Case 1:10-cv-00897-RJL Document 86 Filed 12/06/10 Page 1 of 32

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
DANIEL PARISI, WHITEHOUSE.COM INC., )
WHITEHOUSE NETWORK LLC AND )
WHITEHOUSE COMMUNICATIONS INC., )
)
Plaintiff,

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)
) Case No.: 1:10-cv-00897 (RJL)
v. )
)
LAWRENCE W. SINCLAIR A/K/A “LARRY
SINCLAIR”, JEFFREY RENSE, BARNES & )
NOBLE, INC., BARNESANDNOBLE.COM )
LLC, AMAZON.COM, INC., BOOKS-A- )
MILLION, INC. and SINCLAIR )
PUBLISHING, INC.,
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)
Defendants. )
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REPLY MEMORANDUM IN FURTHER

SUPPORT OF BARNES & NOBLE, INC. AND
BARNESANDNOBLE.COM LLC’S MOTION FOR SUMMARY JUDGMENT
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Linda Steinman (admitted pro hac vice)

John Rory Eastburg (D.C. Bar No. 984434)
DAVIS WRIGHT TREMAINE, LLP
1919 Pennsylvania Avenue, NW, Suite 800
Washington, D.C. 20006
(202) 973-4209
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Attorneys for Defendants

Barnes & Noble, Inc., and barnesandnoble.com llc

PDF processed with CutePDF evaluation edition www.CutePDF.com

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TABLE OF CONTENTS

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Page

PRELIMINARY STATEMENT .................................................................................................1

ARGUMENT..............................................................................................................................3

I. ALL OF PLAINTIFFS’ CLAIMS FAIL UNDER § 230 OF THE

COMMUNICATIONS DECENCY ACT .............................................................3

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A. Under Established CDA Case Law Principles, Barnes & Noble is
Not the Creator or Developer of the Content at Issue...............................4

B. Barnes & Noble’s Evidence Is Not Too Conclusory to Warrant

Summary Judgment .................................................................................5

C. Plaintiffs’ Argument that Barnes & Noble Became An Information

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Content Provider By “Adopting” the Contested Paragraphs
Description is Baseless and Unsupported by the Case Law .....................7

D. Plaintiffs’ Argument that Barnes & Noble Became An Information

Content Provider By “Soliciting” the Contested Paragraphs is
Baseless and Unsupported by the Case Law ..........................................10

II. LEAVE TO AMEND WOULD BE FUTILE .....................................................13

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A. There is No Triable Issue of Actual Malice ...........................................13

1. Parisi and whitehouse.com Are, At A Minimum, Limited-Purpose

Public Figures .............................................................................14

2. As Limited-Purpose Public Figures, Plaintiffs Must Plead and

Prove Actual Malice ...................................................................16
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B. Parisi’s Alleged Evidence is Inadmissible and, In Any Case,

Insufficient to Satisfy Iqbal or Create an Issue of Material Fact ............20

III. PLAINTIFFS DID NOT, AND CANNOT, PLEAD A VIOLATION OF

THE RIGHT OF PUBLICITY ...........................................................................24

CONCLUSION.........................................................................................................................25
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TABLE OF AUTHORITIES

Page(s)
CASES

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ............................................................................................................18

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Anthony v. Yahoo!, Inc.,
421 F. Supp. 2d 1257 (N.D. Cal. 2006)..................................................................................9

Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003)......................................................................................................... 4

Bell Atlantic Corp. v. Twombly,

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550 U.S. 544 (2007) ...................................................................................................... 20, 24

*Blumenthal v. Drudge,
992 F. Supp. 44 (D.D.C. 1998) ..................................................................................... passim

Brandewyne v. Author Solutions,

No. 04-CV-4363 (18th Judicial Dist. Ct. of Kansas, Aug 3, 2006) ..................................... 22n
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Byrd v. U.S. Envtl. Protection Agency,
174 F.3d 239 (D.C. Cir. 1999) .............................................................................................7n

CACI Premier Tech., Inc. v. Rhodes,

536 F.3d 280 (4th Cir. 2008) ...............................................................................................21

Carafano v. Metrospalsh.com, Inc.,

339 F.3d 1119 (9th Cir. 2003) .........................................................................................8, 11
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Church of Scientology . v. Time Warner, Inc.,

903 F. Supp. 637 (S.D.N.Y. 1995), aff’d, 239 F.3d 168 (2d Cir. 2001) ................................19

Cubby, Inc. v. CompuServe, Inc.,

776 F. Supp. 135 (S.D.N.Y. 1991)........................................................................................13

Donato v. Moldow,
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865 A.2d 711 (N.J. Superior Ct. 2005) ....................................................................................... 4, 9

Dworkin v. Hustler Magazine, Inc.,

611 F. Supp. 781 (D. Wyo. 1985) ................................................................................... 13, 19

Eastwood v. National Enquirer, Inc.,

123 F.3d 1249 (9th Cir. 1997) .............................................................................................18
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*F.T.C. v. Accusearch, Inc.,

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570 F.3d 1187 (10th Cir. 2009).....................................................................................4, 10, 11, 12

*Fair Housing Council of San Fernando Valley v. Roommates.com,

521 F.3d 1157 (9th Cir. 2008)......................................................................................... 4, 8, 10, 12

Garrison v. Louisiana,
379 U.S. 64 (1964) ..............................................................................................................17

Gentry v. Ebay, Inc.,

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99 Cal. App. 4th 816 (2002) ................................................................................................11

*Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974) ............................................................................................................14

Global Royalties, Ltd. v. Xcentric Ventures, LLC,

544 F. Supp.2d 929 (D. Ariz. 2008).................................................................................. 9, 11
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Goddard v. Google, Inc.,
640 F. Supp. 2d 1193 (N.D. Cal. 2009) .................................................................................... 4, 12

Gov’t of Rwanda v. Rwanda Working Group,

227 F. Supp. 2d 45 (D.D.C. 2002)..........................................................................................9

Greenbelt Cooperative Publ’g Ass’n v. Bresler,

398 U.S. 6 (1970) ................................................................................................................19
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Harte-Hanks Communications, Inc. v. Connaughton,

491 U.S. 657 (1989) ...................................................................................................... 16, 17

Herbert v. Lando,
781 F.2d 298 (2nd Cir. 1986)...............................................................................................18

Hustler Magazine v. Falwell,

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485 U.S. 46 (1988) ............................................................................................................ 16n

Hy Cite Corp. v. badbusinessbureau.com, LLC,

418 F. Supp. 2d 1142 (D. Ariz. 2005)..................................................................................12

Janklow v. Viking Press,

378 N.W. 2d 875 (Sup. Ct. S. D. 1986).......................................................................... 14, 20

Lane v. Random House,

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985 F. Supp. 141 (D.D.C. 1995) ..........................................................................................25

*Lerman v. Flynt Distributing Co.,

745 F.2d 123 (2d Cir. 1984) ................................................................................13, 18, 20, 24

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*Lohrenz v. Donnelly,

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350 F.3d 1272 (D.C. Cir. 2002) ............................................................................... 14, 16, 19

Masson v. New Yorker Magazine, Inc.,

501 U.S. 496 (1991) ...................................................................................................... 16, 17

McFarlane v. Esquire Magazine,

74 F.3d 1296 (D.C. Cir. 1996) .............................................................................................17

McFarlane v. Sheridan Square Press,

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91 F.3d 1501 (D.C. Cir. 1996) .............................................................................................18

Messina v. Krakower,
439 F.3d 755 (D.C. Cir. 2006) .............................................................................................7n

*Nemet Chevrolet Ltd. v. Consumeraffairs.com,

591 F.3d 250 (4th Cir. 2009)..................................................................................................passim
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Nemet Chevrolet Ltd. V. Consumeraffairs.com, Inc.,
564 F. Supp.2d 544 (E.D. Va. 2008).......................................................................................8

*New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ..................................................................................................... passim

