IN THE CIRCUIT COURT OF THE 15TH

JUDICIAL CIRCUIT IN AND FOR

PALM BEACH COUNTY, FLORIDA

CIRCUIT CIVIL DIVISION AA

CASE NUMBER: 50-2020-CA-000737

LARRY KLAYMAN,

Plaintiff,

v.

COMMIE GIRL INDUSTRIES, INC., (WONKETTE)

And REBECCA SCHOENKOPF,

Defendants.
___________________________________________

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

THIS CAUSE came for hearing before the Court on March 11, 2021 on Defendants,
Commie Girl Industries d/b/a Wonkette and Rebecca Schoenkopf’s, Motion to Dismiss, Motion
to Strike, and Motion to Transfer Cause of Action to County Court filed February 14, 2020 (DE
#7). Plaintiff, Larry Klayman, filed his Response in Opposition on March 5, 2021 (DE #30) and
Plaintiff’s Post Hearing Supplemental Brief on March 20, 2021 (DE #34). The Court having
reviewed and considered the Motion, the Response, the applicable law, and the arguments of
counsel, the Court hereby rules as follows:

FACTUAL BACKGROUND

Plaintiff filed this action against Defendants attempting to allege causes of action for
defamation per se, defamation, and defamation by implication. Plaintiff alleges he is an attorney,
public interest advocate, author, columnist, former political candidate, syndicated radio talk
show host, and prominent figure in conservative and related non-partisan libertarian movements.
Defendant, Commie Girl Industries is the alleged publisher of “Wonkette” a publication that
provides commentary on items in the news.

The Complaint seeks redress for the following allegedly defamatory statements which are
contained in two separate articles:
 October 24, 2019 Article: “Empaneling fake grand juries is one of [Plaintiff’s]
favorite hobbies, after sexual harassment and filing bullshit lawsuits.”

October 24, 2019 Article: “You may remember [Plaintiff] from some of his
greatest hits, such as suing all the black people, trying to subpoena Bill Clinton’s
penis, and suing Robert Mueller, the DOJ, FBI, NSA, Jeff Bezos, and others on
behalf of none other than Jerome Corsi”

October 24, 2019 Article: “[Plaintiff] IS FUCKING BATSHIT”.

October 24, 2019 Article: “[Plaintiff] is president, chief operating officer,

chairman, and general counsel of Freedom Watch, and ‘organization’ that exists
mostly so [Plaintiff] has an outlet for all of his conspiracy fantasies.”

October 24, 2019 Article: “At the end of the day, [Plaintiff] is a grifter who
screams his bigoted conspiracy theories at his computer to try to make money off
other white supremacists. And posting incoherent rants to YouTube is a big part of
that.”

July 26, 2019 Article: “Nota bene, Wonkette believes that Stataki’s fleeing
Klayman’s car and seeking refuge from his rage and unwanted advances shows that
Klayman’s behavior qualifies as ‘stalking’ per the Department of Justice…”

July 26, 2019 Article: “Could [Plaintiff] help it if it he fell so deeply in love with
her that he couldn’t concentrate on her actual case because he was too busy
declaring his love for months on end, and flipping out at public events if she talked
to other people, and chasing her into a hotel women’s room when she jumped out
of his car and fled into the hotel for safety? They call the women’s room the
‘Klayman Room’ now, he joked, because of all the remorse he did not have for a
solid year of [sexually] harassing his client who was already having a nervous
breakdown about her previous sexual harassment case.”

July 26, 2019 Article: “Well, nobody ever said Superlawyer [Plaintiff] is good at
‘lawyer’.”

July 26, 2019 Article: “But it seems like those would make [Plaintiff] – who is
currently representing such luminaries as Jerome Corsi and Laura Loomer as well
as convening a ‘citizens grand jury’ to indict and arrest Robert Mueller – bad at his
chosen profession.”

