Chuck Johnson v. Gawker: Anti-SLAPP/Motion To Dismiss

Case: 4:15-cv-01137-CAS Doc.
#: 19 Filed: 08/24/15 Page: 1 of 17 PageID #: 370
IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI
(Eastern Division)
:
:
CHARLES C. JOHNSON, et. al
Case No. 14:15-cv-01137

Plaintiffs,
:
:
:
:
:
:
:
v.
GAWKER MEDIA, LLC, et. al,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION TO DISMISS

INTRODUCTION
Plaintiffs, controversial journalist Charles Johnson and his website Got News, complain
that Defendants criticized Johnsons reporting and poked fun at him. The Complaint is based
entirely on opinions and cherry-picked text which, when put in context, is plainly not
defamatory. None of the statements can support a claim. Rather, this case is a transparent
attempt to punish embarrassing but fully legal reporting.
This retaliatory suit is meritless for any number of reasons. Initially, the case should be
dismissed because the Court lacks personal jurisdiction over Defendants. Neither Plaintiffs nor
Defendants have a relevant connection to Missouri; rather, the suit seems to have been brought
here to try to avoid Californias laws addressing retaliatory defamation suits. Alternatively, the
case should be transferred to a state that does have jurisdiction. If not, the Complaint fails to
state a claim for several reasons.1 First, Plaintiffs are public figures and they fail to plausibly
As set forth in the concurrently filed Special Motion to Strike, California law applies to this case. Defendants may
therefore invoke Californias anti-SLAPP statute, which provides special protection for lawsuits challenging speech.
However, if the Court were to determine otherwise, the Complaint fails regardless of which states law is applied so
Defendants file this motion under Rule 12(b)(6) as well.
Case: 4:15-cv-01137-CAS Doc. #: 19 Filed: 08/24/15 Page: 2 of 17 PageID #: 371
allege that Defendants published anything with actual malice. Second, the challenged statements
are non-actionable opinion or are not defamatory to the point where they expressly cast doubt
on the truth of the rumors Plaintiffs complain about. Third, statements by readers to Gawkers
websites are protected by 47 U.S.C. 230, which bars suits against a website for comments
posted by readers.
STATEMENT OF FACTS
I.
PLAINTIFFS CHARLES JOHNSON AND GOT NEWS

Johnson is a highly controversial journalist and commentator, and his website
Gotnews.com is the principal organ for his views.2 Compl. 1. Johnsons work is frequently
featured in publications like the Wall Street Journal and Los Angeles Times, and he has appeared
as a guest on Fox News, CNN and numerous programs. Gotnews.com aims to transform
journalism because Johnson recognized that most published stories were only partially true,
while other important stories were never told at all. See About, GotNews,
http://gotnews.com/about.
Johnson has published many controversial stories attacking politicians like Senators
Robert Menendez, for alleged sexual peccadillos, and Cory Booker. Johnson has also personally
attacked other journalists, such as accusing a New York Times reporter of posing for Playgirl,
Decl. of N. Siegel, Ex. 6, and publishing the home addresses of reporters, id., Ex. 1. As a result,
other media have sharply criticized him about both the accuracy of his reporting and his
character. The New York Times described Johnson as a less [than] edifying creation[] of the
internet who has a knack for staking an outrageous, attacking position on a prominent news
event, then pounding away until he is noticed. Id., Ex. 23. Recently, he provoked an outcry by
2
The three columns at issue, as well as the materials to which they hyperlink, may be considered for purposes of a
motion to dismiss since they are deemed to have been incorporated by reference in the Complaint. In re Senior
Cottages of Am., LLC, 482 F.3d 997, 999 n. 4 (8th Cir. 2007).
identifying Jackie, who was the subject of Rolling Stones erroneous rape story, but publishing
a picture of the wrong woman in the process. See, e.g., Compl. 20 nn. 4-5 (linking to ABC
News and Buzzfeed News articles debunking Johnson stories); Siegel Decl., Ex. 24.
II.
THE COMPLAINT
Plaintiffs challenge a dozen statements from three articles published on the news and
commentary websites Gawker.com and Deadspin.com, which for the convenience of the Court
we have listed in a table, attached as Exhibit 1 hereto (Ex. 1). The statements fall into three
categories: (1) statements that criticize Johnsons reporting; (2) those that humorously discuss
rumors that he defecated on the floor in college and committed bestiality as a minor and suggest
they should not be taken seriously; and (3) comments posted by readers. Id.
ARGUMENT
I.
THIS COURT LACKS PERSONAL JURISDICTION OVER DEFENDANTS

This case has no meaningful connection to Missouri, and publishing articles on the
internet does not confer jurisdiction here. The pertinent facts are that Gawker Media, LLC is a
Delaware company, its principal place of business is New York, and its sole member is a
Cayman Islands company. Dkt. 1-5 at 2, 3. Gawker has no offices, bank accounts or
operations in Missouri, sells no paid subscriptions nor tangible products to Missouri, and has one
employee who lives in Missouri but telecommutes to New York and had nothing to do with the
articles at issue. Aug. 21, 2015 Decl. of C. OConnor 3, 5. Defendants Trotter and Howard
are Gawker writers and domiciliaries of New York. Decl. of J.K. Trotter 2, 3; Decl. of G.
Howard 2, 3. Neither made any trips to Missouri or contacted anyone here in connection with
the articles. Trotter Decl. 7; Howard Decl. 6. Plaintiff Johnson is a domiciliary of California
and Got News LCC is a California company. See Dkt. 1 1, 12.
A.
There Is No Specific Jurisdiction over the Defendants
To establish specific jurisdiction, a plaintiff must demonstrate that both (1) a

