Huon v. Breaking Media et al

Filing 79

RESPONSE by Meanith Huon to MOTION by Defendants John Lerner, Breaking Media, David Lat, Breakingmedia.com, David Minkin, Abovethelaw.com, Elie Mystal to dismiss pursuant to rule 12(b)(6) 35 (Attachments: # 1 Exhibit A)(Huon, Meanith)

IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
)
MEANITH HUON,
)
Plaintiff,
)
v.
) CIVIL ACTION NO.: 1: 11-cv-3054
)
)
)
ABOVETHELAW.COM, et. a.,
)
)
Defendants )
RESPONSE TO THE ABOVE THE LAW DEFENDANTS’ MOTION TO DISMISS
Plaintiff, Meanith Huon, in Response to the FRCP 12(b)(6) Motion to Dismiss and
Memorandum of Defendants, Breaking Media, LLC, Breaking Media, Breakingmedia.com,
David Lat, John Lerner, Abovethelaw.com, Elie Mystal (“ATL Defendants” or “Defendants”),
states as follows:
ARGUMENT
I. THE FAIR REPORTING PRIVILEGE DOES NOT APPLY.
A. THE REQUIREMENTS OF THE FAIR REPORT PRIVILEGE ARE NOT MET.
The fair report privilege has two requirements: (1) the report must be of an official
proceeding; and (2) the report must be complete and accurate or a fair abridgement of the official
proceeding. Solaia Technology, LLC v. Specialty Pub. Co., 221 Ill.2d 558, 588 (Ill. 2006).
The ATL Defendants did not report on an official proceedings or make a fair abridgment of the
official proceeding.

Defendants are website operators and bloggers who contend that they

commented on a news article—whose existence on May 6, 2010 Defendants have not
established. There is no reference to the Belleville News Democrat (“BND”) in the article and

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the link is a broken hyperlink that does not redirect the reader to the BND. Bloggers cannot
defame someone and, in hindsight, search for news articles or truncated transcripts that
Defendants never read. Defendants can cite to no mainstream news article calling Mr. Huon a
serial rapist.
Assuming arguendo that there was a news article on May 6, 2010, the ATL Defendants
re-published a defamatory statement-- this is not a report of an official proceeding. It is a
re-publication of a defamatory statement in a news article, which is defamation.

Snitowsky v.

NBC Subsidiary (WMAQ-TV), Inc., 297 Ill.App.3d 304. 310 (1st Dist. 1988). Even repeating a
defamatory statement made by a third person is defamation. Id; Restatement (Second) of Torts
§ 571, Comment c, at 187 (1977).
B. DEFENDANTS ARE NOT JOURNALISTS OR REPORTERS.
Defendants are not reporters or journalists whose conduct are governed by a code of
ethics in news gathering and reporting. Certain national journalism organizations have
formulated codes of ethics or “canons of journalism.” Conradt v. NBC Universal, Inc.,
536 F.Supp.2d 380, 397 (S.D.N.Y.,2008).
Professional Journalist Code of Ethics.

The Court can take judicial notice of the Society of

http://www.spj.org/ethicscode.asp. News

organizations like the New York Times and Business Week have a code of ethics.
http://www.nytco.com/press/ethics.html and http://www.businessweek.com/ethics.htm. It
would seem that making innuendos and personally attacking Mr. Huon on the world wide web
violates the code of ethics of professional journalism and news reporting.
The fair report privilege does not extend to the stereotypical “blogger” sitting in his
pajamas at his computer posting on the Internet.

In re Grand Jury Subpoena, Judith Miller, 438

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F.3d 1141, 1156-1157 (Concurring opinion on privilege not to disclose confidential sources)
(D.C. 2006). Several state laws provide that a reporter’s privilege only extends to the
established press. Ala. Code § 12-21-142; Alaska Stat. § 09.25.300; Ariz. Rev. Stat. § 12-2237;
Ark. Code Ann. § 16-85-510. Del. Code Ann. tit. 10 § 4320.
One state supreme court has held that the fair reporting privilege in defamation cases
does not extend to a self-appointed journalist who blogs on a website. Too Much Media, LLC
v. Hale, 206 N.J. 209 (N.J.,2011). If that were the case, “anyone with a Facebook account,
could try to assert the privilege.” Id at 242. Bloggers and website operator exhibit none of the
recognized characteristics traditionally associated with the news process, nor do website
operators demonstrate an established affiliation with any news entity so as to allow it to claim
any privileges. Too Much Media, LLC v. Hale, 413 N.J.Super. 135 (N.J.Super.A.D.,2010),
aff’d, 206 N.J. 209 (N.J.,2011). A blogger merely comments on the writings of others on and
creates no independent product of its own nor makes a material substantive contribution to the
work of others. Id
In this case, the ATL Defendants are website operators and bloggers who created a
website called “Above The Law” to generate advertising dollars from the traffic, and it generates
that traffic by defaming lawyers like Mr. Huon. This is not reporting news, much less making a
report of an official proceeding. On the date of his acquittal, on May 6, 2010, the ATL
Defendants posted a “breaking rape coverage” calling Mr. Huon a serial rapist. There was no
news article hyperlinked calling Mr. Huon a serial rapist–he had been acquitted. No news
article exists calling Mr. Huon a serial rapist. The ATL Defendants are not the established press
governed by ethical cannons of journalism and, thus, are not entitled to the protections afforded

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the reporter privilege. The ATL Defendants’ unfettered, offensive, and illegal conduct is
cyberbulling and cyberstalking under the cloak of reporting.
Public policy outweighs extending the privilege to self-appointed bloggers like
Defendants.

Why not extend the privilege to someone with a Facebook or Blogger.com

account who cyber bullies individuals under the cloak of reporting news? The fact that the ATL
Defendants have been successful in generating a lot of money from the web traffic does not
make it the established press. It simply puts the ATL Defendants in the same categories as porn
sites that profits off the exploitation of other people’s misery and degradation.

The ATL

Defendants fall into the same category of self-proclaimed wannabe “reporters” as the New
Nation News a/k/a Newnation.org, a/k/a Newnation.tv–a white supremacist website who
reported on Mr. Huon’s “Nigger depravity–presented in their own words and actions . . .”
C. THE PRIVILEGE DOES NOT APPLY TO AN INACCURATE ACCOUNT OF THE
PROCEEDINGS.
In deciding if the fair report privilege applies, the court compares “the official report with
the news media account . . . If the defamatory matter does not appear in the official record or
proceedings, the privilege of fair and accurate reporting does not apply. Myers v. The
Telegraph, 332 Ill.App.3d 917, 922 (5th Dist. 2002).

The test is not comparing a blog post with

a news story whose existence on May 6, 2010 is in doubt. The test is not comparing a blog post
to a truncated trial transcript that Defendants searched for after the fact to cover up its misdeeds.
The law does not say that defendants can defame someone first and then find some writing on a
scrap of paper later.