Pasqualini v. MortgageIT, Inc.,

498 F. Supp. 2d 659 (S.D.N.Y. 2007).....................................................................................9
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Pendleton v. City of Haverhill,

156 F.3d (1st Cir. 1998)................................................................................................. 14, 16

Pro-Football, Inc. v. Harjo,

No. 99-1385, 2006 WL 2092637 (D.D.C. July 26, 2006) .....................................................7n

Ramey v. Darkside Prod., Inc., No. Civ. A. 02-730, 2004 WL 5550485

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(D.D.C. May 17, 2004)....................................................................................................8, 11

Rice v. Rose & Atkinson,

176 F. Supp. 2d 585 (S.D. W. Va 2001) .................................................................................9

Secord v. Cockburn,
747 F. Supp. 779 (D.D.C. 1990)..................................................................................... 17, 18

Spence v. Flynt,
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647 F. Supp. 1266 (D. Wyo. 1986) ................................................................................ 13, 20

*St. Amant v. Thompson,

390 U.S. 727 (1968) ................................................................................................ 17, 18, 23

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Tavoulareas v. Piro,

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817 F.2d 762 (D.C. Cir. 1987) .............................................................................................17

*Universal Communication Systems v. Lycos, Inc.,

478 F.3d 413 (1st Cir. 2007) ........................................................................................................... 4

Washington Post Co. v. Keogh

365 F.2d 965 (D.C. Cir. 1966) ..................................................................................... 15n, 19

Whitney Info. Metwork, Inc. v. XCentric Ventures,

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199 Fed. Appx. 738 (11th Cir. 2006) .....................................................................................5

Woods v. Evansville Press, Co., Inc.,

791 F.2d 480 (7th Cir. 1986)................................................................................................17

STATUTES

47 U.S.C. §230 ..................................................................................................................................... 3

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Defendants Barnes & Noble, Inc. and barnesandnoble.com llc (collectively “Barnes &

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Noble”), respectfully submit this reply memorandum in further support of their motion for

summary judgment on all causes of action asserted in the Complaint.

PRELIMINARY STATEMENT

Barnes & Noble’s opening brief established that the lynchpin of Plaintiffs’ Complaint is

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that Barnes & Noble engaged in “more than mere distribution” of the Book by “the affirmative act

of publi[shing]” an allegedly false sentence regarding Parisi on the display page for the Book on

barnesandnoble.com under the headings “From the Publisher” and “Synopsis.” (Cplt. ¶ 39.)1 In

other words, the Complaint pleads a “distribution plus” theory, with the “plus” being the
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publication of one allegedly false sentence in these identical paragraphs on barnesandnoble.com,

namely: “You’ll read how the Obama campaign used internet porn king Dan Parisi and Ph.D. fraud

Edward I. Gelb to conduct a rigged polygraph exam in an attempt to make the Sinclair story go

away” (the “Contested Copy”). But Barnes & Noble did not author or develop the “From the
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Publisher” or “Synopsis” paragraphs, and § 230 of the Communications Decency Act (“CDA”)

“immunizes providers of interactive computer services from civil liability in tort with respect to

material disseminated by them but created by others.” Blumenthal v. Drudge, 992 F. Supp. 44, 49

(D.D.C. 1998). Thus, Plaintiffs cannot sustain either a claim based solely on the display of the
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Contested Copy on barnesandnoble.com, or a “distribution plus” claim. There can no “distribution

plus” claim without a “plus.” (See Section I, infra.)

Tellingly, Plaintiffs do not dispute the vast majority of Barnes & Noble’s factual allegations

or even properly respond to each statement in Barnes & Noble’s Statement of Undisputed Facts,2
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1
The Complaint uses this language only with respect to Barnes & Noble and not the other bookseller defendants.
2
Instead of responding directly to Barnes & Noble’s Statement of Undisputed Material Facts, Plaintiffs attempt to
manufacture disputes where there are none and submit their own statement of different, allegedly disputed facts. See
LCvR 7(h)(1) (noting that the Court “may assume that facts identified by the moving party in its statement of material
facts are admitted unless such a fact is controverted in the statement of genuine issues filed in opposition to the
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and their opposition brief largely fails to address Barnes & Noble’s § 230 arguments. Rather,

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Plaintiffs’ opposition brief reads as if it were directed at something other than Barnes & Noble’s

brief – and, indeed, on closer examination, it is clear that Plaintiffs’ opposition is little more than a

“dupe and revise” of its legal arguments in opposition to Amazon’s brief, despite the differences in

the two defendants’ arguments. Remarkably, Plaintiffs devote much of their brief to an argument

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Barnes & Noble raised only in a footnote.3

Once Plaintiffs finally address Barnes & Noble’s core argument, their responses are

patently weak. First, Plaintiffs assert that Barnes & Noble has made only conclusory allegations

that it did not create or develop the Contested Copy. To the contrary, Barnes & Noble submitted
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the datafeed establishing that Lightning Source supplied the Contested Copy and a detailed

affidavit on its company practices affirming that “Barnes & Noble did not have any

communications with the Sinclair Defendants or Lightning Source regarding the creation of the

Contested Copy.” (Declaration of David Bock, dated Oct. 8, 2010, ¶ 21 [Doc. No. 60-1] (“Bock
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Decl.”).) Where, as here, the Contested Copy appears on the Barnes & Noble, Amazon and

Books-A-Million websites in the exact same form as the datafeed, Plaintiffs’ attempt to delay this

case by demanding discovery on this clearly-established fact borders on bad faith. Moreover,

Defendant Sinclair has put the final nail in the coffin in a recently-filed affidavit stating that, “I and
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I alone am the author of the ‘Product Description’ used by Barnes & Noble.” (Affidavit of

Lawrence W. Sinclair, sworn to Nov. 15, 2010, ¶ 2 [Doc. No. 83] (“Sinclair Aff.”).)

Next, Plaintiffs argue that, even if Sinclair wrote the Contested Copy, Barnes & Noble is

not protected by § 230 because it allegedly “adopted” the “From the Publisher” and “Synopsis”
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motion.”) Not only is this improper procedure, but, for the reasons set forth in Barnes & Noble's Motion to Strike and
in this Reply Memorandum, the allegedly disputed facts are irrelevant and most of the underlying evidence is
inadmissible and not properly authenticated. Although the local rules do not authorize a response to this improper
filing, Barnes & Noble would be glad to submit one at the Court’s request.
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In that footnote, Barnes & Noble briefly stated that it joined in Amazon’s arguments that Section 230 bars claims
related to the mere distribution of the Book. Barnes & Noble also joins in Amazon’s reply. [Doc. No. 72.]
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paragraphs containing the contested sentence, and/or solicited authors to sell their books on its

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website and to provide informational copy. Nothing in § 230 or the case law supports these novel

theories, and Plaintiffs’ unprecedented expansion of the concepts of creation and development

should be rejected. The statute and caselaw all confirm that the only relevant question is who

created or developed the allegedly false content by materially contributing to its alleged

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unlawfulness – and here, that was not Barnes & Noble.

Finally, while the Complaint does not plead claims based on Barnes & Noble’s mere

distribution of the Book (as Plaintiffs’ opposition brief assumes it does), any attempt to amend the

Complaint to add a “mere distribution” claim would be futile. (See Section II, infra.) Plaintiffs are
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public figures, and thus are constitutionally required to demonstrate “actual malice.” Plaintiffs

confuse the applicable legal standard and then fail to proffer any evidence that Barnes & Noble

acted with “knowledge of falsity or reckless disregard of the truth” with respect to the specific,

allegedly false statements in the Book regarding Daniel Parisi and whitehouse.com. Instead, they
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point to a collection of inadmissible third-party webposts, none of which are related to the

Plaintiffs – which accordingly cannot demonstrate actual malice with respect to the Contested

Copy.