defendants conduct was covered by the [Missouri] long-arm statute and (2) the exercise of
jurisdiction comports with due process requirements. Myers v. Casino Queen, Inc., 689 F.3d
904, 909 (8th Cir. 2012) (citation omitted). Plaintiffs can show neither.
First, Missouris long-arm statute allows jurisdiction where the cause of action arises out
of the defendants transaction of any business within this state or the commission of a tortious
act within this state. Mo. Ann. Stat. 506.500.1(1), (3). Recently, Judge Autrey addressed the
statute in the context of publishing allegedly defamatory information on the internet. In Johnson
Chiropractic Ctr., LLC v. Clark, 2014 WL 3818191, at *3 (E.D. Mo. Aug. 1, 2014), the Missouri
assignee of a Wisconsin company sued a North Carolina resident for allegedly defamatory
statements made in a video offered for sale on the companys website. The video was recorded
at a seminar in Texas. Id. at *1. Judge Autrey held that the long-arm statute did not reach
defendants conduct merely because the defendant offered for sale a [video] of the seminar on
the internet. Id. at *3. That conclusion applies with even more force here, where no party is
related to Missouri and the articles at issue were visible here as they are anywhere in the world.
Even if the Missouri statute applied, due process would not permit specific jurisdiction.
That is proper only if . . . the defendant purposely directed its activities at the forum state and
the claim arose out of or relates to those activities. Johnson v. Arden, 614 F.3d 785, 795 (8th
Cir. 2010) (citation omitted). The Eighth Circuit has developed five factors to consider when
deciding whether specific jurisdiction is proper: (1) the nature and quality of the contacts with
the forum state; (2) the quantity of the contacts; (3) the relationship of the cause of action to the
contacts; (4) the interest of Missouri in providing a forum for its residents; and (5) the
convenience or inconvenience to the parties. Id. at 794. The Circuit has applied these factors in
two defamation cases that make clear no specific jurisdiction lies here.
Steinbuch v. Cutler, 518 F.3d 580 (8th Cir. 2008), addressed whether a book publisher
with nationwide distribution was subject to specific jurisdiction in Arkansas. Some copies of the
book were sold in Arkansas bookstores and the plaintiff lived in Arkansas when he filed suit.
Nonetheless, the Court found no specific jurisdiction because the cause of action appear[ed] to
have no direct connection with the forum state. Id. at 586-87. The same is true here.
Subsequently, in Johnson, the Circuit addressed specific jurisdiction in the context of
alleged defamation on the internet, and found none. In that case, Missouri plaintiffs sued a
Colorado resident for publishing statements on her website. 614 F.3d at 788-89. The parties had
previously transacted business, including shipping pets between Colorado and Missouri. Id. As
the plaintiffs were Missouri residents, the Court identified two key factors to determine when a
forum resident may bring suit as a result of internet activity by a foreign defendant.
The first is the extent to which the website is interactive, or whether it largely posts
information and allows others to do the same (which is less likely to justify jurisdiction). Id. at
796 (citing Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997)).
In this case Plaintiffs claim does not arise out of any particular interactivity with Missourians at
all. Rather, they complain about articles and reader comments that were merely posted for
anyone in the world to see, which plainly cannot confer jurisdiction. Id. (describing similar
features on another website as land[ing] on the mere posting end of the scale).
The second factor is the Calder effects test derived from Calder v. Jones, 465 U.S. 783
(1984). This test is met if the defendants acts were uniquely or expressly aimed at the forum
state and caused harm, the brunt of which was suffered and which the defendant knew was
likely to be suffered in the forum state. Johnson, 614 F.3d at 796 (marks omitted). Gawkers
articles were not aimed uniquely at Missouri. And as California residents, Plaintiffs can hardly
contend that most of their harm was suffered in Missouri. Steinbuch, 518 F.3d at 586.
Other courts within this Circuit and beyond have declined to find specific jurisdiction
based on allegedly defamatory statements posted on the internet, including in cases that
presented far more of a connection to the forum state than do the facts here. See, e.g., Revell v.
Lidov, 317 F.3d 467 (5th Cir. 2002) (no jurisdiction over a New York magazine for statements
on its website about the forum plaintiff); Young v. New Haven Advocate, 315 F.3d 256 (4th Cir.
2002) (no jurisdiction over a Connecticut newspaper for statements on its website about the
forum plaintiff); Minn. Pub. Radio v. Va. Beach Educ. Broad. Found., 519 F. Supp. 2d 970 (D.
Minn. 2007) (no jurisdiction over a Virginia public radio station); Bible & Gospel Trust v.
Wyman, 354 F. Supp. 2d 1025 (D. Minn. 2005) (no jurisdiction over the non-resident operator of
a website); Realuyo v. Villa Abrille, 2003 WL 21537754 (S.D.N.Y. July 8, 2003) (no jurisdiction
over a Philippine newspaper for statements on its website), affd, 93 F. Appx 297 (2d Cir.
2004). These cases also demonstrate the critical distinction between physically selling and
delivering into the forum state thousands of physical goods, including a printed magazine, see
Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984), and maintaining a website that is
accessible anywhere but does not actually facilitate any commerce between [the defendant] and
Missouri residents related to the lawsuit, Viasystems, Inc., v. EbmPapst St. Georgen GmbH &
Co. KG, 2010 WL 2402834, at *6 (E.D. Mo. June 11, 2000), affd, 646 F.3d 589 (8th Cir. 2011).
B.
There Is No General Jurisdiction over Any Defendant
The Supreme Court has recently clarified the law with respect to general jurisdiction, so
that it is proper only when a defendant is effectively at home in the forum state. Daimler AG
v. Bauman, 134 S. Ct. 746, 761 (2014). For an individual that is typically their domicile, and for
a corporation, the place of incorporation and principle place of business are paradig[m] . . .
bases for general jurisdiction. Id. at 760 (citation omitted); Holman v. AMU Trans, LLC, 2015
WL 3918488, at *2 (N.D. Ill. June 25, 2015) (same as to limited liability company). Finding
jurisdiction otherwise is appropriate only in an exceptional case. Daimler AG, 134 S. Ct. at
761 n.19. This case is plainly not the exceptional one, since Defendants have virtually no actual
presence in Missouri, let alone contacts that would render any of them at home here. See, e.g.,
Cortec Corp. v. Transilwrap Co., 2015 WL 164173, at *2 (D. Minn. Jan. 13, 2015). Thus, the
case should be dismissed with prejudice for lack of personal jurisdiction.
II.
ALTERNATIVELY, THIS CASE SHOULD BE TRANSFERRED

If not dismissed, the Court should exercise its discretion to transfer the case to the
Southern District of New York, or the Eastern District of California pursuant to 28 U.S.C.A.
1404(a). There are twelve factors to consider, Terra International, Inc. v. Mississippi Chemical
Corp., 119 F.3d 688, 696 (8th Cir. 1997), almost all of which favor transfer.
Those factors are: (1) The convenience of the parties (New York would be far more
convenient to Defendants, while not meaningfully different for Plaintiffs); (2) The convenience
of the witnesses (Either New York or California would be far more convenient than Missouri,
where few if any witnesses are located); (3) The accessibility to records and documents (All are
likely located in New York (for Defendants) or California (for Plaintiffs)); (4) The location
where the conduct complained of occurred (The articles were written in New York and
Johnsons conduct was largely in California); (5) The applicability of each forum states
substantive law (California law applies); (6) Judicial economy (either neutral or points to either
alternative forum, where the law governing anti-SLAPP statutes is well-settled); (7) The
plaintiffs choice of forum (This is accorded little weight where neither the dispute nor a
plaintiffs domicile have a connection to the forum. Cunningham v. United Air Lines, Inc., 2013
WL 3984513, at *4 (E.D. Mo. Aug. 1, 2013)); (8) The comparative costs to the parties of
litigating in each forum (Missouri is likely to be the most expensive since neither party is located
here); (9) Each partys ability to enforce a judgment (This is either neutral or, if Defendants were
to recover their attorneys fees, favors California since Plaintiffs assets are likely there); (10)
Obstacles to a fair trial (neutral); (11) Conflict of law issues This favors California, as does
(12) the advantages of having a local court determine questions of local law. Notably, other
courts have transferred media defamation cases where the locus of the dispute was clearly
elsewhere. See, e.g., Ramsey v. Fox News Network, LLC, 323 F. Supp. 2d 1352 (N.D. Ga. 2004)
(transferring case to Colorado where broadcast was reported); Holmes v. TV-3 Inc., 141 F.R.D.
697 (W.D. La. 1991) (transferring case about Mississippi broadcast involving Mississippi law).
III.
PLAINTIFFS COMPLAINT FAILS TO STATE A CLAIM