Plaintiff alleges these statements are false. Plaintiff further alleges these statements were
published with actual malice because the Defendants made “a calculated decision not to verify
their story…as it suited their communist agenda and their desire to make money”, “purposefully
avoid[ed] interviewing anyone who could contradict their story”, and “failed to request a
comment from Plaintiff.” (Complaint, ¶ 57-59).
 For these statements, Plaintiff’s Complaint alleges three counts against the Defendants
collectively: defamation per se (Count I), defamation (Count II), and defamation by implication
(Count III). Plaintiff also seeks relief in the form of compensatory and actual damages including
consequential and incidental damages greater than $15,000 but in an amount less than $75,000.

Defendants’ Motion raises three arguments clearly directed to the legal sufficiency of the
Complaint: (1) that the Complaint is a shotgun pleading which is noncompliant with Florida Rule
of Civil Procedure 1.110(f), (2) that the Complaint fails to allege actual malice, and (3) that the
Complaint alleges an unclear jurisdictional amount following the January 1, 2020 amendment of
section 34.01, Florida Statutes. In a latter section, the Defendants’ Motion provides
counterarguments as to each alleged defamatory statement, primarily claiming without
explanation that they are “not defamation of a public figure as a matter of law as to the
sufficiency of the facts alleged to state a cause of action.” Defendants also ask the Court to strike
Plaintiff’s request for attorney’s fees, request for injunctive relief, and several allegations alleged
to be redundant, immaterial, impertinent, or scandalous, to wit: paragraphs 3, 35, 36, 37, 51, 52,
53, 54, 55, and 56, Finally, Defendants invoke Florida’s Anti-SLAPP statute, section 768.295.

In his Response in Opposition, Plaintiff raises his own arguments. First, his various
allegations and pleading of actual malice notwithstanding, Plaintiff argues that he is not actually
a public figure. Second, Plaintiff attempts to bolster his allegations of actual malice by pointing
to Defendant’s refusal to retract their articles. Third, Plaintiff goes on to essentially reiterate the
validity of his allegations and causes of action. Fourth, Plaintiff argues that Florida’s Anti-
SLAPP laws does not apply to his suit. Finally, Plaintiff rejects Defendant’s characterization of
his “boastful exaggerations” as not scandalous or immaterial and contests his alleged damages do
invoke the circuit court’s jurisdiction.

LEGAL ANALYSIS

I. Motion to Remand to County Court or Dismiss for Clarification of Damages

Because it implicates this Court’s jurisdiction, the Court will first address Defendants’
argument that the Complaint sets forth insufficient allegations under Section 34.01, Florida
Statutes.
 Effective January 1, 2020, section 34.01, Florida Statutes, was amended to state that
county courts would have original jurisdiction of all actions at law, except those within the
exclusive jurisdiction of the circuit courts, in which the matter in controversy does not exceed,
exclusive of interest, costs, and attorney fees, the sum of $30,000. In his Complaint, Plaintiff
seeks damages in an amount “greater than $15,000 but in an amount less than $75,000.” Plaintiff
is correct that his phrasing does not conclusively establish this Court lacks jurisdiction and the
Court is not persuaded that transfer to the county court is required at this time.

II. Plaintiff is a Public Figure

Plaintiff’s status as a public figure is a question of law to be determined by the Court. See
Saro Corp. v. Waterman Broad. Corp., 595 So.2d 87 (Fla. 2d DCA 1992). The Supreme Court of
the United States in Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974), summarized who
obtains public figure status for the purposes of defamation actions:

“[The public figure] designation may rest on either of two alternative bases. In some
instances an individual may achieve such pervasive fame or notoriety that he
becomes a public figure for all purposes and in all contexts.

More commonly, an individual voluntarily injects himself or is drawn into a

particular public controversy and thereby becomes a public figure for a limited
range of issues. In either case such persons assume special prominence in the
resolution of public questions.”

(emphasis added). The Fourth District Court of Appeal as described these two types of public
figures as “general public figures” and “limited public figures” respectively. See Mile Marker,
Inc. v. Petersen Publ'g, L.L.C., 811 So. 2d 841, 845 (Fla. 4th DCA 2002).