Lowe v. Rockford Newspaper, Inc. held that the privilege did not apply,

because the defamatory statements did not appear in the police report. Lowe, 179 Ill.App.3d
592, 597 (2nd Dist. 1989)
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In Myers v. The Telegraph, a newspaper story mistakenly reported that a criminal pled
guilty to a felony, rather than a misdemeanor. The Fifth Illinois Appellate District–the locale of
Mr. Huon’s criminal trial–held that the news report was defamatory per se. The privilege does
not apply if “the defendants published what turned out to be an inaccurate account of the
proceedings”

In Coursey v. Greater Niles Tp. Pub. Corp, plaintiff was found guilty of 4 out

of 5 charges. But the newspaper reported that plaintiff was found guilty of all charges. The
Illinois Supreme Court held the newspaper’s false reporting was sufficient to overcome the
privilege. Coursey ,82 Ill.App.2d 76, 227 N.E.2d 164 (1st Dist. 1967), aff’d, 40 Ill.2d 257, 267
(Ill. 1968).
Mr. Huon alleges that on May 6, 2010, on the day that he was acquitted, the ATL
Defendants posted “breaking rape coverage” and called Mr. Huon a serial rapist with multiple
victims, without stating that Mr. Huon had been acquitted. The further defamatory statements
calling Mr. Huon a serial rapist, the claim of multiple victims, the claim of being a talent scout
are not reported in the proceedings, like the police report.
D. THE STATEMENTS FALLS OUTSIDE THE PRIVILEGE AND IS
DEFAMATORY PER SE.
Statements charging a person with unfair business practices, impugning his integrity,
prejudicing his practice of law, and/or implying that he committed a crime falls within several of
the recognized categories of defamation per se.

Solaia Technology, LLC v. Specialty Pub. Co.,

221 Ill.2d 558, 590 (Ill. 2006); Myers, 332 Ill.App.3d at 922; Coursey. 40 Ill.2d. At 267. These
type of defamatory statements are not a fair abridgement of the proceedings and fall outside the
privilege. Solaia Technology, LLC,221 Ill.2d 558 at 590-592. Here, Defendants charged Mr.
Huon of committing fraud by pretending to be a talent scout, a supervisor for a company that
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sells alcohol, a promoter seeking promotional models—all three statements are inherently
conflicting. Worse, the ATL Defendants accused Mr. Huon of raping multiple women in
“breaking rape coverage”, of being a cyberstalker, and of being serial criminal, hyperlinking
the post to defamatory statements from Lawyergossip.com.
E. THE DEFAMATORY POST WAS NOT A FAIR SUMMARY OF ANY
PROCEEDINGS.
For the privilege to apply, a new media’s summary must be “fair” for the privilege to
apply.

A fair abridgment means that the report must convey to readers “a substantially correct

account.” Restatement (Second) of Torts § 611, Comment f, at 300 (1977). Comment f of the
second Restatement states:
“[I]t is necessary that nothing be omitted or misplaced in such a manner as to convey an
erroneous impression to those who hear or read it * * *. The reporter is not privileged
under this Section to make additions of his own that would convey a defamatory
impression, nor to impute corrupt motives to any one, nor to indict expressly or by
innuendo the veracity or integrity of any of the parties.” Restatement (Second) of Torts §
611, Comment f, at 300-01 (1977).
Solaia Technology, LLC, 221 Ill.2d at 589-590.
In this case, the ATL Defendants omitted significant facts, invented numerous fiction,
conveyed erroneous impressions to its readers, and imputed deviant motives to Mr. Huon.
Never even considering that a woman cannot hurl herself out of a car traveling at highway speed
without sustaining fatal death, Defendants attacked the veracity and integrity of Mr. Huon: “So
we're not denying that she hurled herself out of a moving vehicle, we're contending she
jumped out of the car to make it look like she was raped? Right, sure. That sounds like
the definition of incredible.”
F. THE PRIVILEGED DOES NOT APPLY TO FABRICATED EVIDENCE.

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The privilege does not permit the expansion of the official report by the addition of
fabricated evidence designed to improve the credibility of the defamation. Snitowsky v. NBC
Subsidiary (WMAQ-TV), Inc., 297 Ill.App.3d 314, 310 (1st Dist. 1988). In Snitowsky, NBC
reported that a school principal charged one of the teachers who worked at her school with
criminal misconduct. The news media provided none of the background needed for the audience
doubt the principal's accusations, making no reference to prior disagreements between the
principal and the teacher.

Snitowsky held that without further context, the audience has no

basis to conclude that the principal had ulterior motives for lying and, thus, the statements were
defamation per se. Snitowsky held that the fair report privilege did not protect NBC, because
the news media did not simply abridge the statements made to police but reported evidence not
found in the report.

NBC reported that a security guard witnessed the beating, although the

police report never mentioned a witness.

By inventing facts beyond the official report to make

the charges more credible, NBC abandoned the fair report privilege.
In this case, the ATL Defendants abandoned any fair report privilege when it invented
facts not found in the police report that—among other lies--there were other alleged rape victims
and that Mr. Huon was a serial rapist. Defendants posted “breaking rape coverage” on the day
of Mr. Huon’s acquittal, without mentioning that Mr. Huon was acquitted. The ATL
Defendants invented facts beyond any official report:
-breaking rape coverage.
-any alleged attorney rapists near you .
-the files of the wanton and depraved
- A St. Louis-area lawyer came up with an excellent little game to meet women.
-Meanith Huon allegedly listed Craigslist ads where he claimed to be a talent scout
for models.
-But Huon's potentially harmless lies allegedly turn dastardly, pretty quickly:
-Had the victim Google Huon, she would have found stories like this from the
Madison County Record:
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-Or she might have come across this link from, at Lawyer Gossip:
-Of course, women shouldn't have to assume that every guy they meet is a potential
rapist.
-But apparently there are a lot of depraved dude walking around that are
potential rapist.
-This is gonna end badly.
-Oh, come on. If somebody was driving and tried to "force" me to perform oral
sex on them, I'd just get out of the stupid car. Which is to say, I'd do exactly what
the victim did in this case.
-Damn. If you can't get a woman to consensually stay in a moving vehicle, can you
really get her to consensually agree to sex (insofar as lying to her about your job and
your intentions to get her into the car counts as consensual in the first place)?
-Obviously, Huon sees things differently.
-So we're not denying that she hurled herself out of a moving vehicle, we're
contending she jumped out of the car to make it look like she was raped? Right,
sure. That sounds like the definition of incredible.
-It seems to me that there is entirely too much (alleged) raping going on in this
country.
-If this keeps up, men and women are going to have to start carrying around sexual
consent forms on their persons.
-I, the undersigned, being of sound mind and hot body, do hereby consent to affixing
my ____to the other party's______. Such amorous undulations include, but are not
limited to, ____, ______, and all proposals will be considered so long as no animals
(barnyard
or otherwise) are involved.
I claim no rights to future__________,_________,or________, in exchange for this
brief interruption in my chronic loneliness.
Making things worse, the ATL Defendants wrote about a 15 year old girl being raped
immediately prior to the post about Mr. Huon posing as a talent scout to rape bubblegum
princesses. Defendants made no mention that the complaining witness was 26 years old.