In the alternative, Plaintiffs defamation, injurious falsehood, and false light claims
should be dismissed on the merits. Because all causes of action challenge the same allegedly
false speech, the same constitutional and state law standards apply regardless of how each one sis
labeled. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 51-57 (1988); Beverly Hills Foodland,
Inc. v. United Food & Commercial Workers Union, 39 F.3d 191, 196 (8th Cir. 1994); Farrow v.
St. Francis Med. Ctr., 407 S.W.3d 579, 598-602 (Mo. 2013) (Missouri does not recognize
duplicative defamation and false light theories); State ex. rel. Diehl v. Kintz, 162 S.W.3d 152,
156 n. 4 (Mo. Ct. App. 2005) (defamation analysis applies to the tort of injurious falsehood).
A.
Plaintiffs Fail to Plausibly Allege that Defendants Acted with Actual Malice
1.
Plaintiffs are Public Figures
To protect the vitality of public commentary, the law differentiates between private and
what libel law calls limited purpose public figures, i.e., those individuals who, by reason of
the notoriety of their achievements or the vigor and success with which they seek the publics
attention, thereby both run[] the risk of closer public scrutiny and achieve access to the
channels of effective communication to correct alleged falsehoods about them. Gertz v. Robert
Welch, Inc., 418 U.S. 323, 342-44 (1974). Plaintiffs are the archetypical public figures.
To determine whether a plaintiff is a public figure, the court must identify (1) a public
controversy giving rise to the defendants speech; (2) and the nature and extent of the
plaintiffs participation in the controversy. Lundell v. Mfg. Co. v. ABC, 98 F.3d 351, 362-63 (8th
Cir. 1996). Importantly, the determination of a plaintiffs status as a private or public figure is
an issue of law. Id. at 362. Here, well before Defendants publications, Plaintiffs made
themselves highly controversial by provocatively injecting themselves into numerous public
controversies, by personally attacking the character of other journalists, and responding in kind
to anyone who criticized them. See, e.g., Siegel Decl., Ex. 1 (Note how closed minded my
critics are tonight. . . . And Im the one thats a bigot?).
Johnson, a self-proclaimed revolutionary of internet journalism, naturally provoked a
public controversy over his own journalism and character. The first Trotter article was prompted
by a social media campaign to ban Johnson on Twitter sparked by the UVA story. Trotters
second article explains that it followed a New York Times profile harshly criticizing Johnson.
And the Howard article lays out how it was prompted by Johnsons own Facebook post touting
his notoriety and success, lambasting his critics as weaker people, followed by Johnsons
e-mail to Howard pointing out and preemptively denying rumors posted on his Facebook site,
which Howard included in his article. Indeed, journalists whose reporting or conduct becomes
the subject of controversy are regularly held to be public figures. ODonnell v. CBS, 782 F.2d
1414 (7th Cir. 1986) (television news director accused of ethical lapses); Renner v. Donsbach,
749 F. Supp. 987 (W.D. Mo. 1990) (newspaper columnist a public figure); Warner vs. Kansas
City Star, 726 S.W.2d 384 (Mo. Ct. App. 1987) (same).
2.
Plaintiffs Fail to Plausibly Allege Actual Malice
Public figures must plead actual malice a term of art meaning that a challenged
statement was made with knowledge that it was false or with reckless disregard of whether it
was false or not. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). Moreover, reckless
disregard does not mean recklessness in the ordinary sense of gross negligence. Rather, the
standard is subjective: the inquiry focuses on the speakers actual state of mind. The test is
whether the defendant made false remarks with a high degree of awareness of probable falsity,
or that the defendant entertained serious doubts as to the truth of his publication. Campbell v.
Citizens for Honest Govt, 255 F.3d 560, 569 (8th Cir. 2001).
Importantly, Ashcroft v. Iqbal, 556 U.S. 662 (2009) also concerned the pleading
requirements for a state of mind element, in that case knowing discrimination. Here the
Complaint contains only a conclusory allegation that merely recites the legal definition of actual
malice. Compl. 65, 75, 80, 91. Numerous courts applying Iqbal to defamation complaints
hold that to be insufficient as a matter of law to withstand dismissal. See, e.g., Pippen v.
NBCUniversal Media, LLC, 734 F. 3d 610 (7th Cir. 2013), cert. denied, 134 S. Ct. 2829 (2014);
Mayfield v. NASCAR, 674 F.3d 369 (4th Cir. 2012); Schatz v. Republican State Leadership
Comm., 669 F.3d 50 (1st Cir. 2012). Moreover, the articles on their face negate any plausible
10
inference of malice, thus making any effort to amend futile. For example: numerous other
media articles also criticize Johnson; Defendants articles link to their source material so that
readers can judge for themselves; they extensively include Johnsons denials and point of view;
and they humorously suggest they agree with Johnson with respect to the two rumors the
Complaint alleges are false. See Anti-SLAPP Mem. at 11-12.
B.
The Allegedly Defamatory Statements Are Also Not Actionable

1.
The Statements about Plaintiffs Faulty Reporting
Alternatively, Statements A, B, C, and J (Ex. 1) should be dismissed because they are

