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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

BRENNAN M. GILMORE, CASE NO.: 3:18-cv-00017-NCM-JCH

Plaintiff

v.

ALEXANDER JONES, et al., BRIEF IN REPLY TO PLAINTIFF’S
OPPOSITION TO THE MOTION TO
Defendants DISMISS (DKT 70) FILED BY
DEFENDANTS HOFT,
STRANAHAN, CREIGHTON,
WILBURN, HICKFORD AND
WORDS-N-IDEAS, LLC.

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TABLE OF CONTENTS

Table of Authorities iv

Introduction 1

Facts 1

I. The Plaintiff Has Failed to Meet His Burden of Showing That This Court Has Subject
Matter Jurisdiction 1

A. The Plaintiff Has Failed to Properly Allege That the Amount-In-Controversy for
Any of the Undersigned Defendants Exceeds $75,000 2

B. The Plaintiff Has Failed to Show That Complete Diversity Exists 4

II. The Plaintiff Has Failed to Demonstrate That This Court Has Personal Jurisdiction over
Mr. Hoft, Mr. Creighton, Mr. Wilburn, Ms. Hickford or Words-N-Ideas, LLC 6

III. The Plaintiff Has Failed to Show the First Amended Complaint Stated a Claim upon Which
Relief Can Be Granted 7

A. The Plaintiff Has Failed to Demonstrate That Mr. Hoft, Mr. Wilburn, Ms. Hickford
and Words-N-Ideas, LLC Are Not Immune, in Whole or in Part, under Section 230
of the Communications Decency Act 7

B. The Plaintiff Has Failed to Show That He Has Stated a Claim for Defamation 9

1. The Plaintiff Has Failed to Show That He Properly Alleged That the
Undersigned Defendants Have Made Any Actionable, False Statements (Or
Implications) of Fact with Respect to the Plaintiff 9

2. The Plaintiff Has Failed to Show He Properly Alleged Malice 14

(i) The Plaintiff Has Failed to Demonstrate That He Is Not a Limited-
Purpose Public Figure 14

(ii) The Plaintiff’s Allegations of Malice Are Conclusory and
Implausible 16

3. The Plaintiff Has Failed to Show That He Properly Alleged Negligence
21

4. The Plaintiff Has Failed to Show That He Properly Alleged Damages 21

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C. The Plaintiff Has Failed to Show That He Properly Alleged Intentional Infliction
of Emotional Distress 21

IV. The Plaintiff Has Failed to Show That the Undersigned Defendants Do Not Deserve
Immunity, Attorney’s Fees and Costs under Va. Code § 8.01-223.2 24

Conclusion 24

iii

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TABLE OF AUTHORITIES

CASES

Adkins v. Whole Foods Mkt. Grp., Inc., No. 1:16-cv-00031 (E.D. Va. April 5, 2016) 22

Ashcroft v. Iqbal, 556 U.S. 662 (2009) 9, 13 and 19

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) 16

Bennett v. 3M Co., No. 3:14-CV-198 (E.D. Va. April 15, 2014) 2

Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180 (4th Cir. 1998) 11-12

Brandenburg v. Ohio, 395 U.S. 444 (1969) 2-3 and 22

Bryant v. Washington Mut. Bank, 524 F. Supp. 2d 753 (W.D. Va., 2007) 23

Carwile v. Richmond Newspapers, 196 Va. 1 (1954) 9-10 and 12

Chu v. Ceglio, No. 1:17-cv-01256 (E.D. Va. March 26, 2018) 22

Coles v. Carilion Clinic, 894 F. Supp. 2d 783 (W.D. Va. 2012) 22 and 24

Francis v. Allstate Ins. Co., 709 F.3d 362 (4th Cir. 2013) 2-2

Givens v. W.T. Grant Co., 457 F.2d 612 (2nd Cir. 1972), vacated, 409 U.S. 56 (1972) 3

Gertz v. Robert Welch, 418 U.S. 323 (1974) 19

Goldwater v. Ginzburg, 414 F.2d 324 (2nd Cir. 1969) 20

Harris v. Kreutzer, 271 Va. 188 (2006) 22

Harris v. Wells Fargo Bank N.A., No. 3:16-cv-174-JAG (E.D. Va. March 3, 2017) 23

Hatfill v. New York Times Co., 416 F.3d 320 (4th Cir. 2005) 13 and 22-23

Husted v. A. Philip Randolph Institute, 584 U.S. ___ (2018) 4

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) 20

Jackson v. Michalski, No. 3:10-cv-00052 (W.D. Va. Aug. 22, 2011) 22

Kessler v. City of Charlottesville, No. 3:17CV00056 (W. D. Va. Aug. 11, 2017) 15

iv

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Lohrenz v. Donnelly, 350 F.3d 1272 (D.C. Cir. 2003) 18

M. Rosenberg & Sons v. Craft, 182 Va. 512 (1944) 3

McLaughlin v. McPhail, 707 F.2d 800 (4th Cir. 1983) 5

Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) 10-11 and 13

Moldea v. New York Times Co., 15 F.3d 1137 (D.C. Cir. 1994) rev’d on reh’g, 22 F.3d 310 (D.C.

Cir. 1994) 18

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 14

Revell v. Hoffman, 309 F.3d 1228 (10th Cir. 2002) 18

Tharpe v. Lawidjaja, 8 F. Supp.3d 743 (W.D. Va. 2014) 21

Trans Energy, Inc. v. Eqt Prod. Co., 743 F.3d 895 (4th Cir. 2014) 6

U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337 (4th Cir. 2009) 4

FEDERAL AND STATE STATUTES AND RULES

28 U.S.C. § 1332 1

52 U.S.C. § 20507 4

VA. CODE § 8.01-223.2 24-25

VA. CODE § 8.01-223.2 24-25

Fed. R. Civ. P. 11 24

Fed. R. Civ. P. 12 passim

Fed. R. Civ. P. 19 6

Fed. R. Civ. P. 21 6

v

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ARTICLES AND BOOKS

Brennan Gilmore, Alex Jones is a Menace to Society. I’m suing him, THE WASHINGTON POST,
March 14, 2018 https://www.washingtonpost.com/news/posteverything/wp/2018/03/14/alex-
jones-is-a-menace-to-society-im-suing-him/?noredirect=on (last visited July 4, 2018) 8

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INTRODUCTION

As a preliminary matter, by presenting this Reply, Mr. Hoft, Mr. Stranahan, Mr. Creighton,

Mr. Wilburn, Ms. Hickford and Words-N-Ideas, LLC (the “Undersigned Defendants”) do not

waive any rights of jurisdiction, notice, process, joinder, or venue.

In the “Brief in Support of the Joint Motion to Dismiss and Motion for Attorney Fees and

Costs of Defendants Hoft, Creighton, Stranahan, Wilburn, Hickford and Words-N-Ideas, LLC”

(Dkt. 47) (the “MTD”), the Undersigned Defendants argued that 1) that this Court lacked subject

matter over the whole case and personal jurisdiction over most of the Undersigned Defendants, 2)

the Plaintiff had failed to properly state a claim upon which relief can be granted and 3) the

Undersigned Defendants should be granted immunity, attorney’s fees and costs under V A. CODE

§ 8.01-223.2. The Plaintiff has serially failed to rebut any of these arguments and, therefore, this

Court should dismiss this case, and grant attorney’s fees and costs.