First, the Court finds that Plaintiff is a general public figure. Plaintiff’s own allegations
characterize him as a syndicated radio talk show host and a “prominent figure” in conservative
and libertarian movements. (Complaint, ¶ 3). In addition, other courts evaluating other pro se
defamation claims filed by Plaintiff have determined Plaintiff to be a general public figure.
Klayman v. Judicial Watch, Inc. 802 F. Supp. 2d 137, 150 (D.D.C. 2011) (“Court considers
Klayman a public figure”); Klayman v. Judicial Watch, Inc., 22 F. Supp. 3d 1240, 1251 (S.D.
Fla. 2014) (“Because of Klayman's notoriety and high-profile work in the public realm, the Court
considers Klayman a public figure.”); Klayman v. City Pages, 650 Fed. Appx. 744, 749 (11th
Cir. 2016) (noting that the parties stipulated that Mr. Klayman is a public person).
 Second, the Court rejects Plaintiff’s arguments attempting to re-classify himself as a
limited public figure and then distinguish those criteria. Under Mile Marker, Inc., the Fourth
District clarified a two-step inquiry as to limited public figures.

First, the court must determine whether there is a “public controversy.” In

determining whether a matter is a “public controversy,” the court should ask
whether a reasonable person would have expected persons beyond the immediate
participants in the dispute to feel the impact of its resolution.

Second, the court must then determine whether the plaintiff played a sufficiently
central role in the instant controversy to be considered a public figure for purposes
of that controversy.

Mile Marker, Inc., 811 So. 2d at 846-47. Plaintiff attempts to discard his public profile here by
claiming it is irrelevant to the present alleged statements defaming him based on elements of his
“personal, private life.” However, the October 24, 2019 article addressed a public controversy:
the validity of (a) Plaintiff’s filing of a widely publicized complaint against then former Vice
President Joe Biden for allegedly securing Plaintiff’s ban from YouTube and (b) Plaintiff’s
publicized attempts to empanel “citizens grand juries” indicting former President Obama, Robert
Mueller, and Chief Justice John Roberts. See Friedgood v. Peters Pub. Co., 521 So. 2d 236, 241
(Fla. 4th DCA 1988) (noting that highly publicized criminal prosecutions are public
controversies and that their participants are limited public figures, particularly when those
participants are given access to the media or encourage public interest in themselves.). The July
26, 2019 article also involved a public controversy because it addressed the recent issuance of
legal ethics panel report recommending Plaintiff be suspended from practicing law. Such reports
have ramifications beyond the immediate participants because they enable consumers to make
better informed decisions about their chosen counsel. See Mile Marker, Inc., 811 So. 2d at 446;
Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 280 (3rd Cir.1980) (recognizing consumer
reporting involves inherent matters of particular interest to the public in that it enables citizens to
make better informed purchasing decisions). Finally, it cannot be seriously disputed that Plaintiff
played a central role in these controversies. Even the allegedly defamatory comments supposedly
regarding only Plaintiff’s private life were all made as part of Defendant’s commentary on these
public controversies. “A limited public figure is, in essence, someone who ‘voluntarily place [s]
themselves in a position and act[s] in a manner which invite[s] public scrutiny and comment.’”
Colodny v. Iverson, Yoakum, Papiano & Hatch, 936 F. Supp. 917, 922 (M.D. Fla. 1996) (quoting
Silvester v. American Broadcasting Companies, 839 F.2d 1491, 1494 (11th Cir.1988)). The
Court is hard-pressed to find a way in which that criteria does not apply to a nationally
syndicated radio host and prominent conservative figure.

Accordingly, the Court finds that Plaintiff is a public figure.