II. THE COURT SHOULD NOT CONSIDER THE TRUNCATED TRANSCRIPT
OF OPENING ARGUMENTS FROM MAY 4, 2010 OR THE SO-CALLED NEWS
ARTICLE.
In ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the
court must presume all of the well-pleaded allegations of the complaint to be true. Miree v.
DeKalb County, Georgia, 433 U.S. 25, 27(1977). In addition, the court must view those

8

allegations in the light most favorable to the plaintiff. Gomez v. Illinois State Board of
Education, 811 F.2d 1030, 1039 (7th Cir.1987). The ATL Defendants makes the bare
assertion that its defamatory blog post was a commentary on a news article from the Belleville
News-Democrat (“BND”), without presenting any evidence that the BND article exists or was
hyperlinked on the date in question.

The Court cannot rely on mere assertions of conclusions

by the ATL Defendants in ruling on FRCP 12(b)(6) motion. Mr. Huon alleges that the
defamatory post was published on the day Mr. Huon was acquitted on May 6, 2010–not May 4,
2010.

The BND is not mentioned anywhere within the four corners of the post. The BND

hyperlink is broken. The ATL Defendants do not report that the BND removed their
defamatory posts, after Mr. Huon advised them of the false statements that the BND posted.
The ATL Defendants cannot rely on the truncated transcripts of opening statements on
May 4, 2010–opening statement is not evidence.

Mr. Huon alleges that the defamatory

statement was published on May 6, 2010 and does not convey to the readers a substantially
correct account, i.e. the consent defense was barred on May 6, 2010. Conveniently, the ATL
Defendants have selected truncated portions of the transcript, even though counsel for the ATL
Defendants has admitted that she has the entire trial transcript. By refusing to produce the entire
trial transcript and by not offering admissible evidence that Defendants even looked at the
transcript before defaming Mr. Huon, Defendants have failed to meet their burden that the
privilege applies.
Defendants’ reliance on opening arguments–in hindsight–is no defense. In Von Kahl v.
Bureau of Nat. Affairs, Inc., --- F.Supp.2d ----, 2011 WL 4032384 (D.C.,2011), plaintiff sued the
Bureau of National Affairs, Inc. (“BNA”) alleging that BNA defamed him in summaries

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published about a petition he filed following his criminal prosecution. BNA produced a
truncated transcript attributing the source of the statements to be arguments of the prosecutor.
The District Court held that the fair reporting privilege did not apply, because BNA never made
clear that the prosecutor made the statements and treated the prosecutor’s arguments as if the
Court made findings of facts. In this case, opening statements are not evidence.

Attempting

to cover up their defamatory conduct, Defendants just dig a deeper hole for themselves.
Opening argument is not evidence.

People v. King, 109 Ill.2d 514 (Ill. 1986).

of the opening statement is to advise the jury what the evidence will show.

The purpose

People v. King,

109 Ill.2d at 535. Accordingly, reversible error may occur when the prosecution asserts in the
opening statement facts or propositions on which no evidence later is presented.

Id.

Defendants’ reliance on the self-serving statements of the complaining witness after the
fact of the posting is not a defense. Defendants never reported that the complaining witness had
a motive for lying and was impeached on numerous occasions by Mr. Huon’s attorney. By
treating the complaining witness’s self-serving statements as undisputed facts, Defendants
invented facts and added to what actually took place at the judicial proceedings.
The ATL Defendants argue that the court can take judicial notice of the truncated
transcript, because documents that a defendant attaches to a motion to dismiss are considered
part of the pleadings if they are referred to in the plaintiff's complaint and are central to his
claim. However, the truncated trial transcript from May 4, 2010 are neither referred to in Mr.
Huon’s complaint nor central to his claim for defamation. Russo v. Palmer 990 F.Supp. 1047,
(N.D.Ill.,1998). The truncated trial transcript doesn’t call Mr. Huon a serial rapist and does not
refer to multiple victims.

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Defendants’ chart is an improper attempt to decide questions of fact, before Mr. Huon has
even been afforded an opportunity to conduct discovery and when the ATL Defendants have
refused to produce the entire trial transcript. Cook v. Winfrey, cited by the Defendants, held
that the District Court should not resolve factual on a motion to dismiss under Rule 12(b)(6).”
141 F.3d 322, 330-31 (7th Cir. 1998). Defendants’ request to convert the motion to summary
judgment motion under FRCP 12(d) should be denied, since under FRCP 12(d), “All parties
must be given a reasonable opportunity to present all the material that is pertinent to the motion.”
Mr. Huon has not been given reasonable opportunity to conduct discovery as to all the materials
pertinent.
Defendants have the burden of proving that the privilege applies. Lowe v. Rockford
Newspaper, Inc., 179 Ill.App.3d 592 (2nd Dist. 1989).

Defendants have failed to meet the

burden by engaging in gamesmanship and not producing the entire trial transcript, the police
report, the written statements of the complaining witness–namely, the entire official proceedings.

III. IT IS A QUESTION OF FACT FOR A JURY HAS TO WHETHER THE
PRIVILEGE HAS BEEN ABUSED.

Both the Seventh Circuit and Illinois courts have held that it is question of fact for a jury
as to whether the fair reporting privilege was abused. Brown & Williamson Tobacco Corp. v.
Jacobson, 713 F.2d 262, 272 (7th Cir. 1983); Maple Lanes, Inc. v. News Media Corp., 322
Ill.App.3d 842 (2nd Dist. 2011) ( genuine issue of material fact as to whether newspaper correctly
quoted sheriff). As the 7th Circuit stated, “If you embellish a defamatory statement with
accusations you know to be false, taken from ancient government reports that have no claim to
contemporary credence, your repetition of those stale accusations is not privileged”. ” Brown
11

& Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 272 (7th Cir. 1983).

In Brown &

Williamson Tobacco Corp., plaintiff sued CBS and a reporter over a broadcast on cigarette
advertising strategy.

Defendants argued that the libel was privileged as a fair and accurate

summary of the Federal Trade Commission staff's report on cigarette advertising. The Seventh
Circuit held that “this is a question of fact” and that “the question is whether this would save the
defamation count if the jury found that the broadcast was a fair summary after all.” 713 F.2d at
271-273.
In explaining its holding, the Seventh Circuit further held that, “The truth is that Illinois
law is in disarray on the question whether actual malice defeats the privilege of fair summary.”
Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d at 272.

The Seventh Circuit stated

that express malice will defeat the privilege: the privilege is forfeited if the summary is made
solely for the purpose of causing harm to the person defamed.