FACTS

This brief incorporates the Statement of Facts provided in MTD 2-7 and the facts added in

the “Brief in Reply in Opposition to Scholars’ Amicus Brief of Mr. Hoft, Mr. Creighton, Mr.

Wilburn, Ms. Hickford and Words-N-Ideas, LLC” (Dkt. 86) (“Reply to Amicus”) 1-2. The only

additional fact noted is that while the MTD mounted an evidence-based attack on the Plaintiff’s

claim that complete diversity exists, the Plaintiff has provided no evidence in response.

I.
THE PLAINTIFF HAS FAILED TO MEET HIS BURDEN OF SHOWING THAT THIS
COURT HAS SUBJECT MATTER JURISDICTION

The MTD first argued that the Plaintiff has failed to properly allege the minimum amount

in controversy required by 28 U.S.C. § 1332, and, second, presented an evidentiary attack showing

that there is not complete diversity between Mr. Stranahan and the Plaintiff. The Plaintiff failed to

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meet either challenge to subject matter jurisdiction.

A. The Plaintiff Has Failed to Properly Allege That the Amount-In-Controversy for Any
of the Undersigned Defendants Exceeds $75,000.

The MTD noted that this Court lacked subject matter jurisdiction over any of the

Undersigned Defendants because the Plaintiff failed to properly allege the appropriate amount-in-

controversy. Although the Plaintiff claimed to have suffered more than $75,000 in damages, each

claim included harms the Plaintiff cannot recover as a matter of law. Specifically, the Plaintiff

claimed that the Undersigned Defendants were legally responsible for harm caused by third parties

allegedly incited by them, even though such harms cannot be recovered at all in defamation cases

and can only be recovered in Intentional Infliction of Emotional Distress (“IIED”) cases if their

expression meets the standards in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). The Plaintiff

does not dispute these arguments. Instead, the Plaintiff ignores them and argues that the

Undersigned Defendants are not allowed to challenge the kinds of damages used in calculating the

amount in controversy. That is, the Plaintiff believes that a person can include forms of damages

one cannot legally recover to reach the jurisdictional minimum and still maintain jurisdiction.

That is not the law. For instance, Bennett v. 3M Co., No. 3:14-CV-198 (E.D. Va. April 15,

2014), addressed an amount-in-controversy challenge where the Plaintiff sought $11,040 in

compensatory damages and $100,000 for punitive damages. The Bennett court held that “Plaintiff

cannot sustain a claim for punitive damages. As a result, the amount in controversy requirement

has not been met and diversity jurisdiction is not present.” Id. at 5. Likewise, Francis v. Allstate

Ins. Co., 709 F.3d 362, 368 (4th Cir. 2013) stated that attorney’s fees could not ordinarily be

included in the amount-in-controversy calculation. The Francis court found that an exception

applied, but logically, if none of the exceptions applied, then attorney’s fees could not be properly

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included in the amount-in-controversy calculation.1 Clearly, this Court can determine whether

certain categories of damages are recoverable when determining if the Plaintiff has alleged the

jurisdictional minimum.

The Plaintiff has made no other argument to explain how such damages are recoverable.

There is nothing in the Plaintiff’s Memorandum of Points and Authorities in Opposition to

Defendants’ Motions to Dismiss (Dkt. 70) (“Opp. to MTD”) addressing M. Rosenberg & Sons v.

Craft, 182 Va. 512, 521 (1944)’s holding that a plaintiff in a defamation case cannot recover

damages for the “mere wrongful act of a third person,” or any discussion of Brandenburg and how

it limits the universe of recoverable damages under IIED. Therefore, this Reply will fall back on

the arguments made in the MTD.

The Plaintiff counters by arguing that the alleged “sum claimed by the plaintiff controls if

the claim is apparently made in good faith[.]” Opp. to MTD 11. This is true as far as it goes, but

the Plaintiff has not alleged that damages that he can claim amount to more than $75,000. To put

it in mathematical terms, imagine that “D” equals the damages allegedly caused by each Defendant

and “T” equals the damages caused by their alleged incitement of Third parties. Then what the

Plaintiff has alleged is that

D + T > $75,000

However, even if “D + T” is greater than $75,000, it does not follow that D by itself is greater than

$75,000. Therefore, if we remove T from the equation—as the law says we must—we are left with

no allegation that D is greater than $75,000. Thus, the Plaintiff has failed to allege that forms of

damage he can recover meets the jurisdictional minimum, and, for this reason alone, this case

1
See also Givens v. W.T. Grant Co., 457 F.2d 612, 614 (2nd Cir. 1972), vacated on other grounds,
409 U.S. 56 (1972) (plaintiff cannot include attorney’s fees in amount-in-controversy calculation).
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should be dismissed.

B. The Plaintiff Has Failed to Show That Complete Diversity Exists.

Remarkably, when faced with an evidence-based attack on whether or not there is complete

diversity, the Plaintiff chose to introduce no admissible evidence to show that jurisdiction was

present. In an evidentiary challenge to subject matter jurisdiction, “the plaintiff bears the burden

of proving the truth of such facts by a preponderance of the evidence,” U.S. ex rel. Vuyyuru v.

Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). However, the Plaintiff has presented absolutely no

evidence in support of his assertion that complete diversity exists.

The Plaintiff has presented a number of exhibits, but none are admissible as evidence. For

instance, Exhibit A to the Opp. to MTD is purportedly a letter from Keith Ingram, the Director of

Elections for Texas. However, there is no affidavit or declaration from Mr. Ingram establishing

the authenticity of the letter and its claims. The Opp. to MTD 8 claims that an entry on an unsworn

form indicates that Mr. Stranahan personally returned a renewal of registration certificate but there

is no evidence before this Court showing that the data has that significance. Further that non-

evidence is contradicted by the admissible evidence presented in Mr. Stranahan’s latest

declaration. Exhibit A, ¶ 3. Yet even if the Ingram letter was attached to a proper declaration, it

would be inadmissible hearsay. Without it, we are left with only the undisputed fact that Mr.

Stranahan registered to vote six years ago in Texas, but has not voted in two general elections in

Texas—enough for Congress to presume that Mr. Stranahan has changed residences. See Husted

v. A. Philip Randolph Institute, 584 U.S. ___ (2018) (“Congress thought that the failure to vote for

a period of two consecutive general elections was a good indicator of change of residence,”

referring to 52 U.S.C. § 20507(b)(2)(B)).

Equally unsworn is the Skip Tracing Report attached as Exhibit B to the Opp. to MTD and,

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even if supported by a declaration or affidavit, it is just more inadmissible hearsay. Even if it were

proper evidence, it does not even contradict Mr. Stranahan’s previous declaration (Dkt. 47-1) ¶ 4

or his latest, Exhibit A, ¶ 4. At most it shows that Mr. Stranahan had a Texas Driver’s License in

2003, which would have expired by 2009. Tex. Transportation Code § 521.271(1). Further, it does

not contradict Mr. Stranahan’s claim that he does not presently have a driver’s license. Likewise,

a mistaken statement by undersigned counsel is not evidence, either. It is hearsay and even if it

were a sworn statement, it would lack foundation—because undersigned counsel has no personal

knowledge of the matter. See Exhibit B, ¶ 2; Fed. R. Evid. 602. Therefore, Mr. Stranahan’s sworn

statement that he has declared himself a Virginian for tax purposes remains unchallenged. See also

Exhibit A-1 (providing Mr. Stranahan’s W-2 form, showing that he paid Virginia withholding).