non-actionable opinions about Johnsons reporting based on disclosed source material. Whether
language is actionable defamation is a question of law. Shepard v. Cortoise, 115 F. Supp. 2d
1142, 1147 (E.D. Mo. 2000). The First Amendment forbids liability for statements that cannot
reasonably [be] interpreted as stating actual facts about an individual. Milkovich v. Lorain
Journal Co., 497 U.S. 1, 19-21 (1990) (citation omitted). Generally, when a writer discloses the
facts upon which his conclusion is based, that renders the conclusion opinion because the reader
is free to judge for themselves. Diez v. Pearson, 834 S.W.2d 250, 253 (Mo. Ct. App. 1992).
Moreover, a court must assess the totality of the circumstances to determine whether, in
context, an author is asserting an opinion. Others First Inc. v. Better Bus. Bureau of Greater St.
Louis, Inc., --- F. Supp. 3d ---, 2015 WL 1886623, at *4 (E.D. Mo. Apr. 24, 2015) (granting
motion to dismiss), appeal filed, No. 15-2184 (8th Cir. May 22, 2015).
Moldea v. New York Times Co., 22 F.3d 310 (D.C. Cir. 1994), established what is widelyregarded as the relevant analysis to apply when one journalist critiques the work of another.
Because such articles reflect a genre in which readers expect to find spirited critiques, Moldea
held that as long as the critique is a supportable interpretation of the others work that is
11
supported by examples, it is non-actionable. Id. at 311-313; see also McClure v. Am. Family
Mut. Ins. Co., 223 F.3d 845, 853 (8th Cir. 2000) (A commentator who advocates one of several
feasible interpretations of some event is not liable in defamation. (citations omitted)).
Here, the authors critique that Johnson gets things wrong a lot, (Ex. 1, Statement J; see
also Statements A & B), is supported by several examples of his reporting, with hyperlinks to
sources that discuss them. Defendants critique is certainly a supportable interpretation, since
those sources debunk his reporting. Indeed, the Complaint illustrates why their analysis is
protected opinion. It asserts the hyperlinked sources do not support the conclusion that
Johnsons reporting was wrong. Compl. 20 nn. 4-5. While that seems a far less supportable
interpretation, the point is that readers are free to decide for themselves.
The same is true for Statement C, [i]n other words, Brown deserved to die. This is
Trotters subjective interpretation of words that he quotes from Johnsons article, so readers can
readily decide whether they share his opinion. See, e.g., Agora, Inc. v. Axxess, Inc., 90 F. Supp.
2d 697 (D. Md. 2000), affd, 11 F. Appx 99 (4th Cir. 2001); Redmond v. Gawker Media, 2012
WL 3243507 (Cal. Ct. App. Aug. 10, 2012) (both holding that articles were protected opinion
where they linked to their sources); see also Partington v. Bugliosi, 56 F.3d 1147, 1156-57 (9th
Cir. 1995) (when an author outlines the facts available to him, thus making it clear that the
challenged statements represent his own interpretation of those facts and leaving the reader free
to draw his own conclusions, those statements are generally protected by the First Amendment).
2. Defendants Humorous Queries About Rumors Are Not Capable of a
Defamatory Meaning and Do Not Assert those Rumors as Fact
In defamation cases, a threshold question of law for the Court is whether the statements at
issue are reasonably capable of a defamatory meaning. Fisher v. Wal-Mart Stores, Inc., 619 F.3d
811, 820 (8th Cir. 2010). Importantly, statements must not be viewed in isolation, but must be
12
construed within the context of the article as a whole. Ribaudo v. Bauer, 982 S.W.2d 701, 70406 (Mo. Ct. App. 1998). Statements that do not assert actual facts about a plaintiff are not
actionable. Fjelsta v. Zogg Dermatology, PLC, 488 F.3d 804, 810-11 (8th Cir. 2007).
With respect to Statements D, G, and K, the Complaint plucks out of context a few words
describing Johnsons alleged defecation and bestiality, ignoring entirely that they are presented
solely as rumors, and indeed rumors that the authors suggest are likely incredulous. In any
event, the light-hearted, humorous tenor of the articles as a whole indicate they are poking fun at
Johnsons expense, not asserting actual facts about him, and the articles make clear the rumors
should not be taken seriously. See, e.g., Dupuis v. City of Hamtramck, 502 F. Supp. 2d 654, 658
(E.D. Mich. 2007) (Humor at an individuals expense is typically deemed to fall into the
opinion category, as it usually falls short of being interpreted as conveying facts.); see also
Anti-SLAPP Mem. at 12-13.3 The Howard article pokes fun at Johnsons Facebook post and the
fact that Johnson himself preemptively pointed out to Howard, in order to deny, some comments
on his Facebook page about defecating on the floor. Howard says Id be inclined to believe the
guy [Johnson], or at least give him the benefit of the doubt, and then mockingly notes the
importance of fact-checking in light of the Rolling Stone debacle. And Howards statement that
[t]here is some good-ass kinja to be had (Statement L) is likewise, as Johnson himself
essentially alleges, just a humorous way of saying there are some entertaining reader comments.
It asserts nothing factual at all about Plaintiffs.
The second Trotter article examines the two rumors Johnson challenges in order to lightheartedly conclude that there is no evidence they are true, but that Johnson is sufficiently
disliked that he is someone about whom people are inclined to fabricate rumors. And although
3
Indeed, mere insults are not actionable, so a rumor about juvenile behavior like defecating on the floor in college
would not be actionable even if it was asserted as fact. See, e.g., Beverly Enters., Inc. v. Trump, 1 F. Supp. 2d 489,
492 (W.D. Pa. 1998), affd, 182 F.3d 183 (3d Cir. 1999).
13
they are not actionable for other reasons (see Section B.3 below), the same analysis applies to
Statements E, F, H, and I, all of which are third-party comments presented as examples of the
same rumors that Trotter and Howard make clear are likely not true.
Moreover, even if the articles were to be taken literally, neither would be actionable
because they merely raise the question of whether the rumors are true. As the D.C. Circuit
recently noted, questions are not actionable because it is generally settled as a matter of
defamation law in other jurisdictions that a question, however embarrassing or unpleasant to its
subject, is not accusation. Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1338 (D.C. Cir.
2015) (quoting Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1094 (4th Cir. 1993)). Questions
indicate a defendants lack of definitive knowledge about the issue. Id. (quoting Partington,
56 F.3d at 1157). Moreover, the suggested answer is that there is no evidence the rumors are
true, so the articles plainly do not assert anything factual or defamatory.
3. The Statements Made by Third-Party Commenters to the Gawker Sites
are Barred by Section 230 of the Communications Decency Act (CDA)
Any claims based on Statements E, F, H, I, or L are also barred pursuant to Section 230
of the CDA, which protects website hosts from liability when they transmit content created by
another person. Section 230 states, in relevant part, that [n]o provider . . . of an interactive
computer service shall be treated as the publisher or speaker of any information provided by
another information content provider, 47 U.S.C. 230(c)(1), and [n]o cause of action may be
brought and no liability may be imposed under any State or local law that is inconsistent with
this section, id. 230(e)(3). As the leading case construing Section 230 explained:
By its plain language, 230 creates a federal immunity to any cause of action that would
make service providers liable for information originating with a third-party user of the
service. Specifically, 230 precludes courts from entertaining claims that would place a
computer service provider in a publishers role. Thus, lawsuits seeking to hold a service
provider liable for its exercise of a publishers traditional editorial functions such as
deciding whether to publish, withdraw, postpone or alter content are barred.
14
Zeran v. AOL, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (emphasis added); see also Johnson, 614
F.3d at 790-92 (adopting Zerans analysis); S.C. v. Dirty World, LLC, 2012 WL 3335284, at *4
(W.D. Mo. Mar. 12, 2012) (same); M.A. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d
1041 (E.D. Mo. 2011) (applying the CDA to dismiss claims against websites).
Statements E, F, H, and I are barred by Section 230. Gawker is without question an
interactive computer service provider because its websites enable[] computer access by
multiple users to a computer server. 47 U.S.C. 230(f)(2). As a result, Plaintiffs cannot sue
Defendants for statements provided by another information content provider, id. 230(c)(1)
i.e., that originat[ed] with . . . a third-party user of Gawkers website, Zeran, 129 F.3d at 330.
There is no dispute that other users of the website contributed Statements E, F, H and I. See
Siegel Decl., Ex. 22; see, e.g., Compl. 24-27, 34, 37, 39, 43-45, 52. Additionally, Statement L
by Howard, which states [t]here is some good-ass kinja to be had, and then links to comments
posted to Trotters December 9 article, is likewise barred by Section 230 because it merely offers
the comment that what readers have posted is interesting.4 As long as a website operator does
not provide or alter the underlying reader comment, it cannot be responsible for what makes
another partys statement actionable by commenting on that statement post hoc. Jones v. Dirty
World Entmt Recordings LLC, 755 F.3d 398, 415 (6th Cir. 2014) (internal quotations and
citations omitted). As Jones held, merely commenting does not effectively ratif[y] and adopt[]
the defamatory third-party post. Id. at 416-17 (citation omitted).
CONCLUSION
For the foregoing reasons the Complaint should be dismissed, or alternatively transferred.
4
Kinja is Gawkers online platform. It allows readers of all Gawker blogs to post comments on stories and
creates an easy and consistent reading experience throughout all Kinja blogs. See What is Kinja?, Kinja Support
Center, http://help.gawker.com/customer/portal/articles/1099535-what-is-kinja.
15
Dated: August 24, 2015
Respectfully submitted,
LEWIS, RICE & FINGERSH, L.C.
By:
/s/ Joseph E. Martineau

Joseph E. Martineau, #32397
600 Washington, Suite 2500
St. Louis, Missouri 63101
jmartineau@lewisrice.com
314/444-7729
314/612-7729 (facsimile)
Nathan Siegel*
LEVINE SULLIVAN KOCH & SCHULZ, LLP
1899 L St., NW, Suite 200
Washington, DC 20036
Tel: (202) 508-1100
Fax: (202) 861-9888
nsiegel@lskslaw.com
*pro hac vice
Attorneys for Defendants
16
CERTIFICATE OF SERVICE
The undersigned certifies that on this 24th day of August, 2015, a true copy hereof was
served with the Clerk of the Court using the CM/ECF system on the following:
Jonathon Christian Burns
THE BURNS LAW FIRM, LLC
1717 Park Avenue
St. Louis, MO 63104
john@burns-firm.com
Attorneys for Plaintiffs
By:
IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI
(Eastern Division)
CHARLES C. JOHNSON, et. al
:
:
Case No. 14:15-cv-01137
Plaintiffs,
v.
GAWKER MEDIA, LLC, et. al,
Defendants.
:
:
:
:
:
:
:
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS SPECIAL MOTION TO