Lulay v. Peoria Journal-Star,

Inc., 34 Ill.2d 112, 115, 214 N.E.2d 746, 748 (1966); Restatement of Torts § 611(b) (1938);
Brown & Williamson Tobacco Corp., 713 F.2d at 272 . However, the Illinois Supreme Court
has left open the question as to whether actual malice will defeat the privilege. Id. Contrary to
the contention of the ATL Defendants, Illinois appellate courts disagree as to whether the fair
report privilege can be overcome--the Illinois Supreme Court has not addressed this issue. Gist
v. Macon County Sheriff's Dep't, 284 Ill.App.3d 367, 373, 671 N.E.2d 1154, 1161 (4th
Dist.1996); Wilkow v. Forbes, Inc. 2000 WL 631344 (N.D.Ill.,2000) , aff’d, 241 F.3d 552 (7th
Cir. 2001). Thus, assuming arguendo that the privilege applies, it is a question of fact for the
jury as to whether the privilege has been abused.
Defendants’ own cited case, Cook v. Winfrey, held that the District Court committed

12

reversible error by dismissing plaintiff’s defamation claim on the grounds that the statements
were privileged under Ohio law, because “the conclusion that the privilege applied to the
allegedly defamatory statements in this case required the district court to resolve factual issues
that should not be reached on a motion to dismiss under Rule 12(b)(6).” 141 F.3d 322, 330-31
(7th Cir. 1998).
IV. THE POST IS DEFAMATORY PER SE.
As previously discussed above, statements impugning a person’s integrity, prejudicing
his practice of law, and/or implying that he committed a crime is defamatory per se.

Solaia

Technology, LLC , 221 Ill.2d at 590; Myers, 332 Ill.App.3d at 922; Coursey v. Greater Niles
Tp. Pub. Corp., 40 Ill.2d 257 at 239. On the date that Mr. Huon was acquitted of rape, the
ATL Defendants posted a “breaking rape coverage” story that Mr. Huon, a wanton and depraved
individual, posed as a talent scout and forced a woman to perform oral sex and that there were
other female victims. Before the Huon story, Defendants wrote about a 15 year old girl being
raped. Then the ATL Defendants wrote that the next story—the Huon story—was about the
“wanton and the depraved”. What could be more wanton and depraved than raping a 15 year
old girl? Defendants than compare Mr. Huon’s “victim” to a “bubblegum princess”.
Defendants imputed that Mr. Huon committed a crime, that he lacks integrity by lying, that he
fornicates with several women, that he is an “attorney rapists near you”, that he is a pedophile
who preys bubblegum princesses.

As the ATL Defendants admit, this would fall into all the

categories of defamation per se: "(1) words that impute a person has committed a crime; (2)
words that impute a person is infected with a loathsome communicable disease; (3) words that
impute a person is unable to perform or lacks integrity in performing her or his employment

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duties; (4) words that impute a person lacks ability or otherwise prejudices that person in her or
his profession; and (5) words that impute a person has engaged in adultery or fornication."
Solaia, 221 Ill. 2d at 579-80.

The hyperlinks to the defamatory statements of the Madison

Record and Lawyergossip.com were republication of additional defamatory statements, making
the lies about Mr. Huon even more outrageous.
Mischaracterizing paragraph 24(a) of the Second Amended Complaint, the ATL
Defendants argue that Mr. Huon’s sole claim is that it was inaccurate to state that the charges
stemmed from more than one woman. This is incorrect. The ATL Defendants is in no position
to speak for Mr. Huon, having represented him to be a depraved and wanton child rapist and
making a profit generated by the advertising dollars and the web traffic. What about paragraphs
(b) through (l)? Paragraph 24(a) through (l) state 12 facts that the Defendants omitted from the
story. Paragraph 25(a) through (aa) then state 27 facts that Defendants simply invented in the
story. See attached Exhibit “A”.
Defendants’ cases do not apply. In Hahn v Konstanty 257 A.D.2d 799, (N.Y.A.D. 3
Dept.,1999), a New York appellate court decision from 1999, a newspaper published that
plaintiff was charged with disorderly conduct but that the charges were dismissed on certain
conditions. The defamatory statement was that there were no conditions of the dismissal. In this
case, Mr. Huon was acquitted and on the date that he was acquitted, Defendants posted a
“breaking rape coverage” that implied he was a rapist of multiple women and con artist who
lured women with lies and placed the Huon story next to the story of a child rapist and compared
Mr. Huon’s victim to a bubblegum princess.

Myers v. The Telegraph, 332 Ill.App.3d 917, 922

(5th Dist. 2002)–decided in the same locale Mr. Huon’s criminal case –is on point (newspaper

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mistakenly reporting that a criminal pled guilty to a felony, rather than a misdemeanor, was
defamatory per se).

In this case, the ATL Defendants implied Mr. Huon had raped several

women and made the following defamatory statements, on the day of his acquittal:
-breaking rape coverage.
-any alleged attorney rapists near you .
-the files of the wanton and depraved
- A St. Louis-area lawyer came up with an excellent little game to meet women.
-Meanith Huon allegedly listed Craigslist ads where he claimed to be a talent scout
for models.
-But Huon's potentially harmless lies allegedly turn dastardly, pretty quickly:
-Had the victim Google Huon, she would have found stories like this from the . . .
-. . .Oh, come on. If somebody was driving and tried to "force" me to perform oral
sex on them, I'd just get out of the stupid car. Which is to say, I'd do exactly what
the victim did in this case.
-Damn. If you can't get a woman to consensually stay in a moving vehicle, can you
really get her to consensually agree to sex (insofar as lying to her about your job and
your intentions to get her into the car counts as consensual in the first place)?
-Obviously, Huon sees things differently . . .
- . . . It seems to me that there is entirely too much (alleged) raping going on in this
country.
It is well established that it is defamatory to call or imply that someone is a “rapist”.

As the

U.S. Supreme Court stated, No one will deny “that it is libelous falsely to charge another with
being a rapist”. Beauharnais v. People of State of Ill., 343 U.S. 250, 72 S.Ct. 725 U.S. (1952);
Cooper v. Dupnik924 F.2d 1520 (9th Cir. 1991); In re Thompson, 162 B.R. 748
(E.D.Mich.,1993).

The facts here are more egregious: Mr. Huon was called a rapist after he

was acquitted by a jury of his peers.

Because Mr. Huon has alleged defamation per se, he does

not have to allege special damages. Regarding his defamation per quod count, Mr. Huon should
be given leave to amend his complaint to allege special damages. Van Vliet v. Cole Taylor ,
2011 WL 148059 (N.D.Ill.,2011).

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V.
THS U.S. SUPREME COURT AND THE ILLINOIS SUPREME COURT
HAVE REJECTED THE ARGUMENTS ADVANCED BY DEFENDANTS THAT
OPINIONS ARE NOT ACTIONABLE.

The U.S. Supreme Court and the Illinois Supreme Court have rejected the argument that
opinions are not actionable under the First Amendment. First, there are no First Amendment
considerations in this case. Milkovich v. Lorain Journal Co. held that First Amendment and
Constitutional limits on state defamation law are considerations in cases involving a public
figure or official or where the speech at issue is of public concern. 497 U.S. 1, 13-15 (1990);
Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381, 394 (Ill. 2008).

In

this case, Mr. Huon is neither a public figure nor official, the defamatory statement is not of
public concern, and defendants are not media defendants but bloggers and website owners.
Assuming arguendo, that First Amendment issues come into play, the U.S. Supreme
Court in Milkovich and the Illinois Supreme Court in Bryson have rejected the argument that
expressions of opinions are not defamatory.
77 (Ill. 1996).