ARGUMENT
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I. ALL OF PLAINTIFFS’ CLAIMS FAIL UNDER § 230

OF THE COMMUNICATIONS DECENCY ACT

Plaintiffs’ claims are all prohibited by § 230, which “immunizes providers of interactive

computer services from civil liability in tort with respect to material disseminated by them but created
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by others.” Blumenthal, 992 F. Supp.at 49. Plaintiff’s opposition does not contest two of the three

elements of § 230 immunity, namely (1) that Barnes & Noble is an interactive computer service, and

(2) that all of Plaintiffs’ claims attempt to treat Barnes & Noble as the publisher of third-party content.

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(See B&N Mem. at 8-22.) Thus, the only issue is whether Barnes & Noble is “responsible . . . for the

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creation or development of the [contested] information provided through the Internet” and thus

qualifies as a information content provider. 47 U.S.C. § 230(f)(3). Plaintiffs resort to three far-

fetched arguments, addressed in turn below.

A. Under Established CDA Case Law Principles, Barnes & Noble

is Not the Creator or Developer of the Content at Issue

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In their Opposition, Plaintiffs do not rebut Barnes & Noble’s showing that, to effect the

purposes of the CDA to “encourage the unfettered and unregulated development of free speech on the

Internet, and to promote the development of e-commerce” (Batzel v. Smith, 333 F.3d 1018, 1027 (9th
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Cir. 2003), courts have repeatedly held that “‘information content provider” must be read narrowly.

(B&N Mem. at 13-19.) Plaintiffs also do not rebut Barnes & Noble’s showing that the caselaw holds

that the only the party responsible for the creation of content is its author. (Id. at 14.) Critically,

Plaintiffs do not rebut Barnes & Noble’s citation of several leading cases holding that, “a service

provider is ‘responsible’ for the development of offensive content only if it in some way specifically
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encourages development of what is offensive about the content.” (Id., citing F.T.C. v. Accusearch,

Inc., 570 F.3d 1187, 1199 (10th Cir. 2009) (emphasis added)); see also Fair Housing Council of San

Fernando Valley v. Roommates.com, 521 F.3d 1157, 1167-68 (9th Cir. 2008) (en banc); Nemet
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Chevrolet Ltd. v. Consumeraffairs.com, 591 F.3d 250, 256-57 (4th Cir. 2009); Universal

Communication Systems v. Lycos, Inc., 478 F.3d 413, 420 (1st Cir. 2007); Goddard v. Google, Inc.,

640 F. Supp. 2d 1193, 1196-97 (N.D. Cal. 2009); Donato v. Moldow, 865 A.2d 711, 726-77 (N.J.

Superior Ct. 2005)). As Plaintiffs cannot contest, a plaintiff must demonstrate that the internet service
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provider contributed “materially … to [the content’s] alleged unlawfulness”; an allegation that it

“augment[ed] the content [of online material] generally” is insufficient. Fair Housing Council, 521

F.3d at 1167-68.

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B. Barnes & Noble’s Evidence Is Not Too

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Conclusory to Warrant Summary Judgment

While the cases establish a high bar – requiring that a plaintiff demonstrate that the

defendant contributed materially to the illegality of the challenged content – the Declarations of

David Bock and Sinclair establish unequivocally that Barnes & Noble played absolutely no role in

the creation or development of the “From the Publisher” or “Synopsis” paragraphs.

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Plaintiffs rely on Whitney Info. Metwork, Inc. v. XCentric Ventures, 199 Fed. Appx. 738,

740 (11th Cir. 2006), to argue that Barnes & Noble’s evidence is too conclusory to warrant

summary judgment without discovery. In Whitney, however, the defendant provided only a naked
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assertion that it did not author, create or develop the challenged content. The record here is starkly

different. Barnes & Noble has produced a copy of the ONIX datafeed from Lightning Source to

Barnes & Noble definitively establishing that the Contested Copy was supplied by Lightning

Source. The ONIX datafeed contains the exact language displayed on the Barnes & Noble website

and challenged in the Complaint. (Bock Decl. ¶ 23; Cplt ¶ 39.) As the evidence shows, Lightning
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Source also sent this same exact copy to the other bookseller defendants, who also posted it

verbatim. [See, e.g., Doc. No. 53-4, Ex. 2.] Further, David Bock’s Declaration details the

hundreds of thousands of Lightning Source POD titles distributed by Barnes & Noble and Barnes
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& Noble’s practice of uploading the Lightning Source ONIX datafeeds in an automated fashion,

and confirms that “Barnes & Noble did not have any communication with the Sinclair Defendants

or Lightning Source regarding the creation of the Contested Copy.” (Bock Decl. ¶ 21.) In

response, Plaintiffs failed to dispute any of these facts. While such evidence is more than
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sufficient, defendant Sinclair has since filed an affidavit confirming that:

I and I alone am the author of the “Product Description” used by Barnes &
Noble. Neither Barnes & Noble nor anyone else had any part in the
development, production, writing or uploading of the product description. I
wrote and submitted the “Product Description” to Lightning Source as well
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as BOWKER for Books in Print databases.

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(Sinclair Aff. ¶ 9.)

Plaintiffs attempt to mislead the Court by representing that they have evidence that Barnes

& Noble “had communications with Sinclair or third-parties regarding the content of the Book or

its Product Descriptions.” (Pls’ Opp. at 17.) But Plaintiffs attach no evidence suggesting that

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Barnes & Noble had communications with Sinclair or third parties regarding the “From the

Publisher” or “Synopsis” paragraphs at issue prior to their posting. Rather, Plaintiffs’ use of the

term “Product Descriptions” – a term not used on barnesandnoble.com – is purposefully

misleading. As stated in Barnes & Noble’s opening papers, Sinclair contacted Barnes & Noble
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regarding reader reviews – which are totally distinct from the “From the Publisher” and

“Synopsis” paragraphs at suit. (SUMF ¶ 42.) Not surprisingly, Plaintiffs’ only cite for their

assertion is a paragraph referencing Sinclair’s complaint regarding such fake reader reviews.

Moreover, the reviews did not refer to the Contested Copy or the Plaintiffs. (Id.) In sum, there is
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no evidence suggesting the Barnes & Noble played any role in developing the Contested Copy and

ample evidence to the contrary. Likewise, Plaintiffs’ speculation that the three bookseller

defendants may have colluded with Sinclair in the development of the copy is nothing more than

unsupported and far-fetched speculation.

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“When a party opposing a motion for summary judgment seeks to rebut facts set forth in the

movant’s Statement of Material Facts by merely citing to allegations in the complaint rather than

citing to evidence in the record or providing evidentiary support through affidavits or other

competent evidence, those facts may be deemed admitted.” Blumenthal, 992 F. Supp. at 50, n.9.
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Here, Plaintiffs provide no evidentiary support to counter the substantial evidence establishing that

Barnes & Noble did not contribute materially to the alleged illegality of the challenged content. Nor

is any discovery necessary given the clarity of the evidence provided by Barnes & Noble and
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Sinclair regarding the development of the Contested Copy. Discovery should not be allowed under

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Rule 56(f) “where the requesting party has offered only a conclusory assertion without any

supporting facts to justify the proposition that the discovery sought will produce the evidence

required.”4 Moreover, “[w]e [should] aim to resolve the question of § 230 immunity at the earliest

possible stage of the case because that immunity protects websites not only from ultimate liability

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but also from having to fight costly and protracted legal battles.” Nemet, 591 F.3d at 255. In sum, §

230 immunizes Barnes & Noble from any tort liability arising from the Contested Copy posted on its

website.