Similarly, Plaintiff’s Exhibits D, E and G are unsworn hearsay that is not admissible even if they

were not unsworn. Meanwhile, Exhibit C has not been authenticated, and, even if it were, the

information is plainly out of date. For instance, it claims that Mr. Stranahan is a “lead investigative

Journalist at Breitbart” when the Plaintiff knows that Mr. Stranahan no longer works for

BREITBART. See FAC ¶ 17. Mr. Stranahan stopped working for BREITBART in March, 2017.

Exhibit A, ¶ 5. So, far from proving by a preponderance of the evidence that complete diversity is

present, the Plaintiff has presented absolutely no evidence that Mr. Stranahan is domiciled in any

state but Virginia, thus destroying diversity.

The Plaintiff asks this Court to allow for limited jurisdictional discovery. Yet, the Plaintiff

has not shown that he is entitled to discovery. For instance, in McLaughlin v. McPhail, 707 F.2d

800, 806 (4th Cir. 1983), the defendants had presented evidence proving facts that tended to show

that Maryland could not exercise personal jurisdiction over certain out-of-staters, which was only

countered by the plaintiff by no more than “bare allegations.” The Fourth Circuit found that “[o]n

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these facts, the district court did not abuse its discretion” when denying jurisdictional discovery.

Id. at 806-07.

Finally, the Plaintiff states that if Mr. Stranahan destroys diversity, he should be dismissed

from the case under Fed. R. Civ. P. 21 as a “dispensable... party,” Opp. To MTD 11. However,

Mr. Stranahan is not dispensable. He is central to Count VII of the First Amended Complaint (Dkt.

29) (“FAC”) ¶¶ 241-257, which seeks to hold four other defendants (the “Free Speech

Defendants”) responsible for Mr. Stranahan’s alleged defamation. Under Trans Energy, Inc. v. Eqt

Prod. Co., 743 F.3d 895, 901 (4th Cir. 2014), this Court must apply the test for dispensability set

forth in Fed. R. Civ. P. 19(b). Applying that test, it is plain that any judgment rendered in Mr.

Stranahan’s absence would prejudice the Free Speech Defendants, implicating subsection (b)(1);

there is no way to lessen the prejudicial effect under (b)(2); there is no assurance that—should the

Plaintiff prevail—a judgment in Mr. Stranahan’s absence would be adequate under (b)(3); and,

finally, if the case was dismissed the Plaintiff still would have adequate means of seeking his

remedy in state court. In short, all of the factors in Fed. R. Civ. P. 19(b) demonstrate that Mr.

Stranahan is an indispensable party. Therefore, the remedy of dismissing Mr. Stranahan is not

available.

In summary, the Plaintiff has failed to allege the jurisdictional minimum with respect to all

parties and has failed to present any evidence that complete diversity exists. No jurisdictional

discovery is justified, and Mr. Stranahan is not a dispensable party. Therefore, this Court lacks

subject matter jurisdiction and should dismiss this entire case.

II.
THE PLAINTIFF HAS FAILED TO DEMONSTRATE THAT THIS COURT HAS
PERSONAL JURISDICTION OVER MR. HOFT, MR. CREIGHTON, MR. WILBURN,
MS. HICKFORD OR WORDS-N-IDEAS, LLC

Even if this Court had subject matter jurisdiction, it would lack personal jurisdiction over

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Mr. Hoft, Mr. Creighton, Mr. Wilburn, Ms. Hickford or Words-N-Ideas, LLC (“these

Defendants”). However, the arguments made in their Reply to Amicus (Dkt. 86) also applies

equally to the Opp. to MTD. Accordingly, this brief will incorporate the arguments made in the

Reply to Amicus without further elaboration, and for the reasons stated in that Reply to Amicus,

this Court should dismiss these Defendants for lack of personal jurisdiction.

III.
THE PLAINTIFF HAS FAILED TO SHOW THE FIRST AMENDED COMPLAINT
STATED A CLAIM UPON WHICH RELIEF CAN BE GRANTED

Even if this Court had jurisdiction, the Plaintiff has to failed show that he has stated a claim

upon which relief can be granted. He has failed to show that Messrs. Hoft and Wilburn do not

enjoy immunity in whole or part under 47 U.S.C. § 230(c)(1); he has failed to show that he has

properly alleged defamation; and he has failed to show that he has properly alleged IIED.

A. The Plaintiff Has Failed to Demonstrate That Mr. Hoft, Mr. Wilburn, Ms. Hickford
and Words-N-Ideas, LLC Are Not Immune, in Whole or in Part, under Section 230
of the Communications Decency Act.

In the MTD, Defendants Hoft and Wilburn showed that much of the content of their

allegedly defamatory pieces were simply long-form quotations of someone else’s work and argued

that Mr. Hoft, Mr. Wilburn, Ms. Hickford and Words-N-Ideas, LLC (“WNI”) were immune under

§ 230(c)(1). They showed that § 230(c)(1) states that “No provider or user of an interactive

computer service shall be treated as the publisher or speaker of any information provided by

another information content provider.” Further, they demonstrated that each of them was at least

“user[s] of an interactive computer service” within the meaning of § 230(f)(3). Accordingly, to the

extent that the FAC claimed that they were liable because they quoted others, § 230(c)(1) shielded

them from liability because, as far as the law of defamation or IIED was concerned, they were not

the “publisher” of any statement that originated from someone else.

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The Plaintiff’s response is tepid at best. First, the Plaintiff complains that “Hoft and

Wilburn are nothing like Consumeraffairs.com, AOL, or Yelp,” Opp. to MTD 49, but nothing in

§ 230(c)(1) requires them to be; they only have to be a “provider or user of an interactive computer

service” (emphasis added) and obviously, they are “users” on the face of the FAC. Second the

Plaintiff makes much of the fact that the term “information content provider” is defined as “any

person or entity that is responsible, in whole or in part, for the creation or development of

information provided through the Internet or any other interactive computer service.” However,

that language was clearly designed to cover the possibility of collaborative effort and possibly

even doctrines such as respondeat superior. However, it does not negate § 230(c)(1)’s simple

instruction that “No... user of an interactive computer service shall be treated as the publisher or

speaker of any information provided by another information content provider.” In short, you are

responsible for what you write on the Internet and not for what anyone else writes.

Finally, the Plaintiff misses the point when the MTD pointed out that there was only a

conclusory allegation that Mr. Wilburn was an employee of Ms. Hickford or WNI. Even if one

assumes that Ms. Hickford was the “managing member” of WNI, Opp. to. MTD 50, or that she

“owned the rights to the Allen B. West website,” id., at the time Mr. Wilburn’s piece was published,

none of that adds up to a specific allegation of an employment relationship between Mr. Wilburn

and either Ms. Hickford or WNI. Not every person who publishes a piece on website is an

employee of the person or company that owns the website. For instance, the instant Plaintiff

published an Op-ed on THE WASHINGTON POST’S website,2 yet most sensible people would guess

that the Plaintiff was not employed by the Washington Post Company. As such, the bare allegation

2
Brennan Gilmore, Alex Jones is a Menace to Society. I’m suing him, THE WASHINGTON POST,
March 14, 2018 https://www.washingtonpost.com/news/posteverything/wp/2018/03/14/alex-
jones-is-a-menace-to-society-im-suing-him/?noredirect=on (last visited July 4, 2018).
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that Mr. Wilburn was employed by Ms. Hickford or WNI is simply a conclusory allegation that

must be disregarded under Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The same can be said for

the Plaintiff’s reliance on the allegation that “Hickford and/or Words-N-Ideas participated in...