III. Plaintiff’s Allegations of Actual Malice are Insufficient as a Matter of Law

As originally explained in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710,
11 L.Ed.2d 686 (1964), a public figure plaintiff must establish “actual malice” on behalf of the
publisher in order to maintain a defamation action. Under the actual malice test a public figure
plaintiff must establish that the disseminator of the information either knew the alleged
defamatory statements were false, or published them with reckless disregard despite awareness
of their probable falsity. Mile Marker, Inc. v. Petersen Publ'g, L.L.C., 811 So. 2d 841, 845 (Fla.
4th DCA 2002). Further, the claimant must prove the existence of actual malice by clear and
convincing evidence. Id.

The allegations presented by Plaintiff on the issue of malice are insufficient as a matter of
law. As Plaintiff should be well aware, “the defendants’ failure to investigate and poor
journalistic standards is insufficient to establish actual malice.” Klayman v. City Pages, 650 Fed.
Appx. 744, 750–51 (11th Cir. 2016). See also Michel v. NYP Holdings, Inc., 816 F.3d 686, 703
(11th Cir. 2016) (explaining that “[a]ctual malice requires more than a departure from reasonable
journalistic standards” and that “a failure to investigate, standing on its own, does not indicate
the presence of actual malice”). The mere refusal to correct a publication also falls short of
alleging actual malice. Klayman, 650 Fed. Appx. at 751 (citing New York Times Co. v. Sullivan,
376 U.S. 254, 286, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). In his Response, Plaintiff also claims
that the frequency with which Defendants have published articles about him constitutes evidence
of actual malice. The Court is not persuaded. Frequency of prior publication has no bearing on
whether the Defendants had actual knowledge of the falsity of the specific statements made in
the articles in question. Plaintiff alleges no other factual basis to support his conclusory
allegations that the Defendants knew their statements were false, or recklessly disregarded the
truth.

Accordingly, Plaintiff fails to state a cause of action as to all three counts in his
Complaint due to his failure to properly allege actual malice.
 IV. The Alleged Defamatory Statements are Pure Opinion or Rhetorical Hyperbole

Statements of fact may be defamatory, while statements of opinion are not. See From v.
Tallahassee Democrat, Inc., 400 So. 2d 52, 56 (Fla. 1st DCA 1981). The determination of
whether a statement is one of fact or of opinion is a question of law determined by the court. Id.

There is also a distinction between pure expression of opinion and mixed expression of
opinion. Id. As explained by the First District:

Pure opinion occurs when the defendant makes a comment or opinion based on
facts which are set forth in the article or which are otherwise known or available to
the reader or listener as a member of the public.

Mixed expression of opinion occurs when an opinion or comment is made which is

based upon facts regarding the plaintiff or his conduct that have not been stated in
the article or assumed to exist by the parties to the communication.

Id. See also Hay v. Indep. Newspapers, Inc., 450 So.2d 293, 295 (Fla. 2d DCA 1984). Pure
expressions of opinion are constitutionally protected while mixed expressions of opinion are not.
See Morse v. Ripken, 707 So.2d 921, 922 (Fla. 4th DCA 1998); Dreggors v. Wausau Ins. Co.,
995 So. 2d 547 (Fla. 5th DCA 2008).

Statements of pure opinion are also sometimes characterized as “rhetorical hyperbole.” In

Fortson v. Colangelo, 434 F. Supp. 2d 1369, 1378 (S.D. Fla. 2006) the Southern District outlined
the nature of “rhetorical hyperbole” in detail:

The Supreme Court has used various phrases to describe “rhetorical hyperbole,”
including “imaginative expression” and “loose, figurative, or hyperbolic language.”
Although rhetorically hyperbolic statements may at first blush appear to be
factual…they cannot reasonably be interpreted as stating actual facts about their
target. Where rhetorical hyperbole is employed, the language itself negates the
impression that the writer was seriously maintaining that the plaintiff committed
the particular act forming the basis of the alleged defamation. The distinction
between fact and pure opinion/rhetorical hyperbole is a critical one; to be
actionable, a defamatory publication must convey to a reasonable reader the
impression that it describes actual facts about the plaintiff or the activities in which
he participated.

Id. at 1378-79 (internal quotations and citations omitted).