Bryson v. News America Publication, 174 Ill. 2d

As the U.S. Supreme Court explained, there is no additional First Amendment

protection of opinion, because “it would ignore the fact that expressions of ‘opinion’ may often
imply an assertion of objective fact.” Milkovich, 497 U.S. at 18. The U.S. Supreme Court held
that it will not create an artificial dichotomy between “opinion” and “fact”. Milkovich, 497 U.S.
at 18-19. “[T]he test to determine whether a defamatory statement is constitutionally protected
is a restrictive one”. Bryson, 174 Ill. 2d at 99-100. A statement is constitutionally protected
under the first amendment only if it cannot be “reasonably interpreted as stating actual facts.”
Bryson, 174 Ill. 2d at 100; Milkovich, 497 U.S. at 20. Whether the statement is actually true or
false, however, is a question of fact for the jury. Simply because the story is labeled “fiction”
16

and, therefore, does not purport to describe any real person” does not mean that it may not be
defamatory per se. Muzikowski v. Paramount Pictures Corp., 322 F.3d 918 (7th Cir. 2003).
In Bryson v. News America Publication , the Illinois Supreme Court held that a fictional
story in Seventeen magazine calling the plaintiff a “slut” was an assertion of fact, because the
clear impact of the statement was that plaintiff was, in fact, sexually promiscuous. This was not
the sort of loose, figurative or hyperbolic language that would negate the impression that the
writer was seriously maintaining that the character depicted in the story was unchaste. The
assertion is sufficiently factual to be susceptible to being proven true or false and, thus, not
protected under the First Amendment.
Throughout it brief, the ATL Defendants exaggerate its contention by making sweeping
generalizations but citing to only one instance that do not support the generalization.

Arguing

the post is an opinion, the ATL Defendants’ cite the statements calling Mr. Huon “wanton and
depraved” for coming up with a game of meeting and raping women and that “Huon's potentially
harmless lies allegedly turned dastardly, pretty quickly”. These statements are assertions of
fact that are susceptible to being proven true or false.

Mr. Huon can prove as true or false the

alleged assertions that he came up with a game, that he met multiple women, that he rape several
women, that he raped anyone at all, that he is wanton or depraved. These are assertions of fact.
VI.

THE ILLINOIS SUPREME COURT HAS ALREADY REJECTED
SIMILAR STRAINED ATTEMPTS BY DEFENDANTS TO FIND
UNNATURAL BUT INNOCENT MEANINGS.

The ATL Defendants argue in a fragmented and disjointed manner that if you remove
each sentence from the post and chart and graph it, then you can find an unnatural but innocent
meaning, citing to an incomprehensible chart that the Defendants have created. Why not

17

remove each word from the post?

Why not move the sentences and words around? Why not

remove each letter of the word and rearranged them and read them backward? The law requires
that the defamatory statements be read in the context the statements were posted. Without a
context, any series of words would have an unnatural but innocent meaning.
The Illinois Supreme Court in Chapski v. Copley Press, warned against the lower courts
“generally strain[ing] to find unnatural but possibly innocent meanings of words where such
construction is clearly unreasonable and a defamatory meaning is more probable” Chapski v.
Copley Press, 92 Ill. 2d 350-352, (1982); Tuite v. Corbitt, 224 Ill. 2d 490, 503 (Ill. 2007). For
this reason, the Illinois Supreme Court modified the innocent construction rule. Tuite v.
Corbitt, 224 Ill. 2d 490, 503 (Ill. 2007).

The innocent construction rule, as modified, is as

follows:
A written or oral statement is to be considered in context, with the words and the
implications therefrom given their natural and obvious meaning; if, as so construed, the
statement may reasonably be innocently interpreted or reasonably be interpreted as
referring to someone other than the plaintiff it cannot be actionable per se.
Tuite, 224
Ill. 2d at 503.
“[O]nly reasonable innocent constructions will remove an allegedly defamatory statement from
the per se category.” Tuite, 224 Ill. 2d at 504; Bryson, 174 Ill. 2d at 90.

Lifting sentences out

of their context and charting them creates unreasonable and unnatural meanings.
The innocent construction rule does not require courts to strain to find an unnatural
innocent meaning for a statement when a defamatory meaning is far more reasonable. Tuite,
224 Ill. 2d at 505. In applying the rule, courts must give the alleged defamatory words their
natural and obvious meaning. Id. Courts must interpret the alleged defamatory words as they
appeared to have been used and according to the idea they were intended to convey to the
18

reasonable reader.

Id.

In Tuite, defendant wrote a story on organized crime, stating that

after plaintiff, a defense lawyer, was retained to represent mob figures, the mob figures believed
they were all going to be acquitted. Plaintiff sued defendants alleging that the statements were
defamatory because the clear message was that plaintiff was expected to engage in bribery to
secure an acquittal.

Defendants argued that the statements were capable of an innocent

construction to the extent that plaintiff was retained for his legal skills. The Illinois Supreme
Court disagreed and held that the clear message of the statements were that plaintiff was
expected to fix the case. The Court re-emphasized that the context of the statement is critical in
determining its meaning.

The Court said the disputed statements must be viewed in the context

of the corruption described in the entire book.

The Court concluded that given the

overwhelming focus on corruption in the book, the statements could not reasonably be given an
innocent construction.
In this case, Defendants first argue that many of the statements are not defamatory citing
the single statement that Mr. Huon is a St. Louis lawyer. Defendants miss the point: Mr. Huon
contends that Defendants invented fiction and passed them off as facts. He cites an example in
which Defendants called him a St. Louis lawyer when he was an Edward Jones financial advisor
in 2008 who was trained and required by Edward Jones to door knock 100 homes and businesses
a day to build a book a business. In the same post, the ATL Defendants falsely write that Mr.
Huon posed as a talent scout, a supervisor for a company that sells alcohol , and someone
seeking promotional models. How can Mr. Huon pose as three different people with three
different jobs to the same complainant? The statements in the post contradict themselves and
are inherently fabricated.

19

Second, citing Barry Harlem Corp. v. Kraff, 273 Ill. App. 3d 388, 391-92 (1st Dist.
1995), the ATL Defendants continue to make sweeping generalizations that many of the
statements are not about Mr. Huon, by pointing to a single instance to the statement about
“pretend[ing]” to be a “talent scout” or an “an Ostrich rancher from sub-Saharan Africa” to meet
“bubble gum princesses”. On the contrary, the entire story is about Mr. Huon pretending to be a
talent scout to rape girls. The post does not identify the ages of these girls other than a
comparison to ““bubble gum princesses”. As the trial transcript of the voire dire in the criminal
case on May 4, 2010 would show–which the ATL Defendants conveniently edited out--potential
jurors, including one who would become the foreman, thought that the alleged complaining
witness was a minor because her name was withheld. In the post, the ATL Defendants makes
it more likely for the confusion to happen by comparing the alleged victim to “bubble gum
princesses”–a clear reference to underage girls when the complaining witness in fact was a 26
year old woman. The entire article is about rape stories of little girl. The first story is about a 15
year old girl being raped. The next story is from the “wanton and depraved” file. What can be
more “wanton and depraved” than raping a 15 year old? Raping a 26 year old? No. Lying
and luring a bubblegum princess to be raped. That is more wanton and depraved. The clear
import of the post defames Mr. Huon as a “wanton and depraved” pedophile.