Wilburn’s conduct.” Opp. to MTD 50. Such a statement is simply a “naked assertion[] devoid of

further factual enhancement,” Iqbal, 556 U.S. at 678 (internal quotation marks omitted), and not

entitled to the presumption of truth.

Therefore, to the extent that liability depends on Mr. Hoft or Wilburn’s quotation of other

people’s words, § 230(c)(1) immunizes them from such liability, and the Plaintiff has failed to

properly allege that Ms. Hickford or WNI are responsible for Mr. Wilburn’s words.

B. The Plaintiff Has Failed to Show That He Has Stated a Claim for Defamation.

To the extent that the Undersigned Defendants are not immunized by § 230(c)(1), the

Plaintiff has serially failed to properly plead defamation. Specifically, he has failed to show he

properly alleged that the Undersigned Defendants made a false statement of fact of and concerning

the Plaintiff; he has failed to show constitutional malice or negligence; and he has failed to show

damages. For all of these reasons, the claims for defamation should be dismissed.

1. The Plaintiff Has Failed to Show That He Properly Alleged That the Undersigned
Defendants Have Made Any Actionable, False Statements (Or Implications) of Fact
with Respect to the Plaintiff.

Remarkably, the Opp. to MTD leaves out a great deal when addressing the MTD’s

arguments that the FAC failed to properly allege that they made any actionable, false statements

(or implications) of fact.

First, the Plaintiff omits important portions of caselaw he cites. Opp. to MTD 24 quotes

Carwile v. Richmond Newspapers, 196 Va. 1, 8 (1954) as saying:

In determining whether the words and statements complained of in the instant case
are reasonably capable of the meaning ascribed to them by innuendo, every fair

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inference that may be drawn from the pleadings must be resolved in the plaintiff’s
favor.

However, the Plaintiff leaves out the limitations found in the very next lines:

However, the meaning of the alleged defamatory language can not, by innuendo,
be extended beyond its ordinary and common acceptation. The province of the
innuendo is to show how the words used are defamatory, and how they relate to the
plaintiff, but it can not introduce new matter, nor extend the meaning of the words
used, or make that certain which is in fact uncertain.

Id. Thus, the Plaintiff’s own precedent tells this Court that a plaintiff cannot do what the Plaintiff

has repeatedly attempted to do: To claim a great defamatory meaning found solely in the alleged

implications behind the Defendants’ words.

With respect to Mr. Creighton, the MTD 41-50 argued that his statements were expressions

of opinion that cannot, as a matter of law be defamatory—an opinion best described as a

“conclusion based on disclosed facts.” This analysis relied on this language provided in Milkovich

v. Lorain Journal Co., 497 U.S. 1, 27 n. 3 (1990):

The Restatement (Second) of Torts § 566, Comment c (1977) ... explains that a
statement that “I think C must be an alcoholic” is potentially libelous because a jury
might find that it implies the speaker knew undisclosed facts to justify the
statement. In contrast, it finds that the following statement could not be found to
imply any defamatory facts:

“A writes to B about his neighbor C: `He moved in six months ago.
He works downtown, and I have seen him during that time only
twice, in his backyard around 5:30 seated in a deck chair with a
portable radio listening to a news broadcast, and with a drink in his
hand. I think he must be an alcoholic.’”

Yet even though clear disclosure of a comment’s factual predicate
precludes a finding that the comment implies other defamatory facts,
this does not signify that a statement, preceded by only a partial
factual predicate or none at all, necessarily implies other facts. The
operative question remains whether reasonable readers would have
actually interpreted the statement as implying defamatory facts.

The Plaintiff ignores much of this doctrine and attempts to argue that Mr. Creighton’s belief that

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coincidental events are not just coincidences is a statement of fact because “the defendant’s words

can[] be described as either true or false.” Opp. to MTD 26. While that is a necessary ingredient

to a statement of fact, it does not follow that statements which can be proven true or false are

actionable statements of fact. For instance, the passage from Milkovich involves the allegation that

a person is an alcoholic. Like the alleged comments by Mr. Creighton, the hypothetical allegation

of alcoholism would be either true or false. Yet, the Supreme Court has held that even when a

conclusion based on disclosed facts is false or wrong, it was still a protected opinion.

The Plaintiff also correctly alludes to the limitation on this doctrine. As stated in

Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180, 184 (4th Cir. 1998) “Milkovich directs that an

opinion may constitute actionable defamation, but only if the opinion can be reasonably interpreted

to declare or imply untrue facts.” This is a correct statement of the law, but the Plaintiff never

explains how Mr. Creighton declared or implied any such untrue facts.

Additionally, the Plaintiff fails to address many of the MTD’s arguments such as

substantial truth, MTD 34 and 45; problems in determining whether a statement is of and

concerning the Plaintiff, id. at 45 and 48-49; the fact that Mr. Creighton does cite his source for

claiming that some Department of State Employees are disgruntled, id. at 46; and the reality that

accusations of disgruntlement are too subjective to be actionable in defamation law, id. at 46-47.

This failure to address those arguments is a silent confession that they are correct.

With respect to Mr. Hoft, the Opp. to MTD wholly fails to address Mr. Hoft’s arguments

in the MTD. First, the MTD 50-51 argued that the allegation that the Plaintiff was a “Deep State

Shill” was an opinion based on disclosed facts. Second, the MTD 51-52 argued that one of the

claims was true by the Plaintiff’s own admission and that what the Plaintiff was really complaining

about was the conclusion Mr. Hoft allegedly drew from that fact—which was a protected opinion.

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Third, the Plaintiff inappropriately claims an unreasonable implication from Mr. Hoft’s accurate

claim that the NEW YORK TIMES’ website removed a reference to the Plaintiff’s status as a State

Department employee and then failed to properly allege that this supposed implication is false.

MTD 54-55. Finally, the MTD notes that the Plaintiff had inappropriately attempted to imply a

meaning into Mr. Hoft’s words in a way that fails the Carwile test that the language be “reasonably

capable” of the meaning ascribed to it and not “extended beyond its ordinary and common

acceptation,” 196 Va. at 8. In this instance, the Plaintiff uses scattered statements to trampoline

into an implication Mr. Hoft’s words do not support: That the Plaintiff orchestrated rioting and

violence in Charlottesville. MTD 53-55

In response, the Plaintiff simply insists that the implications assigned to Mr. Hoft’s words

are correct without addressing the Carwile test, or explaining how those fanciful implications can

be extrapolated from Mr. Hoft’s words. Additionally, the Plaintiff alludes to Biospherics’

statement that “an opinion may constitute actionable defamation... if the opinion can be reasonably

interpreted to declare or imply untrue facts,” 151 F.3d at 184, but never shows how Mr. Hoft’s

words declare or imply untrue facts. Otherwise, the Plaintiff fails to address any of Mr. Hoft’s

arguments, silently conceding them.

With respect to Mr. Stranahan, the Plaintiff incredibly attempts to add new allegations not

found in the FAC. Opp. to MTD 28 states that “Stranahan... states that the Charlottesville attack

was an ‘agitation situation’ similar to what he alleged to be a U.S.-funded coup in Ukraine.”

