the conspiracy element of the Amended Complaint for failure to state a claim of conspiracy upon which relief may be granted.
D. This Court Lacks Subject Matter Jurisdiction because Plaintiff’s Failure to Allege Actual Malice Limits His Recovery to Actual Injury and There Is a “Legal Certainty” that the Alleged Damages Do Not Meet the Jurisdictional Minimum because They Are Not Compensable.
1. The Applicable Law.
Assuming, arguendo, that Plaintiff is not a public figure, the Supreme Court has held that in defamation litigation arising out of statements of public concern involving entirely private non-public figures, without proper allegations of actual malice there can be no presumed damages typically associated with defamation per se claims and there can be no punitive damages. Milkovich, 497 U.S. at 16 (“[T]he States could not permit recovery of presumed or punitive damages on less than a showing of New York Times malice.”). Specifically, the Court
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held that only “actual damages” would be allowed without a showing of actual malice. The Court explained, “It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury.” Gertz, 418 U.S. at 349.
When a plaintiff alleges diversity jurisdiction, if there is a legal certainty that the claimed jurisdictional damage amount has not been made in good faith, the court should dismiss the claim for lack of subject-matter jurisdiction. See Klepper v. First American Bank, 916 F.2d 337 (6th Cir. 1990). Moreover, the Sixth Circuit has made clear that when state law precludes a claim for damages, those damages are not included in the calculation of the jurisdictional amount. Id. at 341.
Under Ohio law, “[g]eneral damages are damages that naturally and necessarily result from a wrongful act and which are directly traceable to, and the probable and necessary result of, injury caused by that act. Special damages are damages of such a nature that they do not follow as a necessary consequence of the injury complained of, though they may in fact naturally flow from that injury.” Corsaro v. ARC Westlake Vill., Inc., 2005 Ohio 1982, ¶ 21 (Ohio Ct. App., Apr. 28, 2005); see also Danial v. Lancaster, 2009 Ohio 3599, ¶10 (Ohio Ct. App., July 23, 2009). The Ohio Supreme Court has held explicitly that special damages “require that the particular contracts, sales, customers, patients or clients lost must be alleged as a prerequisite to recovery of special damage.” Moore v. PW Pub. Co., 3 Ohio St. 2d 183, 190 (1965).
2. Plaintiff’s Amended Complaint Alleges only Vague General Damages and Speculative Future Special Damages, neither of Which Are Compensable Damages .
Plaintiff’s Amended Complaint fails to meet the good faith requirement of alleging either general or special damages in an amount to meet the jurisdictional requirement of 28 U.S.C. § 1332(a). The Amended Complaint’s allegations of damages appear in three paragraphs.
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Plaintiff alleges general damages in ¶ 25 and special damages in ¶¶ 26 and 30. The general damages alleged amount to a vague claim of personal and professional reputational damages and emotional damages. Plaintiff, however, provides no allegation whatsoever of the value of those general damages, nor does he allege any physical or psychic manifestation of the “emotional” harm he claims. While this kind of vague allegation in a per se defamation case in an entirely private matter would allow for such presumed damages, the First Amendment, as set forth above, does not permit presumed general damages when the suit arises out of a public issue. As a matter of law, Plaintiff’s claim of presumed general damages are not allowed and it is, therefore, a legal certainty that Plaintiff has not alleged the jurisdictional amount in general damages.
Plaintiff’s allegations of special damages are no less valid under state law. As the Ohio Supreme Court made clear, special damages are based upon specific claims of lost contracts, or in this case, lost clients. Moore v. PW Pub. Co., 3 Ohio St. 2d at 190. Moreover, under state law, these specific lost contracts and clients must be specifically alleged. The Amended Complaint does nothing but speculate that he might lose clients in the future if the prospective client Googles his name and sees some adverse reference arising out of the alleged defamation. But, Plaintiff has not, and presumably cannot, allege even one actual prospective client lost or a single $1 of lost work due to the alleged defamation, much less lost work in excess of $75,000.
Plaintiff’s claim for special damages in ¶ 30 based upon what he might have to spend to somehow erase Google references to the defamatory statement is patently absurd. First, if this kind of claim were allowed, it would, for all modern day defamation actions, literally generate infinite damages because it is wholesale speculation about the future behavior of a speculative universe of potential clients—not actual clients—and requires prophetic omniscience about how they might respond to future advertising by Plaintiff to counter a Google reference that they may
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or may not have seen or may or may not have discounted as just another blog entry. Second, federal and state law is in accord on speculative future damages. Thus, under the third prong of the general Article III standing requirements,16 Plaintiff simply has no standing because his account of the infinite costs allegedly associated with attempting to remove or prevent some potential listing of Google entries that may or may not exist sometime in the future is entirely speculative. Moreover, when does this speculative counter-public relations remedy end? When there are no Google references whatsoever to the alleged defamation? Does it continue forever insofar as Google’s search algorithms continue to find some reference?
Plaintiff’s speculative injury is not likely to be redressed by the requested relief. The Supreme Court has said time and again that it must be “’likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citation omitted). Speculatively quantifying future damages that themselves are speculative and based upon conjecture do not give rise to standing under Article III. This lack of standing qualifies as prima facie evidence that the preposterous “Google-remedy” damages claim is a bad faith gambit to allege the minimum jurisdictional amount in a diversity action. See also Moe Light, Inc. v. Foreman, 238 F. 2d 817, 818 (6th Cir. 1956) (acknowledging that Ohio law adopts the “well-settled rule” that future
damages based upon speculation and conjecture are not allowed). The only other special damages claim Plaintiff alleges in his First Amended Complaint is
that he had to “expend significant amount of time dealing with [Defendants’] hysteria and false accusations against Plaintiff which took considerable time away from client’s [sic] private
16 To invoke this court’s jurisdiction generally under Article III, “[a] plaintiff must allege  personal injury  fairly traceable to the defendant’s allegedly unlawful conduct and  likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984).
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practice.” (Am. Compl. at ¶ 30.) Once again, under Ohio law, these kind of “opportunity cost” damages must be specifically pled and describe the actual opportunity lost. Plaintiff does not allege that he had paying clients that would have otherwise occupied his time but for Plaintiff’s vague activity in dealing with Defendants’ “hysteria.” Ohio law does not permit these kinds of vague allegations of special damages. As such, they are not compensable and should not be included in any assessment of the jurisdictional amount.
Finally, Plaintiff’s claim of punitive damages is also of no avail in attempting to overcome his bad faith assertion that his claims meet the minimum jurisdictional damage amount in this diversity action. As discussed in detail above, Plaintiff has failed to adequately allege actual malice. Without actual malice, the First Amendment does not permit punitive damages in defamation litigation arising out of a matter of public concern.
In sum, there is simply no plausible accounting based upon actual present damages that could possibly reach the minimum damages threshold required to sustain this action in federal court. Indeed, even assuming some minimal present damages, Plaintiff has provided only speculation and conjecture about future accruing damages, and these are not permitted under Article III or under Ohio law. For these reasons, Defendant Geller requests this court dismiss Plaintiff’s Amended Complaint for lack of subject-matter jurisdiction.
IV . CONCLUSION
Wherefore, for the foregoing reasons, Defendant Geller respectfully requests that this court dismiss Plaintiff’s Amended Complaint with prejudice as against Defendant Geller and grant Defendant an award of attorneys’ fees and costs pursuant to Rule 11(c) after providing Plaintiff notice and an opportunity to respond.