STRIKE THE COMPLAINT PURSUANT TO THE CALIFORNIA ANTI-SLAPP LAW
INTRODUCTION
The background of this lawsuit is summarized in Defendants Motion to Dismiss,
concurrently filed herewith. This motion raises the same arguments, but because, as discussed
herein, California law applies to this lawsuit, it is submitted pursuant to Californias anti-SLAPP
statute, Cal. Civ. Proc. Code (C.C.P.) 425.16. This statute, which has been regularly applied
by federal courts around the country in defamation cases arising under California law, may be
invoked where, as here, a defendant faces meritless claims attacking its protected speech.
Precisely in order to prevent litigants from inflicting damage through the litigation process itself,
the statute provides for prompt dismissal with prejudice of claims such as these and requires
recovery by defendants of their attorneys fees and costs.
To survive a special motion pursuant to the statute, Plaintiffs bear the burden of
demonstrating, with admissible evidence, that there is a probability that [they] will prevail on
their claims. Id. If Plaintiffs fail to carry this burden, the Complaint must be stricken and
Defendants awarded their attorneys fees and costs. Id. For the reasons discussed in their Rule
12(b)(6) motion and addressed further herein, Plaintiffs cannot demonstrate a probability of
success because their Complaint fails as a matter of law. It must therefore be stricken, with fees
and costs awarded to Defendants.
STATEMENT OF FACTS
I.
PLAINTIFFS CONTROVERSIAL STYLE OF JOURNALISM

That Johnson is a well-known internet celebrity and public figure, and Got News is
likewise well-known as the principal organ for publishing his views, is readily apparent by the
materials incorporated by reference in the Complaint as set forth in Defendants Motion to
Dismiss. We outline some additional materials in this motion solely to supplement that
showing.1
Johnsons website illustrates that he has a history of publishing or threatening to
publish personal information about individuals in stories he criticizes, or even those covering
them, and he has attracted widespread notoriety and attention by doing so. For example, Johnson
accused a New York Times reporter of posing for Playgirl, which he had to retract because his
source turned out to be an April-fools genre college satirical newspaper. He contributed to a
now widely-discredited story accusing Senator Robert Menendez of paying prostitutes in the
Dominican Republic. Taylor Wofford, Did Cuban Agents Plant a Daily Caller Story Smearing
Democratic Sen. Menendez?, Newsweek (July 8, 2014), http://www.newsweek.com/cubanintelligence-agents-daily-caller-smearing-senator-menendez-257896. He published on his
website the home addresses of New York Times and Washington Post journalists covering the
protests of the shooting death of Michael Brown in Ferguson, Missouri, Charles C. Johnson, Why
1
In deciding an anti-SLAPP motion, the Court may consider facts outside the four corners of the Complaint. C.C.P.
425.16(b)(2) ([T]he court shall consider the pleadings, and supporting and opposing affidavits stating the facts
upon which the liability or defense is based.). The additional articles referenced herein are included in the attached
Declaration of Nathan E. Siegel.
Cant We Publish Addresses of New York Times Reporters?, Got News (Nov. 25, 2014),
http://gotnews.com/cant-publish-addresses-new-york-times-reporters, and the wrong picture of
Jackie, the woman at the center of Rolling Stones alleged rape story at the University of
Virginia, Terrence McCoy, Meet the divisive blogger who says he outed Rolling Stones Jackie,
Wash. Post. (Dec. 9, 2014), http://www.washingtonpost.com/news/morningmix/wp/2014/12/09/the-blogger-who-wants-to-take-down-rolling-stone-jackie-and-theuniversity-of-virginia-president. Johnson also repeatedly claimed on his now-deactivated
Twitter account that President Obama was gay and offered money for photos of Senator Thad
Cochrans wife in her nursing home bed. See Jacob Silverman, Is Charles Johnson a Digital
Darth Vader?, POLITICO (December 11, 2014), http://www.politico.com/magazine/story
/2014/12/charles-johnson-a-digital-darth-vader-113522_full.html; Brett Logiurato, Meet the
Mega Troll Whos Turned A Major US Senate Race Into His Own Performance Art Piece,
Business Insider (July 11, 2014), http://www.businessinsider.com/charles-johnson-mississippisenate-race-mcdaniel-cochran-2014-7.
Plaintiffs provocative journalism has in turn attracted an avalanche of criticism, both
with respect to the quality of his reporting and his character, long before the first Gawker piece
was published. For example, in August 2014 The Clarion Ledger described Johnson as a
cowardly little man who makes hollow threats, baseless claims and wild accusations, and
criticized him for a series of Tweets judging James Foley, the American journalist held captive
for nearly two years and then beheaded by ISIS. Sam Hall, Charles Johnson reaches new low
with James Foley Tweets, The Clarion Ledger (Aug. 19, 2014), http://www.clarionledger.com
/story/dailyledes/2014/08/19/charles-johnson-james-foley-tweets/14320165; see also Logiurato
supra at 3 (opining in July 2014 that Not many believe his claims or reporting in either story
due to his long list of prior controversies and calling Johnson a mega troll); David Weigel,
Daily Caller Cites 24-Year-Old Fake Princeton Newspaper to Attack the NYT's Benghazi
Reporter, Slate (Jan. 6, 2014) (debunking Johnsons Playgirl story in January 2014),
http://www.slate.com/blogs/weigel/2014/01/06/daily_caller_cites_24_year_old_fake_
princeton_newspaper_to_attack_the_nyt.html; Rosie Gray & Ruby Cramer, Reporter Who
Questioned Cory Bookers Residency Also Worked For Anti-Booker PAC, Buzzfeed (Dec. 17,
2013) (article from December 2013 questioning Johnsons undisclosed conflicts of interest in the
Cory Booker story), http://www.buzzfeed.com/rosiegray/conservative-writer-who-questionedcory-bookers-residency#.hoeRYnVyG5.
In October 2014 Johnsons Twitter account was suspended after he posted the street
address of someone he said had been exposed to the Ebola patient in Dallas, Tom Kludt, Charles
C. Johnsons Twitter Account Suspended, Talking Points Memo (Oct. 7, 2014),
http://talkingpointsmemo.com/livewire/chuck-c-johnson-twitter-suspended, and it has since been
permanently suspended. Johnson has actively solicited public support on his website to petition
Twitter to reactive his account. See generally Got News, http://gotnews.com.
And before the Gawker articles, the New York Daily News, International Business Times
published pieces regarding Johnson publishing the personal information of Jackie, which
promoted yet another social media controversy concerning Plaintiffs, to which Defendants and
many other media responded. Alejandro Alba, GotNews reporter is blasted on social media for
revealing name of alleged UVA rape victim, N.Y. Daily News (Dec. 8, 2014),
http://www.nydailynews.com/news/national/reporter-criticized-revealing-uva-rape-victimarticle-1.2037087; Christopher Zera, Twitter Harassment? Charles C. Johnson Boasts of Doxing
Jackie, Alleged UVA Rape Victim, International Business Times (Dec. 8, 2014),
http://www.ibtimes.com/twitter-harassment-charles-c-johnson-boasts-doxing-jackie-alleged-uvarape-victim-1743596. For example, the day before Trotter posted his first article, Wonkette
profiled Johnson and described him as the human equivalent of toxic sludge. Gary Legum,
Twitters Biggest Scumbag Chuck C. Johnson Outs Rape Victim to Teach Feminists a Lesson,
Wonkette (Dec. 8, 2014), http://wonkette.com/568535/twitters-biggest-scumbag-chuck-cjohnson-outs-rape-victim-to-teach-feminazis-a-lesson. The Washington Post also published on
December 9 a critical profile of Johnson at the same time that Trotters first column was posted.
See McCoy supra at 3. So did US News, which described Johnson as a bully and a troll.
Susan Milligan, A Bully and a Troll, U.S. News (Dec. 9, 2014), http://www.usnews.com/opinion
/blogs/susan-milligan/2014/12/09/charles-c-johnsons-cruel-trolling-of-uva-rape-survivor-jackie.
POLITICO then described Got News as characterized by its scorched-earth mentality and
exploitation of subjects personal lives, and stated that Johnson might be the most hated man
on the Internet. See Silverman supra at 3. The New York Times likewise published a lengthy
profile of Plaintiffs, which was referenced in the second Trotter article.
II.
PLAINTIFFS MISUSE OF LIBEL LAW TO SILENCE THEIR CRITICS