However, that passage is not supported by the FAC but rather by a citation to an outside website.

This additional allegation should be disregarded.

Meanwhile, the Plaintiff has ignored (again) much of what the MTD argued. First, the

MTD notes that the implications drawn from Mr. Stranahan’s words—and often even his facial

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expressions, or unrelated images on the screen—are flights of fancy utterly untethered from the

“ordinary and common acceptation” of such words. Carwile, 196 Va. at 8, MTD 56-58. Further,

the MTD notes that the claim that an unidentified “they” are “trying to get a coup,” and other

quoted passages were not shown to be of and concerning the Plaintiff. Id. at 60. Once again,

ignoring arguments in the MTD is a silent concession.

The Plaintiff only disputes one part of the argument respecting Mr. Stranahan. The MTD

notes that Mr. Stranahan did not accuse the Plaintiff of a crime: He merely called for an

investigation. Id. at 59-60. The Plaintiff counters by citing Hatfill v. New York Times Co., 416 F.3d

320, 333-334 (4th Cir. 2005) to argue that “a defendant cannot ‘escape liability simply by pairing

a charge of wrongdoing with a statement that the subject must, of course, be presumed innocent.’”

Opp. to MTD 30. That is true, and inapplicable here, because there was no charge of wrongdoing.

Hatfill—which was decided on a looser standard for dismissal than that announced in Iqbal

approximately four years later—involved a series of columns that the court found to clearly imply

that Mr. Hatfill committed the infamous post-9-11 anthrax attacks. The defendants in Hatfill could

not take advantage of Milkovich’s opinion-based-on-disclosed-facts doctrine because his analysis

included anonymous sources—thus, undisclosed facts. Within that context of a clear accusation

that Mr. Hatfill sent the anthrax letters, the court found that the statement that Mr. Hatfill should

be presumed innocent did not dilute that accusation.

By comparison, all Mr. Stranahan did was recite some undeniably true facts and, based on

those disclosed facts, state his conclusion that there should be an investigation of the Plaintiff. That

expression of a protected opinion that, at most, Mr. Stranahan is suspicious enough to call for an

investigation simply is not the same as the direct, unprotected accusation of wrongdoing made in

Hatfill, and, therefore, Hatfill does not fit the factual pattern before this Court. Thus, the Plaintiff’s

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attempt to bootstrap a call for an investigation into an accusation of wrongdoing fails.

Finally, with respect to Mr. Wilburn (and by extension, Ms. Hickford and WNI), the

Plaintiff admits that Mr. Wilburn is quoting another’s words. 3 However, the Plaintiff bizarrely

claims that unequivocal statements by Mr. Wilburn that he does not know if the information he is

quoting is correct amounts to a clear implication that they are correct. Such a wild interpretation

contrary to the text does not deserve to be taken seriously.

Therefore, the Plaintiff has failed to show that he has properly pled that the Undersigned

Defendants made any actionable, false statements of and concerning the Plaintiff, and for that

reason alone, this Court should dismiss all claims for defamation.

2. The Plaintiff Has Failed to Show He Properly Alleged Malice.

A second fatal error by the Plaintiff in alleging defamation is that he failed to allege the

proper state of mind. The allegations in the FAC show that he is a limited-purpose public figure.

Therefore, the Plaintiff must meet the constitutional malice standard articulated in New York Times

Co. v. Sullivan, 376 U.S. 254, 280 (1964), and he has failed to do so.

(i) The Plaintiff Has Failed to Demonstrate That He Is Not a Limited-Purpose
Public Figure.

The MTD 61-64 argued that the Plaintiff was a limited-purpose public figure and the

Plaintiff has attempted to counter this argument by claiming: 1) that there was no controversy and

2) that the Plaintiff only spoke as a witness. Both arguments are insufficient.

First, the Plaintiff claims that there was no public controversy prior to his rise to

prominence. However, there plainly was, as alleged in the FAC. The city of Charlottesville was

facing protests and counter-protests over the renaming of its park and the proposed removal of

3
Oddly, the Plaintiff claims that Mr. Wilburn was quoting co-Defendant Jones, instead of the
website YOURNEWSWIRE mentioned in the article. Opp. to MTD 45.
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Lee’s statute. FAC ¶¶ 25-28. Indeed, this Court had to issue an injunction to allow some of the

protests to occur. Kessler v. City of Charlottesville, No. 3:17CV00056 (W. D. Va. Aug. 11, 2017).

Even the subject of the use of automobiles as weapons was a matter of dispute according to FAC

¶¶ 146-47. So, whether one sees the potential dispute as a “micro” matter of the use of cars as

weapons, or as a “macro” dispute over honoring Confederate figures, there was plainly a

controversy before the Plaintiff spoke out.

Second, the Plaintiff has claimed that he only spoke to the press as a “witness to history”

who did not try to speak to the more controversial issues or to influence events. Opp. to MTD 41.

However, that is not so. In FAC ¶ 31, the Plaintiff states that

[The Plaintiff] was conflicted about sharing the recording of the attack publicly. He
did not want the attention that sharing the video on social media might bring, and
he was uncomfortable about sharing a recording of what he assumed at the time
was a video capturing multiple deaths. He felt it necessary to share the video on his
Twitter account after hearing from family and friends that media outlets were
suggesting the incident was something other than a deliberate attack. [The Plaintiff]
realized his recording unequivocally showed that the attack was a deliberate attempt
to injure and kill peaceful counter-protesters—not an accident or act of self-
defense.

It is well-known that one method of discrediting a point of view is describe its proponents as

violent or even as terrorists. Further, in FAC ¶ 32, the Plaintiff provides a screenshot of the tweet

in which he shared the video. In it, he described the protesters who supported the decision to

remove the statute and rename the park as “anti-racist protesters” (as if only a racist could support

leaving the statue and park alone) and characterizing the attack as “terrorism.” The Plaintiff did

not simply report on what he saw—indeed, there was little need for him to say anything given how

well the video speaks for itself. Instead, according to the FAC, he used the spotlight as an

opportunity to shape how people evaluated the events in Charlottesville.

Because the Plaintiff has failed to rebut the arguments made in the MTD, this Court should

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find that the Plaintiff is a limited-purpose public figure.

(ii) The Plaintiff’s Allegations of Malice Are Conclusory and Implausible.

Given that the Plaintiff is at least a limited-purpose public figure, he must allege malice.

The MTD showed how the Plaintiff serially failed to make plausible, non-conclusory allegations

of such malice.

With respect to Messrs. Stranahan, Hoft and Creighton, the Plaintiff frequently alleged the

conclusion that they did not investigate before making their statements, without supporting

allegations. In other cases, the Plaintiff made semi-specific allegations that serially failed the

plausibility standard which requires the Plaintiff to plead “enough fact[s] to raise a reasonable

expectation that discovery will reveal evidence” supporting the allegation. Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007). The Plaintiff repeatedly makes factual allegations related to

Messrs. Stranahan, Hoft and Creighton in which a reasonable observer is forced to wonder how

the Plaintiff could possibly pretend to know what he is claiming.