C. Plaintiffs’ Argument that Barnes & Noble Became An

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Information Content Provider By “Adopting” the Contested
Paragraphs Description is Baseless and Unsupported by the Case Law

Plaintiffs’ argument that Barnes & Noble became an information content provider of the

Contested Copy because it purportedly “adopted” or “ratified” the Contested Copy finds no

support in the law. In their Opposition (Pls’ Opp. at 21-22), Plaintiffs argue that
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Assuming arguendo that a third party wrote the Product Description in

whole or in part, it is irrelevant because B&N adopted it as its own to
advertise and promote the sale of Sinclair’s book by B&N. The product
description used by B&N does not suggest that it was authored by Sinclair,
SPI or anyone else. . . . [B&N] used the positive comments to sell Sinclair’s
book.
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Plaintiffs’ argument is factually incorrect and thus unsustainable. Barnes & Noble posted

the allegedly false sentence at issue under the heading “From the Publisher” – which could not be

any clearer about its source. The text posted under the heading “Synopsis” was identical to that

found under “From the Publisher” – and thus is obviously from the publisher as well.
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4
Messina v. Krakower, 439 F.3d 755, 762-63 (D.C. Cir. 2006); Byrd v. U.S. Envtl. Protection Agency, 174 F.3d 239,
248 n. 8 (D.C. Cir. 1999), quoting Exxon Corp. v. Federal Trade Commission, 663 F.2d 120, 126-27 (D.C. Cir.
1980)(denying discovery under Rule 56(f) and stating, “It is well settled that conclusory allegations unsupported by
factual data will not create triable issues of fact.”); see also Pro-Football, Inc. v. Harjo, No. 99-1385, 2006 WL
2092637 at *3 (D.D.C. July 26, 2006)(requiring party seeking discovery under Rule 56(f) to submit affidavit showing,
inter alia, “what facts are to be sought and how they are to be obtained.”).
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Moreover, Plaintiffs’ theory is directly contrary to the statute and caselaw. As reviewed

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above, an information content provider is defined as one who is “responsible ... for the creation or

development of the [contested] information provided through the Internet” and the leading cases

make plain that to qualify, a defendant must have contributed “materially … to [the content’s]

alleged unlawfulness”; an allegation that it “augment[ed] the content [of online material]

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generally” is insufficient. Fair Housing Council, 521 F.3d at 1167-68. Nothing in the plain

language of § 230 or the case law supports any sort of “adoption” theory based on a web retailer’s

mere posting of third-party content, and such meager acts certainly do not rise to the level of

contributing “materially … to [the content’s] alleged unlawfulness.” Fair Housing Council, 521
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F.3d at 1168; see also Nemet, 591 F.3d at 257 (dismissing complaint where it “does not show . . .

that Consumeraffairs.com contributed to the allegedly fraudulent nature of the comments at

issue”). As the Ninth Circuit stated succinctly in Fair Housing Council, 521 F.3d at 1175: “The

message to website operators is clear: If you don’t encourage illegal content, or design your
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website to require users to input illegal content, you will be immune.” Plaintiffs’ “adoption”

theory would vastly expand the liability for internet service providers contrary to the “quite robust”

immunity desired by Congress, and the courts’ long-standing view that “information content

provider” should be given a “relatively restrictive definition.” Ramey v. Darkside Prod., Inc., No.
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Civ. A. 02-730, 2004 WL 5550485, at *7 (D.D.C. May 17, 2004) (citing Carafano v.

Metrospalsh.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003)).

Likewise, nothing in the statute or the caselaw suggests that the way the content is labeled –

as opposed to who created or developed it – is determinative of the issue of immunity. Rather, the
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cases indicate that website headings do not convert an interactive service provider into a creator or

developer of content. See Nemet Chevrolet Ltd. v. Consumeraffairs.com, Inc., 564 F. Supp.2d 544,

549-50 (E.D. Va. 2008) (holding that a plaintiff must allege that the title, headings or categories
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themselves are causing injury in order to defeat a motion to dismiss based on § 230 immunity), aff’d,

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591 F.3d 250; Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F. Supp.2d 929, 932 (D. Ariz.

2008).

The cases cited by Plaintiffs do not support their theory. Donato, 865 A.2d 711, holds that

even a webmaster who actively participates in the selective editing and deletion of anonymous

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posted messages does not constitute an information content provider. In context, the language

quoted by Plaintiffs states only the unremarkable proposition that where a defendant has “post[ed]

messages of his own” under his name or the title “Webmaster” – i.e., where he has written the

posts – he is a content provider. Id. at 719-20. In Anthony v. Yahoo!, Inc., 421 F. Supp. 2d 1257,
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1263 (N.D. Cal. 2006), the plaintiff’s claims arose out of fake user profiles that Yahoo! itself

allegedly created in order to draw consumers to its dating service.

The cases cited by Plaintiffs to support their related argument that by posting the “From the

Publisher” and “Synopsis” paragraphs on its display pages for the Book, “B&N’s conduct ratified
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the defamatory Product Description, which ratification can provide the basis for defamation

liability” are wildly off-point. In Pasqualini v. MortgageIT, Inc., 498 F. Supp. 2d 659 (S.D.N.Y.

2007), the court recited long-standing doctrine that the original author of a statement is not liable for

a republication of the statement by a third party “absent her personal involvement in or ratification
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of the republication.” Id. at 670-71. On that basis, the court found the plaintiff’s claim to be time-

barred. Here, of course, the whole point is that Barnes & Noble is not the original author of the

Contested Copy. Equally off-point is Rice v. Rose & Atkinson, 176 F. Supp. 2d 585 (S.D. W. Va

2001), which recites black letter law in the employment context that a “corporation is not liable for
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libel published by its agent unless the agent was authorized to make the publication or his acts

subsequently were ratified by the corporation.” Id. at 591. Of course, Sinclair is not Barnes &

Noble’s agent under basic agency principles. Gov’t of Rwanda v. Rwanda Working Group, 227 F.
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Supp. 2d 45, 63-64 (D.D.C. 2002).

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D. Plaintiffs’ Argument that Barnes & Noble Became An
Information Content Provider By “Soliciting” the Contested
Paragraphs is Baseless and Unsupported by the Case Law

Plaintiffs’ argument that Barnes & Noble became an information content provider merely

by “soliciting” authors to sell their books through Barnes & Noble, and to provide information

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which Barnes & Noble would use to promote sales, is equally unavailing. (Pls’ Opp. at 22.) Once

again, “a service provider is ‘responsible’ for the development of offensive content only if it in

some way specifically encourages development of what is offensive about the content.”

Accusearch, 570 F.3d at 1199.

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In Nemet, 591 F.3d 250, the plaintiff similarly argued a “solicitation theory,” namely that a

consumer review website was allegedly a co-developer of a consumer complaint where the website

“solicited” the consumer complaint, steered the complaint to a specific category designed to attract

the attention of consumer class action attorneys, and promised the consumer that she could obtain
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some financial recovery by joining a class action lawsuit. 591 F.3d at 256. The Fourth Circuit

found such allegations insufficient and easily distinguished the case from the Ninth Circuit’s

decision in Fair Housing Council v. Roommates.com:

Whereas the website in Roommates.com required users to input illegal

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content as a necessary condition of use, Nemet has merely alleged that

Consumeraffairs.com structured its website and its business operations to
develop information related to class-action lawsuits. But there is nothing
unlawful about developing this type of content; it is a legal undertaking….
As the Ninth Circuit noted, a website operator who does not “encourage
illegal content” or “design” its “website to require users to input illegal
content” is “immune” under § 230 of the CDA.
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Nemet, 591 F.3d at 257. Likewise, a bookseller’s general solicitation of authors and of

informational content about their Books is a “legal undertaking” (id.) that does not rob Barnes &

Noble of its immunity under § 230.

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Finally, the fact that Barnes & Noble is a for-profit company does not transform it into the

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creator or sponsor of the content. Blumenthal, 992 F. Supp. at 52 (extending § 230 immunity to

AOL where it used the Drudge Report to attract subscribers); Global Royalties, 544 F. Supp.2d at

933 (finding that “it is legally . . . beside the point” whether defendant encouraged Ripoff Reports

from third parties as leverage to coerce targeted businesses to pay for one of their programs and

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thus for “their own financial gain”); Carafano, 339 F.3d 1119 (extending § 230 immunity to

subscription-based dating website); Ramey, 2004 WL 5550485 (extending § 230 immunity to

website that received payment from advertisers to post their adult entertainment ads); Gentry v.