The Illinois

Supreme Court has refused to extend the holding in Barry Harlem Corp. v. Kraff, Bryson v.
News America Publications, Inc., 174 Ill.2d 77 (Ill. Oct 24, 1996) (fictional character refers to
plaintiff).

It is not seriously disputed that the post is about Mr. Huon and that Defendants

called Mr. Huon an “attorney rapists”.

Within the article, Defendant Elie Mystal, compares the

so-called rape victims of Mr. Huon with “bubble gum princesses”. He compares pretending to

20

be an ostrich rancher to false allegations that Mr. Huon posed as a talent scout. This is not
self-deprecating humor because Mr. Mystal does not call himself a serial rapist.

The only

person being belittled or defamed is Mr. Huon. Furthermore, it is a question of fact for the jury
as to whether or not the statement was in fact understood to be defamatory or to refer to the
plaintiff.

Tuite, 224 Ill. 2d at 503.

Third, the ATL Defendants broadly claim that “many of Plaintiff's allegations do not
accurately reflect the statements in the Post” by pointing to a single instance where “the Post
describes the testimony of Plaintiff's alleged victim.”

However, the repetition of an imputation

made by a third person is actionable although the defamer attributes the charge to a third person.
Restatement (Second) of Torts § 571, Comment c, at 187 (1977). (Calling the complainant Mr.
Huon’s victim on the date of his acquittal is defamatory. Gooch v. Maryland Mechanical
Systems, Inc., 81 Md.App. 376 (Md.App.,1990)). The ATL Defendants omit facts from the
official proceeding that cast doubt on the complaining witness, who was impeached numerous
times during cross-examination—lying about Mr. Huon automatically locking her window in the
car when photographs showed Mr. Huon’s car did not have power windows.
The use of the chart is improper, because it lifts sentences and words out of their natural
meaning in the context that they were used. Moreover, Mr. Huon shouldn’t have to go through
6 pages of a fragmented and disjointed chart consisting of 40 lines and 8 columns of
permutations to try to decipher the ATL Defendants’ incoherent arguments. Defendants have
the burden to write a cogent motion to dismiss, not fragments from Ludwig Wittgenstein’s
Philosophical Investigations or like lines of Wallace Stevens’ poetry.

21

VII. MR. HUON HAS STATED A CLAIM FOR FALSE LIGHT.
The ATL Defendants do not give a cogent argument for the dismissal of Mr. Huon’s false
light claims but merely adopts the argument the Defendants made regarding Mr. Huon’s
defamation claims. Thus, as the movant, Defendants have not met its burden. Mr. Huon
adopts his response to Defendants’ arguments for this section.

To prove malice, Mr. Huon

must show that the publicity at issue is “of and concerning” him, that it placed him before the
public in a false light, and that there was actual malice. Muzikowski v. Paramount Pictures
Corp., 322 F.3d 918 (7th Cir. 2003).

Mr. Huon has alleged that the ATL Defendants posted a

defamatory post calling him a depraved and wanton attorney rapist who came up with a game to
rape several women, that Defendants knew that these statements were false, and that Defendants
acted with malice.

VIII. MR. HUON HAS STATED A CLAIM FOR INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS.
Contrary to the assertions of the Defendants, several cases around the country have held
that the publication of a defamatory statement constitute extreme and outrageous conduct.
Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, (Ill.,1992); Hatfill v. New York Times Co.,
416 F.3d 320 (4th Cir. 2005); Russell v. Thomson Newspapers, Inc., 842 P.2d 896 (Utah,1992);
Moss v. Wallace, 2009 WL 4683553 (Conn.Super.,2009).

Perhaps, we can start with the

Illinois Supreme Court: in Kolegas v. Heftel Broadcasting Corp., defendants, radio disc jockeys,
made defamatory statements about the plaintiff, who was organizing a festival to benefit
neurofibromatosis, a serious neurological disorder, which is commonly known as Elephant Man
22

disease.

Defendants stated on the air that plaintiff was “not for real”, that plaintiff was just

“scamming” them, that there was “no such show as the classic cartoon festival”. The Illinois
Supreme Court held that these statements supported a claim for extreme and outrageous conduct,
because defendants “had access to channels of communication” and “the power of the media
cannot be denied. More importantly, the plaintiffs had no similar access to the public . . .”
Kolegas v. Heftel Broadcasting Corp.,154 Ill.2d at 22.
In this case, the facts are more egregious. Mr. Huon had been wrongfully been
prosecuted by Madison County and was exonerated.

On the date of his acquittal, Defendants

called Mr. Huon a scammer who lies to lure little girls and women to meet him, depraved and
wanton, an attorney rapist, someone posing as a talent scout, a predator of bubble-gum princess,
someone who came up with a game to meet women that turned dastardly, more wanton and
depraved than a rapist of a 15 year old girl.

The ATL Defendants use the power of the world

wide web to gain access to more channels of communications than Mr. Huon, because
Defendants have access to the thousands, if not millions, of potential readers. The
Abovethelaw.com site is ranked no. 1 for law blogs. http://www.invesp.com/blog-rank/Law.
Mr. Huon has no similar access, much less a forum to rebut the outrageous conduct. Out of 30
million websites, Abovethelaw.com ranks no. 6,379 in the US.
http://www.alexa.com/siteinfo/abovethelaw.com#.
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876 (U.S.Va.,1988), cited by
the ATL Defendants, do not apply, because Mr. Huon is a public figure and, thus, there are no
First Amendment implications in this case.

In addition, the U.S. Supreme Court stated in

Hustler Magazine, Inc. v. Falwell,
Of course, this does not mean that any speech about a public figure is immune from
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sanction in the form of damages. Since New York Times Co. v. Sullivan, 376 U.S. 254,
84 S.Ct. 710, 11 L.Ed.2d 686 (1964), we have consistently ruled that a public figure may
hold a speaker liable for the damage to reputation caused by publication of a defamatory
falsehood, but only if the statement was made “with knowledge that it was false or with
reckless disregard of whether it was false or not.” Hustler Magazine, Inc. v. Falwell,
485 U.S. 46, 52 (U.S.Va.,1988).
Second, Hustler Magazine has been called into doubt. Bryson, 174 Ill.2d 77 (Ill. 1996).

Since

1990, federal courts apply Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, in determining
whether speech in defamation actions is privileged.