Thus, the MTD showed the following: 1) that the Plaintiff’s conclusory allegations that

Messrs. Hoft, Stranahan and Creighton failed to investigate must be disregarded, 2) the claims that

they did not reach out to individuals or organizations (other than the Plaintiff) for confirmation is

implausible because the Plaintiff does not establish how he could possibly know what they did; 3)

the claim that Messrs. Hoft, Stranahan and Creighton did not have the facts independently checked

is implausible because it similarly lacks an explanation for how the Plaintiff could know one way

or the other; 4) in Mr. Hoft’s case, the claim that Mr. Hoft’s source is not credible is a conclusory

allegation; and 5) the claim that Messrs. Hoft and Stranahan did not have any sources they did not

name any is illogical: The absence of evidence is not evidence of absence. Further, the claim that

Messrs. Stranahan, Hoft and Creighton did not update or retract their stories lacks a critical

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allegation: That any event occurred that would justify a correction.

Furthermore, the claim that Messrs. Stranahan, Hoft and Creighton had some kind of bias

was always hopelessly circular and illogical. In each case, the Plaintiff alleges that they had a bias

against some group—people who participate in psy-ops or member of the Deep State 4—but the

Plaintiff does not explain how or why these Defendants determined that the Plaintiff belonged in

that group. Imagine a plaintiff in a defamation case alleging that “the defendant falsely called the

plaintiff a murderer, because he has a bias against murderers.” The instant Plaintiff’s argument

makes no more sense than that. The Plaintiff needs to show that these Defendants had a bias against

the Plaintiff that led them to (incorrectly) place him in those groups, not to show that they disliked

the groups once they allegedly decided that the Plaintiff was in that group. Similarly, the claims

that these Defendants had a pre-conceived narrative are hopelessly conclusory and, at best, only

show that these Defendants had engaged in prior reporting on related subjects.

Finally, the Plaintiff often alleged that these Defendants had the wrong mode of thought.

For instance, Mr. Creighton is more likely to believe that coinciding events are not just

coincidences, and the Plaintiff has falsely stated that the plain and natural meaning of Messrs.

Stranahan’s and Hoft’s statements (or sometimes, facial expressions) included such an allegation.

However, apart from the fact that these would be opinions that any American is entitled to hold as

a matter of law, it is not evidence that Messrs. Stranahan, Hoft, and Creighton subjectively

entertained actual doubts as the Plaintiff ludicrously claims.

With respect to Mr. Wilburn, the only fact that he stated (that a YOURNEWSWIRE story

made certain allegations against the Plaintiff) was simply true. Further, the MTD showed that Mr.

4
Or in Mr. Stranahan’s case, the plaintiff failed to complete the argument. He alleged that Mr.
Stranahan had a bias against members of different groups, without showing Mr. Stranahan believed
that the Plaintiff belonged in any of those groups.
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Wilburn took a step that CNN or THE WASHINGTON POST never seem to take: He made it clear to

his readers that he had not independently verified the story. Because he had done so, “the reader

is free to draw his or her own conclusions based upon those facts.” Moldea v. New York Times Co.,

15 F.3d 1137 (D.C. Cir. 1994) rev’d on other grounds on reh’g, 22 F.3d 310 (D.C. Cir. 1994).

That is the very opposite of malice.

With respect to all of the Undersigned Defendants, the Plaintiff challenges almost none of

these arguments. The Plaintiff claims that he did after all allege malice, without addressing the

often conclusory and implausible nature of those allegations. The Plaintiff claims that he showed

evidence of bias without addressing the MTD’s point that his argument is circular.

Finally, the Plaintiff tries to address the arguments in the MTD by claiming that some

unspecified allegations are “so inherently improbable that only a reckless man would have put

them into circulation.” Opp. to MTD 45. There are two problems with this argument. First, it is

not enough by itself to meet the standard for malice. For instance, Revell v. Hoffman, 309 F.3d

1228, 1233 (10th Cir. 2002) stated that “Even if we were to accept that Hoffman’s statements were

‘inherently improbable,’ this would merely lessen—rather than meet—Revell’s burden of offering

some extrinsic evidence of Hoffman’s actual malice.”

Furthermore, the standard is a subjective one. As stated in Lohrenz v. Donnelly:

the plaintiff must show, by clear and convincing evidence, that when the defendants
published the alleged defamations they were subjectively aware that it was highly
probable that the story was... so inherently improbable that only a reckless person
would have put [it] in circulation.

350 F.3d 1272, 1283 (D.C. Cir. 2003). This is also good policy. An objective measure of

plausibility risks creating an orthodoxy where courts presume claims to be improbable just because

a court erroneously believes it is unlikely. For instance, on September 10, 2001, a court might have

ruled that it was inherently improbable that terrorists would fly planes into buildings, destroying

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the buildings and killing themselves and thousands of Americans. In 1936, it might have seemed

inherently implausible to some to believe that the Japanese army would invade a city and rape

between 20,000 and 80,000 women and girls, before the “Rape of Nanjing” (Nanking) occurred.

Finally, the Holocaust was an act of evil on such a large scale it shocked the senses of any rational

person; up until the moment the camps were liberated, many Americans would have considered

allegations of such large-scale atrocities inherently improbable. What is improbable is hopelessly

subjective, justifying a subjective standard, which the Plaintiff fails to meet.

Additionally, the Plaintiff oddly argues the following:

On top of all that, this case comes before the Court on a motion to dismiss, so the
Court must “assum[e] the factual allegations are true” and permit the case to
proceed if “the plaintiff has stated a ground for relief that is plausible,” Ashcroft,
556 U.S. at 696. If Defendants wish to present evidence to the Court that they did
in fact adequately research their articles and conform to journalistic standards, that
they harbored no ill will toward Gilmore, that they did not conceive a storyline and
then create false narratives to fit the storyline, or that their articles and videos are
anything other than the gross fabrications that they appear to be on their face,
Defendants can do so at subsequent stages of the litigation.

There are two strange elements in this passage. First, the citation from Ashcroft v. Iqbal is from

Justice Souter’s dissent. What the majority actually says is that conclusory allegations must be

disregarded, id. at 681—so it is not the case that all allegations must be regarded automatically as

true. The second bizarre element to this passage, is that the Plaintiff seems to think that somehow

it is the Defendants’ job to prove they lack malice, when at the motion to dismiss stage, it is the

Plaintiff’s job to properly allege that the Undersigned Defendants acted with malice. 5

Meanwhile, the Plaintiff ignores Mr. Wilburn’s act of good faith in warning readers that

his source might be inaccurate, and cites a Second Circuit case for the proposition that

it is well established that “[r]epetition of another’s words does not release one of

5
And later in the case, the Plaintiff bears the burden of proving malice by clear and convincing
evidence. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974).
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responsibility if the repeater knows that the words are false or inherently
improbable, or there are obvious reasons to doubt the veracity of the person quoted
or the accuracy of his reports,” Goldwater v. Ginzburg, 414 F.2d 324, 337 (2d Cir.
1969).

However, the facts of that case are inapposite. In Goldwater, a reporter claimed that the fact he

was simply repeating the words of his anonymous sources (while presenting them as truthful)

insulated him from a finding of malice. Here, Mr. Wilburn was reporting to his readers the fact

YOURNEWSWIRE had filed this report, while cautioning his readers that he could not verify their

claims. Much like the case of the famous disclaimer in Hustler Magazine, Inc. v. Falwell, 485 U.S.

46, 48(1988) it is more than a little ridiculous to pretend that Mr. Wilburn’s warnings to his readers

did not dispel any claim he made a malicious (or even false) statement.