Ebay, Inc., 99 Cal. App. 4th 816, 832-33 (2002) (Any attempt to “hold[] eBay liable under a state
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statute for making the individual defendant’s false product descriptions available to other users on

its Website … puts eBay in the shoes of the individual defendants, making it responsible for their

publications or statements … [in a manner] inconsistent with § 230.”).

The two cases cited by Plaintiffs do not alter these conclusions. Plaintiffs mischaracterize
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Accusearch. (Pls’ Opp. at 22.) The key factor in Accusearch was not that Accusearch solicited a

request for content, but that Accusearch knowingly fostered an illegal act by soliciting phone

records protected by statute. Thus, the Fourth Circuit found that Accusearch was not entitled to

immunity under § 230 because:

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Accusearch was responsible for the development of th[e offensive] content

— for the conversion of the legally protected records from confidential
material to publicly exposed information. Accusearch solicited requests for
such confidential information and then paid researchers to obtain it. It
knowingly sought to transform virtually unknown information into a
publicly available commodity. And as the district court found and the
record shows, Accusearch knew that its researchers were obtaining the
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information through fraud or other illegality.

570 F.3d at 1199. By contrast, Barnes & Noble only provided a content-neutral platform for third-

party content. Bock Decl. ¶ 11; see also Accusearch, 570 F.3d at 1198-1199 (“[T]o be

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‘responsible’ for the development of offensive content, one must be more than a neutral conduit

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for that content. That is, one is not ‘responsible’ for the development of offensive content if one’s

conduct was neutral with respect to the offensiveness of the content.”); Goddard, 640 F. Supp. 2d

at 1196-97 (“A website does not so ‘contribute’ when it merely provides third parties with neutral

tools to create web content, even if the website knows that the third parties are using such tools to

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create illegal content.”) (citation omitted).

Likewise, Hy Cite Corp. v. badbusinessbureau.com, LLC, 418 F. Supp. 2d 1142 (D. Ariz.

2005) (Pls’ Opp. at 22), provides little assistance to Plaintiff’s cause. The case was decided in the

context of a motion to dismiss – not summary judgment – and the court denied the defendant’s
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motion principally because the complaint alleged that “wrongful content appears on the Rip-Off

Report website in editorial comments created by Defendants and titles to Rip-Off Reports, which

Defendants allegedly provide” and that the defendants “produce original content contained in the

Rip-Off Report.” 418 F. Supp. 2d at 1148-1149. While the court also referred to allegations that
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the defendants solicited individuals to submit reports with the promise of compensation (and

indeed outlined questions for them), these allegations suggest that the individuals could be deemed

employees of the website, which would have been a potential basis of liability. That is not the case

here. Further, Hy Cite Corp. was decided by an Arizona district court in 2005, prior to the circuit
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court holdings in Fair Housing Council (9th Cir. 2008), Nemet (4th Cir. 2009), and Accusearch

(10th Cir. 2009), which all hold that mere solicitation of content is insufficient to deprive an

internet service provider of § 230 immunity unless the defendant contributed materially to the

illegality of the challenged content.

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In sum, under § 230, Barnes & Noble is immune “from civil liability in tort with respect to”

the Contested Copy. Blumenthal, 992 F. Supp. at 49. Thus, Plaintiffs cannot sustain either a claim

based solely on the display of the Contested Copy on barnesandnoble.com, or a “distribution plus”
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claim which relies on that website copy as the “plus.”

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II. LEAVE TO AMEND WOULD BE FUTILE

Faced with unequivocal evidence that there can be no “distribution plus” claim, Plaintiffs

attempt to avoid dismissal by changing their theory of liability. While the Complaint clearly pled a

“distribution plus” claim against Barnes & Noble (Cplt. ¶ 39), the bulk of Plaintiffs’ opposition

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brief now seeks to hold Barnes & Noble liable for “mere distribution” of copies of the Book. (Pls’

Opp. at 6-18.) This is not what Plaintiffs pled. Further, Plaintiffs have not moved for leave to

amend. Any such request should be denied since amendment would be futile for the reasons set

forth below. In the alternative, if the Court finds that Plaintiffs pled a “mere distribution” claim, the
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Court should dismiss the case under Rule 56 for these same reasons.

A. There is No Triable Issue of Actual Malice

To our knowledge, no court has ever held a bookseller liable for mere distribution of a book

in light of the First Amendment concerns at stake. In order to avoid making distributors into censors,
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courts have required a heightened level of “fault” to sustain a libel or similar action against a

distributor. See, e.g., Lerman v. Flynt Distributing Co., 745 F.2d 123, 139 (2d Cir. 1984) (“First

Amendment guarantees have long been recognized as protecting distributors of publications. . . .

Obviously, the national distributor of hundreds of periodicals has no duty to monitor each issue of
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every periodical it distributes. Such a rule would be an impermissible burden on the First

Amendment.”); Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139 (S.D.N.Y. 1991); Dworkin

v. Hustler Magazine, Inc., 611 F. Supp. 781 (D. Wyo. 1985).

In this case, Plaintiffs would not only need to meet the heightened “fault” standard
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generally applicable to book and magazine distributors; as public figures, they would need to meet

the highest standard – actual malice. Lerman, 745 F.2d at 139 (“a public figure plaintiff may only

recover compensatory damages where a distributor acts with ‘actual malice.’”); Spence v. Flynt,

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647 F. Supp. 1266, 1272 (D. Wyoming 1986) (same).

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[T]he knowledge or scienter [required to prove liability against a book
seller] must be viewed against a First Amendment backdrop. Of a certainty,
any privilege afforded to the author of the defamatory article or book would
be afforded to a mere book seller. It would be ridiculous to say that the
author of a libel could escape any liability because malice could not be
demonstrated, but that nevertheless, a book seller or a public library for that
matter, could be held liable simply on the basis of knowledge that the
publication contains some defamatory material. A book seller is entitled to

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the same protection afforded by [New York Times v.] Sullivan, supra, that
prohibits a public official from recovering damages for defamatory
falsehoods unless he proves that the statement was made with actual malice.

Janklow v. Viking Press, 378 N.W. 2d 875, 881-82 (Sup. Ct. S. D. 1986). As set forth below,

Plaintiffs cannot properly plead or show actual malice.

1.
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Parisi and whitehouse.com Are, At A
Minimum, Limited-Purpose Public Figures

Under Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974), an individual is classified as

a public figure either (1) when that person “assume[s] roles of especial prominence in the affairs of

society (an all-purpose public figure); or (2) when they have “thrust themselves to the forefront of
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particular public controversies in order to influence the resolution of the issues involved” (a

limited-purpose public figure). The D.C. Circuit employs a three-part test to determine if an

individual is a limited-purpose public-figure, examining: (1) the nature of the public controversy;
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(2) the plaintiff’s role in the controversy; and (3) “whether the alleged defamation was germane to

the plaintiff’s participation in the controversy.” Lohrenz v. Donnelly, 350 F.3d 1272, 1279 (D.C.

Cir. 2002); see also Pendleton v. City of Haverhill, 156 F.3d, 57, 67 (1st Cir. 1998).