While Plaintiffs livelihood depends on the robust protection that the First Amendment
provides to express vituperative opinions about the targets of their commentary, Johnson is far
less inclined to respect freedom of speech when critical opinions or rhetorical insults are directed
at him. Thus, Johnson has repeatedly and publicly threatened to sue his critics for defamation,
be they Gawker, Buzzfeed, ABC News, or many others. The conservative newspaper Daily
Caller, to which Johnson formerly contributed, satirically characterized his repeated threats as a
planned libel lawsuit jihad on the media. Betsy Rothstein, Charles Johnson Plans Libel
Lawsuit Jihad On Media, Daily Caller (Dec. 11, 2011), http://dailycaller.com/2014/12/11/
charles-johnson-plans-libel-lawsuits-jihad-on-media. Another critic opined that [a] selfproclaimed journalist should know better than to threaten libel lawsuits against other journalists.
Adam Steinbaugh, The Unrealized Defamation Threats of Charles C. Johnson, Adam
Steinbaughs Blog about Law and Tech. (Dec. 10, 2014), http://adamsteinbaugh.com/2014
/12/10/the-unrealized-defamation-threats-of-charles-c-johnson. Notably, Johnson has publicly
identified a Los Angeles attorney as his libel counsel with whom he consults about potential
lawsuits, see Rothstein, supra at 5-6, but now brings this lawsuit in Missouri.
ARGUMENT
I.
CALIFORNIA LAW GOVERNS THIS ACTION

In diversity cases, a district court applies the choice-of-law rules of its forum state.
Allianz Ins. Co. of Can. v. Sanftleben, 454 F.3d 853, 855 (8th Cir. 2006). In tort cases, Missouri
applies the law of the state with the most significant relationship to the occurrence and the
parties. Thompson v. Crawford, 833 S.W. 2d 868, 870 (Mo. 1992). Missouri has adopted
Section 145 of the Restatement (Second) of Conflict of Laws which states that the following
factors should be considered in determining the most significant relationship: (a) the place
where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the
domicile, residence, nationality, place of incorporation, and place of business of the parties; and
(d) the place where the relationship, if any, between the parties is centered. Birnstill v. Home
Sav. of Am., 907 F.2d 795, 797 (8th Cir. 1990).
In Fuqua Homes, Inc. v. Beattie, 388 F.3d 618 (8th Cir. 2004), the Eighth Circuit
addressed the precise issue presented in this case: which states law Missouri would apply in the
context of defamation on the internet. Fuqua explained that the Missouri Supreme Court has
approved Section 150 of the Restatement (Second) of Conflicts of Laws, which creates a
presumption that when a corporation brings a defamation suit arising from an aggregate
communication, the state with the most significant relationship will be the state of the
corporation's principal place of business. 388 F.3d at 622 (citing Elmore v. Owens-Ill., Inc.,
673 S.W.2d 434, 436-37 (Mo. 1984)). With respect to an individual, both the Restatement and
Elmore likewise provide that the state of most significant relationship will usually be the state
where the person was domiciled at the time. Restatement (Second) of Conflict of Laws
150(3); see also Fuqua, 388 F.3d at 622 ([T]he most important consideration in choosing the
applicable law is the residence of the party allegedly defamed. (citing Elmore, 673 S.W.2d 434
at 436-47)). This is because defamation produces a special kind of injury that has its principal
effect among ones friends, acquaintances, neighbors and business associates in the place of
ones residence. Fuqua, 388 F.3d at 622 (citation and marks omitted).
Fuqua likewise held that the publication of defamatory material via the internet is
closely analogous to the methods of aggregate communication listed in 150, and therefore
Missouri would adhere to the presumption created in 150 in cases where defamatory material
is published on an internet website. Id. Indeed, numerous courts applying the Restatement to
allegedly defamatory publications have held that the law of the plaintiffs domicile governs. See,
e.g., Aoki v. Benihana, Inc., 839 F. Supp. 2d 759, 765 (D. Del. 2012) (following Fuqua to apply
New York law to claim of defamation over the internet because plaintiffs resided there); Ground
Zero Museum Workshop v. Wilson, 813 F. Supp. 2d 678, 699-700 (D. Md. 2011) (applying New
York law to internet publications); Natural Wealth Real Estate, Inc. v. Cohen, 2006 WL
3500624, at *4 (D. Colo. Dec. 4, 2006) (where tortious interference with prospective business
advantage claim was premised on allegedly false multistate communications, Colorado the
state of . . . the corporate-plaintiffs principal place of business has the most significant
relationship to the alleged wrongdoing); accord Sys. Operations, Inc. v. Scientific Games Dev.
Corp., 555 F.2d 1131, 1138-39 (3d Cir. 1977) (applying New Jersey law as location of plaintiffs
principal place of business to multistate communications).2
In this action, California is clearly the presumptive choice of law and the facts here
present no conceivable basis to depart from that strong presumption. The principal locus of
Plaintiffs alleged reputational and emotional injuries is California, where Johnson resides and
attended college, and the sole locus of Got Newss alleged lost business and lost investments is
California since that is the only state in which it operates. By contrast, Missouri has no
meaningful relationship to this case at all, and it would appear likely that the principal reason
Plaintiffs have filed this lawsuit in Missouri rather than use their California libel attorney is
because they hope to evade their states anti-SLAPP law. That demonstrates all the more why
California has the strongest interest in having its law applied here, so that its anti-SLAPP statute
cannot be evaded by enabling Plaintiffs to forum shop their SLAPP lawsuits to other states.
II.
PLAINTIFFS COMPLAINT SHOULD BE DISMISSED UNDER THE