It is for the Court to decide, as a matter of law, whether the complained of words are
actionable expressions of fact or non-actionable expressions of pure opinion and/or rhetorical
hyperbole. Id. (citing to Colodny v. Iverson, Yoakum, Papiano & Hatch, 936 F.Supp. 917, 923
(M. D. Fla. 1996)). The court must look to the totality of the statement, the context in which it
was published, and the words used in order to determine whether the statement is pure or mixed
opinion. LRX, Inc. v. Horizon Associates Joint Venture ex rel. Horizon-ANF, Inc., 842 So. 2d
881, 885 (Fla. 4th DCA 2003).

Here, the Court finds that statements made by the Defendants are pure opinion, based on
facts set forth in the article or otherwise known to the public, that were conveyed in a tone and
manner that is clearly rhetorical hyperbole. Defendants’ insinuation that sexual harassment is a
“favorite hobby” of Plaintiff, or that he sued all members of a race and subpoenaed a former
president’s genitals, are obvious exaggerations intended for comedic effect. No reasonable reader
would believe these statements factually true within the context of both the article and Wonkette
as a publication. Defendants’ references to Plaintiff as “Batshit”, a “grifter” and a “bigot”, are the
types of “vigorous epithets” the Supreme Court characterizes as rhetorical hyperbole. Greenbelt
Co-op. Pub. Ass'n v. Bresler, 398 U.S. 6, 14 (1970). See also Raible v. Newsweek, Inc. 341 F.
Supp. 804, 806-07 (W.D. Pa. 1972) (“To call a person a bigot or other appropriate name
descriptive of his political, racial, religious, economic, or sociological philosophies gives no rise
to an action for libel”); Garrard v. Charleston Cnty. School District, 838 S.E.2d 698, 714 (Ct.
App. S.C. 2019) (concluding that whether someone behaved like a “racist douchebag” is a matter
of opinion); Fortson, 434 F. Supp. 2d at 1383 (epithets used to convey author’s contempt for
subject “cannot reasonably be read as an actual assertion of fact, the sine qua non of a libel
claim.”). Finally, Defendant’s statements impugning Plaintiff’s skill as an attorney were opinions
made in reference to facts set forth in the articles: Plaintiff’s lawsuit against Joe Biden, his
publicized empaneling of citizen grand juries, and the ethics hearing committee report. Such
statements are pure opinion. See From, 400 So.2d at 57; Fortson, 434 F. Supp. 2d at 1382
(“Because [author]’s commentary was predicated on facts set forth in the caption and/or
otherwise known or available to the basketball community, it falls squarely within the legal
definition of pure opinion.”).

Accordingly, Defendant’s statements do not present an actionable basis for claims of

defamation because they are protected statements of pure opinion or rhetorical hyperbole.
 Because the Court has concluded Plaintiff’s Complaint must be dismissed for failure to
statute a cause of action and the reasons explained above, the Court finds it does not need to
address the merits of Defendant’s other arguments for dismissal of the Complaint or Defendant’s
arguments that the Complaint is noncompliant with Florida Rule of Civil Procedure 1.110(f), that
some of the relief requested in the Complaint must be stricken, or that certain paragraphs in the
Complaint must be stricken as redundant, immaterial, impertinent, or scandalous.

It is, therefore,

ORDERED that Defendants, Commie Girl Industries d/b/a Wonkette and Rebecca
Schoenkopf’s, Motion to Dismiss, Motion to Strike, and Motion to Transfer Cause of Action to
County Court is GRANTED IN PART as to the Motion to Dismiss. Plaintiff’s Complaint is
dismissed without prejudice. Plaintiff shall have 20 days from the date of this order to file an
Amended Complaint, otherwise this case will be deemed closed by the Clerk of Court without
further court order.

DONE AND ORDERED, in West Palm Beach, Palm Beach County, Florida on May 5,
2021.

COPIES TO:
John M. Phillips, Esquire
Larry Klayman, Esquire