Plaintiffs Daniel Parisi and whitehouse.com are, at a minimum, limited-purpose public

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figures.5 Parisi’s adult websites – in particular, whitehouse.com – achieved global notoriety for

5
The Contested Copy and the Book only mention plaintiffs Daniel Parisi and whitehouse.com, and not plaintiffs
Whitehouse Network LLC and Whitehouse Communications Inc. Because the statements are not “of and concerning”
these other entities, they may not assert claims against Defendants arising out of the statements. Washington Post Co.
v. Keogh 365 F.2d 965, 970, n.5 (D.C. Cir. 1966).
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their sexually-explicit content.6 (This fact is not only relevant to their roles as public figures but

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completely undermines Parisi’s claim that he was defamed by the description of him as an “internet

porn king.” (Cplt. ¶ 36.)) Indeed, Parisi has spoken to the press about his involvement in the porn

industry and about whitehouse.com on numerous occasions. (See n. 5.) In addition, Parisi’s

provocatively-named adult-entertainment websites (including whitehouse.com and Madonna.com)

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received nationwide attention and became the center of a public debate in domain name rights that

involved both the White House and Madonna, who ultimately won Madonna.com from Parisi. (See

n. 5.) Moreover, Parisi and whitehouse.com achieved prominence by injecting themselves into the

public debate surrounding Sinclair’s allegations regarding Barack Obama. Their efforts to “take
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on” Sinclair were widely-publicized, including by Plaintiffs, as the Complaint concedes. 7 (SUMF

¶¶ 5-10; see also Cplt. ¶¶ 23-28.) Parisi reached out to contact Sinclair regarding his allegations

related to then-Senator Obama; offered to pay Sinclair to take polygraph examinations; and reported

on his interactions with Sinclair and the results of the polygraph examinations online on
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Whitehouse.com. (Id.) Parisi and Sinclair then continued to publish statements on the subjects of

6
See, e.g., Al Kamen, White House’ About-Face, Wash. Post, Feb. 13, 2006 (“Dan Parisi, president of
Whitehouse.com, the former porn site that became a financial services site, writes to say he’s taking the site in a new
direction. . . . ‘It seems that people visiting the site only care about porn,’ Parisi said . . . “); Donna De Marco, Wash.
Times, Aug. 30, 2004 (“Mr. Parisi is . . . the owner of the pornographic Web site Whitehouse.com . . . which attracts
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more than 2 million visitors a month”); James Gleick, Get Out of my Namespace, N.Y. Times, May 21, 2004 (“The
singer Madonna Ciccone won madonna.com from one Dan Parisi, who was running yet another ‘adult-entertainment
portal.’”); Paul Bond, Infamous Whitehouse Domain on Block, Hollywood Reporter, 382 (30): 79 (Feb. 13, 2004)
(“The Web site Whitehouse.com gets 2 million visitors per month. Some, no doubt, are seeking information regarding
1600 Pennsylvania Ave. What they get instead is naked women. . . . The domain name Whitehouse.com was
registered by Dan Parisi, who first launched the site as a place to go for uncensored political speech. ‘We turned it
into an adult site because no one was going there,’ he said.”); Interview with Dan Parisi, Fox News: Your World
(Business), Feb. 11, 2004 (Parisi states he has been “in the [adult content/pornography] business now for seven years”
); Rick Fulton, Daily Record (Scotland), Oct. 17, 2000 (“Madonna yesterday won control of the Internet name
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madonna.com. In Geneva, a three-member panel of the United Nations World Intellectual Property Organisation ruled
that the singer could take over the site from New Jersey porn entrepreneur Dan Parisi.”).
7
See, e.g., Whitehouse.com Press release, Wash. Daybook, June 17, 2008 (“Whitehouse. com holds a news conference
to release the results of two professionally administered polygraph tests administered to Larry Sinclair, who alleges to
have engaged in illegal drug use and ‘homosexual activities’ with 2008 presidential candidate Sen. Barack Obama, D-
Ill.”); Alex Pareen, Obama’s gay lover can’t pass polygraph, available at http://gawker.com/360609/obamas-gay-
lover-cant-pass-polygraph (“Larry Sinclair, Barack Obama’s alleged former gay sex partner, was paid $10,000 by
WhiteHouse.com to take a polygraph test, which he failed . . .”).
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the polygraph examinations and the substance of Sinclair’s allegations in various public forums,

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including on whitehouse.com. (Id. ¶¶ 23, 28.)

The alleged defamatory statements in this case are indisputably “germane to Plaintiff[s’]

participation in the controversy.” Lohrenz, 350 F.3d at 1279. This is precisely the sort of situation in

which courts have found that plaintiffs, by their willing participation in matters of public controversy,

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have “assumed the risk that the ensuing discourse might contain errors of fact — errors for which the

speakers, in the absence of a showing of actual malice, could not be held liable.” Pendleton, 156 F.3d

at 71; see also Lohrenz, 350 F.3d at 1281.

2. As Limited-Purpose Public Figures,

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Plaintiffs Must Plead and Prove Actual Malice

Since its decision in New York Times Co. v. Sullivan, the U.S. Supreme Court has

recognized that “erroneous statement is inevitable in free debate and ... it must be protected if the

freedoms of expression are to have the ‘breathing space’ that they ‘need ... to survive.’” 376 U.S.

254, 271-72 (1964). To carve out an area of breathing space so that protected speech is not
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discouraged, the Supreme Court requires public figure plaintiffs to establish that a false,

defamatory statement was published with actual malice. 8 New York Times, 376 U.S. at 279-80;

Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991); see also Lohrenz, 350 F.3d at
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1274. The actual malice standard is a constitutional requirement intended to encourage

“uninhibited, robust, and wide-open” debate on public issues, New York Times, 376 U.S. at 270,

and requires a public-figure plaintiff to prove that the defendant published a false statement “with

‘knowledge that it was false or with reckless disregard of whether it was false or not.’” Masson,
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8
Plaintiffs’ duplicative false light, business disparagement, tortious interference with economic advantage and civil
conspiracy claims are barred by the same defenses. The United States Supreme Court has held that a plaintiff may not
avoid constitutional defenses to a defamation claim by re-styling that claim as one for invasion of privacy, false light,
or any other tort. See, e.g., New York Times, 376 U.S. at 269 (constitutional protection does not depend on the label
given to cause of action); Hustler Magazine v. Falwell, 485 U.S. 46, 50 (1988). Here, Plaintiffs’ assorted claims are
based on the same alleged facts as their defective defamation claim, specifically, the allegedly false statements
regarding Mr. Parisi in the Book and the Synopsis.
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501 U.S. at 510 (quoting New York Times, 376 U.S. at 279-80).

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“The standard of actual malice is a daunting one.” McFarlane v. Esquire Magazine, 74 F.3d

1296, 1308 (D.C. Cir. 1996). Actual malice is a subjective test focused solely on the defendant’s

actual state of mind at the time of publication, and not an objective test focused on the

reasonableness of the defendant’s conduct. The term “[k]nowledge of falsity means simply that the

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defendant was actually aware that the contested publication was false.” Woods v. Evansville Press,

Co., Inc., 791 F.2d 480, 484 (7th Cir. 1986). Similarly, the term reckless disregard” for the truth

means that the “defendant in fact entertained serious doubts as to the truth of [the] publication.” St.

Amant v. Thompson, 390 U.S. 727, 731 (1968); see also Tavoulareas v. Piro, 817 F.2d 762, 776
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(D.C. Cir. 1987) (en banc) (defendant must have “come close to willfully blinding itself to the

falsity of its [statements]”). A defendant must have a “high degree of … awareness of [] probable

falsity.” Garrison v. Louisiana, 379 U.S. 64, 74 (1964). “The caselaw is clear that the plaintiff

must establish that even in relying upon an otherwise questionable source the defendant actually
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possessed subjective doubt.” Secord v. Cockburn, 747 F. Supp. 779, 794 (D.D.C. 1990) (plaintiff

cannot survive summary judgment merely by showing that some of defendant’s sources were

convicted felons).

“[R]eckless conduct is not measured by whether a reasonably prudent man would have
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published, or would have investigated before publishing.” St. Amant, 390 U.S. at 731. Even

“highly unreasonable conduct constituting an extreme departure from the standards of

investigation and reporting ordinarily adhered to by responsible publishers” will not suffice to

establish actual malice. Harte-Hanks Comm’s, Inc. v. Connaughton, 491 U.S. 657, 658 (1989).
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“[F]ailure to investigate does not itself establish bad faith.” St. Amant, 390 U.S. at 732. Further:

Failure to investigate is an especially weak criterion in the case of a

distributor of hundreds of publications. While distributors may know
something of the contents of publications that they contract to distribute,
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there is ordinarily little reason for them to examine the scores of magazines

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distributed.

Lerman, 745 F.2d at 141.