CALIFORNIA ANTI-SLAPP STATUTE
A.
The California Anti-SLAPP Statute
SLAPP is an acronym for strategic lawsuits against public participation, a term of art
for lawsuits much like this one that are intended to silence a plaintiffs critics. In enacting the
anti-SLAPP statute, the California Legislature declared that it is in the public interest to
encourage continued participation in matters of public significance, and that this participation
should not be chilled through abuse of the judicial process. C.C.P. 425.16(a). The statute
provides a mechanism to dismiss meritless lawsuits designed to chill the defendants free
2
Section 151 of the Restatement further provides that the choice of law rules for injurious falsehood and defamation
are the same, while Section 153 provides that the presumptive law governing invasion of privacy claims is likewise
the state where the plaintiff is domiciled. Restatement (Second) of Conflict of Laws 151, 153.
speech rights at the earliest stage of the case, Kunysz v. Sandler, 146 Cal. App. 4th 1540, 1543
(2007), and is designed to nip SLAPP litigation in the bud, Braun v. Chronicle Publg Co., 52
Cal. App. 4th 1036, 1042 (1997). If an anti-SLAPP motion is successful, the case is dismissed
with prejudice and the defendant awarded its attorneys fees and costs. See C.C.P.
425.16(c)(1).
Because Californias anti-SLAPP statute confers a substantive immunity under California
law, it applies in federal court. United States ex rel. Newsham v. Lockheed Missiles & Space
Co., 190 F.3d 963, 970-73 (9th Cir. 1999). As a result, many federal courts outside California
have applied its anti-SLAPP statute to dismiss defamation suits that are governed by California
law. See, e.g., Tobinick v. Novella, 2015 WL 3540053 (S.D. Fla. June 4, 2015) (granting antiSLAPP motion in defamation case brought by California resident against internet blogs); Gilead
Sciences, Inc. v. Abbot Labs., Inc., 2015 WL 1191129 (D. Del. March 13, 2015) (granting antiSLAPP motion to strike defamation claims by a California company); Adelson v. Harris, 973 F.
Supp. 2d 467 (S.D.N.Y. 2013) (granting anti-SLAPP motion under similar Nevada law), cert.
granted, 774 F.3d 803 (2d Cir. 2014); USANA Health Sciences, Inc. v. Minkow, 2008 WL
619287 (D. Utah Mar. 4, 2008) (granting anti-SLAPP motion under California law); see also
Price v. Stossel, 2008 WL 2434137 (S.D.N.Y. June 4, 2008) (finding California anti-SLAPP
statute would be applied by a New York federal court).
The determination as to whether an anti-SLAPP motion should be granted is a two-part
inquiry. First, the defendant must make a prima facie showing that its activities challenged in
the lawsuit arise from a category of protected speech that is protected by the statute. Doe v.
Gangland Prods., Inc., 730 F.3d 946, 953 (9th Cir. 2013); Batzel v. Smith, 333 F.3d 1018, 1024
(9th Cir. 2003). Second, if the defendant makes that showing, the burden shifts to the plaintiff to
demonstrate a probability of prevailing on the merits. Id.; Equilon Enters. v. Consumer Cause,
Inc., 29 Cal. 4th 53, 67 (2002).
B.
Plaintiffs Claims Trigger the Anti-SLAPP Statute because They Arise from
Defendants Acts in Furtherance of Their Free Speech Rights
As an initial matter, it is notable that the California anti-SLAPP statute was designed to
ensure protection from individuals just like Plaintiffs: those who regularly threaten or bring
defamation litigation in an effort to punish and silence their critics, rather than recover fair
compensation for anything the law actually recognizes as a genuine injury. See C.C.P.
425.16(a). In any event, Defendants plainly meet the statutory requirements of the Act that
trigger its application. The Gawker articles are written or oral statement or writing[s] made in a
place open to the public or a public forum in connection with an issue of public interest. Id.
425.16(e)(3). Web sites accessible to the public . . . are public forums for purposes of the
anti-SLAPP statute. Barrett v. Rosenthal, 40 Cal. 4th 33, 41 n.4 (2006); see also Nygard, Inc. v.
Uusi-Kerttula, 159 Cal. App. 4th 1027, 1039 (2008).
Moreover, the controversy over Plaintiffs is clearly an issue of public interest. The
anti-SLAPP statute by its own terms must be construed broadly, see C.C.P. 425.16(a), and as a
result California courts have broadly construed public interest to include any issue in which the
public is interested, Nygard, Inc., 159 Cal. App. 4th at 1042-43 (holding that articles about
celebrity gossip are protected by the anti-SLAPP statute); see also Hall v. Time Warner, Inc.,
153 Cal. App. 4th 1337 (2007) (Celebrity Justice program about Marlon Brandos housekeepers
share of his will); Seelig v. Infinity Broad. Corp., 97 Cal. App. 4th 798 (2002) (tabloid radio
show mocking a contestant on Who Wants to Marry A Multimillionaire); Sipple v. Found. for
Natl Progress, 71 Cal. App. 4th 226 (1999) (Mother Jones article on nationally known political
consultants divorce dispute involved an issue of public interest). The record here makes clear
10
that Plaintiffs reporting and character were hotly-debated issue[s] of public interest
nationwide.
C.
Plaintiffs Cannot Carry Their Burden of Demonstrating a Probability of