The Plaintiff argues that ruling in Mr. Wilburn’s favor would create (gasp!) a loophole

where people might be allowed to freely discuss the contents of other people’s articles without

personally verifying the reporting involved (while warning their readers that they have not verified

them). In such a horrible world, ordinary plebs would make up their mind about the reliability of

the information they receive. While painting this nightmare dystopia, the Plaintiff ignores the

absurdity of the rule that he would set down, where one cannot repeat an allegation unless one

personally verifies it. Thus, if the President of the United States calls the President of China “a

retard,” the Plaintiff would hold that no paper can report the fact that the U.S. President said this

without personally verifying the Chinese President’s IQ. Indeed, a newspaper reporting on this

very case cannot describe the allegations made by the Defendants, even while noting that they are

unverified, without defaming the Plaintiff, according to the Plaintiff’s logic. The law of defamation

does not allow for such an absurd and repressive limitation on freedom of expression.

In summary, the Plaintiff is a limited-purpose public figure, and he has serially failed to

show that actual malice is present. Indeed, he has largely failed to challenge the MTD on this point.

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For this reason, this Court should dismiss this case.

3. The Plaintiff Has Failed to Show That He Properly Alleged Negligence.

Even if this Court could not find at this time that the Plaintiff is a limited-purpose public

figure, the Plaintiff was still required to allege negligence, and he failed to do so. With respect to

Messrs. Hoft, Stranahan, and Creighton, the Plaintiff only properly alleges that they did not contact

him and fails to explain how this would have made any difference in their reporting. With respect

to Mr. Wilburn, he only reported what others reported and warned his readers that he did not

independently verify their claims. Accordingly, the Plaintiff has failed to show negligence on the

part of any of the Undersigned Defendants.

4. The Plaintiff Has Failed to Show That He Properly Alleged Damages.

Meanwhile, when we turn to the issue of damages arising from alleged defamation, there

is virtually no attempt to counter the MTD’s arguments. The MTD 78-81 pointed out that the

Plaintiff had failed to properly allege defamation per se, giving rise to a presumption of damages,

and failed to properly allege special damages. In response, the Plaintiff seemed to have forgotten

to address the issue at all, seemingly accidently addressing the issue of defamation per se, Opp. to

MTD 36-37, while ignoring the issue of special damages altogether. To the extent that the Plaintiff

addresses defamation per se, he makes no attempt to actually counter any of the arguments in the

MTD; therefore, this Reply will fall back on its prior arguments.

C. The Plaintiff Has Failed to Show That He Properly Alleged Intentional Infliction of
Emotional Distress.

The parties agree that the elements of IIED are “that 1) the wrongdoer’s conduct was

intentional or reckless; 2) the conduct was outrageous or intolerable; 3) there was a causal

connection between the wrongdoer’s conduct and the resulting emotional distress; and 4) the

resulting emotional distress was severe.” Tharpe v. Lawidjaja, 8 F. Supp.3d 743, 782 (W.D. Va.

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2014). The MTD showed that 1) the Plaintiff must meet the constitutional malice standard and did

not; 2) the Plaintiff did not show causation of the alleged emotional distress; and 3) the Plaintiff

failed to show extreme and outrageous behavior.

With respect to the constitutional malice standard, the dispute is the same as with

defamation, so this Reply will not rehash those prior arguments here. Supra 16-21.

With respect to causation, the Plaintiff has no response. The MTD noted that the FAC

repeatedly claimed that the Undersigned Defendants were liable because they allegedly “incited”

illegal and immoral conduct, but the Plaintiff’s allegations never meet the constitutional test for

incitement in Brandenburg, 395 U.S. at 447. The Plaintiff had no response to this argument. As

noted in the MTD 13-22, every allegation that the Plaintiff experienced emotional distress is

entwined with an improper allegation of incitement. Without a valid allegation of incitement, there

is no allegation that the Undersigned Defendants’ conduct caused severe emotional distress.

With respect to whether the Undersigned Defendants’ conduct was extreme or outrageous,

the Plaintiff attempts to argue that the conduct described is extreme and outrageous by including

alleged incitement which, as noted in the previous paragraph, was not properly pled.

The Plaintiff also relies on Hatfill, for the proposition that defamation can satisfy the

standards for IIED. There are several difficulties with this analysis.

First, it is uncertain that Hatfill is good law on this point. A year after Hatfill, the Virginia

Supreme Court held in Harris v. Kreutzer, 271 Va. 188 (2006) that a plaintiff failed to allege the

outrageousness element even though the defendant allegedly committed verbal abuse and

defamation. Since then, no court interpreting Virginia law has found that defamatory comments

were sufficient to meet the outrageousness requirement. 6 Even in Coles v. Carilion Clinic, 894 F.

6
See, e.g. Adkins v. Whole Foods Mkt. Grp., Inc., No. 1:16-cv-00031 (E.D. Va. April 5, 2016)
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Supp. 2d 783 (W.D. Va. 2012), the alleged abuse included defamatory statements that the plaintiff

was a drug dealer, yet this Court found that the conduct was not sufficiently outrageous.

If Hatfill is still good law, it can only be reconciled with later cases if one concludes that

only the worst acts of defamation can satisfy the outrageousness element. Mr. Hatfill was accused

of committing the infamous anthrax attacks, that was part of a one-two-three punch of terror in the

Capital area. Within a short period of time, Washington, D.C. suffered the shock of September 11,

the anthrax attacks and the beltway sniper attacks. By accusing Mr. Hatfill of participating in the

anthrax attacks, those defendants were accusing him of having murdered five people and having

terrorized millions of others—all in the largest newspaper in the country, THE NEW YORK TIMES.

By comparison, none of the Undersigned Defendants accused the Plaintiff of murdering

even one person, let alone participating in a campaign of terror. Messrs. Wilburn, Hoft and

Stranahan made no accusations even in that “ballpark”—unless we credit the Plaintiff’s creative

interpretation of their words and facial expressions. Mr. Creighton comes closest to the proverbial

“ballpark” by concluding based on disclosed facts that the Plaintiff’s presence at that particular

place and that particular time was not a coincidence—but that is far from an allegation of

complicity in murder,7 and, in any case, it is protected opinion.8

(false allegation of theft); Chu v. Ceglio, No. 1:17-cv-01256 (E.D. Va. March 26, 2018) (false
allegation of theft); Jackson v. Michalski, No. 3:10-cv-00052 (W.D. Va. Aug. 22, 2011) (allegation
of drunkenness and mental illness).
7
For instance, one could imagine a scenario where a person involved in a hypothetical conspiracy
to carry out a car attack tells the Plaintiff to attend the rally on a certain date and “film everything,”
without giving that the Plaintiff any idea what will happen. In that hypothetical, the Plaintiff would
not be guilty of any crime—he would simply be innocently manipulated by a criminal.
8
See Bryant v. Washington Mut. Bank, 524 F. Supp. 2d 753, 761 (W.D. Va., 2007) (holding that
where defendants were acting “within their rights,” that action cannot be considered outrageous
conduct) and Harris v. Wells Fargo Bank N.A., No. 3:16-cv-174-JAG (E.D. Va. March 3, 2017)
(“Wells Fargo acted within its legal rights, which is not outrageous and intolerable conduct”).
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Finally, in order to try to distinguish Coles, the Plaintiff shamefully tried to minimize the

terror and cruelty of the racial harassment Mr. Coles allegedly faced so the Plaintiff could pretend

that the alleged defamation in this case is somehow worse than the conduct alleged in that case.