As an additional safeguard, the First Amendment requires that plaintiffs prove actual

malice by “clear and convincing” evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-57

(1986). This standard of proof imposes a “heavy burden [on plaintiffs], far in excess of the

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preponderance sufficient for most civil litigation.” Eastwood v. National Enquirer, Inc., 123 F.3d

1249, 1252 (9th Cir. 1997).

“Moreover, because the actual malice inquiry is subjective – that is, concerned with the
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defendant’s state of mind when [it] acted – the inference of actual malice must necessarily be

drawn solely upon…the information that was available to and considered by the defendant prior to

publication.” McFarlane v. Sheridan Square Press, 91 F.3d 1501, 1508 (D.C. Cir. 1996)

(hereinafter “Sheridan Square Press”); see also Secord, 747 F. Supp. at 792 (“[I]t is hornbook libel

law that post-publication events have no impact whatever on actual malice as it bears on this
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lawsuit since the existence or non-existence of such malice must be determine as of the date of

publication”); Herbert v. Lando, 781 F.2d 298, 305-306 (2d Cir. 1986) (“It is self-evident that

information acquired after the publication of defamatory material cannot be relevant to the
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publisher’s state of mind of his alleged malice at the time of publication”). Further, it is well-

established in this Circuit that a publisher does not have a duty to retract or correct based on

knowledge acquired after the initial release of the publication. Sheridan Square Press, 91 F.3d at

1515 (“[Plaintiff] presents no authority, however, nor are we aware of any, for the proposition that
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a publisher may be liable for defamation because it fails to retract a statement upon which grave

doubt is cast after publication”); Lohrenz, 223 F. Supp.2d at 56 (“[T]here is no duty to retract or

correct a publication, even where grave doubt is cast upon the veracity of the publication after it

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has been released”), aff’d, 350 F.3d 1272 (D.C. Cir. 2003). If this is the standard that applies to a

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publisher, who is far closer to the heart of the enterprise than a distributor, then it certainly must

apply to distributors as well.

Further, actual malice must demonstrated as to the specific statements at issue. New York

Times, 376 U. S. at 279-280. Plaintiffs’ attempt to impute knowledge of the allegedly defamatory

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statements to Barnes & Noble on the theory that someone at the company may have thought the

Book generally scandalous or outrageous must fail. Numerous courts have held that the “character

and content of the publication … [is] a constitutionally impermissible evidentiary basis for a

finding of actual malice” with respect to particular statements contained therein. Washington Post,
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365 F.2d at 969; see also Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 10 n.3 (1970) (Jury

instruction that permitted finding of constitutional malice based on “character of the publication

[that was] so excessive, intemperate, unreasonable and abusive as to defy any other reasonable

conclusion” held to be “error of constitutional magnitude”); cf. Dworkin, 611 F. Supp. at 786-87
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(in magazine distribution case, holding that, “[a] realization that Hustler was once sued for libel, or

that Larry Flynt has engaged in questionable behavior in the past, is not the equivalent of actual

knowledge of the allegedly libelous cartoons. Nor is such knowledge sufficient to put [the

newsstand] on notice to check each Hustler magazine for defamatory material…. Such a standard
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is not in our society’s best interests; it would foster excessive censorship…”). Likewise, when

multiple statements are at issue, a plaintiff must independently show by clear and convincing

evidence that the defendant had serious doubts as to the truth of each individual statement. Church

of Scientology . v. Time Warner, 903 F. Supp. 637, 640 (S.D.N.Y. 1995), aff’d, 239 F.3d 168 (2d
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Cir. 2001).

Finally, where the defendant is a distributor, like Barnes & Noble, it “may be held liable

only if plaintiff presented clear and convincing evidence that some high level employee of the
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corporation acted with reckless disregard of the fact that false matter had been published by [the

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publisher].” Lerman, 745 F.2d at 139-140; Spence, 647 F. Supp. at 1273 (same).

Thus, while Plaintiffs focus on Section 581 of the Restatement (2d) of Torts pertaining

generally to distributor liability, the critical standard here is actual malice because Plaintiffs are

public figures. Accordingly, some of the language quoted by Plaintiffs from the Restatement

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comments or related case law is simply inapplicable. These include Plaintiffs’ contentions that the

failure to investigate is sufficient under Section 581. Pls’ Opp. at 12. While it remains an open

question whether Restatement § 581 is the governing standard in this district, the Court need not

reach that issue because the actual malice standard governs this matter. Lerman, 745 F.2d at 141;

Janklow, 378 N.W. 2d at 881-82.

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B. Parisi’s Alleged Evidence is Inadmissible and, In Any Case,
Insufficient to Satisfy Iqbal or Create an Issue of Material Fact

Leave to amend would be futile in this case since Plaintiffs cannot satisfy the standards of

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544
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(2007), in providing the necessary factual details to support their conclusory allegations of actual

malice. “[T]he complaint’s factual allegations must produce an inference of liability strong

enough to nudge the plaintiff’s claims ‘across the line from conceivable to plausible.’” Nemet, 591
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F.3d at 255-56 (quoting Iqbal, 129 S. Ct. 1937). Even taking all of Plaintiffs’ inadmissible,

attenuated evidence as true, Plaintiffs have failed to come forth with any evidence – much less

clear and convincing evidence – that a high-level employee at Barnes & Noble had the requisite

mental state – that is, “acted with knowledge that [the allegedly defamatory statements regarding
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Parisi and whitehouse.com in the Book were] false or with reckless disregard as to whether [they

were] false or not.” New York Times, 376 U.S. at 279-80.

Any actual malice inquiry must take into account the relevant context. Barnes & Noble

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offers approximately 6.8 million new books for sale on its website, including nearly 3.6 million

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print-on-demand books, and each book usually elicits dozens of reader comments. (Bock Decl. ¶¶

4, 8.) The Sinclair Book, like other print-on-demand books, was carried on barnesandnoble.com

pursuant to its relationship with Lightning Source, rather than being individually selected. (Id.

¶¶8, 17.) Nor was it submitted to Barnes & Noble for its review as a potential work to be carried

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in the bookstores. (Id. ¶¶ 9, 17; Sinclair Aff. ¶ 5.) Further, contrary to Plaintiffs’ unsupported

allegations, Barnes & Noble only reviews readers’ online posts if consumers complain that they

violate B&N.com’s Terms of Use and, even then, the posts are reviewed by a junior level

employee solely for compliance with the Terms of Use. (Bock Decl. ¶ 13, 25.)
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Further, the Book is a political book about the President of the United States. In this

country, we have “‘a profound national commitment to the principle that debate on public issues

should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and

sometimes unpleasantly sharp attacks on government[,] public officials,’ and public figures.”
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CACI Premier Tech., Inc. v. Rhodes, 536 F.3d 280, 293 (4th Cir. 2008) (quoting New York Times,

376 U.S. at 270). Moreover, whether for good or ill, political discourse in this country has become

increasingly exaggerated and vituperative. Heated rhetoric and accusations have become the coin

of the realm, especially regarding presidents or presidential candidates.9 Thus, books like
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Sinclair’s and strong reader reactions for or against a book or author fall within the expected

spectrum of political discourse in today’s world, and hardly raise an eyebrow for a book

distributor. If booksellers had to investigate every book with “scandalous” allegations or that drew
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9
See, e.g., Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry, by John E. O’Neill and Jerome
Corsi; High Crimes and Misdemeanors: The Case Against Bill Clinton, by Ann Coulter; The Manchurian President:
Barack Obama's Ties to Communists, Socialists and other Anti-American Extremists, by Aaron Klein; The Secret Life
of Bill Clinton, by Ambrose Evans-Pritchard; Culture of Corruption: Obama and His Team of Tax Cheats, Crooks,
and Cronies, by Michelle Malkin; The Prosecution of George W. Bush for Murder, by Vincent Bugliosi; Stupid White
Men : ...And Other Sorry Excuses for the State of the Nation!, by Michael Moore; Lies and the Lying Liars that Tell
Them, by Al Franken.
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heated reader reviews, booksellers could not sell books by many prominent political authors, and

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would need to become embroiled in political judgment calls of who to believe, which is not their

proper role.