Herring v. Adkins, 150 Ohio Misc.2d 13,

19-20 902 (Ohio Com.Pl.,2008). In Milkovich, the Supreme Court determined that the
threshold question is not whether the statement can be labeled as an opinion, but is instead
whether a reasonable fact-finder could conclude that the statement implies an assertion of an
objective fact. Id.
The ATL Defendants’ remaining cases hold that plaintiff’s state a cause of action for
defamation and false light. Berkos v. National Broadcasting Co., Inc.,161 Ill.App.3d 476, (1st
Dist.,1987), cited by Defendants, held that a judge stated a cause of action for defamation and
false light against NBC for identifying him as involved in judicial corruption under investigation
in Operation Greylord. In this case, on the date that he was acquitted, Defendants falsely
identified or implied that Mr. Huon was under investigation for being a serial rapist and
engaging in wanton and depraved behavior. Defendants’ reliance on Berkos is tantamount to
conceding that Mr. Huon states a cause of action for defamation and false light.
IX. THE COURT SHOULD ALLOW A PRIVATE CAUSE OF ACTION FOR
CYBERBULLYING AND/OR CYBERSTALKING.
The problems of cyberstalking and cyberbullying by bloggers and the media is a serious
threat to Americans.

Many states have enacted "cyberstalking", “cyberbullying”, or

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"cyberharassment" laws.http://www.ncsl.org/default.aspx?tabid=13495.

Addressing the

American Psychological Association's (“APA”) Annual Convention, Dr. Elizabeth Carll, of the
APA Media Psychology Division, stated: "It is my observation that the symptoms related to
cyberstalking and e-harassment may be more intense than in-person harassment, as the impact is
more devastating due to the 24/7 nature of online communication, inability to escape to a safe
place, and global access of the information.
http://www.telegraph.co.uk/technology/internet/8687956/Cyberstalking-more-dangerous-than-tra
ditional-bullying.html.
Recent scandals in news involving the Fox News Corporation phone hacking incidents
show that even the established press have used technology to engage in illegal activities to stalk
its subject.
http://www.csmonitor.com/USA/2011/0716/Rupert-Murdoch-phone-hacking-scandal-US-connec
tions-grow.
Social media encourages and accelerates abuses by cyber bullies and cyberstalkers who
cloak themselves as bloggers and “wannabe” journalists. Social media, bloggers, website
operators have given birth to a new crime that people are more at risk for–cyberstalking and
cyberbulling.
http://www.thisisnorthdevon.co.uk/Police-warn-cyber-stalking-risk-social-network/story-139191
96-detail/story.html.
The criminal statutes are not adequate to protect Americans from the threat of
cyberbullying and cyberstalking, because of the ever changing nature of technology and the vast
expanse of the world wide web.

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http://www.law.illinois.edu/bljournal/post/2008/04/22/Cyberbullying-A-Modern-Problem.aspx.
Private enforcement of cybercrime is needed.
http://www-bcf.usc.edu/~idjlaw/PDF/11-1/11-1%20Rustad.pdf. A blogger with a website
hosted in the Netherlands, for all practical purposes, would be out of the reach of the jurisdiction
of the Illinois criminal courts.
When a statute is enacted to protect a particular class of individuals, courts may imply a
private cause of action for a violation of that statute although no express remedy had been
provided. Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill.2d 379, 386 (Ill. 1982). This
standard evolved from a test first articulated in Cort v. Ash (1975), 422 U.S. 66, 78, where the
Supreme Court examined four factors: (1) Is the plaintiff one of a class for whose especial
benefit the statute was enacted? (2) Is there any indication of legislative intent to create or deny
such a remedy? (3) Is it consistent with the underlying purpose of the legislative scheme to imply
such a remedy? (4) Is the cause of action traditionally allocated to State law? Sawyer Realty
Group, Inc. v. Jarvis Corp., 89 Ill.2d 379, 386 (Ill. 1982). Illinois courts have continually
demonstrated a willingness to imply a private remedy, where there exists a clear need to
effectuate the purpose of an act. Id.
Mr. Huon’s case is a classic of example of why the criminal statutes are ineffective for
enforcement against cyberstalking and why the ATL Defendants are not reporters. The
Madison County prosecutors used the Illinois cyberstalking statute in 2009 CF 1688 to retaliate
against Mr. Huon for demanding a trial in 2008 CF 1496.

The allegation was that the

complaining witness Googled Mr. Huon and read a blog with no reference to the complaining
witness name. The blog postings allegedly included a “wide variety of professions of love,

26

along with religious references”, including "10 reasons why I'd make a good husband for you."
The alleged post made no reference to the complaining witness by her legal name. Madison
County prosecutors contended that if a complaining witness comes across a website that makes
no reference to that person and if the words of that website causes the person to experience
subjective emotional distress–no matter how harmless the words are, that constitutes
cyberstalking. Madison County prosecutors overcharged Mr. Huon with meritless charges, in
the hopes that either he would be convicted of something or his funds would run out.
The ATL Defendants knew about the false cyberstalking charges because they posted a
defamatory comment about it with a hyperlink to the Lawgossip.com website. However, rather
than engaging in investigative journalism to explore the possibility that anyone who creates
website content that someone finds distressful can be charged with cyberstalking in Illinois
–much less even report to the world of the prosecutorial misconduct–the ATL Defendants
proceeded to engage in the same conduct that the Madison County prosecutors called
cyberstalking.
The Illinois cyberstalking statute criminalizes "a course of conduct using electronic
communication directed at a specific person" when the actor "knows or should know that [it]
would cause a reasonable person to. . . or (2) suffer other emotional distress. The ATL
Defendants on at least two occasions, in 2008 and 2010, posted statements regarding Mr. Huon
that caused him to experience distress. The facts here are even more egregious than what Mr.
Huon was charged with by Madison County prosecutors. In 2008, the ATL Defendants called
Mr. Huon “Lawyer of the Day” by poking fun of his false arrest. In 2010, after Mr. Huon was
acquitted, the ATL Defendants continued to stalk Mr. Huon online and called him wanton and

27

depraved and implied that he was a serial rapist, an attorney rapist, someone who got away with
rape, a pedophile of bubble gum chewing girls. The statute defines “Emotional distress” to
mean “significant mental suffering, anxiety or alarm” and “Harass” to mean “to engage in a
knowing and willful course of conduct directed at a specific person that alarms, torments, or
terrorizes that person.”

Mr. Huon suffered alarm and anxiety from the posts, because the ATL

Defendants posted on a legal blog visited by lawyers and judges that Mr. Huon was a rapist and a
serial rapist.

Posting on the Internet on one of the most highly trafficked legal blog is like

putting up a billboard on a highway trafficked by only lawyers and judges.

The comments to

the statute defines “electronic communication” broadly as:
Electronic communication’ means any transfer of signs, signals, writings, sounds, data, or
intelligence of any nature transmitted in whole or in part by a wire, radio,
electronmagnetic, photoelectric, or photo-optical system. "Electronic communication"
includes transmissions by a computer through the Internet to another computer.”

Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345 C.A.7 (Ill.),1995.,
cited by Defendants, held that plaintiff ophthalmic surgeon stated a claim for defamation against
ABC’s PrimeTime Live for its investigative journalism for calling him a “big cutter”. The ATL
Defendants are not ABC and did no investigative journalism. Had the ATL Defendants
performed investigative journalism, they would have discovered that Madison County
prosecuted Mr. Huon for cyberstalking for facts less egregious than the ATL Defendants’ more
egregious conduct.