This Court should reject such an insensitive analysis.

For all of these reasons, the Plaintiff has failed to properly allege IIED, and, therefore, this

Court should dismiss all claims for IIED against the Undersigned Defendants.

IV.
THE PLAINTIFF HAS FAILED TO SHOW THAT THE UNDERSIGNED
DEFENDANTS DO NOT DESERVE IMMUNITY, ATTORNEY’S FEES AND COSTS
UNDER VA. CODE § 8.01-223.2

With respect to the immunity offered by VA. CODE § 8.01-223.2, both sides agree that it is

not available if constitutional malice is shown. This Reply has already focused on that question

and will fall back on those previous arguments. Supra 16-21.

With respect to attorneys’ fees and costs, the statute on its face allows for discretion and

there is no caselaw providing guidance. The Plaintiff claims he has made arguments in good faith,

but that is belied by how often the Plaintiff has made no arguments on key points. As noted in the

MTD, further arguments about the Plaintiff’s bad faith will be offered in an anticipated Rule 11

motion. Even the suggestion that the Plaintiff has really suffered at the hand of third parties is

undercut by the simple question: Why isn’t he seeking a remedy against them? The purpose of VA.

CODE § 8.01-223.2 is plainly to discourage frivolous lawsuits, and this suit certainly qualifies.

Accordingly, this Court should not only grant dismissal but also use its discretion to grant

attorney fees and costs to be determined at a later date.

CONCLUSION

For the reasons stated above, the Plaintiff has failed to counter the arguments presented by

the MTD. Specifically, he has failed to properly allege the jurisdictional minimum and failed to

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offer any evidence that actual diversity exists. He has failed to show any evidence that personal

jurisdiction is present for Mr. Hoft, Mr. Creighton, Mr. Wilburn, Ms. Hickford and WNI. He has

failed to show that the immunity offered by 47 U.S.C. § 230(c)(1) does not apply. He has failed to

properly plead defamation. He has failed to properly plead IIED. He has failed to show that V A.

CODE § 8.01-223.2’s immunity should not apply or that the Undersigned Defendants should not

recover attorney’s fees. For all of these reasons, this case should be dismissed.

Tuesday, July 10, 2018 Respectfully submitted,

s/ Aaron J. Walker
Aaron J. Walker, Esq.,
Attorney for Defendants Hoft, Stranahan, Creighton,
Wilburn, Hickford and WNI
Va. Bar# 48882
7537 Remington Road
Manassas, Virginia 20109
(703) 216-0455
AaronJW72@gmail.com

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United
States District Court for the Western District of Virginia on July 10, 2018. All participants in the
case will be served automatically.

s/ Aaron J. Walker

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EXHIBIT A

Case 3:18-cv-00017-NKM-JCH Document 91-1 Filed 07/10/18 Page 1 of 3 Pageid#: 1517
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

BRENNAN M. GILMORE, CASE NO.: 3:18-cv-00017-NCM-JCH

Plaintiff

v.

ALEXANDER JONES, et al., DECLARATION OF LEE
STRANAHAN
Defendants

1. My name is Lee Stranahan, and I make these statements based upon my own

personal knowledge unless otherwise indicated. I am a resident of Virginia. I am over 18 years of

age, and if called to do so, I am competent to testify that the contents of this declaration are accurate

and true.

2. The Plaintiff’s Memorandum of Points and Authorities in Opposition to

Defendants’ Motions to Dismiss (Dkt. 70) (“Opp. to MTD”) makes a number of claims about me

that are incorrect. Therefore, I am supplementing my prior declarations.

3. First, the Opp. to MTD 8 alleges that I returned a renewal of registration certificate

indicating that I was still registered to vote in Texas. I do not know if this record attached as Exhibit

A to the Opp. to MTD is authentic, and I do not know whether it signifies what it claims. What I

do know is that in November and December of 2017, I was not living at 13824 Methuen Green

St., Dallas, Texas, 75240, or at any other address in Texas. To the best of my knowledge, no one

related to me by blood or marriage has lived in Texas since November 2016. If any person returned

a form indicating I wished to remain on Texas’ voter rolls, it was done by someone other than me

Case 3:18-cv-00017-NKM-JCH Document 91-1 Filed 07/10/18 Page 2 of 3 Pageid#: 1518
and without my knowledge and/or consent. I will report this information to appropriate authorities

as prima facie evidence of voter fraud.

4. Second, the Plaintiff alleges that I do not have a Virginia-issued photo ID. This is

true, because when I need to use a photo ID, I use my passport card. Therefore, when I moved to

Virginia, I had no need to get a Virginia ID.

5. Third, the Plaintiff alleges that my Facebook page indicates that I live in Dallas,

Texas. I admit I have not updated that information in quite some time. For instance, my profile

also states that I presently am a lead investigatory journalist for Breitbart, referring to

BREITBART.COM. The Amended Complaint, in paragraph 17, correctly states however that I do not

work for them today. In fact, I left my employment with them in March of 2017.

6. Finally, attached as Exhibit A-1 is a true and correct copy of my 2017 W-2 form,

except that most of my social security number has been redacted. I am willing to provide an

unredacted version, preferably under seal, if this Court needs to see it. Moreover, the information

provided is accurate, including the fact that I paid withholding to Virginia.

I declare under penalty of perjury under the laws of the United States of America that the

forgoing is true and correct to the best of my knowledge.

Executed on July 10, 2017 in Arlington , Virginia .
(city) (state/territory)

s/ Lee Stranahan
(signature)

2

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EXHIBIT A-1

[W2 redacted]

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EXHIBIT B

Case 3:18-cv-00017-NKM-JCH Document 91-3 Filed 07/10/18 Page 1 of 3 Pageid#: 1522
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

BRENNAN M. GILMORE, CASE NO.: 3:18-cv-00017-NCM-JCH

Plaintiff

v.

ALEXANDER JONES, et al., DECLARATION OF AARON J.
WALKER, ESQ.
Defendants

1. My name is Aaron J. Walker, Esq, and I make these statements based upon my own

personal knowledge unless otherwise indicated. I am a resident of Virginia, a graduate of Yale

Law School, an attorney in good standing in Virginia and Washington, D.C., and the attorney

representing Mr. Stranahan (and five others) in the instant case. I am over 18 years of age, and if

called to do so, I am competent to testify that the contents of this declaration are accurate and true.

2. I have no personal knowledge about where he pays taxes. I do not know why I

accidentally stated that Mr. Stranahan was a Texan for tax purposes when I believed that Mr.

Stranahan had declared himself a Virginian for tax purposes, except that I note that the email was

time stamped at around 11 p.m., and I am more likely to make a careless error when it is late. In

any case, Mr. Stranahan has told me that he pays Virginia withholding taxes, he has shown me a

document supporting this which I have presented to this Court and I personally believe him to be

credible, but I have no personal knowledge on the subject of where he pays taxes as that term is

understood in the law.

Case 3:18-cv-00017-NKM-JCH Document 91-3 Filed 07/10/18 Page 2 of 3 Pageid#: 1523
I declare under penalty of perjury under the laws of the United States of America that the

forgoing is true and correct to the best of my knowledge.

Executed on July 10, 2018 in Manassas , Virginia .
(city) (state/territory)

s/ Aaron J. Walker
(signature)

2

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