Turning to Plaintiffs’ allegations, assertions that Barnes & Noble sold or distributed the

Book (see Pls’ Opp. at 6-8); that some employees at retail stores may have read the front or back

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copy on the Book jacket (which does not mention Plaintiffs) after customers placed orders for the

Book from barnesandnoble.com through their local retail store (id. at 2, 17); or that some

employee manning the customer service line at Barnes & Noble may or may not have known that

some publishers allegedly rejected the Book (id.),10 are insufficient to show that high level officials
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at Barnes & Noble had a high degree of awareness that the Book contained specific false and

defamatory statements about Plaintiffs. There is absolutely nothing indicating that any Barnes &

Noble employee read the Book, much less knew the substance of the statements about Parisi in the

Book or anything related to their veracity.

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Plaintiffs attempt to create an issue of material fact by pointing to a jumble of online posts

they have scavenged from various blogs and websites. Even in the unlikely event that the Court

finds these posts to be admissible,11 it is immediately apparent that they have nothing to do with

the Contested Copy or the Plaintiffs and do not provide clear and convincing evidence of actual
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malice by a high-level employee. For example, Parisi points to a third-party blog that suggests that

Sinclair contacted Barnes & Noble regarding certain supposedly fake reader reviews posted on

barnesandnoble.com before the Book had been published – none of which had anything to do with
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10
The Court’s decision in Brandewyne v. Author Solutions, No. 04-CV-4363 (18th Judicial Dist. Ct. of Kansas, Aug 3,
2006) is inapposite. As Plaintiffs’ repeatedly note in their description of that case, it dealt with the knowledge and
liability of a “publisher” – and not a distributor – where the evidence showed that the publisher was well aware of, and
had evaluated the risks associated with, the defamatory publication. No such facts are present here.
11
The bulk of this “evidence” is unsubstantiated, unverified and unverifiable, and double, triple, or even quadruple
hearsay. Barnes & Noble respectfully submits that this Court should grant Barnes & Noble’s accompanying motion to
strike these documents and should disregard this purported evidence when resolving its Rule 56 motion.
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Parisi. (It appears from Plaintiffs’ evidence that Sinclair was correct – individuals associated with

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the website theregulator.net were posting fake reviews. (See Oparil Decl. Ex. J.)) As Barnes &

Noble explained in its moving papers, it responded to Sinclair’s complaint as it typically does – by

asking a junior level employee to review the posts to determine whether they complied with its

Terms of Use. (Bock Decl. ¶ 25.) This provides no evidence of actual malice since (1) it was not

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a senior level employee who reviewed the posts as required in cases involving distributors; and (2)

Sinclair’s apparently accurate complaint regarding fake reviews does not relate to the existence or

veracity of the statements regarding Parisi or whitehouse.com in the Book, and certainly does not

establish “awareness of probable falsity” regarding these specific statements. St. Amant, 390 U.S.

at 731.
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As another example, Plaintiffs allege that Sinclair contacted a Barnes & Noble retail store

in Peachtree, Georgia after a third-party of unknown reliability allegedly told Sinclair that a Barnes

& Noble employee had read the Book, hated the Book and would not order it for customers.
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Exhibit X to the Oparil Affidavit purports to be an audio recording of Mr. Sinclair’s call to the

Peachtree retail store. While it is unauthenticated, all it does is prove that the third party’s alleged

accusations were false. As an employee and the store manager explained, Barnes & Noble does

not censor books based on content, and will order any book that it offers for sale for its customers.
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All of this allegedly occurred months before the Book had even been published, further disproving

the third party’s allegations. Thus, even if Sinclair contacted the Peachtree store, the audio

recording does not show in any way that a high-level employee in Barnes & Noble’s New York

headquarters acted with actual malice or even that the Peachtree employees had knowledge of
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falsity regarding the specific statements in the Book regarding Parisi and whitehouse.com, which

were not discussed. See Lerman, 745 F.2d at 139.

Plaintiffs also point to various statements by unknown third-parties – identified only by the
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screen names they used to post comments on various websites – who claimed they contacted

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customer service at Barnes & Noble. Even giving full credit to these allegations, they did no more

than inform Barnes & Noble that one particular publisher, Aardvark, was not the publishing the

Book. Once again, no reasonable jury could find by clear and convincing evidence that Barnes &

Noble had a high degree of awareness that the Book contained false and defamatory statements

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about Plaintiffs based on this contact. Books are rejected by publishers every day for a variety of

reasons; rejected books may go on to receive great critical acclaim. 12

In sum, because Plaintiffs will be unable to meet the pleading requirements of Iqbal, any

request for leave to amend should be denied as futile; likewise, assuming that the Court finds that a
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“mere distribution” claim was already plead, it should be dismissed under Rule 56. None of the

evidence Plaintiffs point to in any way suggests that a high-level employee of Barnes & Noble

read the Book or knew the substance of the statements in the Book regarding Plaintiffs or anything

related to their veracity, much less acted with knowledge of falsity or reckless disregard of the
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truth or falsity of those statements under New York Times, 376 U.S. at 279-80. None of the so-

called evidence is related to any of the allegedly false statements about Parisi in the Book.

III. PLAINTIFFS DID NOT, AND CANNOT, PLEAD A VIOLATION

OF THE RIGHT OF PUBLICITY
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Plaintiffs utterly failed to address Barnes & Noble’s arguments regarding the supposed

right of publicity claim beyond stating that Barnes & Noble’s motion was not a motion to dismiss.

Barnes & Noble was not pointing out that Plaintiffs failed to state a claim for right of publicity, but

rather something more elemental – that they never pled that type of claim at all. Barnes & Noble
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then went on to demonstrate that even if Plaintiffs had pled a right of publicity claim (as opposed

12
As established above, Plaintiffs must demonstrate Barnes & Noble’s actual malice at the time of initial publication
and distribution of the Book. Plaintiffs cannot establish actual malice by arguing that, a year after initial publication,
they served a draft complaint on Barnes & Noble and Barnes & Noble did not cease distribution for a month.
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to a false light claim), they would be unable to sustain it for a number of reasons, which Plaintiffs

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do not rebut. (See B&N Br. at 20-22.) Among other grounds, the use of Parisi’s name would fall

within the newsworthiness exception set forth by this Court in Lane v. Random House, 985 F.

Supp. 141, 146 (D.D.C. 1995). Further, the use of Mr. Parisi’s name in the promotional materials

for a book is protected by the Lane incidental use exception. Id. at 147.13 Any right of publicity

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claim should also be dismissed.

CONCLUSION

For all the reasons set forth herein, Barnes & Noble, Inc. and barnesandnoble.com llc

respectfully requests that the Court grant its motion for summary judgment, dismissing the
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Complaint with prejudice in its entirety; and (ii) grant any additional relief, including attorneys’

fees and costs, which this Court may deem just and proper.

Dated: December 6, 2010 Respectfully submitted,

DAVIS WRIGHT TREMAINE, LLP

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By: /s/ Linda Steinman

Linda Steinman (admitted pro hac vice)
John Rory Eastburg (D.C. Bar No. 984434)

1919 Pennsylvania Avenue, NW, Suite 800

Washington, D.C. 20006
Attorneys for Defendants Barnes & Noble, Inc.
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and barnesandnoble.com llc

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13
As set forth in Amazon’s reply, Doc. No. 72 at 21-22, incorporated by reference herein, any right of publicity claim
is also barred by § 230.
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CERTIFICATE OF SERVICE

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I hereby certify that, on the date below, I caused the foregoing REPLY BRIEF IN

FURTHER SUPPORT OF BARNES & NOBLE’s MOTION FOR SUMMARY JUDGMENT to

be served via ECF on all counsel of record and defendant Lawrence W. Sinclair, pro se.

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Dated: December 6, 2010 /s/ Linda Steinman

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