Success on the Merits
Since Defendants articles qualify for the anti-SLAPP statutes protection, the burden
shifts to Plaintiffs to establish a probability that they will prevail on the merits. C.C.P.
425.16(b)(1). To make such a showing, they must adduce admissible evidence
demonstrating that they probably will prevail on their claims. Beilenson v. Super. Ct., 44 Cal.
App. 4th 944, 952-53 (1996). If Plaintiffs cannot satisfy this burden, the Court must dismiss the
complaint. C.C.P. 425.16(b)(1). Where a complaint fails to state a claim as a matter of law, it
must be dismissed pursuant to the anti-SLAPP statute. See Choose Energy, Inc. v. American
Petroleum Institute, --- F. Supp. 3d ---, 2015 WL 1737992, at *5 (N.D. Cal. Apr. 8, 2015).
As discussed in greater detail in Defendants concurrently filed Memorandum in support
of Defendants Motion to Dismiss, the Complaint fails to state a claim for defamation, injurious
falsehood or false light multiple reasons:
1.
Plaintiffs are public figures who have failed to plead facts that could support a
finding of actual malice against Defendants. See MTD at 10-11. Moreover, the facts and related
materials pled negate any plausible claim of malice. Defendants critiques are similar to
numerous other media articles. Schatz v. Republican State Leadership Comm., 669 F.3d 50, 5658 (1st Cir. 2012) (affirming dismissal where challenged statements synced up with or at least
[were] not out of line with prior news reports). Defendants articles link to their source material
so that readers can judge for themselves; they extensively include Johnsons denials and point of
view; and they humorously question the two rumors the Complaint alleges are false. See
Contemporary Mission, Inc. v. N.Y. Times Co., 842 F.2d 612, 622 (2d Cir. 1988) (finding no
11
actual malice and noting the article does present [the plaintiffs] position with respect to the
various controversies); Price v. Viking Penguin, Inc., 676 F. Supp. 1501, 1512-13 (D. Minn.
1988), affd, 881 F.2d 1426 (8th Cir. 1989) (reporting rumors as rumors is not actual malice);
Freedom Newspapers of Texas v. Cantu, 168 S.W.3d 847, 858 (Tex. 2005) (reporting multiple
sides of a story demonstrates the absence of actual malice).
2.
The statements critiquing the accuracy of Plaintiffs reporting are constitutionally
protected opinions that are supportable interpretations of Plaintiffs work based on disclosed
source material. See MTD at 11-12. California law likewise evaluates the totality of the
circumstances to determine whether statements are protected opinion, including both the
language of the statements at issue and their context, such as the nature and full content of the
communication and to the knowledge and understanding of the audience to whom the
publication was directed. Seelig, 97 Cal. App. 4th at 809-10. Here the statements are
presented as conclusions based on disclosed sources, and they were published within the context
of the blogosphere, in which readers understand they are likely to encounter the exchange of
vituperative, highly-charged opinions. See, e.g., Farah v. Esquire Magazine, 736 F.3d 528, 539
(D.C. Cir. 2013) (Because the reasonable reader could not, in context, understand Esquires
blog post to be conveying real news that is, actual facts about Farah and Corsi the blog post
was not actionable defamation.); Art of Living Found. v. Does, 2011 WL 2441898, at *7 (N.D.
Cal. June 15, 2011) (In the broad context, the statements are made on obviously critical blogs
. . . with heated discussion and criticism . . . . In this context, readers are less likely to view
statements as assertions of fact rather than opinion.); Accuardi v. Fredericks, 2014 WL 848263,
at *6 (D. Or. Mar. 4, 2014) ([T]he tenor of Frederickss Blog communicates that its content is
offered as opinion.).
12
3.
The statements by Trotter and Howard about rumors that Johnson defecated on a
floor and committed bestiality as a minor are not reasonably capable of a defamatory meaning,
and are protected by the First Amendment, for either of two reasons. See MTD at 12-13. First,
the tenor of the articles as a whole make clear that they are tongue-in-cheek efforts to poke fun at
Johnsons expense and do not purport to assert these rumors as fact. It is well-established that
attempts at satirical humor, whether deemed to be in good taste or not, are not actionable
defamation. See, e.g., Knievel v. ESPN, Inc., 393 F.3d 1068, 1074-75 (9th Cir. 2005) (photo
caption stating Evel Knievel proves you are never too old to be a pimp is not actionable);
Pring v. Penthouse Intl, Ltd., 695 F.2d 438, 440-43 (10th Cir. 1982) (article portraying Miss
America contestant performing oral sex during the contest not meant to be taken literally);
Dworkin v. Hustler Magazine, Inc., 668 F. Supp. 1408, 1417-18 (C.D. Cal. 1987)
(pictures/captions referring to plaintiff performing oral sex not actionable), affd, 867 F.2d 1188
(9th Cir. 1989); Geary v. Goldstein, 1996 WL 447776, at *3 (S.D.N.Y. Aug. 8, 1996) (use of
plaintiffs picture in sexual parody did not imply she was a pornographer); Polygram Records,
Inc. v. Super. Ct., 170 Cal. App. 3d 543, 554-56 (1985) (discernibly humorous intent of
publisher and comedic context of whole publication negated alleged defamatory meaning);
Hoppe v. Hearst Corp., 770 P.2d 203, 206-07 (Wash. Ct. App. 1989) (satirical column referring
to plaintiff as Hurley Herpes).
Second, even if the Howard and second Trotter articles could be construed literally, they
merely raise the question whether the rumors about Plaintiff are true. Both the headlines and the
articles themselves are expressly framed as questions. Siegel Decl., Ex. 22 (Which of These
Disgusting Chuck Johnson Rumors Are True?) (So maybe youre wondering: Which of those
rumors are real?); id., Ex. 17 (Wait, Did Clowntroll Blogger Chuck Johnson Shit On The Floor
13
One Time?) (And so I ask you, dearest readers: Did Chuck Johnson really shit on the floor in
college?). It is well-settled that questions are likewise not actionable defamation. See MTD at
14. Moreover, to the extent the articles could be construed to provide any serious response to
that question, they conclude there is no evidence to support the rumors and their existence is
likely attributable to the fact that Johnson is intensely disliked by some people. Thus, because
the articles do not assert any actual facts about Plaintiffs, they are not actionable.
4.
The statements made by third-party readers to Gawkers websites are barred by
Section 230 of the Communications Decency Act (CDA), 47 U.S.C. 230. See MTD at 14-15.
5.
The causes of action for false light invasion of privacy and injurious falsehood are
subject to the same standards as, and therefore fail for the same reasons as the defamation claims.
Blatty v. New York Times Co., 232 Cal. Rptr. 542, 547 (1986) (Although the limitations that
define the First Amendments zone of protection for the press were established in defamation
actions, they are not peculiar to such actions but apply to all claims whose gravamen is the
alleged injurious falsehood of a statement.); Cobb v. Paxton, 45 Cal. App. 4th 829, 845 (1996)
(state law and constitutional standards for defamation apply to false light claims premised on the
same facts).
CONCLUSION
This case is exactly the type of lawsuit for which the California Anti-SLAPP Act was
enacted. Accordingly, Plaintiffs Complaint should be dismissed with prejudice.
14
Dated: August 24, 2015
Respectfully submitted,
LEWIS, RICE & FINGERSH, L.C.
By:

Joseph E. Martineau, #32397
600 Washington, Suite 2500
St. Louis, Missouri 63101
jmartineau@lewisrice.com
314/444-7729
314/612-7729 (facsimile)
Nathan Siegel*
LEVINE SULLIVAN KOCH & SCHULZ, LLP
1899 L St., NW, Suite 200
Washington, DC 20036
Tel: (202) 508-1100
Fax: (202) 861-9888
nsiegel@lskslaw.com
*pro hac vice
Attorneys for Defendants
15
CERTIFICATE OF SERVICE
The undersigned certifies that on this 24th day of August, 2015, a true copy hereof was
served with the Clerk of the Court using the CM/ECF system on the following:
Jonathon Christian Burns
THE BURNS LAW FIRM, LLC
1717 Park Avenue
St. Louis, MO 63104
john@burns-firm.com
Attorneys for Plaintiffs
By:

Chuck Johnson v. Gawker: Anti-SLAPP/Motion To Dismiss

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Case: 4:15-cv-01137-CAS Doc.

#: 19 Filed: 08/24/15 Page: 1 of 17 PageID #: 370

IN THE UNITED STATES DISTRICT COURT

CHARLES C. JOHNSON, et. al

Case No. 14:15-cv-01137

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION TO DISMISS

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PLAINTIFFS CHARLES JOHNSON AND GOT NEWS

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THIS COURT LACKS PERSONAL JURISDICTION OVER DEFENDANTS

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There Is No Specific Jurisdiction over the Defendants

To establish specific jurisdiction, a plaintiff must demonstrate that both (1) a

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There Is No General Jurisdiction over Any Defendant

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ALTERNATIVELY, THIS CASE SHOULD BE TRANSFERRED

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PLAINTIFFS COMPLAINT FAILS TO STATE A CLAIM

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Plaintiffs are Public Figures

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Plaintiffs Fail to Plausibly Allege Actual Malice

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The Allegedly Defamatory Statements Are Also Not Actionable

The Statements about Plaintiffs Faulty Reporting

Alternatively, Statements A, B, C, and J (Ex. 1) should be dismissed because they are

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Dated: August 24, 2015

/s/ Joseph E. Martineau

Attorneys for Defendants

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/s/ Joseph E. Martineau

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IN THE UNITED STATES DISTRICT COURT

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS SPECIAL MOTION TO

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PLAINTIFFS CONTROVERSIAL STYLE OF JOURNALISM

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PLAINTIFFS MISUSE OF LIBEL LAW TO SILENCE THEIR CRITICS

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CALIFORNIA LAW GOVERNS THIS ACTION

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PLAINTIFFS COMPLAINT SHOULD BE DISMISSED UNDER THE

The California Anti-SLAPP Statute

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Plaintiffs Cannot Carry Their Burden of Demonstrating a Probability of

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The statements critiquing the accuracy of Plaintiffs reporting are constitutionally

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The statements made by third-party readers to Gawkers websites are barred by

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Dated: August 24, 2015

/s/ Joseph E. Martineau

Attorneys for Defendants