Counsel for the ATL Defendants lifted the quote out of context without

quoting the remaining sentences. The Seventh Circuit held that: “ . . . If the broadcast itself does
not contain actionable defamation, and no established rights are invaded in the process of
creating it (for the media have no general immunity from tort or contract liability . . ., Desnick,

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44 F.3d at 1355.

This case was decided in 1995 before the exponential growth of the Internet

and the word “social media” entered the American consciousness–before the word cyberstalking
was even used.
O'Donnell v. Field Enterprises, Inc., 145 Ill.App.3d 1032 (1st Dist 1986), cited by the
ATL Defendants was decided long before the advent of blogs. More importantly, O’Donnell
was talking about “If the news media cannot report what it sees and hears at governmental and
public proceedings”–not some blogger in his pajamas commenting on a news article.
Journalists and reporters are governed by a code of ethic that restrains their conduct.

Bloggers

and website operators like the ATL Defendants operate unrestrained and unregulated to cause an
unlimited amount of harm to individuals with the click of a mouse. The criminal laws are not a
sufficient deterrent when blogs like Abovethelaw.com continue to generate cash flow from
advertising revenues.

The First Amendment does not protect tortious or criminal conduct, as

the Seventh Circuit has held. Desnick, 44 F.3d at 1355.
In this case, (1) Mr. Huon is within the class of members for whom the statute was
intended to protect; (2) The comments to the cyberstalking act indicates that the legislatures
intended to protect people from harassment from websites; (3) implying a remedy is consistent
with the legislative scheme to fight cyberbullying and cyberstalking; (4) the cause of action is
traditionally allocated to state law. Illinois has an interest in stopping its citizens from being
stalked and bullied online.

At least one other state court has attempted to create a private cause

of action for stalking or cyberstalking. Remsburg v. Docusearch, Inc., 149 N.H. 148, 816 A.2d
1001 (N.H.,2003). Several states have created statutes creating a civil cause of action for
stalking. Wyoming W.S.1977 § 1-1-126 (Civil Liability for stalking); Virginia VA Code Ann. §

29

8.01-42.3 (Civil action for stalking); Oregon O.R.S. § 30.866.
The First District Illinois Appellate Court held that the holding in Galinski v. Kessler,
134 Ill.App.3d 602 (1st Dist. 1985)–cited by Defendants-- does not apply when the conduct is not
only unlawful but tortious. Scott v. Aldi, Inc., 301 Ill.App.3d 459, (1st Dist. 1998). Galinski v.
Kessler, held that no private cause of action exists for some archaic crime called barratry.
Modern day causes of action for malicious prosecution and interference with prospective
economic advantage exists as adequate remedies.

Similarly, in another case cited by the ATL

Defendants, Lane v. Fabert, plaintiff had remedies available other than one which might be
implied under the statute. Plaintiff stated a claim under the Consumer Fraud and Deceptive
Business Practices Act (Consumer Fraud Act) (Ill.Rev.Stat.1985, ch. 121 ½, par. 261 et seq.).
178 Ill.App.3d 698, 704-705 (4th Dist. 1989).
In this case, there is adequate remedy for the growing problems of cyberstalking and
cyberbullying. Like in Mr. Huon’s case, prosecutors either do not have the will to try these
cases or they overcharge defendants with cyberstalking crimes that have no merit. Private
enforcement of cyberstalking would provide a better shield against the unfettered and
unregulated conduct of bloggers.
X. MR. HUON STATES A CAUSE OF ACTION FOR CIVIL CONSPIRACY.
The ATL Defendants blatantly misrepresent the law by arguing that Mr. Huon has not
alleged an underlying tort.

The underlying tort is defamation, false light, or intentional

infliction of emotional distress. The case cited by Defendant does not apply because the Court
held that the underlying tort for defamation was not properly pled and, thus, the civil conspiracy
count must fail. That is not the case here.

30

Furthermore, Bell Atlantic Corp established “two easy-to-clear-hurdles”. First, the
complaint must describe the claim in sufficient detail to give the defendant fair notice of what the
claim is and the grounds upon which it rests. Second, its allegations must plausibly suggest that
the plaintiff has a right to relief, raising that possibility above a “speculative level”; Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007) . Here, Defendants are on notice that they defamed Mr.
Huon and placed him in a false light.

Defendants are aware of the conspiracy, because they

self-identified themselves as the “Above the Law” Defendants. The 30+ single space paged
complaint alleges in sufficient factual detail the role of each conspirator from Breaking Media to
the author Elie Mystal Defendants, John Does 1 to 100, including, John Doe No. 1 a/k/a
LatherRinseRepeat, are registered users, writers, or editors of Abovethelaw.com who posted
defamatory comments regarding Mr. Huon. The ATL Defendants know the unlawful conduct
of the John Does because the ATL Defendants removed the defamatory postings in an effort to
cover up its misdeeds. Mr. Huon’s right to relief is more than speculative. The Seventh Circuit
explained that for complaints involving complex litigation—for example, antitrust or RICO
claims—a fuller set of factual allegations may be necessary to show that relief is plausible. The
U.S. Supreme Court in Bell Atlantic Corp. wished to avoid the "in terrorem" effect of allowing
a plaintiff with a "largely groundless claim" to force defendants into either costly discovery or an
increased settlement value. Smith v. Duffy, 576 F.3d 336, 340 (7th Cir. 2009).

Therefore, if

discovery is likely to be more than usually costly, the complaint must include as much factual
detail and argument as may be required to show that the plaintiff has a plausible claim. Smith v.
Duffy, 576 F.3d at 340. This concern does not apply to your run of the mill lawsuit. Id, at
340.

The Seventh Circuit explained that Ashcroft v. Iqbal--also cited by defendants--was

31

“special in its own way” because a September 11th terrorist attack detainee sued the U.S.
Attorney General and the Director of the Federal Bureau of Investigation and the issue of
intrusive discovery came up again. Smith v. Duffy, 576 F.3d at 340-341. Mr. Huon has not
filed a RICO or antitrust lawsuit or a lawsuit against the U.S. Attorney General.

From his

apartment/home office, Mr. Huon has filed a run of the mill defamation lawsuit against bloggers
sitting in their pajamas making a profit by stalking and defaming and cyberbullying people
online
WHEREFORE, Plaintiff, Meanith Huon, requests that this Honorable Court deny The
Above the Law Defendants’ Motion to Dismiss.

/s/Meanith Huon
Meanith Huon

Meanith Huon
The Huon Law Firm
PO Box 441
Chicago, Illinois 60690
1-312-405-2789
FAX No.: 312-268-7276
ARDC NO:6230996

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CERTIFICATE OF SERVICE
Under penalties of law, I attest the following documents or items have been or are being
electronically served on all counsel of record for all parties on November 30, 2011

MEANITH HUON’S RESPONSE TO THE ABOVE THE LAW DEFENDANTS’
MOTION TO DISMISS

/s/ Meanith Huon
Meanith Huon
The Huon Law Firm
PO Box 441
Chicago, Illinois 60690
Phone: [phone]
E-mail: [e-mail]
IL ARDC. No.: 6230996

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